Making the Case for Agencies: Why the Administrative State Should be Defended in a Moment of Distrust Towards the Federal Bureaucracy

By Luke Colomey & Andrew Turnbull

A special thanks to Northeastern University School of Law Professor Rachel Rosenbloom, for her inspired teaching and love of agencies.

Introduction

The hundreds of wide-ranging United States federal agencies and sub-agencies may seem like nothing more than an “alphabet soup” of abbreviations to many, but their importance to the history and future of the country is unquantifiable. Agencies are an admittedly strange beast, as they represent something of a delicate bargain in the American system of government; agencies are part “legislative” (proposing and promulgating “final” regulations), part “executive” (investigating and prosecuting different crimes and infractions), and part “judicial” (adjudicating various disagreements through “Administrative Law Judges”). 

The Current Political & Legal Landscape

In recent years, agencies have been in the headlines as a result of several monumental and (potentially) game-changing administrative law rulings by the United States Supreme Court, including West Virginia v. EPA (2022) (creating the “major questions doctrine” and ensuring that the power to enact wide-reaching change lay in the hands of Congress, rather than agencies), SEC v. Jarkesy (2024) (requiring juries in certain agency prosecutions, thus likely decreasing the number of in-house agency adjudications), and Loper Bright Enterprises v. Raimondo (2024) (overruling the longstanding “Chevron deference” doctrine which required courts to defer to an agency’s own interpretation of the statutes that created it). 

Moreover, following the results of the 2024 Presidential and Congressional elections, an impending second Trump Administration backed by a Republican-controlled House and Senate bodes ill for the federal administrative state that has caught the eye of the conservative machine. Shortly before the latest elections, current Supreme Court Justice Neil Gorsuch published a book titled “Over Ruled: The Human Toll of Too Much Law” in which he in part offers his longstanding “rebukes to the administrative state.” Subsequently, in the months before his inauguration, President Trump has announced his intention to eliminate the Department of Education (whether he has the power to do so is another matter) and Robert F. Kennedy Jr. (Trump’s nominee for Health and Human Services Secretary) went on record as planning to close “entire departments” of the Food & Drug Administration. Additionally , the Trump administration seems poised to challenge the Chair of the Federal Reserve Jerome Powell’s refusal to resign (with President Trump stating he believes that Powell would leave if he “told him to”), and a Texas district court declared that the National Labor Relations Board (an agency that has been around since 1935) is unconstitutional because it similarly does not allow for board members to be removed at the whim of the president. There is surely more to come. 

Defending Agencies

Increasingly, the narrative being pushed about administrative agencies is that they create a kafkaesque nightmare that ensnares the unaware, ordinary person in violations of some vague and unnecessary regulation. However, this narrative ignores all of the integral work that agencies do every day to ensure the laws that protect the American people from scams, pollution, discrimination, monopolies, and more, are understandable, applied, and enforced with consistency for the betterment of all.  This article’s aim is to “make the case” for why agencies should be defended and preserved. With such a large number of agencies, each with expertise and power in a vast spectrum of different areas, the most effective method of doing so is shining a spotlight on a variety of recent noteworthy agency actions (whether they be proposed regulations, final regulations, or guidance documents). What follows is a collection and summarization of such agency actions.

Recent Agency Regulations & Guidance

FDA: Final Rule and Guidance on Direct-to-Consumer Prescription Drug Advertisements

On November 21, 2023, after fifteen (15) years of development, the Food & Drug Administration (“FDA”) issued a final rule requiring clear language for Direct-to-Consumer prescription drug advertisements released on television and radio. On December 26, 2023, the FDA issued a guidance document meant to help small entities navigate this new rule which made clear that advertisements about prescription drugs must be presented in a “clear, conspicuous, and neutral manner.” The final rule is meant to ensure consumers understand the material information by requiring simple language; normal speech speed; dual presentation in audio and text; and visuals and music that do not distract from the information given. The nominee for U.S. Health Secretary, Robert F. Kennedy Jr., purportedly approves of this final rule, based on his stance of eliminating television drug advertisements in their entirety.

DOJ & FTC: Horizontal Merger Guidelines

On December 18, 2023, the Antitrust Division of the Department of Justice and the Federal Trade Commission (“FTC”) released updated “Merger Guidelines” as part of an effort to revitalize the dormant area of antitrust law and crack down on the increasingly anticompetitive horizontal mergers that had been approved in the preceding decades. This document helps both companies to comply with the antitrust laws and provides litigators with a useful tool to help analyze companies’ potential mergers and structure their argument accordingly. 

FEC: Reworked Political Candidates’ Salary

On March 1, 2024, the Federal Election Commission (“FEC”) promulgated a final regulation allowing non-incumbent federal political candidates (as opposed to federal political officeholders) to receive a capped salary from their campaign funds under certain conditions. The clear purpose of this change is to “mak[e] it easier for everyday people to run for office and have a fighting chance to represent their communities in Congress.”

FNS: Update to the WIC Food Package

On April 18, 2024, the Food and Nutrition Service (“FNS”) updated the Women, Infants, and Children (“WIC”) WIC food packages, which are benefits designed to supplement the diets of income-eligible pregnant, breastfeeding, and non-breastfeeding postpartum individuals, infants, and children up to five years of age with foods designed to address their specific nutritional needs. These food packages are supposed to be updated every 10 years in order to reflect new understandings in nutritional science, public health concerns, and cultural eating patterns. After a report was published in 2017 by the National Academies of Science, Engineering, and Medicine (“NASEM”) on the changes required in the WIC packages in 2017, FNS began working to update these food packages. The new changes provide (1) greater flexibility for participants with dietary restrictions (religious or other); (2) expanded availability and more options for fruits, vegetables, grain, and canned fish; and (3) more support for individual breastfeeding goals to help establish and sustain long-term breastfeeding. 

EPA: Four Final Rules to Reduce Pollution From Fossil Fuel-Fired Power Plants

On April 25, 2024, the Environmental Protection Agency (“EPA”) announced four final rules aimed at reducing pollution from fossil fuel power plants: (i) Greenhouse Gas Standards and Guidelines for Fossil Fuel-Fired Power Plants; (ii) Mercury and Air Toxics Standards ("MATS"); (iii) Steam Electric Power Generating Effluent Guidelines; and (iv) Legacy Coal Combustion Residuals Surface Impoundments and CCR Management Units. These rules were written intentionally to avoid the issues the Supreme Court mentioned in West Virginia v. EPA where the court struck down similar efforts using the previously mentioned “Major Questions Doctrine.” It is almost certain that these laws will still face legal challenges. In the meantime, the Supreme Court has turned down requests to grant a stay for any of the rules while they are being challenged in the courts.

EEOC: Updated Enforcement Guidance on Workplace Harassment

On April 29, 2024, the Equal Employment Opportunity Commission (“EEOC”) issued updated enforcement guidance on harassment in the workplace for the first time since 1999. In developing this guidance, “the EEOC received over 37,000 comments.” As for the substance, the EEOC updated guidance in accordance with new laws (such as the Pregnant Workers Fairness Act) and new case holdings (like that of Bostock v. Clayton County, finding that Title VII protects employees from being discriminated against based on their sexual orientation), and provided a plethora of unlawful harassment examples based on decades of cases and thousands of comments. This EEOC final guidance will be invaluable in helping employers comply with the ever-changing EEOC laws, informing employees about their rights, and helping litigators navigate the complex situations under these laws. 

FTC: Non-Compete Clause Rule

On May 7, 2024, the Federal Trade Commission (“FTC”) promulgated a regulation banning “non-compete clauses,” a term of a contract that prohibits a former employee from working in the same or similar industry, usually limited by geography and/or time. This regulation was set to take effect on September 4, 2024, but before that date could be reached, a Florida District Court enjoined the rule from becoming effective against a specific party, and a Texas District Court set aside the rule nationwide, while a Pennsylvania District Court upheld the FTC’s regulation. The FTC has appealed the Texas court’s ruling to the Fifth Circuit.

FCC: Disclosure of AI in Political Ads

On July 25, 2024, the Federal Communications Commission (“FCC”) announced a proposal to require the disclosure of generative Artificial Intelligence (“AI”) used in political advertisements. The period for notice and comment on the proposed regulation has passed. Interestingly, after the FCC’s statement, the FEC announced that it would not pursue the same. 

Conclusion

When actually digging into the actions that agencies perform day-to-day, instead of merely focusing on the worst-case-scenarios that are highlighted in certain narratives, one will begin to understand how crucial agencies are to the infrastructure of the federal government. Of course, agencies (like any arm of the government) have the potential to (and in practice do) make bad rules, become subsumed by big personalities, create bureaucracy, clash with other actors, cause public scandals, and make mistakes. While no one denies that Congress needs to step up and start taking a more active role in the oversight of the agencies that act in their name, the reality is that Congress is mired in political infighting, culture wars, and running for re-election. Additionally, agencies themselves are able to promulgate and update laws that Congress simply does not have the time for; regulate niche areas that would otherwise go overlooked; provide guidance for how to comply with complex laws; do the heavy lifting in regards to public feedback and conducting fact-finding and practical studies; and address cutting-edge problems that may otherwise take Congress years to address. At bottom, these agencies provide the expertise, the commitment, and the will to allow such a complicated and compartmentalized machine as the United States government to function and to strive for improvement. But do not take the words of these two authors at face value. Instead, listen to the agencies themselves; they make the case for their existence every day. 

To keep up to date on agency action visit https://www.regulations.gov/.

Luke Colomey attended high school in Cumberland, Rhode Island, and graduated with a Bachelor’s in Political Science from the University of New England in Biddeford, Maine. He is currently pursuing his J.D. at Northeastern University School of Law in Boston, Massachusetts. This spring he is a law clerk at Sherin and Lodgen.

Andrew Turnbull came back to the US from Zambia in 2016 and graduated with a Bachelor’s in political science and economics from Gordon College in Wenham, MA. He is currently a Juris Doctorate candidate for the class of 2025 at Northeastern University School of Law in Boston, MA. This Spring Andrew is working as a Rule 3:03 Certified student prosecutor in the Essex County District Attorney’s Office.

The Fight Over Birthright Citizenship

By Nazo Demirdjian

President Donald J. Trump, who was elected to a second non-consecutive term in 2024 (only the second president to do so), has promised, once again, to end birthright citizenship in the United States, through executive order if necessary. Birthright citizenship grants citizenship to anyone born within the jurisdiction of the United States. It was explicitly added to the Constitution in 1868 via the Fourteenth Amendment in an effort to finally end the debate of citizenship status for newly-freed enslaved persons. Section I of the Fourteenth Amendment provides, “[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . .”

Birthright citizenship is not a newly controversial topic. It has been debated before and even reached the Supreme Court in 1898. In United States v. Wong Kim Ark, the Supreme Court held that a child of non-American citizens who is born in the United States, is a citizen if the parents “have a permanent domicil (sic) and residence in the United States.” Justice Gray, writing for the majority, noted that “[t]he Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.” Put simply, those born in the United States, without regard to any inalienable characteristic, are citizens of the United States upon their birth. However, Wong Kim Ark provides three exceptions – children of diplomats and ambassadors, “children of members of the Indian tribes,” and children of enemies.

Notwithstanding the existing caselaw, there are three arguments President Trump may raise to accomplish his goal of ending birthright citizenship. First, President Trump may point out that one of the three exceptions found in Wong Kim Ark is that birthright citizenship does not extend to children born “of enemies within and during a hostile occupation of part of our territory.” President Trump has used this argument before by declaring mass undocumented immigration an “invasion of our country.” The President is poised to argue that immigrants’ children born in the U.S. are children “of enemies within and during a hostile occupation . . .” However, it would be an absurd argument to equate the children of undocumented immigrants to legitimate enemies and terrorists. Wong Kim Ark’s “enemies” language refers to instances where a nation has invaded the United States where those invaders gave birth to their children on occupied U.S. territory – similar to the 2022 Russian invasion of Ukraine. Those children would not be citizens. The Court might consider an argument equating children of undocumented immigrants to children of enemies. However, it would uphold Wong Kim Ark and find that birthright citizenship extends to today’s undocumented immigrants because they are not enemies of the United States nor have they invaded parts of the country.

A second argument the President might employ involves the language “and subject to the jurisdiction thereof” in Section I of the Fourteenth Amendment. This phrase would likewise distinguish children of legal immigrants from children of undocumented immigrants since, some argue, the latter are not subject to the jurisdiction of the United States because they are here illegally. However, Supreme Court precedent would again derail such an argument. Plyler v. Doe, expanding on Yick Wo v. Hopkins, held “that ‘all persons within the territory of the United States,’ includ[e] aliens unlawfully present.” If territorial presence does not include jurisdiction, then the authority of jurisdiction would have a definition independent of territory. Yet, jurisdiction is found where an individual resides and/or where an incident occurred – both of which relies on territory. Again, this argument would fall flat.

Finally, President Trump may rely on Wong Kim Ark’s language that children of non-citizens who are “domiciled within the United States” are U.S. citizens. The only sliver of an argument the President has in this regard is to make the distinction between non-citizens immigrants with permanent residence and those without. The President would have to differentiate “domicile” from physical existence and physical presence from continued presence. Even if successful, the President would still not have the ability to end all birthright citizenship, even for children of undocumented immigrants because of the actual text of the Fourteenth Amendment. Fidelity to the text of the Constitution would require the Court to find that the Fourteenth Amendment does not include any carveouts for the children of non-citizens with permanent versus non-permanent residence. No matter which of the three arguments the President relies on, it seems unlikely he would be successful.

The President would have the ability to achieve his goal if he supported the extremely difficult and potentially unpopular path of passing a new constitutional amendment. The new amendment would repeal Section I of the Fourteen Amendment with a new amendment that allows birthright citizenship to only apply to children of documented immigrants and/or those with permanent residence. A new amendment could be even stricter, requiring citizenship via jus sanguinis citizenship, (i.e., citizenship by blood), as is the case in nearly all countries in the Eastern Hemisphere. The difficulty would further lie in three-fourths of the states (38) ratifying it after two-thirds of the Senate and House of Representatives pass the new amendment or two-thirds of states have called a convention. With extremely narrow margins in Congress being the newly-normal political climate and with State legislatures being as politically divided as the country as a whole, passing a new amendment would be nearly impossible.

Regardless of the successes or failures of his arguments on ending birthright citizenship, President Trump will argue for wide latitude in immigration affairs as a whole. This time, his arguments would be bolstered by existing caselaw stemming  from the Chinese Exclusion Act of 1882, which banned Chinese laborers from entering the United States for ten years. The Chinese Exclusion Act reached the Supreme Court in Chae Chan Ping v. United States, where, in 1889, the Court’s majority declared:

to preserve its independence… [t]he power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States . . . the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one . . . If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country . . . to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. 

Accordingly, Chae Chan Ping held that Congress has the right to regulate immigration.

Furthermore, the majority in Chae Chan Ping stated, “[i]t matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us” (emphasis added). President Trump’s “invasion” language might fall under “vast hordes of its people crowding upon us,” granting him power to curtail immigration – though not birthright citizenship. Unfortunately for his plans, the above-referenced section of the majority gives wide latitude to the “legislative department,” not the executive. However, the Republican party has control of the 119th Congress, which means the President’s immigration plan can be successful, though unlikely through executive order. 

While Chae Chen Ping was a result of the racist, and now-defunct, Chinese Exclusion Act of 1882, the case has never been overruled, granting wide access to immigration matters of which President Trump would take advantage. Donald Trump ran on an anti-immigration platform in all three of his presidential campaigns, including a promise in 2016 to build a wall across the Southern border, for which Mexico would pay. The rhetoric grew more intense in 2024 with promises of mass deportation. With a conservative supermajority on the Supreme Court, President Trump might hope the Justices would find that immigration caselaw is ripe for change and give him even wider latitude, instead of keeping the power with the legislative branch. Immigration has always been a hot-button issue. The only difference is who those immigrants have been. President Trump’s current plans are similar to the Chinese Exclusion Act of old, though they target Hispanic and Latin American immigrants.

Regardless of the battles ahead, President Trump should remember the warning in Wong Kim Ark: “[w]hatever considerations . . . might influence the . . . executive branch of the Government to decline to admit persons of [another] race to the status of citizens of the United States, there are none that can constrain . . . the peremptory and explicit language of the Fourteenth Amendment. . .” Ending birthright citizenship and huge immigration overhauls through executive orders are promises the 47th President would not be able to keep.

Nazo Demirdjian is a family law attorney based in Las Vegas, Nevada. He earned his Juris Doctorate from UNLV's William S. Boyd School of Law, his master's degree from the University of Chicago, and his bachelor's degree from the University of California, Berkeley.