When an agency decides your case, what kind of process do you get?

Sometimes it’s a full trial-type hearing with witnesses, cross-examination, an independent decisionmaker, and a written opinion. Other times it’s a paper review and a short explanation.

In this episode, we map the adjudication spectrum under the Administrative Procedure Act (APA) — from “straight to your room” to a full family meeting.

What We Cover

• The difference between formal and informal adjudication
• The “magic words” that trigger full procedural protections: “on the record after opportunity for agency hearing”
• Why most agency decisions — roughly 90% or more — are informal
• What formal adjudication actually includes:
  • Notice
  • Right to counsel
  • Presentation of evidence
  • Cross-examination
  • Decision based exclusively on the record
  • Administrative Law Judge (ALJ)
• Why the APA says almost nothing about informal adjudication
• The “black hole” of informal process
• How due process, organic statutes, and agency regulations fill the gap
• Why courts generally cannot impose extra procedures beyond what the APA requires (Vermont Yankee)
• The massive volume problem: millions of decisions, only about 2,000 ALJs
• The justice gap created by delay and procedural filtering

Key Cases

• United States v. Florida East Coast Railway A statute that says “hearing” is not enough. Without the magic words, you don’t get formal adjudication.
• Vermont Yankee Nuclear Power Corp. v. NRDC Courts cannot add procedural requirements beyond those required by statute.

Real-World Examples

• Passport applications
• Social Security disability determinations
• Immigration interviews
• Student loan discharge decisions
• Borrower defense claims
• Public Service Loan Forgiveness

The same APA framework governs all of them.

Why This Matters

Your rights depend on where you fall on the spectrum — and you don’t get to choose.

Formal hearings are expensive and slow. Informal decisions are fast but thin. The system is built around tradeoffs: speed versus accuracy, efficiency versus fairness.

For many people, the informal stage filters out their claim before they ever reach a hearing. The structure of the system — not just the merits of the case — often determines the outcome.

This episode introduces one of the most important structural distinctions in administrative law: the difference between rulemaking and adjudication. Agencies don’t just enforce law — they also create policy. Sometimes they do it prospectively through general rules. Other times they do it case-by-case while deciding what happens to a specific party. That choice affects procedure, fairness expectations, and how quickly entire industries can change.

The Core Distinction

Rulemaking

• Forward-looking
• General applicability
• Sets standards before conduct happens
• Typically uses notice-and-comment procedures

Adjudication

• Backward-looking (or present-focused)
• Applies to specific parties and facts
• Determines liability, rights, or obligations in individual cases
• Procedural protections vary widely

Why This Distinction Exists

Government can’t realistically give individualized hearings before adopting rules that affect millions of people. But when the government is deciding what happens to a specific person or company, due process concerns become much stronger.

Constitutional Foundation

Londoner v. Denver (1908)

• Individualized determinations → hearing required

Bi-Metallic Investment Co. v. State Board of Equalization (1915)

• General rules affecting many people → no individual hearing required

These cases still structure how courts think about procedural rights today.

The Gray Area: Agencies Can Make Policy Through Adjudication

Under Supreme Court precedent (Chenery), agencies can choose whether to announce policy through rulemaking or through individual cases.

That means agencies can:

• Announce a new standard
• Apply it in the same case
• Effectively change national policy overnight

Real-World Example: Browning-Ferris (NLRB, 2015)

The NLRB expanded the definition of “joint employer” through a single adjudication.

Why it mattered:

• Affected staffing agencies, franchises, contractors, and supply chains
• Triggered years of litigation, rulemaking reversals, and political conflict
• Shows how one case can reshape an entire sector

Why This Matters Outside Law School

This structure affects:

• Labor rights
• Environmental regulation
• Data security expectations
• Financial regulation
• Healthcare compliance
• Licensing and professional discipline

Often, regulated parties don’t get a clean rulebook. They piece together standards from enforcement actions.

Key Takeaway

Agencies exercise two fundamentally different kinds of power:

1. Setting general rules for the future
2. Deciding what happens to specific parties

Which path they choose determines procedure, fairness expectations, and how predictable regulation feels.

Coming Next

Next episode: The spectrum of adjudication procedures — from trial-like hearings to simple denial letters — and why the same statute can produce radically different levels of process.

In the season finale, Gwen and Marc turn to Corner Post v. Board of Governors, a decision that reshapes when federal regulations can be challenged—and potentially destabilizes decades of settled law. They open with a property-law analogy, explaining the doctrine of “coming to the nuisance” and why legal systems protect settled expectations and reliance.

They then explain how statutes of limitations have traditionally functioned in administrative law: challenges to regulations had to be brought within six years of issuance. Corner Post upends that understanding by tying accrual to standing, allowing newly formed entities to challenge long-standing regulations as if they were brand new.

Walking through the facts of the case—a challenge to Federal Reserve interchange-fee rules by a company formed years after the regulation—the episode explains why the Court’s reasoning feels intuitive in individual litigation but becomes dangerous when applied to nationwide regulatory schemes. Gwen and Marc show how this eliminates finality, enables strategic plaintiff creation, and supercharges forum shopping.

The episode then examines how Corner Post interacts with Loper Bright and the Major Questions Doctrine, creating a multiplier effect: less deference, stricter substantive limits, and perpetual vulnerability to challenge. The result, they argue, is a regulatory system where no rule is ever truly settled.

The season closes by reflecting on what these cases mean collectively for the administrative state—and why understanding them is essential for anyone trying to make sense of modern governance.

What They Cover in This Episode

• How statutes of limitations normally work
• Accrual, standing, and regulatory finality
• The facts and holding of Corner Post
• “Coming to the regulatory nuisance”
• Reliance interests and settled expectations
• Strategic plaintiff creation and forum shopping
• Circuit fragmentation and regulatory chaos
• How Corner Post compounds Loper Bright

In this episode, Gwen and Marc examine Loper Bright v. Raimondo, the Supreme Court decision that formally overruled Chevron deference after forty years. They begin with an analogy about inconsistent babysitters to explain the core concern motivating the Court: agency interpretations that change across administrations, creating instability and unpredictability.

They then turn to the facts of the case itself, involving a federal rule requiring herring fishing companies to pay for onboard observers. Under Chevron, the agency’s interpretation likely would have survived as reasonable. Instead, the Court used the case to eliminate Chevron entirely, holding that courts must exercise “independent judgment” when interpreting statutes—even when Congress has left ambiguity.

From there, Gwen and Marc organize the critique of Loper Bright around three themes. First, they argue that the Court rewrote history by treating Chevron as a modern aberration, despite centuries of judicial deference to agency expertise. Second, they explain how the decision misunderstands modern governance, where Congress necessarily relies on agencies to interpret flexible statutory language. Third, they show how the practical consequences are already unfolding in the lower courts, producing circuit fragmentation rather than stability.

Using concrete examples—from food labeling to labor law to environmental regulation—they illustrate how replacing agency expertise with judicial interpretation affects everyday life. The episode closes by exploring the democratic implications of shifting interpretive power from politically accountable agencies to life-tenured judges.

What They Cover in This Episode

• The facts behind Loper Bright
• How Chevron worked and why it mattered
• The Court’s reading of the APA
• “Independent judgment” and the “single best reading”
• Pre-Chevron history of judicial deference
• Judges as generalists versus agency experts
• Circuit fragmentation after Chevron’s demise
• Democratic accountability and judicial power

In this episode, Gwen and Marc step back from Chevron to examine the older doctrine that both preceded it and now survives it: Skidmore deference. They begin with a medical analogy that contrasts expert judgment grounded in examination and experience with advice that merely sounds confident—setting up the central question of Skidmore: when agencies lack the power to control, how much weight should courts give to what they say?

They walk through Skidmore v. Swift & Co., a 1944 case involving firemen at a meatpacking plant and whether on-call waiting time counts as compensable work. The key issue was not disagreement over expertise, but authority: the agency administering the Fair Labor Standards Act had issued extensive guidance but lacked formal rulemaking power. The Court’s response—giving agency interpretations weight proportional to their persuasiveness—created a doctrine that applied specifically when agencies lacked the force of law.

From there, Gwen and Marc situate Skidmore in historical context, contrasting it with highly deferential cases like Yakus v. United States and showing that Skidmore was never meant to replace strong deference where Congress had delegated rulemaking authority. They then explain how Skidmore operates in practice through its familiar factors—thoroughness, reasoning, consistency, and expertise—and why it creates flexibility at the cost of predictability.

The episode closes by tracing Skidmore’s resurgence after United States v. Mead Corp., which limited Chevron to actions with the force of law and returned Skidmore to center stage for guidance documents, opinion letters, and other informal agency actions. This episode sets up the post-Chevron world by explaining what kind of deference remains—and what has been lost.

What They Cover in This Episode

• The facts and holding of Skidmore v. Swift & Co.
• Why lack of rulemaking authority mattered
• “Power to persuade, if lacking power to control”
• The historical baseline of strong agency deference
• The Skidmore factors and how courts apply them
• Why Skidmore is flexible but unpredictable
• United States v. Mead Corp. and the return of Skidmore
• How much of modern governance operates under Skidmore

Who gets to decide what the law means—Congress, agencies, or courts?

For forty years, that question was largely answered by a single Supreme Court case: Chevron. Under what became known as “Chevron deference,” courts were required to defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers.

In this episode, Gwen and Marc explain what Chevron deference actually was, why it mattered so much to the administrative state, and how it quietly shaped everyday government decision-making—from environmental rules to labor protections to healthcare policy.

This isn’t an episode about technical doctrine for its own sake. It’s about institutional power.

Together, we explore:

• Why Congress often writes ambiguous statutes—and why that’s not a bug, but a feature
• How Chevron shifted interpretive authority from courts to agencies
• What courts were supposed to do under Chevron, and what they often did instead
• Why Chevron made agencies more powerful—but also more vulnerable
• How Chevron fits into the broader story of delegation, expertise, and democratic accountability

By the end of the episode, you’ll understand why Chevron became one of the most important—and controversial—doctrines in administrative law, and why battles over “who decides” were inevitable.

This episode sets the stage for later conversations about Skidmore, the major questions doctrine, and what happens when Chevron disappears.

Picking up where they left off, Gwen and Marc turn to the two competing versions of the Major Questions Doctrine: the weak, interpretive version and the strong version that demands near-microscopic specificity. And to show how these versions operate in real life, they walk straight into the blockbuster 2023 case Biden v. Nebraska, where the Supreme Court struck down the administration’s student-loan forgiveness plan.

The statutory text seemed generous: the Secretary could “waive or modify” student-loan provisions during a national emergency. COVID was a national emergency. Waive means eliminate. Modify means change. Yet the Court said that forgiving $430 billion in loans for 43 million borrowers was simply too major — and that even broad, literal statutory text wasn’t clear enough. Marc both appreciate Roberts’s now-famous line comparing the government’s interpretation of “modify” to the way the French Revolution "modified" the country's nobility.

They use this to show the full force of the strong version of the doctrine: for truly significant decisions, ordinary delegation isn’t enough. Courts require explicit authorization, tailored to the precise scenario an agency faces — a level of specificity Congress almost never provides. Justice Kagan’s dissent raises the alarm: the doctrine is becoming a “get-out-of-text-free card,” enabling courts to invalidate policies they dislike even when Congress’s language is unambiguously broad.

The episode then zooms out to the real-world consequences: agencies are becoming more cautious, breaking big rules into smaller ones, searching for hyper-specific statutory hooks, and gaming the system simply to survive judicial review. Gwen and Marc map out how this rising skepticism interacts with the Court’s broader project — reining in agencies through major questions, Chevron, and structural challenges all at once.

Takeaway: The stronger the doctrine gets, the harder it becomes for agencies to act — even when Congress wrote broad authority on purpose. The Court says Congress must speak clearly on big questions. But in practice, the demand for “extraordinary clarity” risks paralyzing modern governance.

Gwen and Marc open this episode with a deceptively simple babysitter analogy: you tell the sitter “use anything in the kitchen,” but you don’t expect her to mount a cutting board to the wall and teach knife-throwing, or install a $6,000 closet system. The permission technically covers those choices — but that’s clearly not what you meant. That disconnect becomes the doorway into the Major Questions Doctrine, the Court’s newest tool for saying: “If Congress meant to authorize something this big, it would’ve said so clearly.”

From there, they rewind to Brown & Williamson, when the FDA tried to regulate tobacco by treating nicotine like any other drug. The statutory text fit — in some ways perfectly — yet the Court refused to believe Congress hid such massive economic and political authority inside ordinary words. Gwen shows how that early instinct, even without a label, planted the seeds of today’s doctrine.

Then the episode turns to the decision that christened the doctrine by name: West Virginia v. EPA. Roberts framed the Clean Power Plan not as routine emissions regulation, but as a wholesale restructuring of the American energy sector — far too consequential, he argued, for an agency to find tucked inside an older statute. Through the Court’s own language, Gwen and Marc unpack what counts as a “major question”: billions in economic impact, deep political salience, dramatic expansions of authority, and situations where Congress has repeatedly considered but rejected similar proposals.

But they also highlight the doctrine’s shadows. The Court has never articulated a clear test; agencies don’t know how many “factors” are enough; and the dividing line between ordinary policymaking and “major” policymaking keeps shifting, depending on who’s drawing it.

Takeaway: Sometimes the words of a statute technically fit — but the Court refuses to believe Congress granted vast power by implication. When the decision is big enough, the Court demands clarity Congress rarely provides.