• Sami WinawerFollow

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When an administrative agency declines to defend the constitutionality of its structure, courts must grapple with the unusual scenario in which the parties before it agree—or at least do not disagree—on the merits of the constitutional question at issue. This Comment seeks to provide some clarity to this area of the law by proposing a multifactor framework for courts to use at the standing stage when determining the justiciability of a question when the Executive declines to defend a federal statute, and explaining how these factors can be weighed in cases in which an administrative agency declines to defend some aspect of its structure. The first proposed factor is the unique separation of powers concerns implicated by executive non- defense, which may counsel slightly in favor of justiciability, especially when the agency in question has more statutorily granted independence. The second proposed factor is a group of pragmatic considerations relating to the preservation of judicial resources and protection of affected nonparty interests, which also may counsel in favor of justiciability. Finally, the third proposed factor is the presence of adverse amicus curiae, which should be necessary, but not sufficient, for justiciability; so, a court should appoint amicus only if it believes the first two factors counsel in favor of proceeding to the merits.

Winawer, Sami (2026) "Administrative Acquiescence: An Analysis of Nonadverse Litigation Involving Administrative Agencies," University of Chicago Law Review: Vol. 93: Iss. 5, Article 5.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol93/iss5/5

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