Adam Crews (Rutgers Law School) has posted Visions of Vermont Yankee (77 Stan. L. Rev. (forthcoming 2025)) on SSRN. Here is the abstract:
Vermont Yankee conventionally stands for the proposition that agencies are generally free to fashion their own procedures. Although one might think that today’s Supreme Court would view that pro-agency doctrine skeptically, the opposite is true. In the last ten years, many of the Court’s conservatives have invoked the principle, and its invocation in the circuit courts has likewise been lopsidedly conservative. Moreover, at both levels, jurists have applied the principle to questions beyond those in Vermont Yankee, which addressed only the APA’s informal rulemaking procedures. In short, Vermont Yankee is a doctrine that conservatives can love and are willing to deploy broadly.
In extending Vermont Yankee’s principle to new problems, however, jurists are gesturing at different “visions” of what the principle is and how it should apply more broadly across administrative law. Drawing from recent judicial invocations of Vermont Yankee, both at the Supreme Court and in the circuit courts, this Article identifies several of these visions of Vermont Yankee; explores their potential broader implications for open questions in administrative law; and assesses their consistency with the original Vermont Yankee decision and broader prevailing methodological commitments. As the Article shows, some jurists employ Vermont Yankee as a common law remedial principle, with potential consequences for doctrines like remand without vacatur and mandamus for agency delay. Others see it as a quasi-constitutional doctrine of judicial restraint, with potential consequences for separation of powers questions as diverse as presidential removal and congressional nondelegation. And still others essentially treat it as a principle of statutory construction for regulatory statutes—a vision that could blunt the effect of Chevron’s overruling while also tempering the hardest of hard look review.
Highly recommended.