Administrative Remedies

Gwendolyn Savitz and Marc Roark

Because you can't fix what you don't understand. The rules governing your daily life - from the medications you take to the air you breathe, from workplace safety to financial regulation - weren't made by Congress. They were made by federal agencies operating under delegated authority. And there's an entire body of law governing how that power works, when it can be challenged, and what happens when it goes wrong. Administrative Remedies explains that law. Professor Gwendolyn Savitz and Dean Marc Roark of the University of Tulsa College of Law break down the doctrines behind the headlines - Chevron, the major questions doctrine, Jarkesy, due process, agency enforcement - using real-world analogies and current Supreme Court cases. For law students, practitioners, and anyone who wants the administrative state to actually make sense. New episodes weekly.

  1. 5d ago

    Is Anything Ever Really Final? Finality, Guidance, and Bennett v. Spear

    In 2012, the EEOC issued enforcement guidance on how employers should handle arrest and conviction records. It wasn't a regulation. It never went through notice and comment. It said an across-the-board exclusion of everyone with a record screens people out by race and national origin, and that employers generally can't justify it. Texas barred convicted felons from every job in its Department of Public Safety, and parts of Texas law forbid exactly the individualized assessment the guidance treated as the safe route. So Texas sued the EEOC before anyone could sue Texas. The government's first answer wasn't that the guidance was correct. It was that nobody could challenge it, because guidance isn't final agency action, and because the EEOC lacks authority to issue binding interpretations of Title VII in the first place. That argument bought almost six years and two trips to the Fifth Circuit. Gwen and Marc use the case to work through finality: the gate that stands between having an injury and having something to sue over. The test comes from Bennett v. Spear and asks two things, whether the agency is done and whether legal consequences flow from what it did. Agencies have a lot of control over how both questions get answered, because they decide what the document looks like long before any court applies the test. In this episode: APA section 704, and why preliminary steps can be reviewed only alongside a final actionBennett v. Spear, the Klamath biological opinion, and Scalia's point that a document labeled advice can still function as a commandWhy the final judgment rule is the same instinct but not the same problem, since a trial court can't decline to ever enter judgmentFDA warning letters, Holistic Candlers, and why real pressure isn't the same as legal consequencesSackett v. EPA: a compliance order, $75,000 a day under the government's reading, and the answer to "efficiency of regulation conquers all"Army Corps v. Hawkes, where a determination that ordered nobody to do anything was still final, because a definitive document cuts both waysThe 2019 executive order conceding that non-binding guidance carries an implicit threat of enforcement, while creating no right to challenge itTexas v. EEOC: sovereign interest in a state's own laws, safe harbors, and a document that binds agency staffWhy the Fifth Circuit held the same document can't be final for a private employer and non-final for a stateThe 2011 Dear Colleague letter on campus sexual assault: six years of nationwide effect, withdrawn before any court reached the meritsThe case against all of this, that guidance binds nobody and an employer who ignores it gives up nothing it had a right to doRescission as the mirror image, including the EEOC's June vote on the 1979 affirmative action guidelines and the section 713 good-faith defense that went with themNext week: ripeness, exhaustion, and mootness, three more ways of asking when, with the Sacketts again.

  2. Sep 29

    National Park Service v. National Trust: Who Gets to Sue Over the Ballroom

    Alison Hoagland has lived on Capitol Hill since 1977, about two miles from the White House. She's an architectural historian, a professor emerita at Michigan Tech, the author of six books on American vernacular architecture, and a former senior historian at the Historic American Buildings Survey, the National Park Service program that documented the White House itself. She's been a member of the National Trust for Historic Preservation for more than forty years and now sits on its board. She swore in a declaration that she walks through Lafayette Square about once a month and will keep doing it. On August 31, in an unsigned 5–4 order, the Supreme Court held that the government is likely to show she has no injury a federal court can hear. The Trust had relied on her declaration and nobody else's, so with her out, two lower-court rulings on whether the president needed Congress's permission to demolish the East Wing go unreviewed, and the ballroom keeps going up. Gwen and Marc work through both halves of the order and the Chief Justice's dissent, then set the case beside Bost v. Illinois State Board of Elections, decided seven months earlier by the same Court, where a congressman who won his last race with 75 percent of the vote did have standing to challenge how ballots are counted. In this episode: The 1912 statute at the center of the case: no structure in federal public grounds in D.C. without express authority of Congress, and whether a maintenance appropriation supplies itWhy the litigation runs against the Park Service at all, and the government's shifting position on who was actually building the ballroomTwo parallel tracks, APA and ultra vires, and what happens when the decisionmaker isn't an agencyValley Forge, FDA v. Alliance for Hippocratic Medicine, and the line between an injury and a strong objectionLaidlaw, Summers, and Lujan: why aesthetic injury counts for a river or a species, and why the majority says a building is differentSierra Club v. Morton to Lujan to this order, and the argument that the bar keeps moving once a plaintiff clears itThe Chief Justice's dissent: the crocodile, Teddy Roosevelt's 1902 message to Congress, and the fact that nobody fishes in the White HouseThe equities half of the order, the security declarations, and the dissent's footnote quoting the government against itselfBost: candidates, the hundred-meter dash, Justice Jackson's dissent on generalized grievances, and Justice Barrett's narrower pocketbook routeWhy the doctrine lets two reasonable justices sort the same plaintiffs in opposite directionsWhat Congress can still do, and why timing may make that academicWhether the difference between losing a river and losing the view of a building is a principled distinction or just the same fact described twice is, more or less, the whole case. Tags: standing, Article III, National Trust for Historic Preservation, White House ballroom, Bost v. Illinois, Lujan, Sierra Club v. Morton, Laidlaw, aesthetic injury, emergency docket, administrative law, Supreme Court

  3. Sep 22

    Someday Isn't Imminent: Standing and Who Gets to Sue an Agency

    In 1986, Joyce Kelly traveled to Egypt to see the habitat of the endangered Nile crocodile, and she swore she meant to go back. That affidavit was supposed to get Defenders of Wildlife into federal court to challenge the Interior Department's position that the Endangered Species Act stopped at the border. The district court ruled for Defenders, and the Eighth Circuit affirmed. Then in Lujan v. Defenders of Wildlife, the Supreme Court held that the courts never had the power to decide the question at all. She had no plane ticket and no date. Someday isn't imminent. This episode is about the first door: standing, the doctrine that decides who gets to ask the question. Gwen and Marc walk through the three elements every law student memorizes, which are injury in fact, causation, and redressability. They also trace where those elements came from. The Court calls them the "irreducible constitutional minimum," but they aren't in Article III. They were assembled mostly between 1970 and 1992, from Sierra Club v. Morton to Lujan. The doctrine is younger than many of the judges applying it, and it overrode an act of Congress that said "any person" may sue. We cover Simon v. Eastern Kentucky Welfare Rights Organization and the problem of harm that runs through a third party. We look at TransUnion v. Ramirez and the 6,300 people whose false terrorist-watchlist flags never left the company's files. We explain why a bare statutory violation isn't automatically a concrete injury, and what Summers v. Earth Island Institute means for procedural plaintiffs. On the administrative law layer, we cover APA § 702 and the zone-of-interests test, Bennett v. Spear, Lexmark's retirement of "prudential standing," associational standing under Hunt, and the special solicitude Massachusetts v. EPA extended to states. Property law turns out to have been sorting beneficiaries from enforcers for centuries. Then we put it all together. A factory told to install pollution controls has standing without arguing for it. The person downstream who got sick when EPA didn't enforce has a real injury and a much harder path in. None of these doctrines asks whether the agency was wrong. They sort on the shape of the harm: how concentrated it is, how traceable, and how reliably a court order would fix it. That sorting has a pattern. Loper Bright, West Virginia v. EPA, Sackett, and Jarkesy were all brought by regulated parties. Calling the doctrine rigged would be wrong. Calling it neutral is nearly as wrong. Plus: the White House East Wing litigation, where the Court stayed an injunction after finding a D.C. preservationist likely lacked standing. The Chief Justice dissented and went straight back to the crocodile. Next week: the ballroom case in full, and a January standing decision that went the other way. Then finality.

  4. Sep 15

    Birthright Citizenship and Mail Voting: Two Executive Orders, Two Very Different Days in Court

    Two executive orders came from the same desk, and the government gave the same defense for both: the challenge came too early, because nothing had happened to anyone yet. The argument lost against the birthright citizenship order, and it has lost every time since. Against the mail voting order, the Supreme Court accepted it and held that the district court never had jurisdiction. The difference was the drafting. The birthright order commands agencies to reach a result: no department or agency shall issue citizenship documents. The mail voting order commands the Postal Service to run a rulemaking, and a rulemaking's outcome has to stay open. Gwen and Marc trace how that choice of wording decides which body of law tests a policy, when the clock starts, who can get into court, and what a loss actually costs. In this episode: Why the birthright order was ready for review immediately, while agency guidance under it would have arrived slowly, agency by agencyBiden v. Nebraska, where a presidential policy was carried out by the Secretary of Education, and why losing on the statute left the Higher Education Act as a second routeA "ladder" of losses: procedural, statutory, and constitutional, and why only the constitutional one takes a policy off the table for goodConstitutional avoidance: the interpretive canon, the separate habit of not deciding things, and why avoidance works poorly when a question isn't closeTrump v. Barbara: a 6–3 affirmance on two different grounds, and Justice Kavanaugh's statutory route, which would have left a door open for CongressThe second birthright order, enjoined before its implementing guidance existedExecutive Order 14399 on mail voting: deadlines attached to proposals, a Supreme Court stay for prematurity, a final rule issued three days before that ruling, and then the government arguing the challengers were too lateThe twist: the Postal Service is exempt from ordinary APA review, so the case the plaintiffs were told to wait for may not be available to themThe lesson isn't that one instrument protects a policy. Each one buys time and changes which question a court gets to first. The real drafting question is which loss you can live with. Recorded September 11, 2026. These cases are moving quickly, and developments after that date aren't reflected here. Hosted by Professor Gwendolyn Savitz and Dean Marc Roark of the University of Tulsa College of Law. Next week: standing, and who is allowed to challenge agency action at all. Tags/keywords: administrative law, executive orders, birthright citizenship, Trump v. Barbara, Biden v. Nebraska, constitutional avoidance, ripeness, standing, APA, Postal Service, mail voting, Supreme Court, law school

  5. Sep 8

    So Many Cases Die at the Door: What Judicial Review Actually Is

    Loper Bright Enterprises sued the Secretary of Commerce, and the case had no trial, no depositions, and no discovery. It was decided on cross-motions for summary judgment, on a record the agency finished building before anyone filed a complaint. That's not an anomaly — that's what challenging agency action looks like. And the herring fishermen were lucky in a way most challengers aren't: they got a court to answer the question they came to ask. Season Three opens by taking apart the picture everyone carries around — agency acts, you object, a judge takes a look and fixes it or doesn't. Error correction. Gwen and Marc walk through why that description is true often enough to be believable and wrong often enough to matter. Underneath it sits a set of doctrines that decide whether the error is ever reached at all: standing, finality, ripeness, exhaustion, mootness, and the categories courts have placed outside review entirely. None of them asks whether the agency was wrong. We read 5 U.S.C. § 706 closely — Congress wrote the grounds. Congress did not write the intensity, and the intensity is where the cases are decided. Section 706 read identically the morning Chevron came down and the morning it was overruled. Also in this episode: why Bennett v. Spear gave three statutory words their content and why agency lawyers draft against it; the asymmetry that makes standing easy for a regulated company and hard for the person downwind; Patel v. Garland and how far a jurisdiction-stripping statute reaches; and where Gwen and Marc disagree about whether any of this is construction or something more deliberate. Plus Sackett, Lucia, and Jarkesy — courts opening doors, not closing them — and what distinguishes the cases that get in. Next week: executive orders, and why the choice between signing one and routing a policy through an agency determines which body of law ever gets to test it.

  6. Jul 7 ·  Bonus

    Mullin v. Doe: When Courts Can't Look

    Fritz Miot has lived in California for fifteen years under Temporary Protected Status, working in an Alzheimer's research lab while managing a diabetes diagnosis that Haiti's collapsed healthcare system can't treat. On June 25, 2026, the Supreme Court told him a federal court isn't allowed to ask whether the government even followed its own rules before ending his status — not whether he loses on the merits, but whether anyone can look at all. In the second half of our emergency two-part season opener, Gwen and Marc dig into Mullin v. Doe: how "no judicial review of any determination" swallowed a mandatory consultation requirement, why the State Department told DHS one thing and the public another, and what Justice Thomas's solo concurrence is quietly setting up for a future case. Slaughter closed the check inside the agency. Mullin closes the one outside it.

  7. Jul 2 ·  Bonus

    Trump v. Slaughter: The End of the Independent Agency

    For ninety years, Congress could build federal agencies designed to operate at arm's length from the president. Bipartisan commissions, staggered terms, for-cause removal — a whole architecture of institutional independence protected by Humphrey's Executor v. United States (1935). On June 29, 2026, in a 6-3 decision, the Supreme Court overruled Humphrey's by name and said it had been wrong the day it was decided. Rebecca Slaughter, the FTC commissioner Donald Trump fired in March 2025 for reasons that had nothing to do with her job performance, loses her case. So does the general category of "independent agency" as a distinct constitutional structure. In this episode, we walk through what Trump v. Slaughter actually held, why the Court's reasoning goes wider than its holding, and what happens next. We cover the "Decision of 1789" the majority uses as its historical anchor and Justice Sotomayor's response. We examine the stare decisis fight — seven prior Supreme Court cases had blessed the Humphrey's structure by name, including recent decisions the Court had just handed down. We explain the companion case, Trump v. Cook, decided the same morning, which saved the Federal Reserve on historical grounds while everyone else lost the same protection. And we get into the part the majority didn't quite say out loud: the opinion carefully carves out the Fed and Article I courts, but not administrative law judges. What that silence means for the MSPB, for ALJ tenure protection, and for every federal adjudication system in the country is the question the next Supreme Court term will start to answer. Justice Gorsuch's concurrence lays out what he calls the "ratchet effect" — Congress delegated enormous power to agencies on the premise that those agencies would be independent, and that premise is now gone. What Congress thought it bargained for is not what Congress got. Justice Barrett's dissent in Cook asks how history can support both a categorical rule ending independence everywhere and a carveout preserving it at one institution. The Court, she notes, does not say. Read the full explainer at remediespodcast.com/learn-trump-v-slaughter-explained.

  8. Jun 9

    No Right to a Lawyer: Asylum from Inside Detention

    A visitation room in a private detention facility in rural Louisiana. Cinderblock walls, fluorescent lights, two plastic chairs bolted to the floor. Elena is on one side. A lawyer who drove three hours from New Orleans is on the other. They have ninety minutes. Elena has eight months until the hearing that decides whether she gets asylum or gets sent back to Honduras. The evidence she needs to prove her case is in a town she can't safely call into, held by family members who might be at risk just from gathering it. In the second part of their immigration deep dive — and the final episode of Season 2 — Gwen and Marc move from the machinery to the person standing inside it: Why representation matters more in immigration than anywhere else in the federal system — represented asylum seekers win at several times the rate of unrepresented ones, and unrepresented detained respondents face denial rates around ninety percentThe Sixth Amendment gap: immigration removal is classified as civil, not criminal, so there's no right to appointed counsel. If you can't find a lawyer and the pro bono organizations are full, you represent yourself against a trained government attorney through an interpreterHow detention structurally degrades the case before the hearing happens — bond decided in a ten-minute video proceeding, evidence that can't be gathered from inside a facility, and the same docket clock running whether you're preparing from a lawyer's office or a monitored phone boothThe constitutional floor that most people assume exists and doesn't: plenary power from the 1889 Chinese Exclusion Case, Thuraissigiam's holding that someone apprehended twenty-five yards inside the border has essentially no due process right to judicial review, and a 2025 executive order testing whether that logic extends to anyone anywhere in the country who can't prove two years of presenceWhy you don't have to disagree with the doctrine to be troubled by the outcomes — strict or generous, the law is supposed to apply the same way to the same facts, and the data says it doesn'tNext season: judicial review. What happens when this finally gets to court — and why it's not the rescue mechanism people imagine.

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Because you can't fix what you don't understand. The rules governing your daily life - from the medications you take to the air you breathe, from workplace safety to financial regulation - weren't made by Congress. They were made by federal agencies operating under delegated authority. And there's an entire body of law governing how that power works, when it can be challenged, and what happens when it goes wrong. Administrative Remedies explains that law. Professor Gwendolyn Savitz and Dean Marc Roark of the University of Tulsa College of Law break down the doctrines behind the headlines - Chevron, the major questions doctrine, Jarkesy, due process, agency enforcement - using real-world analogies and current Supreme Court cases. For law students, practitioners, and anyone who wants the administrative state to actually make sense. New episodes weekly.

Information

  • Creator
    Gwendolyn Savitz and Marc Roark
  • Years Active
    2025 - 2026
  • Episodes
    43
  • Rating
    Clean
  • Copyright
    © Gwendolyn Savitz and Marc Roark
  • Show Website
    Administrative Remedies