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.

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S3 · E3
Tuesday · 28 min
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.
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S3 · E2
September 15 · 35 min
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 agency Biden 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 route A "ladder" of losses: procedural, statutory, and constitutional, and why only the constitutional one takes a policy off the table for good Constitutional avoidance: the interpretive canon, the separate habit of not deciding things, and why avoidance works poorly when a question isn't close Trump v. Barbara: a 6–3 affirmance on two different grounds, and Justice Kavanaugh's statutory route, which would have left a door open for Congress The second birthright order, enjoined before its implementing guidance existed Executive 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 late The 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 them The 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
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September 8 · 35 min
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.
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July 7 · 26 min
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.
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July 2 · 35 min
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.
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S2 · E17
June 9 · 25 min
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 percent The 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 interpreter How 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 booth The 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 presence Why 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't Next 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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S2 · E16
June 2 · 26 min
700 Judges, 3.2 Million Cases: The System That Decides Asylum Cases
Two asylum seekers cross the southern border six months apart. Same country, same persecution, same statute. A clerk neither of them has ever met routes one to the regular docket and the other to an expedited docket. One gets heard in eight months. The other is waiting until 2028. That single routing decision is now six years of difference. In the first of a two-part deep dive on immigration adjudication, Gwen and Marc walk through the system that will decide both of their cases: 3.2 million pending cases, 2.3 million of them asylum, divided among roughly 700 immigration judges — about 3,200 cases per judge, each requiring hours of fact-intensive testimony through interpreters about events in another country The particular social group doctrine — the single most contested category in asylum law, which has flipped four times in eleven years through Attorney General certification. Same statute, same words, opposite results depending on who holds the office when your case is heard How the AG cleared 767,000 cases in 2025 — the highest single-year total in the system's history — through a mix of procedural exits, compressed dockets, and doctrinal changes that foreclosed categories of claims that were viable when applicants filed The MSPB decision that stripped immigration judges of civil service protections, holding they're inferior officers removable at will — meaning the judge deciding whether to grant asylum on a borderline theory now knows she can be fired tomorrow with no notice and no appeal The denial rate climbing from roughly fifty percent in 2023 to eighty percent in February 2026, without a single statutory change Rosa's hearing is in 2028. She'll argue a social group theory the Attorney General has already foreclosed, with six-year-old evidence about a country she fled six years ago, in front of a judge who can be removed at will. The statute hasn't changed. Everything else has. Next episode: the person standing inside the machinery — detention, representation, expedited removal, and why the Constitution doesn't fix any of it.
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S2 · E15
May 26 · 31 min
The Framework That Decides Disability
Until June 2024, the Social Security Administration was denying disability claims on the grounds that applicants could work as pneumatic tube operators — a job that functionally disappeared decades ago. The agency's catalog of occupations hadn't been updated since 1991. Congress noticed. Courts complained. The agency issued two emergency messages. The fix removed 114 jobs nobody was citing anyway and added a documentation requirement to 13 jobs people were. The vocational expert who cited pneumatic tube operator last year can cite it again next year, as long as they say an extra sentence. That catalog isn't the problem. It's the symptom. In this episode, Gwen and Marc walk through what Social Security disability adjudication actually looks like when you run it two and a half million times a year: The five-step sequential evaluation that decides every claim — substantial gainful activity, severity, the listings, past work, and the step five question that wins or loses most cases: is there any other job in the national economy you could do? The grids — literal rows and columns where you plug in age, education, work history, and RFC, and the table tells you whether you're disabled. The Supreme Court blessed this trade in Heckler v. Campbell: uniformity over individualized judgment, explicitly because the alternative would "hinder needlessly an already overburdened agency" The age cliff: at fifty-four, the grids say not disabled. At fifty-five, same medical condition, same RFC, same education, same work history — disabled. The borderline rule that's supposed to soften this treats five months as too far away How every structural feature from the trilogy — the forty-six point judge-level variation, the weak internal review, the ex ante control mechanisms — runs through the credibility finding and the RFC, which determine where you land on the grids The Matthews problem at scale: the test counts administrative burden as a factor, and at two and a half million applications a year, that factor dominates the math. There's no doctrinal floor on how thin process can get once the system is big enough People die waiting for hearings. The GAO and Social Security's own inspector general have documented it. At a nine-month average wait — an improvement from the fifteen months it was running in 2023 — that number is meaningful every year. That's not the system failing. That's the system working as designed, at volume.
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S2 · E14
May 19 · 28 min
Nobody Said Deny More Cases: How Agency Preferences Reach the Hearing Room
In the final episode of a three-part series on how agencies actually produce outcomes, Gwen and Marc trace the mechanisms that did the work — all of them upstream of the hearing room and mostly invisible from outside: Case completion targets that measure speed but not thoroughness — and a Seventh Circuit concurrence warning that even well-intentioned production pressure "can alter the essential function of adjudication" Quality review rubrics that aren't published, shift with administrations, and can't be appealed — but feed into performance evaluations that have real career consequences Social Security Rulings that describe themselves as not having "the force and effect of law" and in the same sentence say they are "binding on all components" — binding policy issued without notice and comment The 1984 case that saw it coming: Association of Administrative Law Judges v. Heckler, where the court found outcome-based targeting of ALJs "violated the spirit of the APA, if no specific provision thereof" Immigration as the amplified version: 700-case-per-year quotas for judges without APA independence protections, deciding cases where the stakes are deportation Somewhere out there is a claimant with the same diagnosis as someone approved three years ago by the same ALJ in the same office. That claimant gets denied — not because the case changed, but because the system around the judge changed. And nobody outside the agency can see why.
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S2 · E13
May 12 · 33 min
The Review Layer Doesn't Fix It — Three Things Agency Review Does Instead
In 2018, Attorney General Jeff Sessions reached into a single immigration case, certified it to himself, and overruled the precedent that had let domestic violence survivors qualify for asylum. In 2021, Garland certified it back. In 2025, Bondy certified it away again. Three reversals on the same doctrine in seven years — no statute changed, no rulemaking happened. One signature each time. In this episode — the second in a three-part series on how agencies actually produce outcomes — Gwen and Marc move up a level from the hearing room and ask whether internal appellate review fixes the variation E13 documented. The textbook answer is yes: that's what review is for. The real answer is that "internal review" describes three very different machines, and none is primarily in the business of producing consistency. The APA baseline is permissive. 5 USC 557 gives the reviewing body "all the powers which it would have in making the initial decision" — including the power to redo credibility findings from a cold transcript. The ALJ who sat three feet from the witness gets reversed; the federal court then defers to the agency under substantial evidence review. The one person who actually saw the testimony is the one whose findings get displaced. Three agencies, three pullbacks. Social Security walks the default back via 20 CFR 404.970 — the Appeals Council acts only on legal error or want of substantial evidence. Immigration walks it back furthest via 8 CFR 1003.1 — IJ fact findings get clear-error review. The SEC operates closest to the default, where "all the powers" actually bites. Model 1 — Social Security: review mostly doesn't happen. The Appeals Council grants review in roughly 15-20% of cases. The rest get a one-paragraph denial. That denial opens the 60-day window to federal court, but reads to a lay claimant like a final rejection — because in ordinary English "denied" means you lost, while in admin-law English it means you've exhausted and the clock is running. Represented claimants know this. Unrepresented claimants miss the window and lose by default. Model 2 — Immigration: review is a policy instrument. The BIA designates decisions as precedential, binding every IJ in the country. Under 8 CFR 1003.1(h), the Attorney General can pull any case — pending or decided — and write a precedential opinion on it. Matter of A-R-C-G (2014), Matter of A-B- (2018), Garland's vacatur (2021), Matter of S-F-M (2025): the same doctrine swung four times across four administrations through a single referral mechanism. That isn't error correction. It's substantive policymaking through the review channel. Model 3 — Enforcement (SEC, FTC, NLRB): review is automatic and institutionally tilted. Every ALJ decision goes up. About three-quarters of SEC reversals favor the enforcement division — finding violations the ALJ didn't or raising penalties the ALJ imposed. The Commission supervises the enforcement staff, sets priorities, allocates their budget, and then sits as the appellate tribunal reviewing whether that same staff proved its case. No bad faith required; the incentives only run one way. Three failure modes, one conclusion: SSA fails by not reviewing; immigration fails by reviewing through a politically directed mechanism whose priorities shift with administrations; enforcement fails by reviewing through a body with an institutional stake in the result. Review corrects some errors and generates precedent where precedent gets designated. What it does not do — anywhere — is pull similar cases toward similar outcomes. Next episode: agencies don't shape outcomes by correcting decisions. They shape the conditions under which decisions get made.
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S2 · E12
May 5 · 26 min
The Forty-Six Point Spread: Why Your Outcome Depends on Who You Get, Who Represents You, and Where You Live
A 2017 GAO study found that Social Security disability outcomes could swing by forty-six percentage points based solely on which ALJ heard the case. Same claimant, same record, same hearing office, different judge. Individual ALJ approval rates range from under ten percent to over ninety. That's not noise — it's the system. In this episode — the first of a three-part series on how agencies actually produce outcomes — Gwen and Marc step outside the hearing room and examine the three variables that shape results before a single question gets asked: Judge assignment: Random allocation protects against selective routing, but paired with forty-six points of variation, it produces something that looks like a lottery. The system chose neutrality over consistency — and consistency doesn't get recovered downstream. Representation: Claimants with attorneys get roughly double the approval rate of those without — not mainly because of what happens in the hearing, but because of record-building beforehand and something more structural: since ALJ decisions aren't published, the only way to know how a specific judge handles specific issues is to have appeared in front of them. Experienced local attorneys hold what amounts to privatized law — accumulated operational knowledge that doesn't exist in any public source. Geography: Hearing offices differ by ten to fifteen points in approval rates beyond what the mix of judges explains, driven by local economic conditions, regional medical infrastructure, and office-level practice cultures that develop over time. A national program, a single statutory standard, and systematically different outcomes depending on which judge you draw, whether you can afford a lawyer who knows that judge, and which office covers your zip code. The binding agency-level law that does exist — Social Security Rulings, HALLEX — covers a narrow band of interpretive questions. Everything outside that band is where the variation lives. Next episode: if horizontal consistency doesn't exist at the hearing level, does top-down appellate review fix it? Spoiler — it doesn't.
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S2 · E11
April 28 · 28 min
Same Evidence, Different Outcomes: How Credibility and Burden of Proof Decide What Happens in the Hearing Room
Two claimants walk into two hearing rooms in the same building on the same day. Same herniated disc, same imaging, same attorneys, same legal standard. One walks out with benefits. The other doesn't. The difference isn't the evidence — it's that one ALJ believed her claimant and the other didn't. In this episode, Gwen and Marc break down the two factors that most often explain why identical cases produce opposite outcomes: How Social Security overhauled its credibility framework in 2016 to shift from "do I believe this person" to "are these symptoms consistent with the record" — and why ALJs are still making character judgments anyway The specificity principle: why "a sharp, stabbing pain that radiates down my right leg to my knee" carries more weight than "it really hurts" — and why admitting what you can do makes you more believable about what you can't Social media, surveillance, and the pattern problem — it's not the concert photo that destroys your case, it's the gap between the photo and what you told the judge The boilerplate credibility finding that showed up in thousands of decisions and why the Ninth Circuit said summarizing the medical evidence isn't the same as explaining why you don't believe the claimant The structural tension at the heart of burden of proof: the APA says the proponent bears the burden, which means the claimant in a benefits case loses on a 50/50 record — even though the ALJ was supposed to be helping develop that record Why that interaction plays out completely differently in asylum, where the substantive standard is more generous but the evidence base can be so narrow that a single credibility finding is the entire case Credibility determines how much of your evidence the judge credits. Burden determines how much credited evidence you need. And which ALJ ends up in the room with you may matter more than either — which is exactly where the next episode picks up.
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S2 · E10
April 21 · 25 min
The Lifecycle of an Administrative Case: How the Record Gets Built Before You Walk Into the Room
An insurance adjuster spends thirty minutes on your roof, photographs what they photograph, and writes "minor cosmetic damage" instead of "structural compromise." That characterization is now in the record — and every reviewer after that is seeing the damage through that adjuster's eyes. Gwen and Marc follow a single person — Kathleen, a warehouse supervisor with degenerative disc disease — through every stage of the Social Security disability system, from the field office application to federal court review. Along the way, every doctrine from Season 2 shows up on the timeline: the Roth property interest gap that leaves initial applicants without constitutional protection, the Mathews balancing test that said live hearings weren't required, the inquisitorial model that makes the ALJ simultaneously investigator and judge, and the substantial evidence standard that makes the record nearly untouchable on appeal. The episode then contrasts Kathleen's years-long journey with the enforcement side — what happens when the government comes after a company — where constitutional protections, legal counsel, and procedural leverage appear from day one. The hearing matters. But the case was shaped long before anyone walked into the room.
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S2 · E9
April 14 · 20 min
Jarkesy Jumps to the FTC
Less than two years after the Supreme Court's decision in SEC v. Jarkesy, the Fifth Circuit has applied the same constitutional logic to the FTC — and the implications are far bigger than one agency. In Intuit v. FTC, the court vacated a cease-and-desist order against TurboTax's "free" advertising, holding that the FTC's in-house adjudication of deceptive advertising claims violates the separation of powers. The agency that Congress deliberately designed in 1914 to adjudicate cases in-house — with bipartisan structure, Senate-debated architecture, and over a century of practice — just had that design declared unconstitutional in the Fifth Circuit. In this episode, Gwen and Marc break down: Why deceptive advertising under Section 5 shares enough of a "common core" with common law fraud to require an Article III court The Fifth Circuit's significant extension of Jarkesy: the private rights analysis follows the claim, not the remedy — meaning even cease-and-desist orders (equitable relief) can trigger the Article III requirement Why the FTC's 110-year history of in-house adjudication didn't save it The deception/unfairness distinction — and why how the FTC frames a complaint may now be the constitutional question The real-world tradeoff: more process for regulated parties means slower, costlier, and fewer enforcement actions for consumers This decision is binding only in the Fifth Circuit, but it's grounded in Supreme Court precedent — giving any respondent in an FTC administrative proceeding nationwide a roadmap to challenge in-house adjudication of deception claims. Jarkesy was never just an SEC case. The next domino could be the CFPB, the FDA, or any agency whose enforcement authority traces back to common law wrongs. Released the day before Tax Day — which, for the record, hasn't actually fallen on April 15th since 2021.
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S2 · E8
April 7 · 29 min
The Right to a Jury: SEC v. Jarkesy and the Limits of Agency Enforcement
The parents leave a rule: milk with dinner. The babysitter enforces it — no problem. But when one kid hits the other, does the babysitter handle that too? She saw the whole thing, she knows the context, and she's been managing exactly these situations for years. But hitting was wrong before she ever showed up. In SEC v. Jarkesy, the Supreme Court drew that same line through agency enforcement. Gwen and Marc trace the public rights doctrine from Murray's Lessee in 1855 through Atlas Roofing in 1977 — the case agencies relied on for nearly fifty years — to explain why the Court decided that when the SEC pursues civil penalties for securities fraud, the Seventh Amendment requires a jury trial. The problem: the opinion never clearly explains why fraud causing financial loss is closer to the common law core than negligence causing death, which Atlas Roofing had called a public right. The result is a new boundary that no one can precisely locate, with every enforcement agency left wondering which of its cases can stay in-house and which now have to go to federal court — and a likely reduction in enforcement that protects innocent defendants and guilty ones alike.
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April 2 · 21 min
Mathews Applied: Due Process, Habeas Corpus, and Immigration
Can the government send you to a foreign prison without giving you any way to say, "You've got the wrong person"? In this companion episode to their Matthews v. Eldridge discussion, Gwen and Marc apply the due process framework to three developments unfolding in real time: the administration's use of the 1798 Alien Enemies Act to deport Venezuelan nationals without individualized hearings, the Abrego Garcia case — where a man with a court order protecting him ended up in the exact prison an immigration judge said he couldn't be sent to — and a new rule that would have made meaningful immigration appeals nearly impossible before a federal court blocked it. They run the Matthews factors on each, showing how a Bloomberg investigation found roughly 90% of those deported had no criminal record, why the government's "administrative error" defense proves the need for pre-removal checkpoints, and what happens when the government acts first and argues courts can't fix it later. This episode isn't about whether borders should be secure or whether gangs are dangerous — it's about the constitutional principle, enshrined before the Bill of Rights even existed, that the government must let you challenge your detention. Because when that breaks down, it doesn't just affect the people in custody. It threatens the structure that protects everyone.
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S2 · E7
March 31 · 28 min
How Much Process Are You Actually Due: The Mathews Balancing Test
Tornado watches, warnings, and sirens don't all mean the same thing — and if you live in Oklahoma, you know you don't even run to a shelter every time a siren goes off. You calibrate your response to the actual level of threat. The Supreme Court says due process works the same way. In this episode, Gwen and Marc break down Mathews v. Eldridge — the due process balancing test that has governed how every federal agency designs its procedures for the past fifty years. The test asks three questions: How serious is what you stand to lose? How likely is the government to get it wrong without more process? And what would it actually cost to do more? The answers determine how much process the Constitution requires before the government acts — and whether you get a hearing at all before your benefits stop, your license is suspended, or you're barred from flying. Working through Social Security disability terminations, ten-day school suspensions (Goss v. Lopez), civil service firings (Loudermill), and the no-fly list, they show how the same three-factor framework produces dramatically different results depending on context — from a full evidentiary hearing to a conversation in a principal's office. The sharpest tension: Mathews said that paper review of medical evidence was good enough to terminate disability benefits without a prior hearing. But for conditions like chronic pain, depression, and fibromyalgia — where credibility is everything — a paper review misses exactly what a hearing would catch. The constitutional minimum and the practical reality diverged, and eventually Congress had to step in. Mathews doesn't just tell courts how to evaluate procedures after the fact. It's the design specification agencies are supposed to use when they build their systems in the first place — and when they don't, courts use it to force a redesign.
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S2 · E6
March 24 · 19 min
The License You Have vs. The License You Want: Roth, Sindermann, and What Counts as Property for Due Process Purposes
Gwen and Marc cover the cases that define what counts as "property" for due process purposes—and why the answer to that question determines whether the Constitution shows up at all. They contrast two nurses: Linda, who has her license suspended without a hearing, and Kevin, who is denied a license application with no explanation. Same state, same nursing board, same situation—but Linda gets constitutional protection while Kevin gets nothing. The difference? Linda has a property interest; Kevin has only a "unilateral expectation." Gwen and Marc work through Board of Regents v. Roth, which establishes that property interests aren't created by the Constitution—they're created by state law, statutes, regulations, and contracts. They examine Perry v. Sindermann, where the Supreme Court said agencies can't make promises with one hand and disclaim them with the other. They discuss Cleveland Board of Education v. Loudermill, which holds that once a state creates an entitlement, it can't strip away the procedural protections that come with it. They also tackle Town of Castle Rock v. Gonzales, the tragic case where three children were murdered after police failed to enforce a restraining order—and the Supreme Court said there was no property interest in police enforcement, even when the statute said "shall arrest." Gwen and Marc explore the uncomfortable reality that due process protects you when the government takes something you have, but doesn't require the government to act for you. Through examples ranging from hair braiding licenses to civil service employment, they show how program design isn't neutral—it's constitutional architecture. They Cover Board of Regents v. Roth: "legitimate claim of entitlement" versus "unilateral expectation" Perry v. Sindermann: how mutually explicit understandings create property interests Cleveland Board of Education v. Loudermill: why states can't define away procedural protections Town of Castle Rock v. Gonzales: the narrow gate for entitlements and the limits of mandatory language Liberty interests and the stigma-plus requirement How agencies design programs to create or avoid constitutional protections Real-world examples: professional licensing, government employment, welfare benefits Featured Cases Board of Regents v. Roth (1972) Perry v. Sindermann (1972) Cleveland Board of Education v. Loudermill (1985) Town of Castle Rock v. Gonzales (2005) Key Concepts Legitimate claim of entitlement: The standard from Roth that determines whether you have a property interest Constitutional architecture: How agencies design programs to trigger or avoid due process requirements Stigma-plus test: Reputation damage alone isn't enough—you need tangible harm Shall versus may: Why mandatory statutory language doesn't always create entitlements
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S2 · E5
March 17 · 16 min
Before We Take Something Away: Why Due Process Is More Than Getting It Right
Gwen and Marc cover the foundational question of procedural due process: Why does the Constitution require the government to give you notice and a hearing before taking something away? They distinguish procedural due process (how the government acts) from substantive due process (whether it can act at all), explaining why these terms constantly trip people up. They explore why accuracy isn't the only value—legitimacy and dignity matter even when the government gets the right answer. Through examples like welfare terminations and driver's license suspensions, they examine who bears the cost when government makes mistakes and why the timing of process matters as much as the amount of process. Gwen and Marc discuss Goldberg v. Kelly and Justice Brennan's recognition that cutting someone off from the means of survival while they wait for an appeal isn't just harsh—it undermines their ability to fight back. They also introduce the critical threshold question that controls everything: Does this action even count as a deprivation of life, liberty, or property? If not, the Constitution has nothing to say about it. They Cover The difference between procedural and substantive due process Why legitimacy matters even when outcomes are correct How risk allocation determines who pays for government mistakes The timing problem: pre-deprivation versus post-deprivation hearings Goldberg v. Kelly and welfare benefit terminations Real-world examples: Social Security, driver's licenses, nursing licenses The threshold question: What counts as life, liberty, or property? Featured Cases Goldberg v. Kelly (1970) Fuentes v. Shevin (1972)
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S2 · E4
March 10 · 25 min
The Judge Who Built Your Case: When the Judge is Also the Investigator
You walk into a hearing expecting a neutral judge who will listen to both sides. Instead, you find a judge who spent months building your case file—ordering exams, gathering records, forming preliminary views. Is this a fair hearing or a predetermined outcome? This episode explores the Social Security disability system, the largest adjudication system in the United States, where administrative law judges both develop the evidence and decide the case. We contrast adversarial and inquisitorial models of justice, examine why the U.S. selectively borrowed from civil law systems without their safeguards, and unpack the cognitive risks—confirmation bias, ownership effects, and implicit prejudgment—that emerge when investigation and adjudication combine in a single person. We also grapple with a harder question: Was this system designed wrong, or is it actually the more humane choice for vulnerable claimants who can't afford lawyers and wouldn't survive a fully adversarial fight? Key Concepts Adversarial vs. Inquisitorial Systems: The fundamental difference between party-driven investigation (U.S. courts) and judge-driven investigation (civil law systems), and why mixing them creates new problems The Duty to Develop the Record: How ALJs are required to gather evidence to ensure claims are fairly decided, even when claimants are unrepresented Confirmation Bias in Adjudication: Why forming preliminary views while building the record creates a cognitive loop that's difficult to escape Structural Bias vs. Individual Bias: The difference between proving an individual judge is biased and identifying systemic risks in how roles are combined Consultative Examinations: How ALJ-ordered medical exams can both help and hurt claimants, depending on what they reveal Cases & Regulations Discussed Withrow v. Larkin, 421 U.S. 35 (1975) Establishes that combining investigative and adjudicative functions doesn't automatically violate due process Creates a high bar: challengers must prove "actual bias" or overcome the "presumption of honesty and integrity" Sets the constitutional framework that allows Social Security's current structure 20 C.F.R. § 404.944 - ALJ's Duty to Develop the Record Codifies the affirmative obligation to develop a complete record Requires ALJs to request additional evidence, seek records, and order consultative exams when needed Episode Highlights Why This Matters: Over 500,000 disability hearings occur annually—more than the entire federal court system combined. Most claimants have already been denied twice and are unrepresented. The structure of these hearings determines whether they get a fair shot. The Design Choice: The system wasn't broken by accident—it was intentionally designed to help claimants who couldn't navigate an adversarial process. The alternative would be government attorneys arguing against every disability applicant. The Cognitive Problem: Even well-intentioned ALJs face predictable psychological risks when they develop evidence and then judge it. The bias isn't malicious—it's structural. The Constitutional Standard: Courts have upheld this structure because proving "actual bias" is nearly impossible when the bias operates through investigation choices rather than overt prejudice.
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