Administrative Remedies

In 1963, the FDA told drug manufacturers that every time they used a brand name, on a label, in an ad, anywhere, they had to print the generic name alongside it. The rule took effect the day it was published. Thirty-seven manufacturers, making more than 90 percent of the country's prescription drugs, thought it exceeded what Congress had authorized. Their options were to reprint everything they owned, or keep their labels and wait to be prosecuted for selling misbranded drugs. For companies whose business depends on physicians trusting them, that second option isn't really an option.
Abbott Laboratories v. Gardner let them sue before anyone enforced anything, and it reshaped how rules get challenged. Gwen and Marc use it to open up the three doctrines that decide when an administrative case can be heard: ripeness for too early, exhaustion for not yet through the agency's own process, and mootness for too late.
The doctrines come from different places, and that turns out to matter more than whether they sound strict. A rule the courts built, the courts can bend. A rule Congress wrote comes with only the exceptions Congress wrote into it. And a constitutional limit can't be forgiven by anyone.
In this episode:
Abbott Labs and the presumption that judicial review isn't cut off without clear and convincing evidence that Congress meant to cut it off
Harlan's two-part ripeness test, fitness and hardship, and why Toilet Goods Association came out the other way on the same day
National Park Hospitality Association, and why a purely legal question still isn't automatically fit for review
Why ripeness barely bites anymore, and the Court's open doubts about whether prudential ripeness survives
APA section 704, Darby v. Cisneros, and why courts can't impose exhaustion requirements of their own
Mandatory versus jurisdictional after Santos-Zacaria, and why the difference decides whether a missed deadline can ever be excused
A disability claimant whose appeal goes in two weeks late, and what Smith v. Berryhill gets her
Issue exhaustion for regulated companies, and why an objection nobody raised during the comment period may be forfeited
McCarthy v. Madigan, the Prison Litigation Reform Act, and Ross v. Blake: the clearest wall in the whole area, and the one word Congress left as an exception
Voluntary cessation: the Sacketts, FBI v. Fikre, and why a promise hedged with "based on currently available information" isn't enough
Al Otro Lado, where keeping the case alive is what let the government win it
Capable of repetition yet evading review, which started with railroad rates in 1911, and the same-party requirement people forget
A detention case that died in September because a governor issued a pardon three days before a brief was due
The real asymmetry: not that the doctrines are rigged, but that one side is in these cases every day and goes looking for another vehicle when one fails
Next week: the decisions courts say aren't reviewable at all, with Heckler v. Chaney and Patel v. Garland.

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 action
Bennett v. Spear, the Klamath biological opinion, and Scalia's point that a document labeled advice can still function as a command
Why the final judgment rule is the same instinct but not the same problem, since a trial court can't decline to ever enter judgment
FDA warning letters, Holistic Candlers, and why real pressure isn't the same as legal consequences
Sackett 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 ways
The 2019 executive order conceding that non-binding guidance carries an implicit threat of enforcement, while creating no right to challenge it
Texas v. EEOC: sovereign interest in a state's own laws, safe harbors, and a document that binds agency staff
Why the Fifth Circuit held the same document can't be final for a private employer and non-final for a state
The 2011 Dear Colleague letter on campus sexual assault: six years of nationwide effect, withdrawn before any court reached the merits
The case against all of this, that guidance binds nobody and an employer who ignores it gives up nothing it had a right to do
Rescission 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 them
Next week: ripeness, exhaustion, and mootness, three more ways of asking when, with the Sacketts again.

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 it
Why the litigation runs against the Park Service at all, and the government's shifting position on who was actually building the ballroom
Two parallel tracks, APA and ultra vires, and what happens when the decisionmaker isn't an agency
Valley Forge, FDA v. Alliance for Hippocratic Medicine, and the line between an injury and a strong objection
Laidlaw, Summers, and Lujan: why aesthetic injury counts for a river or a species, and why the majority says a building is different
Sierra Club v. Morton to Lujan to this order, and the argument that the bar keeps moving once a plaintiff clears it
The Chief Justice's dissent: the crocodile, Teddy Roosevelt's 1902 message to Congress, and the fact that nobody fishes in the White House
The equities half of the order, the security declarations, and the dissent's footnote quoting the government against itself
Bost: candidates, the hundred-meter dash, Justice Jackson's dissent on generalized grievances, and Justice Barrett's narrower pocketbook route
Why the doctrine lets two reasonable justices sort the same plaintiffs in opposite directions
What Congress can still do, and why timing may make that academic
Whether 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

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.

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