She Makes My Heart Sing
Courts and the Law 
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I link to this decision because it includes a dissent by Judge Janice Rogers Brown, the last three paragraphs of which in particular make me want to dance in the aisles:
I close with a few words on how easily the administrative state can slip its leash. A familiar argument for enhanced administrative authority (and hence diminished judicial review) is the need for “flexibility,” as old-fashioned courts are ill-suited to deal with the complexities of the modern world. E.g., Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2079 (1990) (citing, inter alia, J. LANDIS, THE ADMINISTRATIVE PROCESS 6-12 (1938)). That may be true. But the flipside of flexibility is certainty, consistency, evenhandedness, and predictability-those Rule of Law values that mark a free society. E.g., THOMAS PAINE, COMMON SENSE 31-32 (Dover Thrift ed., 1997) (1776) (“[L]et a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”). If my splintered-on-seemingly-all-points-but-outcome colleagues are right that despite her many errors, the DA’s decision to revoke Novelty’s registration still must be upheld, then I fear we have traded away far too much law in our bargain for elasticity.
But in the end, because of this “flexibility,” it is probably for the best that the DA’s decision is upheld today. If the registration was not revoked this time, it surely would have happened next time. On this record, I have no confidence that Novelty would ever receive a fair shake from the DEA. Indeed, if we were reviewing a district court that acted like this, I would not remand to that court. But the DEA is the only game in town for drug registrants, and in deciding whether to revoke a registration the DA balances a number of open-ended factors with no requirement “to make findings as to all of the factors,” and with power to “give each factor the weight [s]he deems appropriate.” Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005). Add Chevron deference to that mush and we have a very powerful Deputy Administrator. In other words, if in the future the DA were to find any errors in Novelty’s records or operations (and, given that Novelty sells millions of doses a year, it is inevitable that she would), then she could revoke the registration by claiming a pattern of dangerous recordkeeping and distribution errors, knowing full well that Novelty would face an uphill scramble to persuade a court that she has abused her overflowing discretion. Given the law of large numbers, such a pattern could be found in any registrant’s records, meaning all registrants live by the grace of the Deputy Administrator.
No, old-fashioned law will not save Novelty and the jobs of its employees. It does not matter that no Novelty executive has ever been convicted of a crime. It does not matter that notwithstanding Novelty’s millions of sales, the best evidence the DA can point to of diversion is one – one! – instance from over six years ago. It does not matter that the DEA inspected Novelty’s records for years and never peeped about a problem before deciding to bring down the full weight of the Executive Branch on Novelty’s head. It also is irrelevant that Novelty has credibly offered to overhaul its internal processes to comply with the DA’s whims. When an agency has gone rogue, and when judicial review is gutted, the only thing left is the Law of the Jungle, the weak versus the strong. And in this war of all against all, who can withstand the might of the federal government?
This could have been written about the BATF, the FEC, the SEC, the DHS, or any of the alphabet-soup federal regulatory agencies that we all have to suffer. And it’s dead on the money.
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