December 2007 Newsletter

Administrative Law: Kevin Stack

When Kevin Stack entered Brown University as an undergraduate, he intended to study physics. Instead, he ended up majoring in philosophy, and a year after earning his undergraduate degree, he won a Fulbright Scholarship for graduate study at Oxford University. At Oxford, Stack, who had entered thinking he would return to the U.S. to pursue a Ph.D in philosophy, changed course. Realizing that the study of law would allow him to combine his interests in philosophy and public policy, he returned to the U.S. after earning his Master’s at Oxford to enter Yale Law School.

After graduating from Yale, Stack relished his first job as a clerk for Judge Kimba Wood in the U.S. District Court for the Southern District of New York, an experience he likens to “having a black-letter law exam every day when you hadn’t taken the course” because of the heavy and tremendously varied caseload. “It was definitely trial by fire,” he recalls, “but you have a lot of guidance as a district court clerk, and you learn a tremendous amount.”

Stack found the pace at his job the following year as a clerk for Judge Wallace Tashima at the U.S. Court of Appeals totally different. “There are fewer cases,” he explains, “and you have more time to devote to analyzing them.”

“The usual track is to clerk at the District Court level before the Appellate level,” he says. “Based on my experience, it would make sense to reverse that track.”

After his clerkships, Stack joined Jenner & Block in Washington, D.C., where he practiced complex litigation, including work on appeal of federal administrative agency decision to the federal appeals and Supreme Court. That work confirmed his interest in devoting his career to the study of administrative law.

He joined the faculty at Cardozo School of Law in New York City, where he began to focus his research on the limits of presidential power, in 2002, and his work soon attracted the attention of the legal academy. He joined Vanderbilt’s administrative law faculty, which also boasts nationally renowned scholar Lisa Schultz Bressman, this fall, and is teaching civil procedure, administrative law and seminars on legislation and presidential power.

Since entering the academy, Stack has written a sequence of articles on the scope of the statutory powers granted the president by Congress and is emerging as one of the nation’s leading authorities on the president’s statutory powers. “Statutory powers are almost always the most important source of presidential power,” he says. “When the president acts, he almost always asserts statutory as well as constitutional power. My articles propose a framework for judicial review of those powers, arguing that the president’s assertions of statutory authority should be viewed on a par with other administrative action.”

Stack’s scholarship also addresses the constitutional basis for agency action. In a 2007 Yale Law Journal article, “The Constitutional Foundation of Chenery,” he argues that a seeming contradiction in the way the courts address legislation and agency action is well-grounded in the Constitution. “The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress,” Stack writes, “but it doesn’t work that way in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency’s action only on the grounds upon which the agency relied when it acted.”

Stack argues that “something more than distrust of the agency’s lawyers is at work” here.

“When the validity of agency action is dependent on the validity of the agency’s justification, the courts have the power ensure that accountable decision-makers, not merely agency lawyers, have embraced the grounds for the agency’s actions,” he says. “This also suggests that the president’s own exercise of statutory power is not immune from Chenery‘s demands for reason-giving.”