New Wine, Old Bottles, and a Do-Nothing Congress

Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. Pa. L. Rev. 1 (2014).

The Rivers and Harbors Act of 1899 was adopted to protect against hazards to and interference with navigation. It prohibited “creation of any obstruction to the navigable capacity of any of the waters of the United States” or altering or filling navigable waters (§10) and also made it unlawful “to throw, discharge, or deposit . . . any refuse matter” into navigable waters “whereby navigation shall or may be impeded or obstructed,” although the Corps of Engineers could permit such a discharge if “anchorage and navigation will not be injured thereby” (§13). For two-thirds of a century, those provisions operated as one would expect. Then came the modern environmental movement, and in short order the courts and the executive branch turned these provisions about obstruction to navigation into a water-pollution control regime. As President Nixon drily put it in issuing an executive order that created a sweeping new pollution permit program under §13, the Act’s “potential for water pollution control has only recently been recognized.” Richard Nixon, Statement on Signing Executive Order Establishing a Water Quality Enforcement Program (Dec. 23, 1970).

This striking repurposing of a 19th century statute to solve 20th century problems is not unique. EPA’s current reliance on the Clean Air Act to regulate greenhouse gases can be seen as another example, this time using a 20th century statute to solve a 21st century problem (though the gap between the original conception of the statute and its repurposing is much less dramatic in this later instance). Jody Freeman and David Spence have now provided a valuable, and quite sympathetic, analysis of the technique of using “old statutes” to address “new problems.”

The authors’ analysis is very much situated in the present day, which is characterized by profound congressional gridlock. Part II explains current congressional dysfunction and inaction, focusing in particular on the fact that “the ideological middle is unprecedentedly weak and growing weaker.” The parties’ respective means are further apart, and there are fewer moderates of either party in Congress. Absent a highly salient crisis, Congress is frozen. (An Appendix lays out a formal model of congressional politics in such circumstances.) This means that older statutes go unamended; if they are to be adapted to contemporary challenges, it will be agencies, not Congress, who do so.

And do so they have. The bulk of the article is devoted to two case studies of this phenomenon. One is the aforementioned regulation of climate change via the Clean Air Act; the other is FERC’s effort to modernize electricity policy through new approaches to its authority under the Federal Power Act. While not identical, both settings raise the same basic questions about the legitimacy and consequences of aggressive interpretations of longstanding statutes to address problems unanticipated by the enacting Congress. These are deep dives, and the level of detail may be more than some readers feel they need. But the discussion is helpful in understanding the brass tacks of how, on the one hand, these agencies have engaged in “interpretive jujitsu” to adapt the statute to contemporary imperatives, but, on the other hand, are undeniably and genuinely constrained by the statutory regime within which they are working.

The final part of the article discusses the consequences of agencies’ stepping into the vacuum created by congressional paralysis, exploring how “the de facto removal of Congress from this game changes the strategic environment for the other actors,” producing relatively bolder action. This will be particularly so where the president’s priorities and the agency’s mission align. Still, boldness may be tempered by (a) what credible threats of nonlegislative congressional checking exist, (b) honest readings of statutory constraints, (c) the specter of judicial review (which matters both for the individual matter and for the agency’s credibility and long-term reputation with the courts), and (d) regulatory review by OIRA.

The authors conclude with some reflections on judicial review in this era of congressional dysfunction. The core concern is whether courts giving agencies a relatively free hand will enhance or undermine democratic accountability. On the one hand, the standard assumption is that constraining agencies and thus relying on Congress for policy change is more “democratic.” But the authors point out that if Congress is utterly polarized, it will often be unable to act, and when it does act it will be unable to move to the center. In those circumstances, the agency may have the edge in democratic legitimacy. This is particularly true if agencies are addressing problems not anticipated by the enacting Congress.

It is in this last section that the authors’ largely implicit normative position—which is one of approval of muscular agency updating in the face of congressional dysfunction—becomes most explicit. It is a theory of the second-best. Faute de mieux, agencies should ensure that regulatory regimes are up to the task.

This brings me back to where I started. The 1970 permit regime created by what Richard Nixon referred to as a “more activist utilization of” the Refuse Act never quite took hold. But it presaged, and just two years later was supplanted, by the NPDES program created in the 1972 Clean Water Act. That sort of sensible, centrist, bipartisan congressional reaction to legal and real-world problems is exactly what, as Freeman and Spence convincingly explain, simply does not occur four decades later. And their essential point is that that reality will, and should, lead to more aggressive agency implementation of old statutes in light of new problems.

Cite as: Michael E Herz, New Wine, Old Bottles, and a Do-Nothing Congress, JOTWELL (March 11, 2015) (reviewing Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. Pa. L. Rev. 1 (2014)),

Privileged Delegations

Mila Sohoni, The Power to Privilege, 163 U. Pa. L. Rev. (forthcoming, 2015), available at SSRN.

When Associate Justice Ruth Bader Ginsburg visited Berkeley Law in 2013, she expressed surprise when students in my Civil Procedure class advocated the passage of the Open Access to Courts Act (which would have imposed the Conley “no set of facts” standard on Rule 12(b)(6) motions), even though she had dissented in Twombly and Iqbal. She asked: “You want Congress to change the Rules of Civil Procedure?” She would, I think, agree with Professor Mila Sohoni’s skepticism of allowing executive agencies to change the Rules of Evidence. Both laud the rulemaking process through the Judicial Conference instead.

Sohoni’s forthcoming article, The Power to Privilege, is a rare and insightful article that examines the intersection of the rules of litigation and the administrative state. The article takes a seemingly obscure and ignored provision of the Patient Protection and Affordable Care Act (ACA)—authorizing the Secretary of Labor to issue regulations that “provide[] an evidentiary privilege for, and provide[] for the confidentiality of communications between or among” a plethora of federal and state officials and organizations—and persuasively demonstrates the likely costs of such a delegation.

The ACA provision that motivates the article (Section 6607) amends the Employee Retirement Income Security Act (ERISA) to allow the Labor Secretary to define an evidentiary privilege so long as it “is appropriate for the purposes of enforcing” ERISA. It is not an ordinary statutory provision. As Sohoni writes: “Section 6607 bestows on federal regulators a power that they have never before held: the power to write rules of privilege from the ground up.” Ordinarily, while agencies do claim various privileges in litigation, the common law and sometimes Congress itself establish privileges. Agencies have promulgated so-called Touhy regulations to limit their disclosures in the face of a subpoena but since 1958, the power of these regulations basically “ends at the courthouse doors.” The case law does appear to permit Congress to delegate clearly to agencies the power to set privileges, and Congress has done that with Section 6607, which would apply to federal and state court proceedings.

After deftly explaining its uniqueness, Sohoni turns to three primary risks of Section 6607. The potential ramifications are largely negative, though she does acknowledge that such delegations can foster “efficient enforcement of the law and efficient coordination between agencies.” First, delegations to establish privilege to agencies could undermine agency accountability. Agencies often want “to cloak . . . communications from external scrutiny” to “insulate themselves from accountability in courts and to the public.” Sohoni nicely draws on the national security context to buttress her claims here. Second, these delegations could harm state interests by restricting access to information, mostly through preempting state public records acts. The federal entities doing the preempting by regulation “are unlikely to be attuned to state policy interests.” For this point, Sohoni turns to the Securities and Exchange Commission’s arguments in state courts (largely rejected) that documents provided to it by investigated parties should be privileged, and also notes the policies reflected in expansive state sunshine laws. Third, such delegations could threaten state sovereignty. In Sohoni’s framing, this is a concern about commandeering. Because Section 6607 applies to “communications of state agencies and state agents” (and presumably applies to state court proceedings), any federal regulations could “undercut the accountability and credibility of states as independent political institutions” because critical information may not get disclosed to voters.

The picture Sohoni paints is grim. But as with Justice Ginsburg and the Rules of Civil Procedure, the judicial rulemaking process, an “off-the-shelf solution,” is a better model. It is “transparent, apolitical, and adept at considering constitutional values, such as federalism” and is “accessible to federal agencies, states, and the public.” I am a bit nervous thinking of the courts and the judicial rulemaking process as apolitical institutions. But for Ginsburg, Sohoni, and many others, the trumpets should begin.

Sohoni provides not only a perceptive descriptive and normative account of delegating the power to privilege to the administrative state in the ACA and beyond, but also offers a causal and temporal account. The last section of Sohoni’s article should be read carefully to appreciate its sophistication. In her terms, “Congress did not merely select a delegate; it swapped in a new delegate —a politically accountable executive agency—for an old delegate—politically unaccountable federal courts.” Little of political science and administrative law scholarship contemplates changes in delegation over time. Sohoni posits that Congress made this switch in delegates because of partisan motivations. Specifically, in Section 6607, “Congress named as its delegate the Department of Labor, a non-independent executive agency over which Congress and the President could exert control, and thereby replaced a delegate—the federal courts—that is far more insulated from partisan political control.” The ACA was enacted “during a brief interval of time where one party controlled both houses [and in the case of the Senate, could pass a cloture motion] and the Presidency.”

Sohoni’s party competition story could explain why Congress has not given similar authority to the SEC, despite the agency’s extensive lobbying (to Congress, state courts, and the federal judicial rulemaking process), as the SEC has more independence from the White House. On the other hand, partisan dynamics are not just horizontal. With the White House all but certain to change hands at some point in the future, a Democratic Congress and White House might not want to delegate considerable authority to an executive agency. Indeed, other parts of the ACA that delegate considerable authority to the states could be seen as counterbalancing a future Republican White House. This is a minor quibble in an excellent piece, and I have no better story for the change in delegate on which Sohoni focuses.

In sum, the decision to examine why Congress might change delegates (or, I would add, change the scope of delegation or the process of agency decision-making) over time as well as the intersection of civil litigation and administrative law are both areas deeply worthy of more scholarly attention. Sohoni has set the bar high with her forthcoming article, but I very much hope others will follow suit.

Cite as: Anne O'Connell, Privileged Delegations, JOTWELL (February 9, 2015) (reviewing Mila Sohoni, The Power to Privilege, 163 U. Pa. L. Rev. (forthcoming, 2015), available at SSRN),

We Found Out That Counting Lizard Poop Is Not A Good Way To Count Lizards: Now What?

Adrian Vermeule, Rationally Arbitrary Decisions (in Administrative Law), Harv. L. Sch. Pub. L. & Legal Theory Res. Paper Series (2013), available at SSRN.

Professor Vermeule has a knack for giving irresistible titles to articles that ask deep questions about administrative law—as demonstrated by the essay that is the subject of this little jot, Rationally Arbitrary Decisions (in Administrative Law). The apparent oxymoron grabs attention: Aren’t arbitrary decisions, by administrative-law hypothesis, irrational? Where reasoned decision-making stops, there arbitrariness begins, no?

There is a problem with this neat dichotomy. If you will forgive a tautology, a reasoned explanation for an action, if actually reasonable, shouldn’t depend on reasons that can’t reasonably be given. Sometimes, agencies must act, and they must do so in the teeth of genuine uncertainty. Embedded in the preceding claim is a distinction often drawn between risk and uncertainty. Risk allows for rational assignment of probabilities to outcomes (e.g., there is a 50% chance that a fair coin will turn up heads). Where genuine uncertainty exists, no such assignment of probabilities is possible—e.g., “[no] human actor … has any epistemic justification for attaching probabilities to events that may or may not occur eons in the future.” (P. 4.) When confronting uncertainty, “reasons run out and a relentless demand for further reason-giving becomes pathological.” (P. 2.)

But, according to Professor Vermeule, courts with some frequency unreasonably insist on reasons anyway. When they do, one might say that they violate their own judicial duty to engage in reasoned decision-making. He also contends that courts sometimes make the substantive mistake of requiring that agencies respond to genuine uncertainty by assuming worst-case scenarios—i.e., if we really have no idea what is going to happen, we should assume the worst.

Professor Vermeule builds his argument around several judicial opinions typifying various types of uncertainty (“brute,” “strategic,” and “model”) that in his view can justify rational arbitrariness by agencies. Let’s take a quick look at his example of “brute uncertainty,” Tucson Herpetological Society v. Salazar, 566 F.3d 870 (9th Cir. 2009). This case, which by 2009 had been proceeding for 16 years, revolved around whether the “flat-tailed horned lizard,” which is a “small cryptically colored iguanid . . . that is restricted to flats and valleys of the western Sonoran desert” should be listed as a threatened species under the Endangered Species Act (ESA). A threatened species is one that “is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20). The Secretary first proposed listing the lizard as threatened back in 1993. Since then, the Secretary has repeatedly issued decisions withdrawing the proposed listing, and non-profit environmental groups, such as the Tucson Herpetological Society, have persuaded courts to vacate these withdrawals. In support of a 2006 withdrawal, the Secretary “quantified the lizard’s lost range [and] explained why that range is not ‘significant’ within the meaning of the ESA.” Id. at 875. The Secretary based this conclusion in large part on a finding that “lizard populations persist across most of the species’ current range despite habitat loss and fragmentation.” Id. at 877.

But there was a very basic problem with this finding of persistence. Studies of lizard populations used to rely on “scat counts,” but all sides now agree that counting lizard poop is not a good way to count lizards. And the only available “capture-mark-recapture” study included a warning from the study’s author that it was based on “sparse data” that “should be viewed with caution.” In short, whether lizards were persisting was genuinely uncertain. Nobody but the lizards knew, and they weren’t telling. This left the agency in a bind—the administrative record did not support a finding that the lizard population was viable or non-viable. Either might be regarded as arbitrary.

Given this problem, Professor Vermeule contends that the court of appeals was wrong to throw out the agency’s finding—“[t]he Secretary had to decide in which direction to take a leap of faith, and it is a kind of pathological hyper-rationalism to demand that the Secretary give reasons for taking it one direction rather than the other.” (P. 7.) Also, targeting precautionary attitudes toward decision-making, he maintains that courts should avoid the temptation to impose conservative default rules, e.g., erring on the supposed side of “caution” to assume a low number of lizards. (PP. 7, 10-13.)

Instead, we should all “cheerfully concede[ ]” space for agencies to make findings that are “arbitrary at the first order.” Such decisions, where an agency cannot avoid making them, should not be regarded as “legally arbitrary” so long as they rest on “valid second-order reasons.” (PP. 7, 10-13.) Among other ways, agencies might make rationally arbitrary decisions by extrapolating the future from the past (even though past performance does not guarantee future results), adopting a default rule of sticking to the status quo (even though the status quo is often not so good), following conventional judgments (which are often wrong), or even randomizing. (P. 17-18.) The last approach has the virtue of guaranteeing neutrality but would be particularly hard for agencies to adopt given the courts’ “implacable hostility.” (P. 20.) Still, courts, notwithstanding their biases, should respect agencies’ rationally arbitrary decisions rather than impose deadweight losses on society by “forc[ing] the agency to cough up an epistemically unjustified rationale for what is essentially an arbitrary decision, and rationally so.” (P. 20.)

So far, this little jot has only scratched the surface of a few of the many ideas explored in Professor Vermeule’s engaging essay. To find out what he has to say about strategic uncertainty, model uncertainty, precautionary approaches to arbitrary decisions, the problem of uncertainty as applied to agency information gathering (i.e., figuring out when to stop investigating and start deciding), determining where uncertainty genuinely exists, etc., you will just have to follow the link at the top of the jot.

Before closing, however, here are a few questions, which I hope are not too cute by half, which Professor Vermeule’s essay raised in mind. Professor Vermeule observes that deeply ingrained judicial attitudes are a roadblock to adopting his approach:

The culture of law, which celebrates reason-giving; a related and entirely misguided assumption that the rule of law requires first-order reasons for every choice; the need to justify decisions in the language of reason to officials in other branches, and to the general public; and the aversion to uncertainty and ambiguity that judges share with other humans—all these conspire to produce judicial hyperrationalism. (P. 19.)

Put another way, a very “human” aspect of this culture of law, which agencies share to a large degree, demands or at least encourages a kind of lying where law and reason run out but power has not. Do these lies, so deeply embedded in the system, carry benefits of their own? Might telling the truth about rationally arbitrary decisions undermine these benefits? Is the truth something that should be optimized rather than maximized in this context? Compare Adrian Vermeule, Optimal Abuse of Power, Nw. U.L. Rev. (forthcoming, 2015), available at SSRN. Is the better path uncertain?

Cite as: Richard Murphy, We Found Out That Counting Lizard Poop Is Not A Good Way To Count Lizards: Now What?, JOTWELL (January 6, 2015) (reviewing Adrian Vermeule, Rationally Arbitrary Decisions (in Administrative Law), Harv. L. Sch. Pub. L. & Legal Theory Res. Paper Series (2013), available at SSRN),

Safe at Any Speed: Robert Ahdieh’s Take on Cost-Benefit Analysis in Financial Markets

When I saw the title of Robert Ahdieh’s recent article, Reanalyzing Cost-Benefit Analysis: Toward a Framework of Function(s) and Form(s), I thought, “oh no, not another article about CBA.” Knowing Professor Adhieh’s work, I took a flyer and read it anyway, and boy was I happy with my decision. This is a great article which should be of interest to anyone involved in administrative law, securities regulation and policy analysis more generally. Cost-benefit analysis has become an important regulatory tool, and Professor Adhieh’s article makes a valuable contribution to the literature on the special analysis required under Section 106 of the National Securities Market Improvement Act of 1996, 15 U.S.C. § 77b (2012) and to the literature on cost-benefit analysis more generally.

Ahdieh’s jumping-off point, section 106 of the National Securities Market Improvement Act of 1996, requires the Securities and Exchange Commission (SEC) to consider, in all of its actions, including rulemaking, “in addition to the protection of investors, whether [an] action will promote efficiency, competition, and capital formation.” As Ahdieh observes, on its face, this provision has little bite—it requires only consideration of the effect on markets and it does not impose any substantive standard such as the efficiency requirement imposed by Congress in other regulatory contexts. Despite the moderate nature of Congress’s language, as Ahdieh reports, when the SEC promulgated a regulation expanding shareholder access to corporate proxies to nominate corporate directors, “[c]onsidering SEC rulemaking unsafe at any speed, . . . the Business Roundtable and the Chamber of Commerce challenged the new rule . . . invoking the language of Section 106 . . . [arguing] that the SEC’s assessment of the costs and benefits of mandatory proxy access had not met the requirements of Section 106.”

Surprisingly, in Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011), the DC Circuit agreed with the challengers’ arguments, and in effect construed Section 106 as imposing a rigorous cost-benefit analysis requirement on the SEC. As Ahdieh notes, “most surprising was Business Rountable’s dramatic departure from the deference the courts had previously shown agency evaluations of costs and benefits.”

So, what’s so great about Ahdieh’s article? Many things. I’ll list a few of them. First, Ahdieh takes a fresh look at the development and application of cost-benefit analysis in American administrative law, with excellent analysis and biting critique along the way. Second, Ahdieh conducts an extended, in-depth analysis of the enactment, text, and application of Section 106. This is a first-rate case study of a regulatory statute, worthy of inclusion in a course on Legislation or Securities Regulation. Third, Ahdieh explores the values advanced by cost-benefit analysis including enhancing efficiency, reducing cognitive bias, forcing rational priority setting, reducing regulation, and increasing transparency through clearer analysis and enhanced monitoring of agencies. Fourth, Ahdieh explores different forms of cost-benefit type analysis based on the unique language of each regulatory statute imposing analytical requirements. He persuasively argues that Section 106 is best understood as imposing a purely procedural obligation, similar, I guess, to the National Environmental Policy Act’s (NEPA) requirement that agencies “consider” the environmental effects of their actions.

In my view, this discussion contains a devastating critique of the Business Roundtable decision which Ahdieh, in his typically modest and even-handed style, soft-peddles a bit too much for my tastes. Ahdieh’s conclusion is that “[j]udicial review under Section 106 should be circumspect . . . and highly deferential. Such deference is consistent with the traditionally limited judicial constraints on the SEC . . . [and] is in line with the Commission’s significant expertise and its stature as an independent agency.” No kidding. This critique could be applied across a wide swath of the D.C. Circuit’s administrative law decisions.

Ahdieh’s article was a joy to read and contains lessons that transcend its context. Anyone interested in cost-benefit analysis, securities regulation, judicial review, statutory construction and the regulatory process will benefit from the time spent reading this article. It’s the type of article that gives administrative law scholarship a good name.

Cite as: Jack Beermann, Safe at Any Speed: Robert Ahdieh’s Take on Cost-Benefit Analysis in Financial Markets, JOTWELL (November 26, 2014) (reviewing Robert B. Ahdieh, Reanalyzing Cost-Benefit Analysis: Toward a Framework of Function(s) and Form(s), 88 N.Y.U.L. Rev. 1983 (2013)),

Salarization’s Impact on Governmental Legitimacy

As a member of the ABA Administrative Law and Regulatory Practice Section’s Scholarship Award Committee, I would like to recommend this year’s winning submission, Professor Nicholas Parrillo’s book, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940. Not only did the book win the ABA Administrative Law Section’s award for the best work of administrative law scholarship published in 2013, it also won the 2014 Law and Society Association’s J. Willard Hurst Prize for the best book on socio-legal history. The book focuses on a seemingly mundane, but ultimately decisive topic: how government compensates its employees. Understanding why the government moved to a salary-based pay structure is actually fundamental to understanding how the modern administrative state became viable, functional, and—critically—legitimate.

For much of the eighteenth, nineteenth, and even the twentieth, centuries, public officials were paid in ways that today we might find shocking:

Judges charged fees for transactions in the cases they heard. District attorneys won a fee for each criminal they convicted. Tax investigators received a percentage of the evasions they discovered…. Policemen were allowed rewards for recovering stolen property or arresting suspects. Jailors collected fees from inmates for permitting them various privileges, and the managers of penitentiaries had a share of the product of inmates’ labor. Clerks deciding immigrants’ applications for citizenship took a fee for every application. Government doctors deciding veterans’ applications for benefit did the same, as did federal land officers deciding settlers’ applications for homesteads. Even diplomats could lawfully accept a “gift” from a foreign government upon finalizing a treaty. (P. 1.)

Professor Parrillo usefully sorts these surprising compensatory arrangements into two categories he calls facilitative payments and bounties. He defines facilitative payments as sums that public officers received for performing a service that a citizen wanted or needed, such as issuing a permit. He defines bounties as sums that officers received for performing a service that the citizen did not want, such as arresting someone or finding a tax discrepancy. These two types of payments gave rise to different social relationships between the public officials and those they regulated. On the one hand, the facilitative payment system fostered a customer-seller relationship, rather than a public service relationship. Because not everyone could afford to pay public officials or pay the same amounts, the facilitative payment system fostered inequality, leading many to view the system as corrupt. On the other hand, bounties fostered an adversarial relationship between the public official and those who were targeted. Bounties directly conflicted with the voluntary nature of most governmental compliance. Ultimately, salaries replaced both compensation systems because the systems failed to promote democratic principles and legitimacy. Citizens will only cooperate with a government they believe to be legitimate; Professor Parrillo shows how facilitative payments and bounties undermined legitimacy.

While Against the Profit Motive is certainly of historical significance, it offers a cautionary tale about moving towards privatization (and the for-profit business model) and moving away from salarization. If we fail to remember lessons from the past, we may be doomed to repeat them. Privatization permits service contractors working for profit to handle duties previously entrusted to salaried government workers, thus, bringing monetary incentives to the forefront. Should employees have a financial stake in how governmental programs are run? According to Professor Parrillo, the answer to that question is a resounding “no”; however, arguments have recently been made to privatize government functions from education to prison management to national security. Moreover, some federal programs, such as Medicare, contain facilitative payment-like incentives. Such arguments neglect the teachings of our past.

Against the Profit Motive is well written, extensively researched, and offers interesting insights into a once-common approach to remuneration, which has now been, wisely, abandoned. At a time when local, state, and even the federal governments are considering privatization, Professor Parrillo’s historical examination cautions us against embracing profit as motive for government function. It is an impressive work of legal scholarship that without a doubt has relevance for contemporary debates about agency structure and incentives. While there is much to commend the book, it is imperfect. Professor Parrillo could have been much more instructive regarding how the historical implications of his work relate to contemporary administrative structure and practice. In other words, he fails to fully explore the relevance of the past to the possibilities of the future, leaving it to the reader to make those connections. In addition, the book is highly repetitive and overly detailed. Had Parrillo used a more critical editing pen, he would have had significantly more room to develop the relevance of his topic to the modern administrative state.

In sum, the book is an interesting, albeit comprehensive, read. It is an exhaustively researched and sophisticated analysis of the transformation in the way public officials are paid. Notably, the conclusions Professor Parrillo draws offer an important cautionary tale for using economic incentives to motivate public officials in modern times. He teaches that if we believe in a professional and politically insulated government service and if we want broad participation in administrative government, then we must fight against those who argue that government should be run like for-profit businesses.

Cite as: Linda Jellum, Salarization’s Impact on Governmental Legitimacy, JOTWELL (October 31, 2014) (reviewing Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (2013)),

Scrutinizing the Effects of State Interest Group Participation in Federal Administration

Miriam Seifter, States as Interest Groups in the Administrative Process, Va. L. Rev. (forthcoming, 2014), available at SSRN.

Recent scholarship on administrative federalism has advocated for federal agencies to consider state interests—with many scholars praising the notion of giving states a voice in the federal regulatory process. However, in arguing for a strong partnership between states and federal agencies, federalism scholars have given little attention to what costs might flow from state involvement in federal administration. In States as Interest Groups in the Administrative Process, forthcoming in the Virginia Law Review, Professor Miriam Seifter astutely points out this void in the scholarship, and she begins to fill the scholarly gap by carefully scrutinizing and weighing the costs and benefits of state interest group participation in the federal regulatory process.

Specifically, Professor Seifter, who recently joined the University of Wisconsin Law School as an assistant professor, argues that—contrary to the prevailing view of many federalism scholars—state involvement in federal regulation is not all rosy. Rather, she asserts that state interest groups—which she defines as “organizations of state elected or appointed officials whose mission is to represent the official interests of their members, particularly in front of the federal government” (P. 8)—impose significant costs on the administrative process.

Professor Seifter develops her argument by looking to three often-cited benefits commonly thought to flow from state involvement in federal administration: (1) protecting state power; (2) promoting agency expertise; and (3) maintaining democratic accountability. Ultimately, she concludes that state interest groups are not actually championing all three of these goals at once. Rather, she asserts that state interest groups are well-suited for advancing collective, core federalism goals of protecting states as institutions. Yet state interest groups are ill-suited for promoting agency expertise and democratic accountability. State interest groups, for example, tend to advance abstract, aggregate arguments regarding federalism principles and do not help to disseminate to federal agencies the diverse experiences, expertise and information generated by different states. In addition, state interest groups operate in an opaque and non-transparent manner (immune from public disclosure requirements), thereby undermining accountability. The result, according to Professor Seifter, is that the current system of state interest group involvement skews away from enhancing agency expertise and democratic accountability and toward the protection of state power.

The complicated and decidedly not rosy picture of state interest groups that Professor Seifter paints in her article invites the question of what should be done to recalibrate state interest groups so that in the future state power is not protected at the expense of agency expertise and democratic accountability. In her article, Professor Seifter has time to only briefly address this important question. However, at the end of her article, Professor Seifter does begin to sketch out a very preliminary suite of best practices that might guide relevant actors, including federal actors and OMB, state interest groups and courts. For example, to promote greater accountability and transparency, Professor Seifter tentatively suggests that state interest groups—which have claimed immunity from state and federal sunshine laws—might consider voluntarily disseminating their membership and funding information as well as their internal votes. In addition, she briefly argues that courts should take care not to apply judicial deference doctrines in a way that would incentivize agencies to adhere to a consultative process that undermines two central values in administrative decisionmaking—expertise and accountability.

In the end, I was convinced by Professor Seifter’s main claim that state interest group participation has helped to protect state power at the expense of agency expertise and democratic accountability. However, I was less certain about what the proper path toward reform should be. Thus, I hope that the sorts of preliminary and tentative suggestions for “best practices” that Professor Seifter sketches out in her article are just the beginning of a much longer and larger conversation. After all, state interest group involvement in the administrative process is now entrenched, and state interest groups are not going to disappear. Hence, it seems high time that scholars—prompted by Professor Seifter’s thought-provoking article—begin to more carefully scrutinize what state interest group participation in federal administrative process might most appropriately look like moving forward.

Cite as: Kathryn Watts, Scrutinizing the Effects of State Interest Group Participation in Federal Administration, JOTWELL (September 24, 2014) (reviewing Miriam Seifter, States as Interest Groups in the Administrative Process, Va. L. Rev. (forthcoming, 2014), available at SSRN),

Taking Administrative Law to Tax Exceptionalism

Kristin E. Hickman, Administering the Tax System We Have, 63 Duke L.J. 1717 (2014), to be reprinted in Duties to the Tax System: A Resource Manual for Tax Professionals (Scott Schumacher & Michael Hatfield eds, forthcoming 2014), available at SSRN.

In addition to regular servings from the Administrative Law Review and Yale Journal on Regulation, I look forward to two annual administrative law symposia. This year’s symposium from the George Washington Law Review will not become available here until later this month, so I’ll focus on the Duke Law Journal’s Taking Administrative Law to Tax Symposium, which was published in May. There is a lot to like about this symposium, starting with a refreshingly succinct foreword from Andy Grewal and followed by articles from Ellen Aprill, Bryan Camp, Kristin Hickman, Steve Johnson, Leandra Lederman, and Lawrence Zelenak. [Video of the symposium is available here, and the written issue is here.]

As the title suggests, the symposium focuses on tax exceptionalism, or “tax myopia” as Paul Caron coined the phenomenon two decades ago. Tax exceptionalism is the misperception that tax law is so different from the rest of the regulatory state such that general administrative law principles do not apply. But tax exceptionalism is dying—something my tax colleague Stephanie Hoffer and I document in a forthcoming article on the Tax Court and the Administrative Procedure Act (“APA”). In Mayo Foundation v. United States, for instance, the Supreme Court refused to apply a standard less deferential than Chevron to the Treasury Department’s interpretation of the tax code, noting that it was “not inclined to carve out an approach to administrative review good for tax law only.” That same year (2011), in Cohen v. United States, the D.C. Circuit held that the judicial review provisions of the APA apply to IRS notices: “The IRS is not special in this regard; no exception exists shielding it—unlike the rest of the Federal Government—from suit under the APA.”

It is thus only fitting that Professor Hickman contributed to the symposium. After all, as a scholar at the intersection of administrative law and tax, she has spent nearly a decade calling for the reconsideration of tax exceptionalism. She wrote the foundational article in 2006 for the Court’s 2011 Mayo decision, filed an amicus brief in Mayo, and published a terrific article (covered by Jotwell) on Mayo’s aftermath. Similarly, she wrote a number of articles (e.g., here and here) that formed the basis for the Cohen decision as well as filed an amicus brief in that case.

In her symposium contribution, Professor Hickman turns her attention to one of the most compelling policy reasons for treating tax differently: the tax code’s revenue-raising function. As she explains (P. 4), “courts and scholars often invoke the importance of revenue raising to explain or defend tax exceptionalism.” To test this justification, Professor Hickman has engaged in a comprehensive empirical project to assess the regulatory activity of the Treasury Department and IRS. This is an ambitious and important project, and in this article she provides a preliminary account of one relatively narrow context: proposed, temporary, and final regulations promulgated by the Treasury’s Office of Tax Policy (in consultation with the IRS) from the beginning of 2008 through the end of 2012.

During this five-year period, she locates 449 major rulemaking documents in the Federal Register or Internal Revenue Bulletin, and these documents form the basis for her analysis. In analyzing the documents based on a variety of factors, she finds (P. 7):

Across measures, between 30 percent and 40 percent of observations fell into subject matter categories that are most clearly oriented toward programs, purposes, and functions other than traditional revenue raising. Another 25 percent of observations fell into subject matter categories that arguably serve dual functions. In short, a lot—maybe even a majority—of the effort that [the] Treasury and the IRS spend promulgating Treasury regulations concerns programs, purposes, and functions other than raising revenue.

In light of these findings, Professor Hickman explores (PP. 36-43) a number of anti-tax exceptionalist implications—i.e., pre-enforcement judicial review of Treasury regulations, retroactivity of these regulations, and certain reforms at the IRS.

No doubt these findings—and those of Professor Hickman’s ongoing larger empirical project—will spark much discussion among tax scholars about the continuing validity of tax exceptionalism. But they should also encourage administrative law scholars to pay more attention to tax. Professor Hickman details in Part I (P. 9) that “taxes are routinely recognized as a tool in the regulatory toolbox”—some of which are collected by other federal agencies and many of which are implemented in close cooperation with other agencies. And she later notes (P. 43) that Congress is increasingly delegating nontax program administration to the IRS, such that “the tax system may be reaching an organizational tipping point of being stretched too thin between too many, arguably competing goals.” Yet perhaps because of tax exceptionalism, not only have tax scholars failed to look to administrative law, but administrative law scholars have paid too little attention to tax. As William Funk recently observed on an administrative law professor listserv, “We adlaw geeks traditionally don’t know much about tax law, and tax profs likewise rarely know about adlaw. Kristin Hickman is one exception.”

Moreover, with tax exceptionalism and Professor Hickman’s work as a jumping-off point, administrative law scholars can better consider other forms of regulatory exceptionalism. After all, such exceptionalism is not unique to tax, as Professor Zelenak underscores in his symposium contribution—a provocative, partial defense of tax exceptionalism. Citing the recent study by Richard Levy and Robert Glicksman on agency-specific precedents (to which, of course, Professor Hickman penned a response), Professor Zelenak explains (PP. 1910-11) that agency-specific deviations from general administrative law principles have been documented in at least four regulatory contexts in addition to tax: environmental protection, federal communications, national labor relations, and social security. Intellectual property seems like another obvious example. Professor Hickman’s research shows that, aside from issues of congressional intent and acquiescence to exceptionalism (or deviation), scholars should scrutinize more closely the underlying bases for regulatory exceptionalism. And her scholarship provides a helpful roadmap to investigate such exceptionalism in other regulatory contexts.

Cite as: Christopher Walker, Taking Administrative Law to Tax Exceptionalism, JOTWELL (August 12, 2014) (reviewing Kristin E. Hickman, Administering the Tax System We Have, 63 Duke L.J. 1717 (2014), to be reprinted in Duties to the Tax System: A Resource Manual for Tax Professionals (Scott Schumacher & Michael Hatfield eds, forthcoming 2014), available at SSRN),

Rulemaking is Biased in Favor of Regulated Firms

Kimberly D. Krawiec, Don't "Screw With Joe the Plummer": The Sausage-Making of Financial Reform, 55 Ariz. L. Rev. 53 (2013).

Kimberly Krawiec has made a major contribution to the growing number of empirical studies that find that the notice and comment rulemaking process is systemically biased in favor of regulated firms. Professor Krawiec read all of the comments that were submitted in the rulemaking that led to the issuance of the Volcker rule—arguably the most important rule that has been issued to implement the Dodd-Frank Act—as well as all of the agency meeting logs that described the meetings that agency decision makers had with parties who were interested in the outcome of that proceeding.

Krawiec found that, while proponents of strict regulation of financial institutions dominated the comment process numerically, their comments were useless to decision makers. Proponents of strict regulation filed 7831 of the 8000 comments, but 7316 of those were identical brief form letters that provided no data or analysis that would be potentially useful to decision makers. The other 515 comments filed by proponents of strict regulation appeared to be drafted independently by individuals, but they too were worthless as potential aids to decision making. The comment that inspired the title of Krawiec’s article was typical of those comments: The commenter urged the agency to keep “big banks” from attempting to “screw joe the plummer,” with plumber misspelled.

By contrast, Krawiec found that the comments filed by financial institutions and their representatives were “lengthy and contain cogent arguments in support of a generally narrow interpretation of the Volcker rule’s scope of prohibited activity. Overall, they advance detailed legal arguments relying on numerous statutes and cases, reference the Dodd-Frank legislative history, and often contain thorough empirical data. Most are meticulously argued and carefully drafted.”

Krawiec found an even greater imbalance in the meetings with interested parties that preceded the issuance of the Notice of Proposed Rulemaking (NPR) that formally began the rulemaking proceeding. The agency meeting logs described 450 meetings to discuss the terms of the proposed rule that took place between agency decision makers and interested parties prior to the issuance of the NPR. Of those, only 31 were meetings with groups or organizations that favor strict regulation of financial institutions. The vast majority of the meetings—93.1%—were with financial institutions or their representatives.

Krawiec’s broad findings are consistent with those of the other scholars who have studied the notice and comment rulemaking process. They also fit well with the many books and articles in which Cynthia Farina has described her frustrating efforts to expand the scope of effective participation in rulemakings in her capacity as head of the Cornell eRulemaking Initiative. The pre-NPR part of the decision making process is far more important than the post-NPR part of the process. Both the pre and post-NPR parts of the process are powerfully biased in favor of regulated firms, but the pre-NPR part of the process is characterized by the most extreme forms of bias in favor of regulated firms.

The sources of the bias in favor of regulated firms in both the pre and post-NPR parts of the decision making process include most prominently: collective actions problems that invariably favor a small number of parties, each with a large amount at stake, in any dispute with a large number of parties, each with a small amount at stake, and many of the judicial decisions that force agencies to act in ways that favor regulated firms. Thus, for instance, the decisions that require agencies to issue NPRs that “adequately foreshadow” the terms of the final rule the agency issues have the effect of requiring the agency to make most important decisions during the pre-NPR part of the decision making process when regulated firms have a particularly powerful systemic advantage over proponents of strict regulation.

Professor Krawiec’s excellent contribution to the growing body of literature that documents the existence of systemic bias in favor of regulated firms in the rule making process raises an important question—what, if anything, should scholars do to recognize and to address this phenomenon? The answers would seem to include urging Congress to amend the APA and/or urging courts to overrule some of the judicial decisions that interpret the APA. One logical first step would be to determine whether the bias in favor of regulated firms in the rulemaking process actually has the adverse effects on the product of the rulemaking process that many of us suspect it has. It is plausible that the effect of that bias is actually socially beneficial because it offsets the pro-regulatory bias of agency decision makers. That is merely a plausible hypothesis, however, that needs to be empirically tested.

Cite as: Richard Pierce, Rulemaking is Biased in Favor of Regulated Firms, JOTWELL (July 11, 2014) (reviewing Kimberly D. Krawiec, Don't "Screw With Joe the Plummer": The Sausage-Making of Financial Reform, 55 Ariz. L. Rev. 53 (2013)),

Unifying the Not-So-Unitary Executive

Jason Marisam, The President’s Agency Selection Powers, 65 Admin. L. Rev. 821 (2013), available at SSRN.

Jason Marisam’s recent article on what he calls presidential “agency selection powers,” The President’s Agency Selection Powers, 65 Admin. L. Rev. 821 (2013), provides new insight into a president’s capacity to shape regulatory policy even without relying on a so-called “unitary executive” reading of the Constitution.

Should a history of arcane legal debates ever be written, perhaps authors will mark the so-called “unitary executive” debate as one of the strangest. Technically, the controversy centers on whether the President is constitutionally entitled to dictate how all other executive branch officials exercise whatever discretionary functions are vested in them by statute. I have argued that the Constitution embodies no such principle.1 On the other hand, scholars as otherwise unalike as Steve Calabresi and Cass Sunstein have urged—on originalist and nonoriginalist grounds, respectively—to the contrary.

This sounds like a big deal, and it is—in principle. But the main significance of the doctrine is primarily its potential impact on the ethos of executive power. If the small-“u” unitarians are right, then executive officers are likely to attend as diligently to the president’s policy preferences as they do the laws enacted by Congress. In contrast, my negative response to the question is intended as an institutionally potent reminder that much of what the executive is allowed to do is entirely at Congress’s sufferance. Administrative power under this view ought to be exercised in a conscientious, well-reasoned way, as attentive to law as to politics. Any Administration’s view of the “unitary executive” theory is likely to be an important mood-setting device for governance, pointing in one direction or the other.

There are two reasons, however, for the limited direct operational relevance of unitary executive theory. The first is that it would be both too difficult and too costly for presidents to engage in the pervasive direction of their subordinates’ discretion in a heavy-handed way. The “executive establishment,” as an Administrative Conference report calls it2 is simply too complex and, in significant ways, too fractured to function as a domain of unified White House control. Nor would a politically savvy White House always want to bear the risk of trying to make it so.

Conversely, when presidents want to be influential, they by and large don’t need unitary executive theory. Besides the influence presidents wield simply by picking sympathetic chief administrators and arguing for White House policy preferences, presidents can effectively assert informal authority to coordinate executive branch activity to insure that legal implementation is efficient and coherent. That authority—coupled with the vast scope of administrative power Congress has vested in the executive branch—gives a president significant influence over executive branch policy output.

Jason Marisam’s article highlights a frequently overlooked dimension to the president’s coordinating influence. Professor Marisam focuses on three such powers:

(1) the President’s power to subdelegate authority to the agency of his choosing when Congress has expressly delegated that authority to the President; (2) the President’s power to delegate his constitutional powers to an agency and thereby force Congress’s choice of agency to work with the President’s choice of agency on particular regulatory matters; and (3) the President’s power to reconcile agencies’ overlapping jurisdiction by deciding which of the agencies in the shared regulatory space should act.3

Different agencies—although operating within the same general framework of policy values—have different priorities, different orientations towards policy and different professional cultures. A president can go far in shaping the exercise of policy discretion not by commanding its exercise, but simply by assigning it.

Of course, the first of Professor Marisam’s three categories—presidential subdelegation of authority Congress vests personally in the president—does not require constitutional argument. The Presidential Subdelegation Act of 1951, 3 U.S.C. §§ 301-303, authorizes such moves explicitly. What Professor Marisam contributes, however, to our understanding of this aspect of the subdelegation phenomenon is a thoughtful analysis of why Congress sometimes decides to delegate directly to the president, even when its choice leaves the president, an institutional competitor, with unusual policy-shaping authority.

The second category—which I believe to be quite rare in practice—is constitutionally more interesting. It potentially comprises administrative functions as to which the president may claim independent authority under Article II—military and foreign affairs are the obvious domain—that interfaces, so to speak, with authorities Congress has vested in an administrative agency. In such a situation, a president might direct Congress’s chosen agency to interact with another agency that the president has selected in order to help the president in the implementation of his constitutional powers.

Professor Marisam draws our attention to an example of this phenomenon of which I had been quite unaware. Congress enacted statutes in the 1930s requiring would-be U.S. sellers of natural gas or electric power crossing international borders to get permits from the old Federal Power Commission (now, the Federal Energy Regulatory Commission). In response, FDR unilaterally created a requirement that such sellers also obtain a “presidential permit” for such sales. Even today, FERC grants its permits for the cross-border shipment of energy only upon consultation with the Secretaries of State, Energy, and Defense. If those departments cannot agree, Executive Order No. 10485 requires them to submit the question of a presidential permit directly to the president. This is a remarkable example because Article II, of course, conveys no specific authority to the president akin to Congress’s express Article I power to regulate commerce with foreign nations.

Professor Marisam’s last category involves a less dramatic, but perhaps more pervasive Article II-statutory interaction—namely, designating certain agencies as having lead or supervisory power when Congress has given multiple agencies overlapping regulatory jurisdiction. This may happen over time, for example, as Congress allows Agency A to tackle one aspect of a problem and then, later, Agency B to tackle another. Prior to the creation of the Department of Homeland Security (DHS), border control matters provided an important example. A similar need for coordination may occur, however, when Congress within a single statute vests multiple agencies with joint jurisdiction—frequently, to bring a problem within the purview of multiple congressional oversight committees.

In both situations, a president may wield significant influence over how policy discretion is exercised by deciding which agency takes the lead—for example, centralizing pre-DHS immigration coordination in the Justice Department or, in 2010, having the Department of Energy, not the Mineral Management Service, take the lead in addressing the BP Deep Horizon oil spill. Professor Marisam aligns the first of these moves with the kind of initiative FDR took with regard to cross-border energy transmission, but I think both kinds of “interagency hierarchy,” to use Professor Marisam’s phrase, belong in the same category. In these examples, as well as others Professor Marisam cites, the president’s initiative of policy coordination rests only on a fairly modest assertion of Article II coordinating power. When Congress creates shared jurisdiction in a single statute, the president may also claim implicit statutory authority to harmonize the process—but what makes any such inference credible is the idea that, with or without implicit congressional approval, Article II coordination authority, within whatever structural or procedural scaffolding Congress provides, already exists.

Without taking an across-the-board normative position on the desirability of presidential agency selection, Professor Marisam concludes his discussion with a careful analysis of its advantages and disadvantages, factors Congress ought to consider in deciding whether to enable or resist presidential agency selection as a tool of administration. All in all, his article stands as a thoughtful contribution to the possibilities for robust “presidential administration” that can exist without regard to the tenets of unitary executive theory.

  1. Peter M. Shane, Madison’s Nightmare: How Executive Power Threatens American Democracy (2009). []
  2. David E. Lewis & Jennifer L. Selin, Sourcebook of United States Executive Agencies 1 (2013). []
  3. P. 823. []
Cite as: Peter Shane, Unifying the Not-So-Unitary Executive, JOTWELL (June 17, 2014) (reviewing Jason Marisam, The President’s Agency Selection Powers, 65 Admin. L. Rev. 821 (2013), available at SSRN),

The APA as “Superstatute” and What Does That Mean?

Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Indiana L. J. (forthcoming 2014), available at SSRN.

Most administrative law aficionados would think of the Administrative Procedure Act as a “superstatute,” but they might not all focus on what that might mean. Kathryn Kovacs has undertaken to tease the meaning of the APA as a superstatute and address the implications of such a characterization. They might not be what you would imagine.

Professor Kovacs begins by asking to what extent is administrative law “common law.” The APA is, of course, a statute, but it is viewed as largely codifying the then-existing common law. Moreover, after its passage courts continued to develop a common law of administrative law both to flesh out the ambiguous provisions of the APA and quite clearly to add on to them. While Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), may have drawn the curtain on new judicial inventions to administrative common law, it did not repeal those that had become well ingrained in the case law. Professor Kovacs focuses on two such inventions that have no basis in the text or history of the APA: deference to the military in matters subject to the APA and the ripeness doctrine.

How does this relate to the APA as a superstatute? One way of viewing a superstatute would be to allow courts broad leeway not only in its interpretation but also to further its purposes, at least as perceived by the judiciary, rather than awaiting legislative amendment. Indeed, Professors Eskridge and Ferejohn in their article, Super-Statutes, argue that superstatutes should be interpreted dynamically and evolutively. If the APA is so interpreted, perhaps the judicial invention and maintenance of deference to the military and the ripeness doctrine would be appropriate. Professor Kovacs, however, thinks otherwise. She notes that while the APA meets some of the criteria for a superstatute as described by Eskridge and Ferejohn, it does not meet them all. Clearly the APA is a statute that, as stated by Eskridge and Ferejohn, “successfully penetrate[d] public normative and institutional culture in a deep way,” and which, because it arose from a extended deliberative process and has survived efforts to change it, has taken on a “normative gravity” unlike normal statutes. Moreover, the APA is stable over time but adaptable to new circumstances. However, at least two features of the APA do not meet Eskridge and Ferejohn’s characteristics for superstatutes. One is the fact that according to their taxonomy superstatutes are adaptable over time because the details are worked out by experts working under the statute, but the APA has adapted over time because of judicial interpretations, not the kind of experts Eskridge and Ferejohn have in mind. Another and probably more important difference is the fact that superstatutes maintain their legitimacy because their development over time is the result of popular deliberation through public input, but again the APA has maintained its legitimacy not through popular deliberation through public input but through faith in the judiciary. Eskridge and Ferejohn’s paradigmatic superstatutes, such as the Securities Act of 1933, the Securities Exchange Act of 1934, the Food, Drug, and Cosmetic Act, the Clean Air Act, and the Clean Water Act, involve expert agencies interacting with regulated entities and regulatory beneficiaries within fairly broad grants of discretion to hone their respective statutes under the watchful eye of the courts. This is not the trajectory of the APA.

So what? According to Kovacs, the Eskridge and Ferejohn theory of superstatutes actually suggests that courts should not interpret the APA broadly. Only by hewing closely to the text and legislative history will judicial review accord with Eskridge and Ferejohn’s demand that judicial review of superstatutes be “deliberation-respecting,” “deliberation-inducing,” and “deliberation-rewarding.” Such review would be “deliberation-respecting” because it would respect the deliberation, compromises, and choices that were made when the APA was enacted. It would be “deliberation-inducing” because it would force Congress to deliberate as to how to deal with new administrative problems and issues. For Eskridge and Ferejohn’s normal superstatute, judicial review would be deliberation inducing by leaving to the agency the choices to be made, in light of the agency’s expertise and interaction with the relevant public in making the choices. And, while with normal superstatutes “deliberation-rewarding” would mean respecting the choices made by agencies pursuant to their expertise and public deliberation, with the APA the agencies do not make the administrative law choices in this way. Hence there is no deliberation-rewarding to be done.

Kovacs sees some evidence that the Supreme Court at least in part follows the path she is suggesting. For example, Vermont Yankee certainly fits her analysis, as do Director, Office of Workers’ Compensation Program v. Greenwich Collieries, 512 U.S. 267 (1994), which rejected an agency’s attempt to shift the burden of proof in black lung and longshoremen workers compensation act proceedings to the employer, and Dickinson v. Zurko, 527 U.S. 150 (1999), which held that Federal Circuit reviews of Patent and Trademark Office were governed by the APA. And earlier, the Supreme Court applied the APA in Wong Yang Sung v. McGrath, 339 U.S. 33, 41 (1950), which resulted in a statutory change, thereby reflecting deliberation-inducing.

In light of these considerations, Professor Kovacs would conclude that current ripeness doctrine applied by courts in administrative law cases should be jettisoned, much as Darby v. Cisneros, 509 U.S. 137 (1993), adhered strictly to the language of the APA and rejected the administrative common law doctrine of exhaustion of administrative remedies. Similarly, she would overturn the common law deference to actions by military agencies otherwise subject to the APA in light of the lack of text or history to support it. And, although she does not address it, she should sign onto the law professors’ amicus brief supporting a grant of certiorari in Perez v. Mortgage Bankers Ass’n (Mortgage Bankers Ass’n v. Harris, 720 F.3d 966 (D.C. Cir. 2013)), and seeking reversal of the D.C. Circuit’s decision requiring agencies to use notice-and-comment rulemaking to change a definitive interpretation contained in an interpretive rule adopted without notice-and-comment. As that amicus brief makes clear, such a requirement is inconsistent with the explicit text of the APA. It is a requirement invented by the D.C. Circuit from whole cloth.

Professor Kovacs does not ignore arguments in favor of judicial common law development of administrative law, addressing in particular Gillian Metzger’s Embracing Administrative Common Law. Ultimately, Kovacs finds that judicial development of administrative law fails to be adequately accountable to the public. The APA is special, she says, because of the extreme public effort and deliberation that went into its enactment. It is deliberation-respecting for courts to resist the urge to make common law changes to it, especially changes that are directly inconsistent with the language and history of the APA.

One need not agree with all that Professor Kovacs suggests in this article to appreciate both its novelty of approach to the APA and its capacity to inspire other connections from her analysis. For example, how should one characterize Chevron, USA, Inc. v. NRDC, 467 U.S. 837 (1984)? Some have suggested it is inconsistent with the APA, which states that courts reviewing agency action should “decide all relevant questions of law [and] interpret . . . statutory provisions.” Is Chevron a judicial common law development of the APA? If so, Professor Kovacs should not approve, but is Chevron not a paradigmatic deliberation-inducing and deliberation-rewarding interpretation of the APA? By deferring to agencies’ reasonable interpretations of their statutes, the courts are rewarding agencies for adopting interpretations through rulemaking or adjudication, which are deliberative activities involving the interested public. Moreover, by not freezing a static meaning onto an ambiguous statutory term, the courts induce agencies to adopt interpretations, which may indeed shift over time, through a deliberative process.

It is the hallmark of a good law review article to inspire new thoughts about and approaches to recurring issues. By that measure, this article is a good one.

Cite as: William Funk, The APA as “Superstatute” and What Does That Mean?, JOTWELL (May 16, 2014) (reviewing Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Indiana L. J. (forthcoming 2014), available at SSRN),