Administrative Law

Cary Coglianese

Administrative law scholars widely consider it to be a fact that the rulemaking process has become substantially burdened with analytical requirements, a burden that either has caused agencies to retreat from rulemaking or has significantly delayed agencies’ ability to adopt new rules.  Lamentation about this ossification of rulemaking pervades much scholarship in administrative law and underpins many scholars’ prescriptions about procedural reform.

In a recent article in a leading, peer-reviewed public administration journal, Jason Yackee and Susan Yackee try to measure the ossification of rulemaking, statistically analyzing the time needed to complete all non-routine rules initiated by every federal agency over nearly a two-decade period.  What they find stands in stark contrast with the prevailing view among administrative law scholars and draws into doubt whether the ossification effect is real.

The “ossification thesis” – as Yackee and Yackee refer to it – is grounded in a commonsensical idea that the more procedural hurdles an agency has to jump over, the longer it will take it to complete a rulemaking and overall the fewer rules it will promulgate.  The legal literature from the 1990s contains a number of case studies of both individual rulemakings that took a long time to promulgate and individual agencies that purportedly retreated from rulemaking.

Despite its appeal and widespread acceptance, the ossification thesis has been supported by what is, at best, a thin evidentiary record when judged by conventional standards of social science.  The limitations of case study research will be familiar to any scientist.  Individual cases may not be representative of the larger universe of cases and, particularly when such cases have been selected on an ad hoc, nonrandom basis, they cannot support valid, generalizable inferences.

More importantly, individual cases cannot be used to rule out alternative explanations for observed outcomes.  For example, if an individual rulemaking subject to review by the Office and Management and Budget (OMB) took a long time to finalize, it is impossible to conclude, just by looking at that one rulemaking, whether it was OMB review that caused the delay or something else altogether, such as policy uncertainty or internal agency controversy.  It might well look like it was OMB review, but without some greater variation that can be analyzed it is impossible to be sure.  Consequently, we need more than individual case studies to support the kinds of general causal claims that have been made about the ossification of rulemaking.

Yackee and Yackee take an important step forward in their recent article by subjecting such claims to systematic empirical analysis.  In doing so, they build on previous research that has already cast doubt on the validity of the ossification thesis.  A 1992 study by Neil Kerwin and Scott Furlong analyzed 150 Environmental Protection Agency (EPA) rules and could find barely any meaningful association between OMB review and regulatory duration.  A 2000 study by Bill Jordan examined 71 cases subjecting rules to judicial remand and found judicial review “did not significantly impede agencies in the pursuit of their policy goals.”  In 2002, I reported data on the quantity and costs of federal regulations that ran “counter to the prevailing understanding among administrative law scholars.” Stuart Shapiro, also in 2002, published a well-designed study that matched states with different procedural hurdles and found partisan factors rather than procedures affected the pace of state rulemaking.  In 2008, Anne Joseph O’Connell reported results from her study of twenty years of federal rulemaking that “suggest[ed] that the administrative state is not significantly ossified.”  Of the ten agencies O’Connell scrutinized closely, nine had completed their rulemaking proceedings in less than an average of two years.

Yackee and Yackee add richly to this accumulation of research.  They analyze rule completion for all federal agency rules initiated between 1988 and 2006 – a total of 14,495 rules!  Their data derive from the Unified Agenda of Federal Regulatory and Deregulatory Actions, a biannual report in which each federal agency is supposed to list all non-routine rulemaking proceedings.  Much like O’Connell, Yackee and Yackee find that “[t]he majority of rules are estimated to be promulgated well within 2 years.”

What sets the Yackee and Yackee study apart is that its authors also statistically analyze the determinants of the time it takes agencies to move through the notice-and-comment process.  They seek to determine whether rules subject to, for example, OMB review or the Regulatory Flexibility Act took longer to complete than other rules, controlling for other factors that could be expected to affect rulemaking duration, such as the size of departmental budgets or the existence of congressional or court-imposed rulemaking deadlines.

Controlling for these other factors, Yackee and Yackee find that each of their ossification variables turns out to be statistically significant — but in a way opposite of what the prevailing wisdom would predict.  Subjecting rules to OMB review apparently “speeds up the rule-making process.”  The three other supposedly ossifying variables Yackee and Yackee tested are associated with similar hastening effects.  As would be expected, they do find that factors such as deadlines and larger departmental budgets are associated with speedier rulemaking completion.

Yackee and Yackee decompose their counterintuitive findings.  They find that the hastening associated with OMB review, for example, appears in the vast majority of rules that are completed within a 21 month period of time.  They report that OMB review is associated with additional delay, over and above delay caused by other forces, only for a minority of rules that otherwise persist much longer than the typical rule, that is, for “the relatively rare rules that, for nonprocedural reasons, have proven exceptionally resistant to promulgation.”  Yackee and Yackee speculate that agencies give more attention to rules that go through OMB review, which generally speeds them along in most cases.  But once a rule gets mired down for other reasons, perhaps due to political controversy, then OMB review can add a bit of a drag.

Obviously more work is needed to test this and other alternative theories, but the counterintuitive results from the Yackee and Yackee study should spur consideration of a more nuanced account of the impact of procedures on the rulemaking process.  Clearly their study is the most sophisticated test of rulemaking ossification to date.  The authors are sensitive to important methodological issues, they recognize the limits of their data, and they confirm their results with tests including alternative variables (such as congressional and presidential party control) and using other available measures of delay (such as duration from advance notices of proposed rulemaking to final rules).  Notwithstanding this care, they not only fail to find confirmation of the ossification thesis but their results actually turn that thesis on its head.

The Yackee and Yackee study will by no means be the final, definitive study on rulemaking ossification.  It has its limitations, including that it only covers rules dating back to 1988.  To their credit, Yackee and Yackee have continued their line of inquiry, producing additional work to appear later this year: an article in the George Washington Law Review, and a chapter in a forthcoming book I have edited on the current crisis in regulation in the United States.  Their GW Law Review article has the advantage of drawing on data spanning a period twice as long as in the study described here, although it only focuses on rulemaking at seventeen rulemaking agencies within the Department of Interior rather than across the entire federal government.  The statistical analysis in their forthcoming law review article is not as sophisticated as that in the study described here, but like this study it also fails to find much that supports the conventional wisdom.

Their GW Law Review article also has the distinction of having already generated a pointed response from an eminent administrative law scholar, Richard Pierce, who recently wrote that his response “should end … debate” over the validity of the ossification thesis.  But debate is good, especially when it is conducted in the pursuit of scientific inquiry.  The ossification thesis is first and foremost an empirical claim about the effects of procedure and oversight on organizational behavior.  Given the complexity of administrative organizations and of the business of rulemaking, neither administrative law scholars nor social scientists should kid themselves that they have unlocked the code.  I realize, of course, that ossification has taken on important normative and policy implications, ones that seem especially salient at the present time when Congress is considering procedural reform legislation.  Yet such policy implications only make it more important to try to get the underlying empirical account right.  Rather than cling to ossification as an article of faith, administrative law scholars would do well to view it as a proposition that merits inquiry, especially in the wake of research like that produced by scholars like Yackee and Yackee.  We would do well, in other words, to follow in their footsteps in a search for slowness.

Mark Seidenfeld

Administrative law scholars in the United States who seek to borrow ideas from approaches tried by other liberal democracies face a substantial problem: each country’s government is structured differently.  There is no recognized metric for evaluating how administrative law will play out in a state with a different structure of government. The lack of such a metric is especially troubling as governments seek to take advantage of flexible regulatory approaches that harness the knowledge and incentives of stakeholders in the regulatory process.  A fascinating article, “From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law,” by Professor Francesca Bignami, provides a first stab at providing such a metric.

Professor Bignami criticizes the traditional characterization of administrative law, as “organization of public administration” and “judicial review of administrative action,” for its inability to “engage with contemporary debates on the desirability and future possibilities of administrative law.”  To surmount this inability, Bignami begins to “develop . . . a comparative framework by recasting administrative law as an accountability network of rules and procedures through which civil servants are embedded in their liberal democratic societies.”Bignami breaks down the concepts of accountability network into four sets of relations: those between civil servants and elected officials, organized interests, the courts and the general public, respectively.  The accountability network description is “well equipped to capture such phenomena in administrative governance as: the political objectives of the bureaucracy; the role of organized interests in providing new mechanisms of regulatory control, and the ability of the public to hold the bureaucracy accountable.

Professor Bignami proceeds to explore these network relations in various European liberal democracies and the United States.  She points out that, despite the differences between parliamentary and presidential systems, the domain of public administration has grown over the past century, threatening the primacy of legislatures as the policy-making organ of government.  But she also shows how the differences between parliamentary and presidential systems does affect the perceived legitimacy of the expanded administrative state.  Under a presidential system, she argues, competition between legislative and executive branches for control over the bureaucracy also explains the propensity of American administrative action to be characterized as either political or legal in nature.

Turning to the relationship of the bureaucracy to organized interest groups, Bignami observes that European administrative systems are neo-corporatist while the American system is pluralist.  That is, “in European legal systems, producer groups such as workers and employers are organized into a few, all-encompassing and broadly representative labor unions and employer associations.”  In the American legal system, by contrast, organized groups compete to represent particular constituents and “implementation of government policies rarely  depends upon official collaboration with [designated] interest organizations.”

With respect to the relationship of administration and the courts, Bignami sees the central divide as between common law and civil law systems.  In civil law countries, review of administrative action often occurs in specialized tribunals within the administration itself.  In England and the United States, by contrast, the common law tradition has resulted in generalist judges having authority to hear challenges to administrative action.  Also, review in traditionally common law legal systems tends to focus on the fairness of administrative procedures, especially in particular adjudications, while review in civil law systems focus on the substantive correctness of decisions.

Finally, Bignami identifies two recent developments in the relationship of the bureaucracy to the general public that increases accountability of administrative government.  The first, a European development, is the parliamentary  creation of the ombudsman, who performs oversight and complaint resolution functions.  The second, which seems universal within liberal democracies in Western Europe and the United States is the public’s right of access to agency documents and records.  Although the structures of government in Europe and the United States result in different organization for the system of access to agency information, both parliamentary and presidential systems have developed liberal rights of public access to agency information that, in this era of instantaneous and cheap  communication, has great potential to hold the administrative state accountable for its actions.

For comparativists, Professor Bignami’s accountability network provides a well-organized outline for describing and comparing various countries’ systems of administrative government, and her article includes many interesting historical and structural explanations for why those various systems look as they do.  As a non-comparativist, what I like best about this article is the rubric it provides for evaluating various proposals for improved administrative governance in the United States.  The rubric is, of course, just an outline.  It can be further developed and improved by recognizing that the relationships Bignami identifies within her accountability network are themselves not self-contained, but rather interact with each other.  Thus, for example, the operation of judicial review depends on bureaucrats and the public’s ability to get information from organized interest groups.  And, the demands of judicial review will themselves affect the structure of the bureaucracy and how it interacts with its political overseers, those it regulates and the general public.  But, if one recognizes and investigates such interdependencies, then the set of four accountability network relations that Bignami identifies go a long way toward providing an all-encompassing metric for organizing and evaluating the various conceptions of the administrative state.

Anne O'Connell

Oral arguments on the constitutionality of the Patient Protection and Affordable Care Act will consume three days of the Supreme Court’s schedule, an unusual assignment of the Court’s time. But the constitutional challenge, assuming it fails, will be just the first act in a long performance.  Abbe Gluck’s tremendous essay recently published in the Yale Law Journal takes up some of the fascinating potential statutory interpretation questions waiting in the wings.

These questions arise from the mix of institutional design choices involving the states in the Act (and in other legislation). The choices include provisions implemented only by the federal government, provisions implemented only by the states, and, of particular interest, provisions involving both sets of actors. Gluck trains on this last category, noting that the Act “appears to deploy the [state-federal] relationship strategically – as a way to expand the federal presence into several key areas of traditional state control – and somewhat paradoxically, also expressively, as a way to acknowledge the states’ traditional authority over health insurance.” (pp. 584-5)

These design choices, interesting on their own as a descriptive matter, motivate Gluck to construct an “intrastatutory federalism” framework to consider the decisions’ normative implications. These implications should grab the attention of anyone interested in administrative law: “Should federal agencies have less discretion, for example, to use their regulatory power to constrain interstate implementation variation in statutes that give states a lead implementation role? Does Congress’s purpose for intervening in the first place – the reason Congress decided national legislation was necessary – matter in answering these questions? When, if ever, does Congress’s use of state implementers signal Congress’s assent to – even encouragement of – the idea that the federal statutory law will mean different things in different states?” (p. 540)

Gluck does not want to join the policy debate over whether state actors are better than others in carrying out assignments. Rather, she takes as given that Congress can choose whether to task state actors in federal statutes and examines what should follow for how those statutes are interpreted. It is unsettled, complicated doctrinal territory. Should canons concerning state-federal relations govern (i.e., the presumption against preemption and the federalism canon)? These canons, however, help when federal law conflicts with state law, which does not capture the complex institutional design choices in the recent health care legislation and other statues. Or should canons concerning agency action dominate (i.e., Chevron/Mead)? Yet, these canons also ignore state actors as interpreters of federal statutes.

After demonstrating how both approaches are deficient, Gluck suggests that “a Mead-like approach may be the easiest way to incorporate the role of state implementers into familiar interpretative doctrines.” (p.599) Her suggestion is not simply to have courts apply Chevron to state interpreters – in the language of Mead, did Congress intend to delegate to the states the power to interpret particular provisions with the force of law and did the states act with that authority? Gluck rightly realizes that some of the justifications for deference to federal agencies do not map directly onto state actors. In the end, her tentative proposal may come, in many contexts, closest to having courts apply Skidmore (and its multifactor framework) to state interpreters. If Mead was a muddle for the courts with only federal agencies¹, it may become sheer chaos with complicated yet prevalent institutional design choices involving federal and state actors.

In sum, Gluck’s essay (a bit of a misnomer, since the piece runs close to 90 pages) reminds us that we ignore states at our peril. States are not bit actors in major areas of public policy, but instead often play critical parts. The Patient Protection and Affordable Care Act is only one example. Gluck deftly demonstrates how their presence interpreting federal statues (here, in execution, and, in other work, in judicial review) should force us to reassess how we think about fundamental questions in federal legislation and administrative law.

1. Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443 (2005). [↩]

Richard Murphy

In early December 2011, the House passed two alarming bills that, if ever enacted, would wreak havoc on the rulemaking process.¹  On December 7, it passed the REINS Act—the acronym stands for “Regulations from the Executive In Need of Scrutiny.”  This bill is simple in its design, requiring congressional approval for regulations that have an economic impact in excess of $100 million.  Considered as a reform of the rulemaking process, it has the honest virtues of a clean kill—a bullet to the head.  Less than a week before, on December 2, the House passed the Regulatory Accountability Act (“RAA”).²  The RAA would cripple rulemaking by adding dozens of new procedural and analytic requirements to the process.  These requirements include, among many other things, extensive cost-benefit analysis at multiple stages of the process and even formal rulemaking for “high impact” rules.  Yes—that’s right, formal rulemaking could come back from the (almost) dead.  Rather than a clean kill, the RAA promises to haul rulemaking into a back alley and beat on it until maybe it dies.

If you are the sort of person who frequents JOTWELL’s administrative law page, then you probably already know something about both these bills.  Regarding the REINS Act, it may be fair to say that there isn’t all that much to know—it is easy to describe what it does and its anti-regulatory intent is as plain as the summer sun.  The RAA is a far more complex beast, which makes it very difficult to summarize and concisely assess.  Such work is important because proponents of the RAA might find themselves in control of the Senate and the Presidency someday not too long from now.  If this eventuality occurs, one must hope that the powers-that-may-be can be persuaded that they didn’t really want to cripple administrative rulemaking.  They just said they did when they didn’t have the power to make it happen.

It is with this context in mind that I want to draw your attention to two excellent pieces of administrative law scholarship that were submitted to the House Judiciary Committee as it considered the RAA.  (Links to both are at the top of this short essay.)

For a thorough assessment of both the vices and virtues of the RAA, check out the ABA Administrative Law Section’s Comments on H.R. 3010, The Regulatory Accountability Act of 2011.  The Ad Law Section, which includes private and government attorneys as well as a considerable amount of administrative-law-professor firepower, put together this document faster than any committee should be able to produce any work product at all—much less something this good.  As an institutional work, the Section’s comments naturally strive for balance and do so against the backdrop of decades of earlier policy statements.  Stressing the positive, the Section praises, among other things, the RAA’s codification of the transparency requirements of the Portland Cement doctrine, which requires agencies to disclose information on which they rely in fashioning a proposed rule.  (Comments at 17.)  It also praises the RAA’s move to define the notion of “record” as applied to informal rulemaking.  (Comments at 17.)  Perhaps more controversially, but in keeping with past ABA recommendations, the Section also “strongly support[s]” extension of OIRA oversight to rulemaking by independent agencies.  (Comments at 18-19.)

For the most part, however, the Section explains why so many of the RAA’s provisions are deeply troubling.  Some of these criticisms are technical but important objections that you need sharp-eyed lawyers wearing green eyeshades to find.  For instance, the RAA requires, innocuously enough one might think, that a rulemaking agency “shall base its preliminary and final determinations on evidence.”  (Proposed § 553(b) (emphasis added))  Who on earth could be against basing important decisions on “evidence”?  Administrative lawyers who know that this requirement may not fit legal and policy determinations well, who know that courts already review agency action for factual support, and who know from experience that judicial glosses on ambiguous terms in the APA can lead in unexpected directions—that’s who.  (Comments at 10-11.)

Other criticisms come at a loftier level.  The RAA contains a lengthy and detailed list of “rulemaking considerations” that an agency must discuss both in a notice of proposed rulemaking (NPRM) and on final issuance of a rule—e.g., analysis of “direct, indirect, and cumulative costs and benefits and estimated impacts on jobs, economic growth, innovation, and economic competitiveness.”  (Proposed § 553(b)(6)(A).)  The Section observes that these requirements will slow rulemaking, make it more expensive, and encourage policymaking by less transparent means.  It also, however, is careful to fit these objections into the broader context of the history of the ossification problem that has developed as legislative and executive requirements for rulemaking have accreted over time.  Finding a reasonably positive note to sound, the Section suggests that APA reform should be an occasion for streamlining and rationalizing these accretions rather than worsening them.  (Comments at 9-10.)

The second piece I want to draw to your attention is the testimony submitted to the House Judiciary Committee by Professor Sidney A. Shapiro (Wake Forest University School of Law and the Center for Progressive Reform).  If, for whatever reason, you find yourself in need of a 17-page, devastating critique of the RAA—you really need look no further.  Professor Shapiro’s full-throated defense of the benefits of sound regulation demolishes the rationales for the RAA (e.g., that the current system allows unaccountable agencies to create overly expensive rules that inhibit economic growth).  It also concisely documents numerous ways in which the RAA would damage both the process and the substance of administrative law (e.g., by imposing a super-mandate of cost-benefit analysis that would, in effect, partially repeal dozens of substantive statutes designed to protect health and safety).

Both the Ad Law Section’s Comments and Professor Shapiro’s testimony are, like the bill they critique, very difficult to summarize, and this short note does not do them full justice.  They weave together an immense amount of administrative law experience and scholarship, and they direct these efforts towards an important goal.  They are both excellent examples of engaged scholarship, and everyone involved is really to be commended.

1. At this point, guild rules require reference to Representative John Dingell’s advice from nearly thirty years ago, “I’ll let you write the substance … you let me write the procedure, and I’ll screw you every time.” [↩]
2. All legislation must now have a catchy acronym—e.g., the REINS Act will “rein” in the out-of-control beast that is the administrative state.  A quick check of Wikipedia suggests that “RAA” could signify, among other many other possibilities:  (a) support for Rise Against Alliansen, a group of Swedish supporters of the Chicago punk-rock band Rise Against; (b) homage to Raa, the god of the sun in Maori mythology; or (c) an effort to frighten regulators with an “[o]nomatopoeic description of the sound that a beast makes when expelling a terrifying roar.” [↩]

Michael E Herz

Administrative agencies are often said to possess (a) expertise and (b) accountability.  These are the attributes that Justice Stevens relied on in Chevron, for example, to justify judicial deference to agency “interpretation” that is really policymaking.  Both of these admirable characteristics are exaggerated, but neither is mythical.  What is to be done, however, when they conflict?

This is a recurrent question.  Whether and when agencies should be set up as independent commissions, the disagreement between the majority and the dissent in State Farm, much of the battle over regulatory review – all involved at least in part the question whether the president’s preferences, or “political” considerations, should trump the agency’s (expert) judgment.  One doctrinal locus of this dispute is the arbitrary and capricious test. Is it “reasoned decisionmaking” if an agency does something simply because the White House told it to?  State Farm and Massachusetts v. EPA suggest the answer is no.  Four, and arguably five, Justices in FCC v. Fox Televisions Stations  imply the answer may be yes, and a number of commentators – most recently, Kathryn Watts – have argued for judicial acceptance of political justifications for agency action.

One standard move by administrative lawyers – common in but not unique to the field – is to seek procedural responses to substantive problems.  We don’t know what the right answer is, but we can figure out a procedure that will resolve most of the concerns so we don’t have to figure out the right answer.

In a superb recent article,Disclosing “Political” Oversight of Agency Decision Making, which was selected by the ABA’s Section of Administrative Law and Regulatory Practice as the best article in administrative law last year, Professor Nina Mendelson has taken the procedural approach to the substantive problem of White House influence on agency decisionmaking.  She argues against regulation, limitation, or special judicial deference and in favor of disclosure of political reasons for a particular decision.  (Importantly, by “political” she means not a particular type of reason – such as a reason that will appease important constituencies and advance the President’s chances of re-election – but rather reasons that have their source in the White House.)

Mendelson begins with two important but often overlooked points.  First, we know remarkably little about the content and scope of presidential oversight of rulemaking.  Second, there’s presidential oversight and there’s presidential oversight; that is, some presidential influence is almost indisputably appropriate and enhances the legitimacy of agency decisionmaking, and some (e.g. leaning on the agency to ignore scientific fact or to do something inconsistent with statutory constraints) is not.

Although presidents have long exerted significant influence on agency rulemaking, and although that influence has been regularized and concentrated in OIRA for three decades, it remains quite invisible.  The OIRA review process is fairly opaque (though less so than it once was), influence by other parts of the White House even more so, and official explanations of agency action almost always are silent about political considerations.  As a result, the democratic responsiveness and accountability that, in theory, presidential oversight provides goes unrealized.  Presidents take credit when it suits them, but keep their distance from controversy.  (Although Mendelson does not make the connection explicit, her account resonates with critiques by supporters of a nondelegation doctrine with teeth who are dismayed by Congress’s desire to take credit but not blame.)

Mendelson proposes that agencies be required, ideally by statute, to summarize the content of regulatory review in issuing rulemaking documents.  (She offers a relatively transparent recent fuel economy rulemaking as a possible model.)  First, this would allow the public to see the president’s hand in the final decision and, for better or worse, hold him accountable.  Second, it would enhance our understanding of executive review and, in a sunlight-is-the-best-disinfectant sort of way, discourage inappropriate interference.  Third, this information would be useful to Congress, which might respond legislatively.

The thorniest problems raised by this proposal involve judicial review.  How should this newly available information affect courts?  Here, as she acknowledges, Mendelson edges somewhat closer to Watts, calling for courts to be deferential to “value preferences or policy calls,” as long as they are consistent with statutory factors relevant to the decision and do not reflect a skewing of the factual analysis.  She acknowledges, and warns against, the possibility of courts being too deferential, and insists on the importance of their scrutinizing with some care agency determinations of legal or technical issues as opposed to “value-laden policy questions.”  This analysis raises some larger questions about what, exactly, the legitimate bases of agency decisions are, which are explored, though not fully resolved, in the final section.

Mendelson’s turn to disclosure – to procedure rather than substance – does not completely escape the underlying conundrum regarding the appropriate scope of presidential influence over agency decisionmaking.  Nonetheless, among her proposal’s many benefits would be that it would place us (Congress, or the courts, or the voters) in a far better position to answer that question.

Edward Rubin

One of the most interesting areas of current administrative law and political science scholarship is the attention being devoted to the design of administrative agencies. Some of this work is empirical, and much of it is interdisciplinary, the two buzz words for contemporary cutting edge scholarship in this area, and so many other areas as well. But the real source of this work’s value and promise –and an underlying source of both its empirical and interdisciplinary character– is that it takes law seriously without viewing it from the judicial perspective. The political science scholarship, such as David Epstein & Sharyn O’Halloran, Delegating Powers (1999) and David Lewis, Presidents and the Politics of Agency Design (2003), has begun to free itself from the idea that only politics matters, and looks at the way that legal structures, having been generated by politics, affect the governmental process. The legal scholarship, such as Lisa Schultz Bressman & Robert Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599 (2010) and Jacob Gersen, Designing Agencies: Public Choice and Public Law, in Daniel Farber & Joseph O’Connell, eds., Research Handbook on Public Choice and Public Law (2010), has begun to free itself from the idea that law is to be defined, or at least perceived, through judicial decisions, and looks at the way that it shapes, and is shaped by, executive and legislative actors.

Rachel Barkow’s Insulating Agencies: Avoiding Capture Through Institutional Design, exemplifies this approach. Barkow’s topic is agency independence, but she does not address the tired question of whether such independence offends the Constitution, either in its entirety or in its details. Not only does she ignore the old chestnuts of judicial doctrine in this area, such as Myers v. U.S., 272 U.S. 52 (1926) and Humphrey’s Executor v. U.S., 295 U.S. 602 (1935) but she resolutely resists having anything to say about the recently decided bit of Roberts Court weirdness, Free Enterprise Fund v. PCAOB, 561 U.S. ____(2010) (the aptly nicknamed Peekaboo case). Instead of the children’s game of discussing constitutional limits on the administrative apparatus, her concern is the basic, and extremely serious question of why we want agencies to be independent of political control and how we achieve that goal.

There are several major reasons to structure agencies in a way that makes them partially independent of control by elected officials, Barkow argues. These include expertise, non-partisanship and stability, but the one she is concerned with is insulation from capture. Many agencies are created to regulate sectors of the economy in the public interest. The difficulty is that these sectors are often inhabited by powerful private entities that either do not want to be regulated or want to use the regulatory process for purposes of their own. In order for the agency to achieve its intended goals in the face of this resistance, it must be insulated from the political pressure that such powerful entities exert. The classic ways of doing so are to place a multi-member commission, rather than a single individual, at its head, to restrict the President’s power to remove the agency’s leaders, whether commissioners or individual directors (the defining feature of independence), and to exempt the agency from supervision by OMB and OIRA. Long experience has taught us, as Barkow notes, that the effectiveness of these devices is limited. Many agencies headed by commissions whose members can only be dismissed for cause, and that are not subject to OIRA’s cost-benefit analysis, nonetheless succumb to industry group pressure.

Barkow proceeds to discuss other, less familiar design features that can contribute to the insulation of an agency from industry pressure, and thus assist it in achieving its intended purposes. The agency can be authorized to submit its budget requests directly to Congress, rather than through OMB. Its leaders can not only be protected from presidential removal, but also required to possess certain types of expertise. They can be restricted from accepting employment by the entities they regulate upon departure from the agency. Regulatory authority can be granted simultaneously to several different federal agencies or shared among these agencies. Similarly, it can be shared with state agencies whose political environment may differ from the one the federal agency experiences. Even if the agency has sole authority to enact regulations in a given area, authority to enforce these regulations can be divided among different federal or state agencies. The agency can be authorized to provide information directly to the public, thereby enlisting private enforcement or recruiting political allies. It can also be authorized or encouraged to obtain allies directly, either by establishing relations with public advocacy groups or by giving such groups a role within the agency. Barkow concludes her discussion with a brief case study of the Consumer Products Safety Commission (CSPC), and Consumer Finance Protection Bureau (CFPB), newly established under Dodd-Frank. The CSPC, which relied on traditional means of insulation from regulated entities, has been notoriously ineffective; CFBB employs several of the additional devices Barkow discusses, and will, it is hoped, experience more success.

The great virtue of Barkow’s article is that it addresses the question of agency independence from a new and much more significant perspective than either pure politics (why did interest groups permit or oppose independence?) or pure law (is the result constitutional?). Rather, the question is how agencies should be designed in order to implement certain social goals, a major one being the regulation of powerful business entities. Framing the inquiry in this fashion opens up an extensive range of possibilities that we, as a society, have only begun to explore. The ones we use, such as restrictions on removal power, are relatively minor variations on a single theme. That theme is the one identified, and to some extent entrenched, by Weber. It is a product of the transition from government agencies as extensions of the king’s household to agencies modeled largely on the hierarchical military organizations of the Early Modern Era that reflect a rationalized, professionalized modern state. Now that this type of governance is securely established, we should be thinking about ways to go beyond the Weberian model. As Barkow suggests, we can think about designing agencies that have their own funding sources, that actively promote their mission by forming alliances with private groups, that provide public information and proselytize in favor of their mission, that redesign themselves based on such interactions with their constituents, that make use of flexible employment policies to change the type of people they recruit and the incentives of those whom they employ. Barkow’s article points us toward the next stage in the development of administrative governance, which is why I like it a lot.

Linda Jellum

In our field, there are a few articles that every academic, even practitioners, should read for an understanding of modern administrative law: the so-called seminal works.¹ In my opinion, Professor Thomas Merrill’s latest article—Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law—should be added to this list. In his article, Professor Merrill examines the historical development of the appellate review model as applied to administrative adjudication, and while this choice for judicial review was not inevitable, it has had wide-ranging consequences. Professor Merrill’s article explores both the origins and consequences of this model to explain, in part, why the Supreme Court “never seriously grappled with” the constitutionality of administrative adjudication. With this Article, Professor Merrell aims to explain and, perhaps, reignite the age-old question: “How … do we square adjudication on a mass scale by administrative agencies with text of Article III?”

In the first half of the Article, Professor Merrill details the adoption of the appellate review model in the administrative context and concludes that the adoption of this model explains why the Supreme Court so readily accepted agency adjudication. Prior to the twentieth century, courts either reviewed administrators’ actions pursuant to the prerogative writs (e.g., mandamus and habeas corpus) or did not review these actions at all. Yet, around the turn of the century, the courts adopted the appellate review model, which allowed agencies and courts to share decisional authority. Specifically, the appellate review model of judicial review, which mirrors the relationship between appellate and trial courts in civil litigation, has three salient features. First, a reviewing court decides appeals using only the evidentiary record generated below; if more evidence is needed, the court remands the case. Second, the appropriate standard of review varies according to whether the issue falls within the area of expertise of the reviewing court (law) or the lower tribunal (facts). Lastly, the law-fact distinction is the key variable for dividing judicial competence.

Professor Merrill suggests that the Court adopted the appellate review model to address and resolve concerns regarding judicial encroachment into the legislative arena generally and to curtail aggressive judicial oversight of the Interstate Commerce Commission specifically. Along the way, Professor Merrill explains how this model allowed the Court to tailor judicial review to fit the prevailing approach to administrative law of the time. For example, hard look review and Chevron deference both fit the model, yet allow increased judicial oversight during a time of perceived agency capture. After reading his historical account, it comes as little surprise to the reader that, in Crowell v. Benson, 285 U.S. 22 (1932), the Supreme Court rejected an Article III challenge to agency adjudication of worker’s compensation claims. The Court reasoned that, as long as Article III courts had de novo review of any jurisdictional facts (a constraint later abandoned), the remaining fact-finding authority could constitutionally remain with the agency. The constitutionality of such adjudication was “never seriously deliberated by the Supreme Court.”

After explaining his theory as to why the Supreme Court adopted the appellate review model so readily while remaining unconcerned about the conflict with the text of the constitution, Professor Merrill refutes two modern, alternative theories regarding this Article III conundrum: the adjunct theory and the public rights theory. The adjunct theory posits that agencies function much like juries or masters in chancery, as adjuncts to federal courts deciding routine factual questions. Professor Merrill believes that this model fails because there is no textual basis in Article III for agencies, unlike juries and masters in chancery, to have such power. Additionally, agency powers today are much further reaching. Modern scholars have adjusted the adjunct theory by suggesting that “judicial power of the United States” simply means appellate power, an approach that would constitutionalize the appellate review model. Yet, Professor Merrill rejects this theory because some agency orders are self-executing and judicial review is discretionary. Similarly, he rejects the public rights theory, which defines agency adjudication as limited to addressing issues of public, rather than private, rights. Professor Merrill notes that the distinction is blurred and the theory fails to explain the emergence of the appellate review model.

At the conclusion of his Article, Professor Merrill suggests the possibility of an alternate universe, one in which Article III courts review only the legitimacy of agency policy-making within the confines of legislative boundaries. Other countries, such as England, have made this choice. Such an option would give “reviewing courts much less influence over the formation of policy.” However, the exact contours of this alternative universe are merely posited and not explored. Perhaps he plans a follow-up piece on this topic; although change is unlikely at this point, so any suggestion would likely be theoretical rather than practical. “By the time complications or objections come to the fore, the inertia of institutional change is too great to undo them.”

At bottom, Professor Merrill’s article is primarily descriptive, but it is thoroughly so, exploring the history of judicial review from the early twentieth century to Chevron and beyond. I have no doubt that this Article will find a place in the proverbial “electronic bookshelf.” As I teach administrative law for the seventh time this fall, I am reminded that much, if not all, of modern administrative law revolves around judicial review. Given that reality, understanding how we got here is critical. For all these reasons, Professor Tom Merrill’s latest article is a must-read.

1. E.g., Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863 (1930); Charles Reich, The New Property, 73 YALE L.J. 733 (1964); Richard Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669 (1975); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612 (1996). [↩]

Jack Beermann

Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.”  The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth.  John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers.  In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding of separation of powers in the United States requires a more nuanced view of the subject than either extreme is willing to undertake.  In my view, Manning’s article is the best published American law review article about separation of powers.  It states a coherent theory of separation of powers clearly and elegantly, and it explains, just as clearly and elegantly, exactly why separation of powers extremists on both sides are wrong.  The only problem I have with the article is that at the time I first read it in draft, I was working on my own separation of powers article, and Manning stole, improved and expanded upon much of my thunder.

There is too much of value in this article to capture in a brief review, so I focus on two aspects, namely Manning’s disagreement with the extremes in separation of powers and the middle way that Manning charts, based on his view that separation of powers in the United States embodies a constitutional compromise.  Along the way, I explain what Manning means by “ordinary interpretation” and how that differs from the interpretive methods employed by separation of powers extremists on both sides.

Manning’s article confronts and refutes the two extremes we find today in separation of powers analysis.  On one side is the formalist insistence on strict separation of powers doctrine that reads each of the Constitutions three Vesting Clauses as assigning a defined sphere of governmental power to a particular branch and applies a broad “strict separation” principle when a particular procedural or structural provision does not apply.  This methodology is usually associated with expansive views of the President’s power to execute the law free from congressionally imposed restrictions on appointment, removal and direction of federal officials and is exemplified by Justice Scalia’s dissent in Morrison v. Olson and my colleague Gary Lawson’s view, published in an important article written together with Patricia Granger, that the word “proper” in the Necessary and Proper Clause imports strict separation norms into the Constitution.

On the other side lies the functionalist approach that eschews strict application of structural constitutional limits in favor of a doctrine designed to “ensure that Congress has respected a broad background purpose to establish and maintain a rough balance or creative tension among the branches.”  Ironically, the functionalists also place primary reliance on the Necessary and Proper Clause, which they read to grant Congress wide ranging authority to rearrange government institutions and reallocate power in pursuit of legitimate federal goals.

The heart of Manning’s critique of separation of powers extremism is his demonstration that both formalism and functionalism depend on overarching theories of separation of powers that are not actually embodied in the Constitution.  This is where the concept of “ordinary interpretation” enters the picture.  As Manning explains, in recent decades, the Supreme Court has shied away from broad purpose-based statutory interpretation methodologies.  This is based on the recognition that statutes are the product of compromises that make it unrealistic to assume that the legislature as a whole would favor non-textual applications that advance a court’s view of the statute’s underlying purposes.  Manning imports this understanding into the realm of constitutional separation of powers principles.  As Manning explains:

the intricate detail within the constitutional structure in fact reflects the fruits of quite particular compromises over how to divide and structure the various powers.  No overarching theory of separation of powers can explain the document’s many elaborately specified procedures. (P. 1973)

Manning supports this view by pointing out that, contrary to the practice in most state constitutions, the Framers chose not to include a general separation of powers clause in the Constitution.  In Manning’s view, this is consistent with the way the Framers thought about it—separation of powers under the United States Constitution is the result of faithful application of the document’s numerous procedural and structural provisions and not based on an overarching theory.  The Framers did not conceive of separation of powers in a more absolutist way because, as Manning explains, their design involved a careful compromise between separation and checks and balances.

What about the extremists’ reliance on the Necessary and Proper Clause?  Manning answers both arguments the same way—reading the Necessary and Proper Clause to either require or rule out strict separation assumes that the Framers hid an “elephant in a mouse hole,” concealing a fundamental constitutional principle in obscure language.

Manning’s critique of the extremists foreshadows the middle way that he charts for separation of powers analysis under the U.S. Constitution.  The first principle of separation of powers, with which I wholly agree, is that the Constitution’s highly specific structural and procedural provisions ought to be honored and enforced.  Those are the easy cases.  The hard cases are those that arise outside the purview of any particular clause where resolution has significant ramifications for the distribution of power within the government.  The best example of this is removal of executive officials.  The strict separationists derive, from the Necessary and Proper Clause and the Vesting Clause of Article II, an overarching separation of powers principle that the President should have unlimited power to remove all officials involved in the execution of the law.  Manning doesn’t see it that way but he doesn’t rule out some limits on Congress’s power to restrict removal even though there is no specific constitutional clause that addresses the matter.  The solution, says Manning, should be arrived at through a process of ordinary interpretation, deriving principles from the particular constitutional provisions that grant and shape the relative powers of Congress and the President, rather than by applying an overarching theory of separation of powers.

One great virtue of Manning’s portrayal of separation of powers is that it is much closer to the Supreme Court’s jurisprudence than either of the extremes.  Rarely, if ever, does the Supreme Court act in accordance with an overarching theory of separation of powers that requires either strict separation or pure functionalism.  Rather, separation of powers law under the United States Constitution involves relatively strict application of the Constitution’s procedural and structural provisions (not including the Vesting Clauses), and when no such clause applies, as Manning explains, the preferred decision methodology is to draw structural inferences via a careful consideration of the relationship “between the Vesting Clauses and the more precise clauses that, with them, create the constitutional structure.”  This is “ordinary interpretation.”

I heartily recommend this article to anyone interested in separation of powers or administrative law more generally.  While the middle way may not lead to Rome, it does lead to a better understanding of the structure of government in Washington, D.C., as demonstrated in this excellent article by John Manning.

Kathryn Watts

Areas of fragmented and overlapping delegations of power to administrative agencies are common today. For example, fifteen federal agencies play roles in the American food safety arena. Similarly, twelve different agencies deal with exports, and numerous agencies regulate the financial sector, including the SEC, CFTC, OCC, FHA, FDIC, OTS and the Federal Reserve. In addition, as President Obama recently quipped during a State of the Union Address, we have one agency (the Department of the Interior) that is in charge of salmon while they are in fresh water, but a different one (the Department of Commerce) that handles them when they are in saltwater.

Despite the prevalence of these sorts of overlapping delegations in the regulatory arena, legal scholars generally have approached administrative law through a single-agency lens. In a forthcoming Harvard Law Review article titled Agency Coordination in Shared Regulatory Space, Professors Jody Freeman and Jim Rossi seek to change this picture. Specifically, Professors Freeman and Rossi depart from what they call the “single-agency focus that is so foundational to administrative law” by offering the “first comprehensive discussion in the legal literature of the problem of fragmented and overlapping delegations of power by Congress to administrative agencies.”

Freeman and Rossi’s aim is largely descriptive. They begin by describing various theories that scholars have articulated to explain why the legislative process creates agency coordination problems in the first place, including game-theoretic models that explore potential strategic benefits to Congress of creating overlapping or redundant agency jurisdiction. Then they move on to describe what they see as the primary challenge raised by overlapping jurisdiction:  the problem of “coordination” in a “shared regulatory space.” Freeman and Rossi explain that conceptualizing the challenge as one of “coordination” is preferable to conceptualizing it as a problem of “redundancy.” This is so, they explain, because collapsing or eliminating agencies to reduce duplicative functions would likely produce the same coordination problems in “ever-larger bureaucracies.” In addition, given the scope and complexity of congressional delegations to agencies, Freeman and Rossi suggest that there is an “irreducible minimum” of overlap and fragmentation that calls out for coordination tools and strategies.

The remainder of Freeman and Rossi’s article focuses on how we might mitigate the “stubborn and serious crisis of coordination.” Specifically, they describe how both Congress and the President already have numerous tools they can use to promote coordination. For example, Congress can resort to structural integration of agencies, inter-agency consultation provisions, and congressionally required joint rulemaking to facilitate agency coordination, and the Executive branch can utilize memoranda of understanding, White House oversight, and coordinated rulemaking. The hard question, according to Freeman and Rossi, is determining which of these tools have the most promise in a given setting. In other words, which tools will achieve coordination benefits that will justify the investment of time and resources and the increase in agency decision costs?

In thinking about which coordination tools might offer the most promise, Freeman and Rossi conclude that the more binding, transparent and substantive the tool, the more likely it will be to “control bureaucratic drift and the easier for principals to monitor,” but with the concomitant effect of raising agency decision costs. As a result, different tools might be more or less appropriate in different circumstances. Take joint rulemaking, for example. It will drive up agency costs and will take away agency flexibility by resulting in a durable agency policy choice that can be changed only via an act of Congress or another notice-and-comment rulemaking. Hence, Freeman and Rossi argue that joint rulemaking might be “especially beneficial in instances where agencies are establishing substantive regulatory standards for financial markets or industry, or where certainty and uniformity are more important to a regulatory program than flexibility.” In contrast, inter-agency consultation provisions might be most useful in areas where expertise, data or additional perspectives are needed. 

In the end, in addition to its significant descriptive contributions, Freeman and Rossi’s article stakes out a strong normative commitment in favor of more coordination among agencies. In Freeman and Rossi’s view, more effective coordination among agencies has the potential to “generate valuable expertise and information, improve the quality of agency decision making, harmonize potentially inconsistent approaches, and reduce both public and private transaction costs.” Members of the legislative and executive branches will be well-served by carefully reading Freeman and Rossi’s article and giving serious thought to which tools each branch might use to most effectively achieve the coordination benefits that Freeman and Rossi describe. Scholars too will benefit from following Freeman and Rossi’s lead and giving more sustained attention to the trade-offs of various coordination tools rather than continuing to think of administrative law largely through a single-agency lens.

Richard Pierce

Wendy Wagner, Katherine Barnes, and Lisa Peters provide a wealth of data and insights with respect to the rulemaking process in this well-researched and well-written article. They engaged in intensive empirical analysis of the ninety rulemakings in which EPA issued air toxic emission standards. For each of the rulemakings they studied three stages of the decision making process—pre-NPRM, notice and comment period, and period after issuance of a final rule.

I cannot do justice to the authors’ excellent discussion of their methodology and the implications of their findings. I will instead simply recite some of their most important findings in the hope that my summary of some of their findings will induce everyone to read this important article with care.

The authors found that the pre-NPRM period averaged a bit less than four years. During the pre-NPRM period, EPA engaged in an average of 178 contacts per rulemaking—more than twice the average number of comments EPA received after it issued the NPRM. Contacts with industry were 170 times greater than contacts with public interest groups and 10 times greater than contacts with state regulators during the pre-NPRM period.

The period between issuance of the NPRM and issuance of a final rule averaged 18 months. Industry accounted for 81% of the comments filed, while public interest groups accounted for 4% and governments accounted for 7%. The authors found that comments generally led to changes. 83% of the changes made between the proposed rule and the final rule had the effect of weakening the rule. Based on the changes made during the comment process, the authors drew the inference that EPA is influenced more by industry comments than by public interest group comments.

About 70% of the rules were changed after EPA issued a final rule—typically in response to a petition for reconsideration or a petition for review. Public interest groups participated almost as much as industry during this stage of the decision making process.

The authors also found that, while public interest groups did not participate actively or effectively with regard to the substance of the rules during the pre-NPRM period or during the comment period, they played “a forceful role … with regard to the timeline” of many of the rulemakings. Thus, 73% of the rules were issued after a court issued an order with an action deadline at the behest of a public interest group.

In short, public interest groups influence the rulemaking process almost exclusively through their activities in court before and after the agency decision making process. I agree with the authors that this limited indirect role in the agency decision making process reflects the resource constraints of the public interest groups. They lack the resources required to participate effectively in the actual agency decision making process. This insight underlines the significance of the longstanding debate with respect to the standing of public interest groups to enforce public laws in courts. If they are denied access to the courts, public interest groups may have no means through which they can influence the agency decision making process.

Anyone who is interested in the rulemaking process must read this article. It is the most valuable source of data I have found on the subject.