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Confronting FOIA Abuse

Rebecca Green, FOIA-Flooded Elections, 85 Ohio St. L.J. __ (forthcoming 2024); William & Mary L. Sch. Rsch. Paper No. 09-478, available at SSRN (Oct. 3, 2023).

The Freedom of Information Act (FOIA) has been the subject of increasing controversy. Some scholars, like Mark Fenster in his recent illuminating work on transparency and populism, remain convinced it holds a singular place in protecting democracy and promoting accountability. Others, like Dave Pozen, are concerned it promotes regressive, anti-public-spirited outcomes. While my own work has defended FOIA’s continued indispensability, my research on who uses FOIA and why (upshot, it’s not journalists) is often cited as demonstrating that the law does not deliver the value we hope it will.

However, these larger structural critiques often set aside a nagging practical problem that can, at times, become centrally important: the use of FOIA for abuse and harassment of agency officials. In my own work, I have noted that occasional problems of this natures arise mostly with respect to state agencies, in particular public universities, in a way that it does not tend to at the federal level. But I have largely considered the issue an anomaly not necessarily meriting more structural reform. Still, instances involving alleged abusive FOIA requesters have seemingly been on the rise, moving behind the historic examples of targeting particular research at higher education institutions and now reaching into K-12 educational settings with respect to controversial curricula and, now, election officials. Enter Rebecca Green’s terrific new piece, FOIA-Flooded Elections, which takes on this seemingly intractable problem of abusive FOIA requests in the context of state and local election officials.

In particular, I applaud how Professor Green faces head on the tension between open access laws that eschew any barriers to transparency—and their particular salience for assuring accountability in elections—and the very real threat to the electoral process posed by a deluge of burdensome requests. To begin, she sets out a typology of requests that make up the “hydraulics” of the “FOIA flood” in election offices. This four-part typology is the first time I’ve seen a category of potentially abusive requesters broken down so thoughtfully. She describes “ringleaders” as those who have a public platform and aggressively push claims of election fraud. State activists are those who believe the claims of election fraud, are using FOIA on a personal mission to hold election officials accountable. The “foot soldiers” are heeding calls—in good faith—to file formulaic requests at the direction of the ringleaders and activists, believing they are contributing to democratic accountability. And then the “bad faith” requesters, those who, in response to distrust of election officials themselves, are organizing voluminous FOIA requests to harass particular officials, including seeking their text messages and emails of a personal nature and facilitating what can turn into threatening behavior online and in the physical world. She sums up the problematic nature of the hydraulics as stemming from “the constitutional untouchability of the ringleaders, the earnest motives of the activists and foot soldiers, and the challenges of sorting good faith from bad-faith requesters” —an apt description indeed.

Although those hydraulics seem to create an intractable problem, Green skillfully deploys analogous areas of the law that have had to grapple with similar dynamics: vexatious litigation and discovery abuse. These analogies demonstrate, Green shows, that government institutions must be able to protect their core functions, and that curbing abuse—even when sometimes curtailing fundamental rights such as access to courts—can survive constitutional challenge.

With this insight, Green suggests a suite of possible statutory reforms states could take up to curb the kinds of FOIA abuse that risk undermining our election integrity. She draws on the experience of states that have experimented with clarifying access rights to election records, changing fee structures for requests, providing blackout periods (or at least extended deadlines) right around elections to ensure FOIA responsibilities do not interfere with election preparedness, centralizing administration of election-related requests, and providing more alternative dispute resolution for FOIA requests to avoid litigation. Another set of suggestions focuses on identifying abusive requesters for possible sanctions or penalties, including curbing the rights to file future FOIA requests, a tactic that a few states have employed without apparent chilling effects on journalists or legitimate oversight.

And finally, perhaps my favorite set of her proposals is to ensure greater affirmative disclosure so as to prevent follow-on duplicative requests. As co-authors and I recently documented with respect to affirmative disclosure of agency legal materials, when affirmative disclosure works, it does so by resolving the tension between FOIA burdens and the need for transparency, satisfying the public interest while promoting administrative efficiency. Green’s proposal has this virtue going for it in spades.

The problem of abusive, vexatious, or harassing FOIA requesters is not one that is overwhelming the FOIA system writ large. But Green convincingly demonstrates that it is one that is overwhelming particular election officials and offices. For a statutory right designed to promote democratic accountability, the possibility that it is being weaponized to undermine democracy is of central concern. Without shying away from the problem, Green’s piece takes a big swing at thinking through a set of practical solutions to protect our democracy both on the inside and out.

Cite as: Margaret Kwoka, Confronting FOIA Abuse, JOTWELL (March 14, 2024) (reviewing Rebecca Green, FOIA-Flooded Elections, 85 Ohio St. L.J. __ (forthcoming 2024); William & Mary L. Sch. Rsch. Paper No. 09-478, available at SSRN (Oct. 3, 2023)), https://adlaw.jotwell.com/confronting-foia-abuse/.

Myers, We Hardly Knew Ye?

Andrea Scoseria Katz & Noah A. Rosenblum, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, 123 Colum. L. Rev. 2135 (2023).

To start, please forgive a few preliminaries: The Constitution provides express instructions governing appointments of Officers of the United States but not about removals (other than by impeachment). Congress has often stepped into this gap by imposing limitations on the power of the President to remove agency officials. The Supreme Court upheld for-cause style limits on presidential removal authority from the New Deal up until the arrival of the Roberts Court. The Roberts Court, following a path blazed by Justice Scalia, adheres to the principle of the “unitary executive,” which holds that the power to remove agency officials is a necessary element of the “executive power” that Article II of the Constitution provides “shall be vested in a President.” Art. II, § 1, cl. 1. Accordingly, the Roberts Court has invalidated several statutory restrictions on presidential removal power in a series of high-profile cases. To support this embrace of the unitary executive, the Roberts Court has relied upon one precedent above all others, Myers v. United States, 272 U.S. 52 (1926). Chief Justice Roberts has characterized Myers as having “conducted an exhaustive examination of the First Congress’s determination in 1789, the views of the Framers and their contemporaries, historical practice, and our precedents up until that point.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020). This “exhaustive examination” conclusively demonstrated that the President’s “executive power” must include a general authority to remove executive officials. Id. at 2197-2198.

In their terrific article, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, Professors Katz and Rosenblum take a blowtorch to this reading of Myers. On their account, President—whoops, sorry, Chief Justice—Taft’s 72-page majority opinion in Myers did not provide an accurate, originalist report on the Framers’ eighteenth-century expectations regarding the power of the presidency. Rather, Chief Justice Taft constitutionalized a twentieth-century, Progressive vision of the President as “popular tribune and chief administrator.” (P. 8.) Myers thus provides an example of, gasp, “living constitutionalism.” (P. 19.) And so does the Roberts Courts’ twenty-first century deployment of Myers for its own, not-so-Progressive ends.

One great pleasure of reading this wonderfully written article is the historical context that it provides for understanding Myers. Those who enjoy their irony in heaping doses might find that one bit of this history sticks with them in particular. The Postmaster General informed Myers by telegram in February 1920 that President Wilson had directed his removal from his patronage job as postmaster for Portland, Oregon. (P. 20.) By statute, Myers’s removal required the Senate’s concurrence, which could be obtained by the relatively straightforward expedient of nominating and confirming a new postmaster for the office. Although President Wilson had consistently followed this standard practice for other postmasters, he did not in Myers’s case. The likely explanation is that Wilson lacked the ability or inclination to focus on this problem because he had suffered a massive stroke in October 1919. During the run-up to Myers’s removal, Wilson’s wife limited access to him, officials issued documents in his name without showing them to him, and he directed such mental energy as he possessed toward the ratification fight over the League of Nations. (P. 23.) Speaking for myself, I think I will enjoy mentioning to students that the odds are pretty good that the most important precedent on the scope of the President’s removal power did not involve a President’s use of this power. (P. 24.)

Professors Katz and Rosenblum make the case that the Roberts Court has misunderstood the method, substance, and radicalism of Myers. Regarding method, we find the additional irony that the Roberts Court invokes Myers to advance an originalist project of tracing plenary presidential removal authority back to the Founding. (P. 29.) On inspection, however, Myers itself is not an originalist opinion. Rather, it is grounded in a flawed application of constitutional acquiescence that starts with a dubious construction of the “Decision of 1789” and ends by ignoring the law and practice of the Reconstruction Era and following decades. (P. 29.)

Turning to substance, Katz and Rosenblum contend that “[t]he presidency of Myers is strong, but it is not a unitary executive” in the style of the Roberts Court. (P. 6.) They note that Chief Justice Taft emphasized that “[t]he independent power of removal by the President alone … works no practical interference with the merit system” that protects the civil service. (P. 29 (citing Myers, 272 U.S. at 173).) Moreover, the Chief Justice “disclaimed any pretention to rule” on the removability of Article I judges. (P. 73.) Myers thus declined to follow unitarian principles all the way to the logical conclusion that the President can direct and remove all officials in the Executive Branch. It seems fair to note, however, that the Roberts Court has not gone so far either, given that it has not yet overruled carve-outs from plenary presidential removal authority for multi-member, bipartisan boards and for some inferior officers. If the Roberts Court is “unitarian,” perhaps it does not do too much violence to the term to call the Myers decision “unitarian,” too.

Looking beyond nomenclature, Chief Justice Taft’s carve-outs, especially for the civil service, tie directly to the main project of Administrator-in-Chief, which is to demonstrate that Myers embedded a Progressive, early twentieth-century vision of the presidency into constitutional law, marking a radical shift from earlier understandings. The presidency of the post-Civil War nineteenth century was a small thing dominated by Congress and a party system that allocated patronage jobs. The creation of a professional, merit-based civil service to replace the spoils system was one of the great triumphs of Progressive politics, and Taft had no wish to undo it. (P. 73.) This professionalized civil service provided a better, more powerful tool for modern governance, but it also needed a head manager, an Administrator-in-Chief one might even say, to lead it. An ideal candidate for this job might be a nationally elected political figure who could serve as the voice of the people, making policy in the public interest.

This powerful role would not fit the Founders’ vision of the presidency. They were dubious of democracy and regarded the President as a counterweight to Congress’s majoritarian impulses. (P. 80.) Nor would this powerful role fit the job description of late nineteenth century presidents, who often worked part-time and could not even control who got the plum jobs. This powerful role did, however, neatly fit a vision of the presidency suited to a world in which a big man such as Theodore Roosevelt, taking advantage of both modernizing communications and growing governmental power, could make the presidency big, too. Myers reasoned that, to play this (new) role, the President must be able to remove officers to control them in service of the President’s vision of the public interest. At the same time, however, this power to remove must not undermine the professionalism that empowered effective, efficient governance. (P. 76.)

Near the end of Administrator-in-Chief, Katz and Rosenblum target their fire directly at the Roberts Court’s use of Myers. Flaws include: ignoring a “veritable pile of scholarship” demonstrating a long history of congressional insulation of government actors from direct presidential control; ignoring that Myers itself acknowledged substantial congressional authority to provide such protection; ignoring Taft’s strong commitment to administrative independence; and relying on Myers’s “bad history” to further its own bad historical project. (Pp. 74-79.)

Notwithstanding these many problems, however, Katz and Rosenblum ultimately conclude that, viewed from a certain ironic angle, the twenty-first century Court is correct to rely on the twentieth century’s Myers. In their last paragraph, they explain:

Myers is thus the right progenitor for the Court’s unitary project, but not for the reason it thinks. The real story of how the president became the administrator-in-chief is one of institutional innovation and judge-led legal development. Today, with its unitary revolution, what the Court once made one way, it is trying to make anew. That is the kind of judicial revolution Myers itself engaged in. Taft would reject the presidency they are creating. But the judicial project of the Roberts Court? That, he would understand. It was what he himself had done.

(Pp. 83-84.) What goes around comes around?

Anyone with a hankering to find out more about Myers, and if you have read this far into this jot, I think that probably includes you, will find reading the Administrator-in-Chief highly informative and thought-provoking. It will certainly be on my mind as I read any future Supreme Court adventures in unitarianism—and the chance to do so might arrive as soon as this spring if the Court seizes its opportunity to rule on the constitutionality of statutory removal protections for administrative law judges in Securities and Exchange Commission v. Jarkesy, No. 22-859.

Cite as: Richard Murphy, Myers, We Hardly Knew Ye?, JOTWELL (February 14, 2024) (reviewing Andrea Scoseria Katz & Noah A. Rosenblum, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, 123 Colum. L. Rev. 2135 (2023)), https://adlaw.jotwell.com/myers-we-hardly-knew-ye/.

Whose Power is it Anyway?

Adam Crews, The Executive Power of the Federal Courts, 56 Ariz. St. L.J. __ (forthcoming 2024), available at SSRN (September 5, 2023).

As I write this Jot, it’s entry-level hiring season. Scores of exciting candidates are crisscrossing the country to present new papers, eat dinners, and tour campuses and neighborhoods. Over the years, I have come to observe that there are a few things that a candidate can reliably bet will occur during a job talk at my law school. Someone will point out your paper’s relevance to some completely unexpected area of law, or vice versa. Someone’s phone will ring while you are speaking—to the rest of the faculty’s collective mortification—and then be immediately, furiously silenced. And—if you are talking about a subject in constitutional law, administrative law, or federal courts—someone will probably ask you something about how your paper relates to INS v. Chadha.

Chadha is a staple touchpoint because it tees up a fundamental definitional conundrum that all three fields grapple with in various ways: what counts as executive power, or judicial power, or legislative power, in our system of government? If our legal system is one of separation of powers, it would seem to be important to know which is which. Yet, in the fashion of an ancient parable, the opinions in Chadha reach different answers concerning how to characterize the particular type of action at issue in that case. To the Court, an action by a house of Congress to veto a suspension of deportation seemed “essentially legislative in purpose and effect,” and therefore subject to bicameralism and presentment requirements. But, as Justice White pointed out, the Court’s opinion also characterized the suspension of deportation as an executive power; if that is the case, then why isn’t an action that merely blocks that suspension therefore an exercise of executive power, too? Justice Powell, for his part, saw things another way entirely: it was “clearly adjudicatory,” he wrote, for a house of Congress to decide whether or not Jagdish Chadha should or should not be deported. So Chadha was very much on my mind as I read The Executive Power of the Federal Courts, an interesting new paper by Adam Crews.

In this article, Professor Crews argues that when federal courts perform judicial review of agency action, they should at times be understood to be acting as arms or extensions of the administrative process itself. In these domains, imposing a requirement that federal courts act within the parameters of Article III is the wrong move, for the courts are exercising not just Article III power but executive power, too. Professor Crews’s goal is ambitious: “to free administrative law from the rigid view that everything a federal court does is—and perhaps must be—an exercise of judicial power.” (P. 10.)

Professor Crews begins by tracing historical examples of Congress enlisting federal courts to perform “what we today we think of as paradigmatic administrative tasks.” (P. 27.) Over our history, federal courts have adjusted citizenship status, assessed monetary benefits, granted patents and licenses, and settled legal disputes between agencies. (P. 27.) Today, those functions are often performed by agencies: the USCIS, the VA, the PTO, and the OLC, respectively. (P. 27.) In each of these historical contexts, he notes, the federal courts were enlisted to act in ways that fit uncomfortably with conventional wisdom concerning Article III: “[n]aturalization and monetary claims adjustments lack adverse parties; interagency litigation lacks adverse legal interests,” (P. 27), and review statutes in the late 19th and early 20th centuries gave federal courts—or at least the D.C. Circuit—“sweeping policy discretion” to revise agency action, not just to determine its legality. (Pp. 20–24.) This lengthy record of federal courts exercising “non-judicial governmental power,” Professor Crews points out, is very much at odds with the model of “traditional judicial adjudication” under which courts ascertain facts and apply the law in a case between two adverse parties. (P. 27.)

The article next contends that such exercises of power by federal courts should be understood as exercises of executive power, not as exercises of judicial power—and, moreover, that they are legitimate exercises of executive power. Drawing on Enlightenment-era philosophy and Founding-era sources, inter alia, Professor Crews contends that the core domain of judicial power is the power to divest or alter vested private rights and interests. (P. 29.) This power, though formidable, is narrow: it does not include, for example, the power to administer benefits (such as patents) or statuses (such as citizenship) by reference to statutory law. When courts do those things, they are playing a “law execution” role rather than an “interest adjudication” role. (P. 13.)

And Congress has the authority under the Necessary and Proper Clause, Professor Crews contends, to assign courts to perform such (executive or administrative) tasks as long as four conditions are met: a statute so provides; the task does not diminish or divest previously vested rights or interests; the task does no more than ask the court to resolve questions of law on a closed record; and the court’s decision is not subject to revision by the political branches. (P. 49.) That is so, he argues, because constitutional propriety is properly informed by longstanding political practices, including the practice of assigning executive tasks to federal courts. (Pp. 42–44.)

This executive power model, he goes on to note, would explain the legality of special statutory review schemes such as the Hobbs Act, which allow litigants to seek pre-enforcement review of agency rules on a closed record and to win sweeping remedies against such rules. (Pp. 50, 63.) Professor Crews argues that such a scheme should be seen as drawing on the federal courts’ executive power, rather than treated as having to rest solely on their Article III judicial power; so understood, they are constitutionally proper, including as to remedies. (Pp. 53, 62–63.) Whether or not the executive power model is necessary to underwrite the legality of special statutory review schemes, it is certainly a thought-provoking new justification for their legality.

The remainder of Professor Crews’s article unpacks the implications of his executive model of judicial power for a variety of issues at the intersection of federal courts and administrative law—among them, state standing to challenge agency action, FOIA standing, Chevron deference, remedial scope, certiorari before judgment, and military justice appeals. (Pp. 54–67.) He also discusses how his model might inform ongoing debates between formalists and functionalists. (Pp. 68–70.) While the balance of the discussion resists easy summary, it draws a variety of interesting connections and fairly makes several insightful points that readers will enjoy mulling over. The article’s lively engagement with numerous ongoing, pressing debates in administrative law, federal courts, and remedies is a great strength.

Apropos of that last point: reading Professor Crews’s paper suddenly called up a vivid memory from my own experience as an entry-level job applicant crisscrossing the country in a rumpled suit. A distinguished faculty member at a highly regarded law school quickly skimmed my CV as he sat down for a small-group interview with me. “So what are your interests?” he asked. I answered truthfully (if a bit recklessly): federal courts; civil procedure; administrative law—and certain facets of criminal law and health care law. “Oh, is that all?” he huffed, one eyebrow arched. Well, I understood why he said that, as well as the frosting of sarcasm with which he said it. Sometimes, though, it’s hard to fit everything into a neat and tidy box. That goes for people. It goes for papers—like Professor Crews’s cross-cutting, cross-pollinating article. And, last if not least, as Chadha is always there to remind us, it goes for powers, too.

Cite as: Mila Sohoni, Whose Power is it Anyway?, JOTWELL (January 15, 2024) (reviewing Adam Crews, The Executive Power of the Federal Courts, 56 Ariz. St. L.J. __ (forthcoming 2024), available at SSRN (September 5, 2023)), https://adlaw.jotwell.com/whose-power-is-it-anyway/.

Major Contradictions at the Roberts Court

Jed. H. Shugerman & Jodi L. Short, Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law, 65 B.C. L. Rev. __ (forthcoming, 2024) available at SSRN (August 4, 2023).

The Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inconsistent with another group of the Court’s opinions, which the authors describe as the Court’s presidentialism.

Their analysis is incisive. While addressed to a Court that has a rather cavalier attitude toward doctrinal coherence, the article’s convincing empirical evidence may encourage the Justices to be more thoughtful as they move into the post-Chevron phase of administrative law. In any event, it will certainly provide observers with insights for continued criticism of the Court, and perhaps provide this Court’s successor with guidance for repairing the damage.

Roberts Court presidentialism, according to the authors, is the set of decisions insisting that the President, as the one official elected by the entire populace, should have full power to control federal agencies. This nascent doctrine, related to the unitary executive theory fashioned by conservative commentators, may soon produce another cataclysm in administrative law, a reversal of Humphrey’s Executor and the invalidation of agency independence.

In the meantime, it has led the Court, in decisions such as Seila Law v. CFPB and Free Enterprise Fund v. PCOAB, to strike down legislation that creates innovative agency structures. The problem with these innovations, according to the Court, is that they shield the agency in question from direct presidential control through the appointment and removal process, and thus from democratic accountability. The authors point out, however, that this rationale conflicts with the Court’s recently fashioned doctrine that denies Chevron deference to issues deemed to be “major questions.” Such questions, by the Court’s own definition, are matters of “extraordinary” public policy significance, questions that Congress intends to make for itself rather than leaving those decisions to administrative agencies.

The contradiction that Professors Short and Shugerman discern is that the President is part of the same policymaking process that the Court is so anxious to protect and empower. This is true as a juridical matter for at least two reasons. First, the President can veto congressional enactments that authorize administrative agencies to act. (It was the Court’s formalist solicitude for this authority that led it to strike down nearly 200 federal statutes in INS v Chadha.) Second, the President is the hierarchical superior of executive agencies and appoints new leaders of all agencies (with the Court’s formalist solicitude for this authority leading to Seila Law and Free Enterprise Fund). The same observation is also true as a pragmatic matter because the President almost always plays a major role in the formulation of extraordinarily significant public policies.

The authors document the extent of the President’s role in establishing the administrative policies that the Roberts Court invalidated in Biden v. Nebraska (student loan forgiveness), West Virginia v. EPA (control of greenhouse gas emission), National Federation of Business v. OSHA (protection against COVID transmission in the workplace), Alabama Assoc. of Realtors v. DHA (moratorium on housing evictions during the COVID crisis), King v. Burwell (health insurance for the previously uninsured), Gonzales v. Oregon (Attorney General’s guidance on assisted suicide) and FDA. v. Brown & Williamson (health-based regulation of tobacco products). In each of these cases, as the authors point out, the Court depicted the administrative actions it struck down as the work of “unruly and unaccountable agencies overreaching beyond democratic control.” (P. 4.) That depiction, however, is exactly the opposite of what actually occurred.

Professors Short and Shugerman conclude by recommending that the Court resolve the conflict they have so effectively demonstrated by modifying one of the two conflicting doctrines. It might be said in response that the effort is pointless because the Court is not inclined to listen. The two doctrines, however they conflict on logical or legal grounds, are unified by the Court’s ideological hostility to the administrative state. It opposes innovative solutions to structural problems in modern government and substantive solutions to policy problems confronting society simply because both sets of solutions are carried out through administrative agencies. In this, its decisions resemble those of the Lochner Court, which struck down progressive legislation by the states on substantive due process grounds and progressive legislation by the federal government on Commerce Clause grounds because it disliked progressive legislation, not because of any legal or conceptual connection between the two doctrines. But Professors Short and Shugerman can hardly be faulted for giving the Court the benefit of the doubt and assuming that will make some effort to at least modulate its doctrines to achieve a measure of conceptual coherence.

Even if the Court does not resolve the problem, there is a further value to this highly perceptive article. It illuminates a feature of the Chevron doctrine that hopefully will survive whatever the Court decides to do to the doctrine itself. Chevron was decided in the Term following the Court’s momentous decision in Motor Vehicle Manufacturers Ass’n v. State Farm. In addition to holding that the APA arbitrary and capricious standard applied to rescissions of regulations, developing a definitive test for applying that standard, and holding that the National Highway Traffic and Safety Administration had violated the standard in rescinding its regulation regarding for airbag—all unanimously—the Court decided that the agency had also violated the standard by rescinding the regulation regarding automatic seat belts, but in this case by a 5-4 margin.

Justice Rehnquist, in dissent, pointed out that the agency should be permitted to change its position on the basis of presidential policies that the voters had endorsed, in this case the deregulatory policies that Ronald Reagan had advanced en route to his overwhelming electoral victory. The Chevron decision is built on this position. Justice Stevens’ majority opinion pointed out that the objections to the regulation at issue—another Reagan deregulatory effort—are “policy arguments . . . more properly addressed to legislators or administrators, not to judges.” In other words, Chevron does not simply favor agency interpretation over judicial interpretation, but rather is designed to validate the democratic policymaking process in its entirety, as formulated by agencies, by Congress, and—as Professors Short and Shugerman point out—by the President as well.

Through the major questions doctrine that seems to be leading to a reversal of Chevron, the Court has impeded efforts by that policy process to address some of the most serious problems facing our nation, such as climate change, inadequate health care, epidemic disease, and the sale of unhealthful substances. As a result of these decisions, many Americans will get sick or die. Perhaps Professor Short and Shugerman’s article will communicate this aspect of Chevron to the Court when its reconsiders the doctrine.

Cite as: Edward Rubin, Major Contradictions at the Roberts Court, JOTWELL (November 30, 2023) (reviewing Jed. H. Shugerman & Jodi L. Short, Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law, 65 B.C. L. Rev. __ (forthcoming, 2024) available at SSRN (August 4, 2023)), https://adlaw.jotwell.com/major-contradictions-at-the-roberts-court/.

Agency Capacity

Nicholas R. Bednar & David E. Lewis, Presidential Investment in the Administrative State, Am. Pol. Sci. Rev., available at Cambridge University Press (Mar. 13, 2023).

Presidents are quite popular in administrative law these days, from Elena Kagan’s classic article, Presidential Administration, to the Supreme Court’s fixation on presidential control in its growing Appointments Clause and removal docket. As legal scholars dissect and debate the doctrinal and normative implications of presidential attention in agency decision making, we could benefit from knowing more about how that involvement actually plays out.

In Presidential Investment in the Administrative State, Nicholas Bednar and David Lewis provide critical empirical lessons for how Presidents invest strategically (or not) in agency capacity, which encompasses “the ability of an agency to perform the tasks delegated to it.” They show that Presidents are not simply public administration savants—trying only “to ensure effective policy implementation and avoid failure.” And they demonstrate that Presidents are not pure partisans—“work[ing] to increase capacity in agencies implementing policies the president likes and decrease capacity in agencies implementing policies the president opposes.” The lessons are messier.

Bednar and Lewis rely on two interesting data sources to get at “presidential effort or attention.” They “track how long it took presidents Bush, Obama, Trump, and Biden to send their first nominee to the Senate for each vacant position in their first terms.” The nomination lag provides a measure of “the priority the White House is placing on individual agencies across government, making it a useful way to evaluate where presidents make capacity investments.” And they turn to the 2020 online Survey on the Future of Government Service, answered by thousands of career and political agency executives on their views of presidential and congressional investment in their organizations.

The main lesson from Bednar and Lewis will disappoint scholars and judges touting strong presidential control as well as policy nerds seeking good governance. In short, Presidents don’t really invest much in agency capacity, though, at least, they don’t often try to destroy capacity. “[N]eglect—rather than proactive building or deconstructing of capacity—is the norm for most agencies.” (P. 2.)

Take nominations. Bednar and Lewis find that Presidents Bush, Obama, and Trump did not nominate anyone in four years for 13, 15, and 26 percent of vacant Senate-confirmed roles in federal agencies, respectively. Assuming, unrealistically, that every position got a nominee at the end of four years, it took, on average, close to 500 days for President Bush to make a nomination. That delay jumped to 520 days for President Obama and 678 days for President Trump. President Biden had not made a single pick for 40 percent of vacant top positions after 534 days.

And now consider the survey results. Bednar and Lewis tell us that “[m]ore than half of federal executives report that the White House is exerting no effort or little effort to make sure that the agency has what it needs.” (P. 10.) (The other options were some, a good bit, and a great deal of effort.) Only about one in five respondents picked a good bit or a great deal of presidential effort for their agencies.

While Bednar and Lewis focus on the White House, their findings also raise questions about Congress. When Presidents do submit picks to the Senate, it takes longer for the Senate to act, if it acts at all. While the Senate almost never votes down an agency nominee, it often returns nominations. While 16 percent of both President Ronald Reagan’s and President George H.W. Bush’s agency nominations failed to get confirmed, that number climbed to 30 percent under President Obama. It did not improve for President Trump. And although individuals are often renominated after the Senate returns their nominations, the vacancy clock keeps ticking.

The nominations that do get confirmed also take longer to do so, despite 2013 Senate rules changes requiring only a majority to advance a nomination to a confirmation vote. Delays in confirming successful nominations have doubled, jumping from 56 days under President Reagan to 112 days under President Obama (and 117 days under President Trump) and to 127 days under President Biden, according to the Partnership for Public Service. Here, the President and Congress are neglecting agency leadership.

But the political branches seem to diverge in the survey. Bednar and Lewis report in passing that “a little more than half of federal executives report that congressional committees are exerting a good bit or a great deal of effort” (Pp. 10-11) for agencies to operate successfully. We should learn more about congressional investment—as many of us often bemoan congressional dysfunction for federal agencies.

The other lessons demonstrate that presidential commitment to agencies is not uniform. Politics and policy matter. Among other findings Bednar and Lewis show:

  • Presidents emphasize picks for policy jobs (i.e., positions focusing on legislation, policy planning, and law) over management roles (i.e., positions targeting “management, finances, acquisition, or personnel”). Specifically, “[a]t any point in time, presidents are 59% more likely …to make a nomination to a key policy position than other positions. In contrast, presidents are a third less likely … to nominate individuals to key management positions.” (P. 9.) Some jobs, like cabinet secretaries, combine policy and management tasks and are excluded from this analysis. In short, Presidents care more about “substantive policy than bureaucratic management.” (P. 4.)
  • Presidents prioritize nominations in more ideologically aligned agencies (think EPA for Democrats and DHS for Republicans). Indeed, while it took President Obama 134 days, on average, to make selections for top jobs at the EPA, his DHS nominations waited 191 days, on average. By contrast, President Trump took, on average, 250 days for his DHS picks but 384 days for those at the EPA. Another way to think about investment is turnover in positions. There was more turnover, for instance, at the top of DHS under Trump than the EPA.
  • Presidents elevate nominations in low-skilled agencies. “Agencies with the lowest skills are 78% … more likely to receive a nomination than agencies with average skills. Conversely, agencies with the highest skills are 39% less likely to receive a nomination than an agency with average skills …” (P. 9.) In the view of Bednar and Lewis, Presidents seek to avoid government failures. But it could be that Presidents know the marginal benefits to investment are greater in these agencies and look for easier payoffs. The survey showed no relationship between agency skill and perceived White House investment.
  • While the nomination data did not demonstrate a clear relationship with presidential priorities or the interaction of priorities and ideology, the survey did show an interesting relationship between that interaction and perceived attention. For conservative agencies, presidential priorities increased perceived presidential investment, but for liberal agencies, such priorities decreased perceptions of White House attention. As Bednar and Lewis note, “[t]he interaction of presidential priority and ideology highlights the fact that just because something is a priority of the president does not mean the president wants to build capacity.” (P. 12.)
  • In the survey, executives reported more presidential investment in entities within the Executive Office of the President and grant-making agencies (and less in independent regulatory commissions and boards). Political (as opposed to career) executives, Republicans (the survey was done in 2020), and those with more responsibility saw the most presidential attention.

We may be able to draw some simple lessons from their more complex ones. Take the White House priority for policy over management. Bednar and Lewis describe how personnel officials across recent administrations worry less about filling management positions, in part because “acting career officials often perform competently in ‘management-only positions.’” (P. 9.) Many, including Lewis and myself, have called for Congress to cut the number of Senate-confirmed positions in federal agencies. This compelling study suggests that Congress should remove the confirmation process for management roles, assuming that these positions are adequately supervised by political officials.

In justifying agency legitimacy and even judicial deference to agency actions, many legal scholars (and judges) point, in part, to both the expertise of agency career workers and the political accountability through presidential appointments of agency leaders. Capacity, for Bednar and Lewis, includes “the resources, information, and processes an agency needs to prospectively complete its tasks.” (P. 2.) This means the civil servants and political leaders, among other items. Investment in agency capacity, as Bednar and Lewis persuasively demonstrate, cannot be assumed. With Presidents featuring so large in the field of administrative law, we should take some time to see how they operate on the ground.

Cite as: Anne Joseph O'Connell, Agency Capacity, JOTWELL (October 27, 2023) (reviewing Nicholas R. Bednar & David E. Lewis, Presidential Investment in the Administrative State, Am. Pol. Sci. Rev., available at Cambridge University Press (Mar. 13, 2023)), https://adlaw.jotwell.com/agency-capacity/.

Revisiting Immigration Exceptionalism in Administrative Law

Emily Chertoff, Violence in the Administrative State, 112 Calif. L. Rev. __ (forthcoming 2024), available at SSRN.

With all the changes swirling in administrative law, one trend seems to be getting less attention than perhaps it should: the death of regulatory exceptionalism in administrative law. For decades, many regulatory fields—such as tax, intellectual property, and antitrust—viewed themselves as exceptional, such that the normal rules of the road in administrative law do not apply. The Supreme Court and the lower courts have increasingly rejected such exceptionalism in many regulatory contexts, emphasizing that the Administrative Procedure Act (APA) and related administrative law doctrines are the default rules unless Congress has clearly chosen to depart from them by statute in a particular regulatory context.

Immigration exceptionalism, however, remains a puzzle. Not because administrative law does not apply. It does. But, as Jill Family has detailed, Congress has departed from the APA defaults in many respects. As a constitutional and interpretive matter, moreover, immigration regulation operates against the backdrop of the plenary power doctrine. As more administrative law scholars have turned to immigration law (and vice versa), deeper insights have emerged to better situate immigration regulation in the modern administrative state. Immigration law scholars and newer voices in administrative law have played a critical role in moving the field forward. Here, I want to highlight one such newer voice, Emily Chertoff, whose article Violence in the Administrative State makes a promising contribution.

As the title suggests, Chertoff’s main contribution is a call for the field of administrative law to better appreciate the role of violence (and force) in certain regulatory contexts. In Part I, Chertoff sketches out the conventional bureaucratic model for administrative law. An outdated view of immigration regulation might fit within this model: Congress directs immigration agencies to implement a public benefits program and accompanying regulatory enforcement scheme for the admission and continuing presence of noncitizens in the United States. A professionalized “information-processing” bureaucracy, as Jerry Mashaw defined it decades ago in Bureaucratic Justice, carries out that mission—guided and overseen by the political branches, checked deferentially for rationality by federal courts, and improved by procedural best practices developed by the agency itself through internal administrative law. The goals are accuracy, consistency, and efficiency, and the bureaucracy is structured hierarchically to advance program implementation.

This conventional bureaucratic model in immigration regulation—at least on the enforcement side—quickly gets complicated. As many immigration law scholars have noted, immigration regulation can and often does lead to criminal consequences. As such, “crimmigration” has become a burgeoning subfield. Similarly, even on the civil enforcement side, detention of the regulated party—here, the noncitizen—is a central, complicating feature. My soon-to-be-colleague Paulina Arnold’s work on immigration detention comes immediately to mind.

In Part II, Chertoff attempts to bring conceptual clarity to this type of regulatory scheme by introducing “the domain of violence.” In this type of “force agency” model (compared to the bureaucratic model), order (not accuracy and efficiency) is the legitimating value, and control (not program implementation) is the primary goal. In Chertoff’s view, the organizational structure is not hierarchical at the front-line enforcement level. Instead, there is an in-group/out-group dynamic on the front lines, often “form[ing] strong internal ties while becoming isolated from senior officials and outsiders, including the people they are meant to control and the broader public.” The decisionmaking process, moreover, is not information processing, but instead the “identification of risk in a dynamic context.”

To illustrate this agency force model, Part III presents a case study of the enforcement operations at U.S. Immigration and Customs Enforcement (ICE). To build the case study, Chertoff reviewed several thousand pages of agency guidance documents and materials and then conducted fourteen semi-structured interviews with individuals who have interacted with ICE. Obviously, this is just an exploratory study, and much more empirical work needs to be done to fully understand the role of administrative law and regulatory practice in immigration enforcement. But even this preliminary exploration reveals fascinating details about the role of agency guidance documents, bureaucratic management and quality assurance practices, and judicial review in immigration enforcement on the ground.

Part IV concludes by previewing an ambitious reform project for force agencies. In this article, Chertoff makes three recommendations: (1) training should focus more on danger for a force agency than a bureaucracy or public benefits agency; (2) street-level enforcers should have less decisional independence and be subject to more disciplinary consequences than traditional civil servants; and (3) unions in force agencies should not be treated the same as other public-sector unions, as their incentives for cultivating pathologies on the job are greater and more consequential.

There is so much to like (lots) about this article. As is typical in terrific scholarship, it raises many questions and avenues for future research. I’ll mention a few here. First, how much purchase does the concept of “force agency” have outside of immigration regulation? Chertoff gestures to prisons and law enforcement, contexts generally not studied in administrative law—with some important exceptions. Second, and conversely, how much of immigration regulation falls within the force agency model? Immigration enforcement obviously does. It seems immigration benefits—think U.S. Citizenship and Immigration Services—would not, more naturally categorized as an information-processing bureaucracy. But what about immigration adjudication that occurs in the Justice Department’s immigration courts system? It seems like that may fall outside the force agency category, and yet civil detention and potential criminal consequences flow from that regulatory system.

It is also fascinating to explore how this force agency model may play out in other agency enforcement contexts, such as tax, environmental protection, and financial regulation. (Or in the fishing industry regulatory context at issue in Loper Bright Enterprises v. Raimondo—the case the Court will decide this Term on whether to eliminate Chevron deference to agency statutory interpretations.) To be sure, Chertoff’s focus is on physical force or violence, whereas in other schemes regulatory restrictions and civil penalties more likely affect property and livelihood than life and liberty. But some of those enforcement structures are similarly decentralized, and the focus is likewise on order and control with street-level enforcers identifying risk in a fast-changing enforcement landscape. As such, similar policy proposals of different training, less decisional independence, and distinct unionization may be worth studying and exploring there as well.

In other words, is a large part of this story about enforcement per se as a regulatory tool, compared to rulemaking and adjudication? In that sense, this article is a must read for scholars who focus on agency enforcement in other regulatory contexts. (One of the unfortunate byproducts of the exceptionalism phenomenon in administrative law is that it often leads to scholarly siloing, with regulatory subfields not learning from and talking with one another.) Indeed, one may even wonder how many agencies today actually fit the conventional bureaucratic model well, or whether we need more agency- or mode-specific administrative law models and theories (even if not doctrinal exceptionalism). I am excited to see how Chertoff and others continue to explore the concept of force in administrative law in the years to come. This article is a great conversation starter, and an important contribution to the literature on immigration exceptionalism in administrative law.

Cite as: Christopher Walker, Revisiting Immigration Exceptionalism in Administrative Law, JOTWELL (October 4, 2023) (reviewing Emily Chertoff, Violence in the Administrative State, 112 Calif. L. Rev. __ (forthcoming 2024), available at SSRN), https://adlaw.jotwell.com/revisiting-immigration-exceptionalism-in-administrative-law/.

Finding the Public Interest (and the Rule of Law) in On-the-Ground Administration

Jodi L. Short, In Search of the Public Interest, 40 Yale J. Reg. 759 (2023).

Congress often instructs agencies to act in the “public interest,” but what does that mean? Does it mean anything at all? Professor Jodi Short tackles this in an important new article, In Search of the Public Interest. How one defines the term “public interest” matters, for as Short explains, it appears approximately 1,280 times in the U.S. Code. (P. 767.) Critics of the administrative state decry the term as vacuous—an indication of congressional abdication and unconstitutional delegation of legislative power. Proponents of the administrative state, on the other hand, view “public interest” standards as integral to sound regulatory schemes—a meaningful instruction to administrators that can help ensure Congress’s policy goals are achieved. The debate, which is often abstract and ideologically freighted, can seem intractable.

Short seeks to cut the Gordian Knot with an empirical analysis of how agencies have interpreted and applied “public interest” standards in the real world. She begins by offering a thorough yet concise overview of various theoretical approaches to defining the public interest, breaking them down into categories centered on substantive values, efficiency claims, and procedural arguments. This primer swiftly orients the reader to the contours of the broader debate, while providing a taxonomy for the subsequent analysis. The remainder of the article offers a real-world view of how a sampling of federal and state agencies have given the concept of the public interest content and effect.

The empirical analysis delves deep into the work of four agencies, including the Interstate Commerce Commission (ICC), the Federal Communications Commission (FCC), the Federal Energy Regulatory Commission (FERC), and the California State Water Resources Control Board (the Board). Although the statutes these agencies administer include multiple public interest provisions, Short undertook case studies in ones that are outcome-determinative in the agency’s process and have been subject to active litigation over a long period of time. This approach skews the sample toward adjudications in licensing and permitting regimes, but it also allows Short to evaluate trends in how robust discussion and application of the public interest have (or haven’t) changed over time. The inclusion of both federal and state agencies adds further dimension to Short’s analysis and findings.

Short uses qualitative coding methodology to analyze a sample of adjudicatory decisions from each regulatory context. She codes for the following:

(1) explicit definitions of the public interest state by the agency; (2) explicit claims made by the agency about the scope of its discretion under the public interest standard; (3) justifications made by parties and agencies about why a particular outcome is—or is not—in the public interest; (4) the agency’s treatment of these public interest justifications (i.e., whether it accepted them, rejected them, or raised them itself).

(Pp. 783-84.) For each of the regulatory contexts Short analyzes, she provides an overview of the applicable statute and its history before reporting the findings of her analysis.

There is so much to love about this article, but I particularly appreciate how Short’s careful study of agency decisions produces a nuanced picture of administrative action. Sampling the decisions makes the volume manageable. At the ICC, Short’s case study is in the agency’s implementation of the public interest standard for railroad mergers under the Interstate Commerce Act. Here, she samples 35 cases between 1923 and 1999. For the FCC, the focus is on the public interest standard for evaluating the transfer of licenses incident to merger under the Communications Act. This case study is based on a sample of 60 cases decided between 1943 and 2019. The FERC case study also centers on merger review, this time under the Federal Water Power Act, and entails a sample of 94 cases between 1937 and 2020. Finally, Short evaluates the California Water Board’s consideration of the public interest in allocating water rights. Here, the sample includes 87 decisions issued between 1927 and 2015.

As Short puts it, “[t]he study’s findings will surprise many and please few.” (P. 765.) Perhaps so. But they will fascinate all.

The findings shed light on how the studied agencies have defined “public interest,” but they do much more than just that. They reveal a tendency for these agencies to define the public interest explicitly and consistently, downplaying and even seeking to cabin the discretion that scholars so commonly associate with statutory public interest standards. Moreover, the agencies typically find content for the term in law rather than in personal or freewheeling judgments. That is, they define “public interest” based on the statutory and regulatory context, the common law, and the interpretations that emerge from judicial review. When the agencies change their approach, they generally do so in response to statutory amendments or new judicial decisions. In her study, Short finds not only the public interest, but also the rule of law.

What emerges from Short’s study of agency-level decisions is a compelling picture of how administration operates within the separation of powers. It’s a different picture—more complex, measured, and hopeful—than one might get by studying the same statutory provisions exclusively through judicial decisions. My sense from Short’s analysis is that the agencies are responsive first and foremost to the legislature, followed closely by the courts, with regulated parties a somewhat distant third. Moreover, the legislature and the courts do not merely constrain the agencies. Instead, they contribute to the administrative process, each in their own way, by producing material that the agencies use to develop law and policy through the day-to-day work of administration. The law produced by coordinate branches does not only limit: it empowers and enriches. The dialogic model of the separation of powers may be out of fashion these days, but one can see it at work in the regulatory contexts Short studies.

Short is careful to acknowledge that her study, though deep, is narrow. The federal case studies are few and probably more like each other than they are like many of the other “public interest” standards that Short does not study. “Yet, the fact that the agencies studied are not representative of the whole of the administrative state is both beside the point and precisely the point.” (P. 827.) Short puts her finger directly on the central tension of administrative law. This is a field defined by uniform, cross-cutting legal principles that must be drawn from the vast and varied expanse of the administrative state and applied to individual agencies in a way that furthers rather than impairs their unique functions. Scholars are better positioned than courts to attend simultaneously to the competing demands of uniformity and exceptionalism in administrative law. Short’s article contributes to the literature in many ways, not least of all by providing an exemplar of how to navigate this extraordinary challenge.

Cite as: Emily Bremer, Finding the Public Interest (and the Rule of Law) in On-the-Ground Administration, JOTWELL (September 6, 2023) (reviewing Jodi L. Short, In Search of the Public Interest, 40 Yale J. Reg. 759 (2023)), https://adlaw.jotwell.com/finding-the-public-interest-and-the-rule-of-law-in-on-the-ground-administration/.

In Search of the Presidential Removal Power: What Venality (Offices as Property) Tells Us About the Constitutional Dogs that Did Not Bark and the Howling Hounds of Bureaucratic Accountability

Jed H. Shugerman, Freehold Offices vs. "Despotic Displacement": Why Article II "Executive Power" Did Not Include Removal (Jul. 25, 2023) available at SSRN.

Originalist scholars have been hard at work to backfill justifications for the Roberts Court’s pronouncement in Seila Law of an indefeasible presidential power to remove executive branch officers (a prominent recent example is Aditya Bamzai and Saikrishna Bangalore Prakash, The Executive Power of Removal). Unable to point to constitutional language authorizing (much less requiring) presidential removal, purported originalists have located this power provisionally in Article II’s broad grant of “The executive Power” to the President based in part on the argument that executive power, as understood by the Founders, undeniably encompasses the power to remove executive officers at will.

Into this consequential debate wades Jed Shugerman, with Freehold Offices vs. “Despotic Displacement”: Why Article II “Executive Power” Did Not Include Removal. Shugerman persuasively demonstrates that there was no general rule of indefeasible executive removal power prior to and at the founding. Instead, there was a mix of office types—from cabinet-level officers who served at the pleasure of the king, to patronage offices usually held at the pleasure of the patron officer, to offices that were bought and sold as unremovable freehold property (a practice known as venality). The article itself is a tour de force, presenting extensive evidence to support this office hybridity claim and responding point-by-point to existing and anticipated counterarguments by unitary executive theorists. And it is but one installment in a larger project to debunk unitary/originalist claims about the President’s removal power (which also includes The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity and an extensive Appendix to this article cataloguing Unitary Executive Theorists’ misuse of historical sources). This brief post will touch on only a sliver of Shugerman’s intricate argument and extensive evidence, which I encourage all to read for themselves.

I was particularly interested in Shugerman’s account of venality—the practice of buying and selling offices as property. I must confess that I am no originalist. My eyes glaze over at the first mention of the First Congress. But Shugerman’s article caught my eye not only for its rejoinder to the pseudo-originalism of the Court’s recent appointment and removal jurisprudence, but also for its relevance to ongoing discussions of bureaucratic accountability.

At the core of the originalist case for unfettered presidential removal power is the empirical claim that English monarchs had the indefeasible prerogative to remove executive officials and that this power was universally assumed by the Founders to be part and parcel of the executive power. In this telling, silence about removal power in constitutional text, convention debates, and other Founding-era documents only reinforces the taken-for-granted nature of executive removal power. Thus, the story goes, when the Founders vested the executive power in the President, they surely took for granted that it included unfettered removal power. Apart from legitimate debate about whether the Framers intended to bestow royal prerogatives on the President, Shugerman takes more direct aim at the empirical premise of the originalist story. He demonstrates that removal was not a royal prerogative power and, moreover, it was not even a general or default practice of English “executive power,” nor would the Founders have understood it to be. In fact, this assumption is the product of modern originalists taking modern practices for granted as past norms.

While Shugerman is not the first to show a long history in England and America of offices held as property for a “term of years” and protected from removal, his account fills several important gaps and responds to the most serious critiques of prior scholarship. First, he documents that the practice of establishing offices as freehold property (for a term of years or for life) and inheritable was much more widespread than previously understood. He shows not only that the practice was systemic throughout Europe, but that it was particularly entrenched in English law as freehold property. This responds to critiques that prior scholarship identifying the existence of tenured offices provides only isolated and anecdotal evidence.

Second, responding to critiques that previously reported historical evidence of offices held as property was too remote in time from the founding to have influenced the Founders’ understanding of executive prerogatives, Shugerman shows not only that the general practice of venality persisted in eighteenth century England but that such “offices of profit” were a part of the Founders intellectual and day-to-day experience. Venality was not merely mentioned, but endorsed by enlightenment figures such as Montesquieu, who were studied and revered by the Founders. In The Spirit of the Laws, Montesquieu offers a defense of venality as antithetical to despotic states (“where the subjects must be placed or displaced in an instant by the prince”) but “good in monarchic states, because … it gives each one his duty, and it renders the order of the state more permanent.” (P. 20.)

Moreover, Shugerman shows that venal offices were a part of everyday life in colonial America, and that they existed at all levels of government. Purchasing officer commissions was standard practice in the British military that ruled the colonies. Indeed, it was a source of frustration for ambitious Americans like George Washington because it limited their access to military promotions. Proprietary colonies such as Maryland were governed by non-removable proprietors, who not only governed the colony but owned it and passed it like property to their heirs. There is evidence that colonists were broadly aware of the British practice of buying and selling offices and resented it. Scholars have identified venality, and the attendant abuse of venal offices, as a factor motivating the Revolution, and such practices make a brief appearance in the list of grievances catalogued in the Declaration of Independence.

While Shugerman acknowledges a trend away from venality occurring at the time of the Founding, he demonstrates that venality persisted alongside the emerging modern bureaucracy well into the nineteenth century. And although colonial Americans might have shared a distaste for venality, they surely did not share the universal assumption that problematic officials could be removed by their superiors at will. Importantly, Shugerman shows that Founding-era debates and records reflect a knowledge of this eclectic mix of office types and contain no evidence of an intention to depart from this background norm.

This raises the question how such an apparently corrupt system of offices-for-sale could have spread as widely and persisted for as long as Shugerman claims. He provides a fascinating explanation about the pre-modern logic of venality that will be of interest to those of us who think about state-building and bureaucratic accountability. To govern a vast nation in which the Crown’s control was concentrated in the capitol, the King had to identify qualified elites and persuade them to abandon alternative sources of wealth and power to become administrators. The sale of legally protected tenure in offices that came with a monopolistic system of fees, patronage, and franchising (many venal officers had the power to sell additional offices beneath them) provided the right mix of incentives. First, the sale of offices ensured that they would attract individuals with sufficient skills, industry, and accomplishment to have amassed the wealth to buy them. An imperfect proxy, to be sure, but a reasonable second-best in a pre-modern world where the systems of measurement and centralized management necessary to support meritocracy were impractical or non-existent. Second, the spoils of office—coupled with stability of tenure—were an attractive lure, especially to non-first-born sons of feudal elites.

Tenure protection was essential to the system because it ensured officeholders a return on their investment. Who would pay for something the King (or other superior officers) could alienate on a whim? The Crown recognized this and maintained this system of venality alongside a system of officers who served at the King’s pleasure. And this is precisely the point relevant to current debates about whether the President’s executive power entails a removal power. Although the King had, in practice, a removal power at pleasure, Shugerman shows that “[e]xecutive removal was not an assumed power, because it would have undermined the core system of exchange of offices-as-profitable-property, of offices-of-investment[.]” (P. 26.)

To be sure, there is much to critique in the theory of bureaucratic accountability that supported venality in its day. Yet, it is not clear that the theory of accountability underlying the Court’s insistence on unfettered presidential removal power is much sounder. Just like venality, the Court’s hyper-politicization of administrative offices presents rich opportunities for corruption; but now, individual investment and tenure in office no longer disincentivize corruption that might sully the officeholder’s property or counterbalance the chief executive’s power. As Jeremy Bentham neatly summarized, venality “may be called a corruption, but it serves as an antidote to a corruption more dreaded.” (P. 41.) Offices are still effectively bought and sold, today to wealthy campaign donors and political cronies who occupy them at the President’s whim. Unlike their wealthy forbears, these individuals have no incentive to preserve the value of the office they occupy. Their sole incentive is to aggrandize the President. This undermines the Roberts Court’s theory of bureaucratic accountability through presidential control and suggests the imperative to temper control with other accountability mechanisms.

Cite as: Jodi Short, In Search of the Presidential Removal Power: What Venality (Offices as Property) Tells Us About the Constitutional Dogs that Did Not Bark and the Howling Hounds of Bureaucratic Accountability, JOTWELL (July 26, 2023) (reviewing Jed H. Shugerman, Freehold Offices vs. "Despotic Displacement": Why Article II "Executive Power" Did Not Include Removal (Jul. 25, 2023) available at SSRN), https://adlaw.jotwell.com/in-search-of-the-presidential-removal-power-what-venality-offices-as-property-tells-us-about-the-constitutional-dogs-that-did-not-bark-and-the-howling-hounds-of-bureaucratic-accountability/.

NHTSA’s Incredible Journey from Industry Regulator to Surrogate Cop

Farhang Heydari, The Invisible Driver of Policing, 76 Stan. L. Rev. __ (forthcoming 2024), available at SSRN (June 3, 2023).

The “toothpaste tube theory” in administrative law predicts that when there are too many legal constraints placed on an agency (pressure on the tube), the agency will simply find another way to accomplish the same task more expeditiously (the toothpaste bulge moves). Examples are everywhere. The National Highway Traffic Safety Administration (NHTSA) deploys automotive recalls to avoid the travails of the rule-making process. Some agencies rely on pre-NPRM communications to shore up rule proposals and avoid the logical outgrowth test. Agencies might even rely on guidance to sidestep onerous notice-and-comment requirements for rulemaking. By following the path of least resistance, agencies can accomplish their statutory assignments more swiftly and with fewer risks.

In The Invisible Driver of Policing, which is forthcoming in the Stanford Law Review, Farhang Heydari brings the toothpaste tube theory to a new level in unveiling NHTSA’s displaced efforts at enhancing the safety of vehicle transportation. In sixty riveting pages, Heydari details how NHTSA—finding itself effectively blocked from regulating the powerful auto industry—shifted significant energies towards targeting the drivers themselves. Indeed, a whopping 80% of NHTSA’s budget is apparently dedicated to traffic enforcement. (P. 54.) Heydari then links a significant component of this enforcement to encouraging the use of “high traffic stops, ostensibly as a tack both to improve traffic safety and fight crime” (P. 2), transforming the agency into the “unexpected enabler of pretextual stops.” (P. 1.) To that end, NHTSA’s sponsored research “called for a 400-500% increase in traffic enforcement.” (P. 33.) Although Heydari’s article was intended to alert his fellow criminal law scholars to the prevalence of clandestine law enforcement by nonexpert governmental agencies (Pp. 52-55), his article is perhaps even more jolting for administrative law readers.

By Heydari’s account, over the last three decades, NHTSA’s energies have been significantly diverted from its central mission of advancing safety through regulation of the auto industry. (Pp. 14-17.) To be sure, NHTSA is still engaged in the intricate oversight of automotive safety and design. But starting in the 1990s, NHTSA began dedicating a large portion of its resources and attention to the very different objective of encouraging state and local police to find and punish aberrational drivers on the road. (P. 17.) Both initiatives are aimed at reducing roadway fatalities, but they are worlds apart in all other respects.

For administrative lawyers, The Invisible Driver of Policing raises a number of red flags, only a few of which I have the space to consider here. First, in contrast to the more familiar experiences with the toothpaste tube theory in administrative law, NHTSA’s shift from regulating industry and toward enforcement actions against drivers requires an entirely new and different type of agency expertise. Auto engineers at NHTSA will not be very useful in figuring out how to locate and sanction unsafe drivers. Indeed, by Heydari’s account, the retooling of NHTSA’s expert staff to bolster its enforcement program was far too narrow in scope. NHTSA apparently hired primarily former law enforcement officers rather than a more well-rounded set of enforcement experts (P. 39), and the enforcement experts in turn “trained tens of thousands of officers across the country” to increase traffic stops. (P. 2.)

Second, NHTSA also failed to develop metrics or collect data to assess whether its expenditures in law enforcement were actually improving the safety of roadways. (Pp. 28-31.) This failure to assess its program reduces public visibility and makes oversight of NHTSA’s work effectively impossible. As a result, we do not know whether NHTSA’s investments in law enforcement had any positive effect, a particularly worrisome outcome given the negative ramifications Heydari traces from the increased traffic stops. Moreover, this new focus on enforcement has likely diverted scarce resources away from the agency’s primary mission of regulating the auto industry. The toothpaste tube theory says as much. But without any data, we do not know the extent of these opportunity costs either.

Third, the most concerning takeaway from Heydari’s account is the fact that the displacement of the agency’s mission happened in plain view. There is no indication that NHTSA was either acting as a runaway agency or ignoring its political principals. In fact, Congress mandated NHTSA to take this new direction toward law enforcement twice, first in 1991 and again in 2006. (P. 17.) And, while political appointees at DOT and NHTSA were well situated to provide needed oversight and direction to NHTSA’s project and staffing decisions, Heydari’s analysis suggests they were generally asleep at the wheel (certainly individual drivers were ill-equipped to lobby them about NHTSA’s misplaced energies). (Pp. 39-40.) Thanks to Heydari’s sleuthing, we can even see—with the benefit of hindsight—a clear paper trail detailing each step in NHTSA’s decision to employ crime-fighting traffic stops as a major strategy to advance roadway safety. (Pp. 18-24.)

In the final section of the article, Heydari presents a mini-case study of how other agencies are similarly “refram[ing] . . . [regulatory] solution[s] in terms of criminal law enforcement.” (P. 55.) The Food and Drug Administration has targeted opioid addicts rather than drug manufacturers; the Federal Trade Commission prosecutes hackers and identity thieves as an alternative to imposing vigorous requirements on companies for security breaches; and the Bureau of Alcohol, Tobacco, Firearms, and Explosives pursues charges primarily against illegal weapon owners as opposed to illegal dealers. (Pp. 43-51.) Each of these examples differ in important ways from NHTSA, as Heydari concedes, but they appear to follow a worrisome trend. Rather than regulate industry, the agencies focus on prosecuting individuals whose crimes result from that very same lack of preventative regulation.

So administrative law scholars are left with a puzzle—or maybe a train wreck. Is NHTSA’s regulatory displacement an aberration or the tip of the iceberg? To answer that question, we need big-picture views of other agencies whose programs drifted from their core expertise. But how do we learn more about what the agencies are doing without imposing more counterproductive red-tape requirements on beleaguered agencies? Maybe instead of targeting agencies, our attention should focus initially on Congress’ own incomprehensible lawmaking, which at least in the case of NHTSA precipitated its unlikely journey into law enforcement. But whatever the answer(s), gaining a better understanding of this kind of fundamental change in agency mission warrants more attention from administrative law scholars.

Cite as: Wendy Wagner, NHTSA’s Incredible Journey from Industry Regulator to Surrogate Cop, JOTWELL (June 26, 2023) (reviewing Farhang Heydari, The Invisible Driver of Policing, 76 Stan. L. Rev. __ (forthcoming 2024), available at SSRN (June 3, 2023)), https://adlaw.jotwell.com/nhtsas-incredible-journey-from-industry-regulator-to-surrogate-cop/.

Confused Merger Policy at the FTC

  • Daniel Sokol, Antitrust Merger Control as a Regulatory Sandbox, __ J. Corp. L. __ (forthcoming), available at SSRN (Apr. 4, 2023).
  • Daniel Sokol, Marissa Ginn, Robert J. Calzaretta, Jr. & Marcello Santana, Antitrust Mergers and Uncertainty, __ Bus. Law. __ (forthcoming), available at SSRN (Dec. 6, 2022).

In these two articles, Professor Sokol and his co-authors analyze recent changes in the methods the Federal Trade Commission (FTC) uses to review proposed mergers. Their findings are startling. The articles are required reading for anyone who is interested in antitrust law, administrative law, government regulation, or corporate law.

In his short essay Antitrust Merger as a Regulatory Sandbox, Sokol praises the antitrust merger control system under the Hart-Scott-Rodino Act as “an early attempt at a ‘regulatory sandbox,’” and criticizes developments of the Biden administration that reduce innovation and chill mergers. In Antitrust Mergers and Uncertainty, Sokol and his co-authors asked lawyers and economists who regularly advise firms about prospective mergers a series of questions about the ways in which the process has changed in the two years in which Chair Khan has headed the FTC.

By way of background, in 1976, Congress enacted the Hart-Scott-Rodino Act (HSR), which created a new system for determining whether a proposed merger or acquisition violates Section 7 of the Clayton Act.

Under the HSR, a firm that intends to merge with or acquire another firm must make a filing with the Justice Department and the FTC at least 30 days before the date of the proposed merger or acquisition. The Justice Department and the FTC meet periodically to allocate responsibility to implement the HSR between the agencies by sector of the economy. The agencies have 30 days in which to decide whether the proposed transaction would violate the Clayton Act. The statute authorizes extensions of the decisional deadline up to 30 days, but the parties to the proposed transaction often acquiesce in much longer extensions of the decisional deadline when the Justice Department or the FTC ask for additional time to evaluate a proposed transaction.

The HSR created a system of agency adjudication that is unlike any other. In other similar administrative contexts, an agency adjudication closely resembles a trial. The agency provides notice of its position and the reasons why it believes that a firm is violating the law. The firm then has an opportunity to respond. The agency and the firm present their conflicting evidence in a hearing conducted by an administrative law judge (ALJ). The parties file briefs, and the ALJ issues an opinion in which she explains her decision. Either party can appeal to the head of the agency. After considering the briefs of the parties on appeal, the agency head can either adopt the decision and reasoning of the ALJ or replace it with the agency’s contrary decision, along with a statement of the agency’s reasoning in support of its decision.

Each step in the normal process of agency adjudication is completely transparent. Every firm that is potentially affected by the agency’s decision and every potentially affected member of the public has complete access to the pleadings, the evidence, and the reasoning of the ALJ and the agency.

The HSR system of agency adjudication differs completely from the normal. Every step in the HSR decision-making process takes place behind closed doors. The process is completely opaque. The public has no way of knowing what transpired, except in the rare case in which the firm that proposes to engage in the transaction decides to complete the transaction after the agency has notified the firm of its decision that the transaction is illegal. In those few cases, the ensuing litigation creates a public record that provides the public with a window into the agency decision-making process that gave rise to the litigation.

Many scholars have long been critical of the opacity of the HSR adjudication process. Professor Sokol is not among those critics. In his words: “HSR combined with merger guidelines created a system of ex ante review with predictable rules and negotiation between merging parties and enforcers.” He emphasizes the role that merger guidelines have played in creating a healthy decision-making process: “Merger guidelines create transparency and greater predictability by identifying the core concepts that motivate the merger control system as well as to explain the legal and economic analytical framework that gets applied within merger control by the agencies.”

The merger guidelines are extremely detailed. They describe every step that the agency takes in the process of deciding whether a proposed transaction has the potential to reduce consumer welfare by reducing competition between firms in a market. According to Sokol, guidelines serve two valuable purposes.

First, they allow firms to predict with a high degree of confidence which of three actions the agencies will take with respect to a transaction the firm is considering. The FTC or the Justice Department determines that most of the thousands of proposed transactions are unlikely to have adverse effects on competition. In those cases, the agency quickly terminates the review process and notifies the firm of its decision to acquiesce in the transaction. In a much smaller number of cases, the agency notifies the firm that it needs additional data and must engage in detailed analysis of the proposed transaction to determine whether it is likely to have an adverse effect on competition.

In some fraction of those cases, the agency determines that the transaction is likely to have an adverse effect on competition and notifies the firm that it will seek an injunction to preclude the firm from completing the proposed transaction if the firm decides to attempt to complete the transaction. Until recently, the FTC prevailed in most of the cases in which it sought to stop a transaction that it found to be a violation of Section 7 of the Clayton Act.

Second, the guidelines provide a detailed description of the data that a firm must collect and the analyses that the firm must complete and submit to the agencies to allow them to decide whether to acquiesce in the transaction, to engage in a more detailed analysis of the transaction, or to disapprove of the transaction.

Sokol observes that the status quo is undergoing dramatic change. As he explains, “[t]he current regulatory antitrust sandbox system is under attack by the Biden antitrust agencies as part of a broader push to reduce total merger activity.” In January 2022, the new leadership at FTC and DOJ Antitrust, FTC Chair Lina Khan and Assistant Attorney General Jonathan Kanter, announced their intent to publish new guidelines that would significantly reduce the number of permissible mergers. Khan and Kanter have not yet taken that action, but it is obvious to all participants in the HSR decision-making process at FTC that it is not acting in ways that are consistent with the existing merger guidelines.

Khan has made it clear that she disagrees with virtually every characteristic of the guidelines, including the guidelines’ goals. She rejects the goal of maximizing consumer welfare, which the Justice Department and the FTC have pursued for the last 50 years. Instead, she has emphasized the need to protect competitors from large firms that charge low prices—a goal that the enforcement agencies and the Supreme Court disavowed 50 years ago. Khan cannot further her stated goals by applying the 2010 guidelines.

The conflict between Khan’s policy goals and the guidelines raises a critically important question. How does the FTC interpret Section 7 of the Clayton Act under Khan’s leadership, and what analytical steps will the FTC take to determine whether a proposed transaction is legal? That is the question that Professor Sokol attempted to answer, but his efforts were unsuccessful. The experienced lawyers and economists who regularly assist firms in navigating the HSR decision-making process at FTC had no difficulty determining that the FTC is not applying the guidelines, but they have no idea what goals the agency is attempting to further, what theories of harm it is attempting to explore, or why it is asking for the additional data that it requests.

Moreover, their experience with the process during the past two years causes them to believe that the FTC staff that participate in the HSR decision-making process also lack an understanding of the agency’s goals, theories of harm, or reasons for requesting additional data. When they ask staff members those questions the typical response is an apologetic admission of ignorance. The goals, theories of harm, and reasons for the requests for additional data may be known to the political leaders of the agency, but they have not been effectively communicated to the staff.

Here are two of the many concerns that Professor Sokol expresses as a result of his study:

When there is lack of clarity in the merger control process because the goals, process, and substantive analysis of merger control are not clear, this may delay or even undermine certain proposed mergers that benefit society, thereby creating economy wide problems.

[A] merger system that lacks intellectual clarity as to substance, transparency, and clear procedural rules also taxes the limited resources of antitrust enforcers that need to focus on actual problems that merger control identifies . . . .

I am confident that anyone who reads Professor Sokol’s articles will find ample evidence to support the concerns that he expresses.

Cite as: Richard J. Pierce, Jr., Confused Merger Policy at the FTC, JOTWELL (May 25, 2023) (reviewing Daniel Sokol, Antitrust Merger Control as a Regulatory Sandbox, __ J. Corp. L. __ (forthcoming), available at SSRN (Apr. 4, 2023) and Daniel Sokol, Marissa Ginn, Robert J. Calzaretta, Jr. & Marcello Santana, Antitrust Mergers and Uncertainty, __ Bus. Law. __ (forthcoming), available at SSRN (Dec. 6, 2022)), https://adlaw.jotwell.com/confused-merger-policy-at-the-ftc/ .