Monthly Archives: March 2012

In Praise of a Comparativist Rubric for Administrative Law

Mar 21, 2012 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.

State Interpreters

Mar 2, 2012 Anne Joseph 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.