In the Fifth Edition of the Administrative Law Treatise, released in 2010, Richard Pierce described a raging debate within the academic community and the courts at that time over the appropriate role of democratic values and institutions in the administrative state. This debate encompassed such topics as the validity of unitary executive theory, how best to resolve disagreements between Congress and the President, and how to manage the risk that courts would become “the primary architects of national policy through their efforts to keep agencies within legal boundaries.” Eight years later, that same debate over the values, institutions, and structures of contemporary governance still rages on. A trio of pieces published last fall by Harvard Law Review both exemplifies and contributes to that ongoing conversation. As the author of this academic year’s Harvard Law Review Foreword, Gillian Metzger has penned a bold and provocative defense of the modern administrative state. Aaron Nielson and Mila Sohoni provided thoughtful response essays. Collectively, these pieces demonstrate scholarly engagement at its best.
As one might expect of the Foreword, Metzger’s article is masterful in its articulation and support of two separate but related propositions. The first is her identification of a combined political, jurisprudential, and scholarly trend that she labels “anti-administrativism” and characterizes as the contemporary resurrection of a very old fight. As she opens her piece, “Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal.” Metzger characterizes as anti-administrativist various actions and initiatives of the Trump Administration and the Republican Congress to reduce regulatory burdens, downsize the federal government, and reform the Administrative Procedure Act. Other presidents have pursued a similar agenda, but Metzger says their “promises … largely went unfulfilled” as compared to present efforts. Metzger also classifies as anti-administrativist a number of Supreme Court and D.C. Circuit cases—some from the 2016 Term, others predating it—concerning separation of powers principles, the Chevron and Auer standards of judicial review, and other constitutional issues.
Finally, Metzger turns to the academic literature, contending that the “growing judicial resistance to administrative government is supported by increasing academic attacks on the constitutional legitimacy of administrative government.” Exhibit A is Philip Hamburger’s controversial and hotly debated book, Is Administrative Law Unlawful?. But she also calls out Randy Barnett, David Bernstein, and Richard Epstein for their libertarian critiques of federal regulation as unconstitutional and a threat to individual rights. And, in a footnote, she cites Nielson and Sohoni along with other scholars as “pushing back at administrative governance more incrementally … through administrative law.” From all of this, Metzger synthesizes three “core themes” of anti-administrativism: “strident rhetoric” (aka “bureaucracy bashing”); a greater role for the Article III courts as a counterweight against excessive exercises of executive power; and a “constitutional flavor,” “marked by originalism,” emphasizing—in stark contrast to the modern administrative state—separation of powers as the critical and constitutionally-designated tool for constraining the federal government and protecting individual liberty. Metzger’s article then goes on to draw at length “striking parallels” between anti-administrativism and 1930s resistance to the New Deal.
Metzger responds to the anti-administrativist trend she identifies with her second main proposition: that the Constitution not only accommodates but requires the modern administrative state. To a fair extent, Metzger’s conclusion is dictated by her assumptions. Most critically, Metzger assumes that modern conditions require an expansive federal government and that accomplishing everything the federal government takes on requires Congress to delegate large amounts of discretionary power to the executive branch. Metzger also assumes a method of constitutional interpretation, particularly with respect to separation of powers principles, that is not especially constrained by the Constitution’s text. In her view, the Framers may have wanted limited government and checks and balances to protect against the abuse of governmental power, but they also wanted government to be effective. Thus, constitutional.
In sum, the goal of constitutional separation of powers principles is “an accountable, constrained, and effective executive branch.” And, Metzger argues, if expansive federal government and broad delegations of discretionary power to the executive branch are givens, then bureaucracy rather than presidential administration is the best way to accomplish that constitutional goal. Concentrating too much power in presidential hands is potentially dangerous. By contrast, diffusing governmental power across multiple agencies, separating functions within agencies themselves by segregating prosecutors and adjudicators, and relying on managerial oversight and supervision within agencies are better constraints on the exercise of governmental power while facilitating governmental accountability and effectiveness. Thus, contemporary bureaucracy is constitutionally required as the best means of effectuating the goals of separation of powers.
Whether or not they did so intentionally, Nielson and Sohoni seem to have divided responsibility for responding to Metzger’s Foreword, with Nielson principally addressing Metzger’s first proposition and Sohoni addressing her second. Nielson questions the assignment of people into two distinct camps of “anti-administrativists” and “those who are committed to the administrative project.” Virtually no one, he asserts, “thinks all administrative action is bunk” or “the administrative state can do no wrong.” If being critical of the administrative state qualifies one as anti-administrativist, then Nielson suggests that the label extends to “a majority of members of Congress, at least four justices of the Supreme Court …, a bipartisan collection of former Presidents, legal academics holding a wide variety of views, and a Nobel Prize winner,” as well as prominent New Dealers such as Justices Douglas and Jackson and “the liberal lion himself,” Justice Brennan—all of whom questioned or criticized one or some aspects of the administrative state. Taking Metzger’s three core themes of anti-administrativism as a three-part test for anti-administrativist status yields similarly mixed results. Nielson does not make this suggestion, but perhaps Metzger’s dichotomy is better recast as a continuum, with most people falling somewhere in the middle but some closer to the ends based on a combination of their views. But, of course, a continuum is not quite so easily reconciled with a trend.
Regardless, to Nielson, the critical point is that “history did not end in 1946.” The external pressures that agencies face continually evolve and change, and the internal cultures and operations of agencies themselves also have evolved and changed, so administrative law statutes and doctrines must evolve and change, too. “And because not everything has worked out as rosily as the optimists in the 1940s hoped, today’s anti-administrativists are not chasing boogeymen.” Reasonable people inevitably will debate and disagree about the direction and scope of administrative law changes as they are contemplated and occur. If such debate and disagreement are to be fruitful, then we should neither confuse nor dismiss criticism of the administrative state as the wholesale rejection of it. Rather, we need to recognize rather than resist the need for legal evolution and change, search for common ground, and pursue compromise as we all strive to make government effective.
Sohoni, meanwhile, takes on Metzger’s argument that the modern administrative state is constitutionally required rather than merely constitutionally permissible. Sohoni is more sympathetic toward Metzger’s characterization of some subset of politicians, judges, and scholars as anti-administrativist. She also agrees with many of Metzger’s observations that contemporary rhetoric is sometimes excessive and that history can be a useful tool for thinking about present debates. The main focus of Sohoni’s essay, however, concerns the doctrinal consequences of Metzger’s constitutional argument.
Sohoni questions Metzger’s assumption that congressional delegation of power to the executive branch is required for contemporary governance. As Sohoni observes, this foundational premise for Metzger’s constitutional argument is “precisely the kind of idea that many anti-administrativists most fiercely contest.” Going along with Metzger’s argument, however, Sohoni asks, “If we take it as a given that delegation is constitutional and a necessary feature of government, what are the kinds of arrangements that are also constitutionally necessary to ensure that the executive branch has the necessary tools to carry out its duty to govern accountably and effectively?” The simplest answer, Sohoni says, is to read the Constitution “as implicitly giving the executive branch something like its own ‘necessary and proper’ power” and to constitutionalize many or even most executive branch practices as essential to effectuate delegated power. But doing that, Sohoni contends, would more or less deprive Congress of its authority to specify through legislation “how administrative government ought to operate.” If we try to avoid that outcome and instead draw narrower constitutional lines around the executive branch’s power and scope, we run into exactly the sorts of questions and arguments that Metzger decries as anti-administrativist.
Metzger’s Foreword is an impressive work of scholarship, but the scholarly enterprise is best observed by reading it in conjunction with Nielson’s and Sohoni’s thoughtful responses. Administrative law scholarship is often intertwined with political events of the day. Government acts, and administrative law scholars react. Our current political moment, however, includes so much harsh rhetoric, and along with that rhetoric, an almost eager willingness to cast those with whom we disagree politically as an evil “other.” Metzger, Nielson, and Sohoni do not mince words or shy away from objecting to or criticizing each other’s arguments and ideas. But they disagree without becoming disagreeable. They prod one another, but productively. They engage rather than talking past one another. In this spirit, may the raging debate over the values, institutions, and structures of contemporary governance continue.
Cite as: Kristin Hickman, Administrative Law Scholarship in Our Present Political Moment, JOTWELL (May 15, 2018) (reviewing Gillian Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017); Aaron L. Nielson, Response, Confessions of an “Anti-Administrativist,” 131 Harv. L. Rev. F. 1 (2017); Mila Sohoni, Response, A Bureaucracy—If You Can Keep It, 131 Harv. L. Rev. F. 13 (2017)), https://adlaw.jotwell.com/administrative-law-scholarship-in-our-present-political-moment/.
Ronald Levin, Rulemaking and the Guidance Exception
, 70 Admin. L. Rev.
(forthcoming 2018), available at SSRN
The late, great Kenneth Culp Davis was known for many things, but humility was not among them. He knew the answers; he knew them better than did the Supreme Court; and he knew that he knew them. So it is remarkable that there was a problem in administrative law he found “baffling.” That was the distinction between legislative rules, interpretive rules, and statements of policy.
Interpretive rules and statements of policy are now generally labeled “guidance documents,” although that term does not appear in the Administrative Procedure Act. (At least not yet. Indicative of the attention and controversy that surround them, the Senate version of the pending Regulatory Accountability Act would amend the APA to define and attempt to constrain the use of “guidance.”) Agency reliance on guidance documents has led to two related controversies. One is normative and empirical: is the phenomenon an instance of responsible and helpful governance or, rather, an abusive end-run around notice-and-comment requirements? The other is doctrinal: how can one tell what’s a legislative rule and what’s a guidance document? The distinction matters, because the former are subject to the APA’s notice-and-comment requirements and the latter are not. Yet the courts have been as baffled as K.C. Davis, unable to construct a coherent and manageable body of law. Umpteen pages of law review commentary have not improved matters, and the recent politicization of the debate has only compounded the confusion and disarray.
With his usual clarity and breadth of knowledge, Ron Levin has now waded into this swamp. The article begins by reviewing the normative debate, ending with a summary of various “institutional pronouncements” – from the ABA, ACUS, OMB, and others. He describes and endorses a professional consensus. Guidance documents can be abused and agencies should be careful not to give them the force of law. Nonetheless, they are an important and legitimate tool for providing important information to agency staff and the public and agencies should and will continue to rely on them.
He then turns to the doctrinal mess, taking a cue from the fact that most of the aforementioned institutional pronouncements draw no distinction between interpretive rules and policy statements, lumping them together in the guidance documents category. Levin’s essential point is that the courts have done a better job than is generally acknowledged with the exception for general statements of policy, and that they should now take the principles developed in that setting and apply them to the exception for interpretive rules.
In Part II, then, Levin provides a thorough overview of the caselaw on general statements of policy. The core idea developed by the courts is that a statement falls within that exemption if, both in its wording and in its application by the agency, it does not create a binding norm. “The key inquiry is whether the document in question expresses or implements a policy judgment in a binding fashion.” And the essential justification for this approach is that public participation is less important in formulating a non-binding statement because there will be later opportunities for reconsideration. In a lengthy review, Levin describes how this test operates, focusing in particular on what “binding effect” means. He defends the test against various objections, including (a) arguments for abandoning the judicial effort to distinguish legislative and non-legislative rules at all in favor of what David Franklin has labeled the “short cut,” (b) the suggestion that judges should not police procedures but should vary the level of substantive scrutiny for different kinds of rules, and (c) a recent attack by Cass Sunstein, who argues that the binding effect test violates Vermont Yankee.
Part III turns to the interpretive rules exception, which fares much less well. Here, Levin finds the existing caselaw incoherent. There is a little fancy theorizing about the nature of interpretation, but the core position is practical and purposive: whatever it is that an agency is doing when it purports to “interpret” a statute, either its pronouncement is a true no-brainer, in which case notice and comment can and should be forgone for good cause, or public input might actually be valuable but for just the same reasons as it might be valuable for statements of policy. So why forgo it? Well, again, for the same reason as for statements of policy—the “interpretation” is not binding and there will opportunity to fight about it later.
Along the way, there is a great deal of insightful discussion of the key precedents in the area, which I will gloss over. But perhaps the most valuable is Levin’s two objections to the key D.C. Circuit precedent, American Mining Congress v. MSHA, with its famous four-prong (later reduced to three-prong) test for identifying a legislative rather than an interpretive rule. Levin finds the test useful enough, but emphasizes two limitations. First, while the prongs tell you when a rule is legislative, they are useless in explaining what’s interpretive. Accordingly, they could be equally useful in distinguishing legislative rules from statements of policy. Second, they are extraordinarily narrow; it will be the rare guidance document that can be found to be “really” a legislative rule under this test alone.
All of which forms the foundation for Levin’s suggestion: courts should apply the same test—the binding norm test—to all guidance documents. There is no need to struggle to define “interpretative rule” or distinguish such a creature from policy statements. Notice-and-comment is required for legislative rules, i.e. binding substantive rules. If something lacks binding effect, it is not a legislative rule. Easy peasy.
A recent best-seller by Marie Kondo, The Life-Changing Magic of Tidying Up: The Japanese Art of Decluttering and Organizing, urges us to find happiness through cleaning out our closets. (Reportedly it really is like magic.) Ron Levin has a similar Thoreauian admonition, and while “life-changing” may be a little strong, he offers an attractive and pragmatic pathway to decluttering and tidying up the law of interpretive rules.
Regionalism in America is having a renaissance—in conceptualizing the shared and competing interests of red, blue, and purple states; in developing new possibilities for governance across the country; and in administrative law scholarship. Into this mix comes Jessica Bulman-Pozen’s timely and thoughtful article, Our Regionalism. While we usually talk about “Our Federalism,” regionalism has in fact “shaped American government over the past century,” helping to define “how power flows to and within the federal government.” (Pp. 381-382.) In making this case and exploring how regionalism’s different governance forms have, over time, both expanded the federal bureaucracy and increased state power within federal programs, Bulman-Pozen’s work also helps frame the contemporary stakes for the American polity of “regionalism’s ‘bad twin,’ sectionalism.” (P. 380.)
After first offering a “stripped-down understanding” of the term “region”— “a subnational area encompassing all or part of multiple states” (P. 383) —the article begins with a helpful taxonomy that justifies Bulman-Pozen’s claim that “regional organization pervades state and federal administration.” (P. 388.) In her conception, regional governance has developed over time to encompass three main varieties. First is interstate collaboration, in which states band together to solve a common problem. The interstate compact, provided for by Article I, Section 10 of the Constitution, is the oldest and most common of this form of regional governance, but other types exist as well, including interstate agreements (less formal than compacts because they allow for unilateral withdrawal), and “the synchronized adoption of substantially similar laws” in neighboring states. (P. 387.)
The second variety of regional governance, emerging during the New Deal, is “the division of purely federal administrative agencies into regional offices”, a top-down mirror of the bottom-up interstate collaboration. (P. 388.) It turns out that the vast majority of federal employees – 85% – work outside DC in these regional offices. Despite periodic efforts within the federal government to standardize these regions, Bulman-Pozen describes the “chaos” that reigns, under which different agencies, and sometimes different units within a single cabinet department, divide the country into different regions.
The last variety of regional governance, first emerging during the 1960s and growing more common today, is “the joint state-federal regional body.” (P. 392.) These organizations draw not only from contiguous state leadership but also from federal leadership, often across agency lines, in an effort to address a multivalent problem, such as the Deepwater Horizon oil spill. Sometimes local and private actors are formally engaged in these organizations as well.
This descriptive categorization is itself conceptually useful. But Bulman-Pozen also makes a contribution in her rich historical work on the role of regions in the New Deal and the Great Society. She uses this history to make a counterintuitive point: While “[t]hroughout American history, regions—usually traveling under the label ‘sections’—have been sites of resistance to the federal government,” in fact “regions have also facilitated the growth of the federal government.” (Pp. 394-395.)
How? As Bulman-Pozen tells it, serious, self-conscious attention to regionalism emerged in the 1920s as a way to push back against the federal government’s increase in responsibilities during World War I, as well as against the perceived homogenizing force of the new national media. The idea was that regions could solve—sometimes even without formal new governmental arrangements—problems that lay beyond individual states’ capacities, and thereby preclude federal intervention. But “regionalism soon proved congenial to the burgeoning project of federal administration itself.” (P. 401.) It did so in two ways, in Bulman-Pozen’s categorization. First was by accommodation: “Major New Deal programs were designed to look different in different regions of the country,” thereby alleviating some state-level concern about federal power. (P. 402.) Second was through administration: whether by creating field offices to manage “purely federal programs,” by establishing regional structures to supervise the new cooperative federalism programs, or by instituting regional planning commissions, “regionalism had gone from being a creed of resistance” to federal encroachment “to serving as a tool for expanding the reach of the federal government.” (P. 409.)
For its part, regionalism during the Great Society played an important role in entrenching the period’s vast expansion of federal grants. States sought federal financial assistance through hybrid state-federal regional programs, such as the Delaware River Basin Commission and the Appalachian Regional Commission. These programs increased state capacity and let states play an important role in distributing funds, and at the same time cemented the importance of federal funds and the policies in question. More generally, regionalism provided a way to coordinate the influx of federal assistance to states, thereby bringing some order to federal administration of grants. With many different federal agencies giving overlapping grants for the same purposes, regional administration helped coordinate “not only between the federal government and state and local governments, but also within the federal government itself.” (P. 423.) President Nixon eventually succeeded where President Johnson and previous efforts had failed to standardize the boundaries of the federal regions, at least among the primary grant-making agencies, and further created Federal Regional Councils to coordinate the federal government’s work in the field. While these efforts were pitched in part as devolutionary, they also served to “amplify the power of the White House vis-à-vis the bureaucracy,” given the importance of OMB officials in this work. (P. 425.) The Councils were eventually disbanded, but the other aspects of regional administration have continued “to integrate the states more fully into federal programs.” (P. 426.)
What does regionalism look like today? On the one hand, Bulman-Pozen argues, the bulk of the regional structures created during the New Deal and Great Society remain alive and well, and the regional form has been still further expanded by the twenty-first century’s preoccupation with the idea of the network. This newest form of regional governance involves “flexible, modular, interjurisdictional cooperation” with “a continually changing partnership among a large number of federal, state, and local government actors, as well as nongovernmental institutions” designed to address a particular regional problem. (Pp. 428-429.) The Chesapeake Bay restoration effort represents the primary example of this kind of effort already in existence. Attention to broader “environmental, economic, cultural, and infrastructure” needs of so-called “megaregions,” or “networks of metropolitan centers and their surrounding areas” all over the country, represents the idea’s potential expansion. (Pp. 430-431.)
On the other hand, Bulman-Pozen invites us to think about “today’s most significant regional development” as “regionalism without regions.” That is, regionalism is no longer tied solely to geography; instead, extreme partisanship has connected non-contiguous groups of red and blue states with contrasting sets of shared policy interests. (P. 436.) President Obama’s term saw the rise of this new form, as the administration primarily worked with one set of states to advance shared goals while attempting (ultimately unsuccessfully) to make concessions to another set of states that engaged in policy resistance. Under President Trump, “the partisan valence of multistate opposition to the federal executive has, unsurprisingly, flipped.” (P. 435.) Still, “[i]n the policy decisions and chosen alliances of blue Minnesota and Colorado and their red neighbors Wisconsin and Utah, partisanship trumps place.” (P. 439.)
This important insight underscores the larger question Bulman-Pozen’s article suggests: How does today’s hyperpartisan regionalism without regions fit into the American experiment? New Deal planners framed regionalism as a more positive approach to the project of nation-building than its close relative, sectionalism; “‘sectionalism’ was a divisive force,” while “‘regionalism’ was instead integrative and union-bolstering.” (P. 410.) Regionalism provided a way to reframe “nationalism in a plural society”—not “the destructive sectionalism of the Civil War,” which had led to secession, and also not the “‘toxic’ European nationalism” that was veering abroad into totalitarianism or fascism, but rather a multivalent celebration of America’s regional diversity. (P. 410-411.)
This was likely too cheery a view even then. As Bulman-Pozen points out, regional accommodation helped entrench Jim Crow. (P. 402.) But it is even less clear to me that today’s regionalism has a nation-building effect. Or rather, hyperpartisan regionalism may strive towards nation-building, but with irreconcilable views of what it means to build the nation—in immigration policy, in LGBT antidiscrimination policy, in abortion policy, and in much else. This kind of regionalism seems less about embracing regional diversity than it is about striving towards embedding at the federal level a specific set of policies that are currently only regional.
Bulman-Pozen acknowledges that today’s regionalism without regions “has the potential to exacerbate already-fever-pitch-level partisan rancor and divisiveness” while nonetheless suggesting the tentative aspiration that it may at the same time “foster governance and solidarity amid such division.” (P. 441.) Time will tell. At the very least, her article provides an analytic, historical, and conceptual framework to help us understand and respond to future developments.
For over thirty years, every President has issued or maintained executive orders that require agencies to prepare highly formal benefit-cost analyses (BCAs) for significant rules and to submit these BCAs to the Office of Information and Regulatory Affairs (OIRA) for review. For just as long a time, administrative law scholars have been fighting about the merits of both formal BCAs and centralized review. Over time, the locus of this debate has shifted from whether to conduct BCA as part of rulemaking to how to conduct it. The Supreme Court contributed to this shift a couple of years ago in Michigan v. EPA, when all nine justices agreed that reasonable rulemaking requires an agency to give some form of consideration to costs and ensure that they do not wildly outweigh benefits.
The debate over how to conduct BCA, in turn, centers on the problem of monetization. Although President Trump’s issuance of E.O. 13,771 has in many respects dramatically altered White House controls on agency rulemaking, the key executive order governing this process, E.O. 12,866, remains in place. It instructs agencies to monetize costs and benefits “to the extent feasible” as they prepare BCAs as part of their regulatory impact analyses (RIAs). This requirement can put agencies in the difficult position of placing monetary values on nonmarket goods such as preventing a parent from backing a vehicle over a young child. Notwithstanding such difficulties, some scholars contend that to ensure socially optimal rules, agencies should increase their commitment to monetization—even an educated guess on a dollar value, properly explained, is better than giving up on quantification.
Professors Christopher Carrigan and Stuart Shapiro, by contrast, make a concise and provocative case for a dramatically different vision: Make agency BCAs so easy and informal that they could fit on the back of the proverbial envelope. That way, agencies could obtain “simpler analyses of more alternatives performed earlier in the regulatory process.” (P. 207.) The authors maintain that this approach would help change BCAs from burdensome tools of policy justification into genuine aids to policy formation.
Carrigan and Shapiro start from the proposition, which they characterize as widely shared across the ideological spectrum, “that BCA is frequently used to justify decisions already made, rather than to inform those decisions.” (P. 203.) If, indeed, BCAs are exercises in justification, then we should naturally expect agencies to fashion them in a manner that supports rather than undermines their preexisting policy commitments. Accordingly, agencies will have incentives to make their BCAs intimidatingly complex, to hide uncertainty, and to “ignor[e] marginal alternatives to their preferred policy.” (P. 204.) And the problem of complexity seems to be growing worse—Carrigan and Shapiro observe that the average length of RIAs has more than quadrupled (!) between 2000 and 2012, increasing from 31,072 to 128,289 words.
As these word counts suggest, one obvious reason that BCAs may serve more as justifications than as genuine aids to policy formation is that full-blown, highly monetized BCAs of significant rules are massive undertakings. Any policymaking process must include a rough-cut stage where various alternative approaches to a problem are considered. One can imagine a world in which agencies apply BCA to each alternative they consider as part of this critical preliminary process. This is not our world, however, in part because the BCA process, at least as contemplated by E.O. 12,866, is so demanding.
To enable agencies to make real use of BCA during, rather than after, the policymaking process, Carrigan and Shapiro propose making them far easier to prepare. Citing heavyweight authority, they note that Enrico Fermi, father of the first nuclear reactor, “asserted that complex scientific equations could be approximated within an order of magnitude using simple calculations. If this is true for even complex scientific equations, surely it must also hold for economic analysis.” (P. 206.) In this same spirit, BCAs should take a “back-of-the-envelope” or “BOTE” form. (P. 203.) A BOTE analysis “should focus on the largest benefits and costs (regardless of whether they are direct or indirect) and should approximate the monetary magnitudes of those effects rather than generate a precise estimate of their impacts.” (P. 205.) Smaller effects, for the most part, would make do with qualitative descriptions. The BOTE approach sacrifices precision (or an ambition for precision), but this shift does not trouble the authors given their view that RIAs under the current regime are often “unrealistically precise.” (P. 205.) For example, Carrigan and Shapiro were not impressed by the precision of a recent RIA from the Occupational Safety and Health Administration estimating that the costs of complying with a new standard would be $2,102,747,140.
In return for making BCAs a whole lot easier to prepare, Carrigan and Shapiro propose that, before settling on a particular policy option in a major rulemaking, an agency should have to complete BOTE-style BCAs of multiple meaningful policy alternatives. Agencies would expose their BOTE-style BCAs to public comment early in the policymaking process and before issuing a notice of proposed rulemaking. This process would help ensure that public commenters have a chance to submit input before rather than after fundamental policy choices have been made. In addition, the relative simplicity and transparency of BOTE-style BCAs would tend to highlight important agency assumptions and thus “empower potential critics to more effectively participate in the regulatory process.” (P. 207.)
To encourage agencies to conduct proper BOTE analyses, the authors suggest a set of OIRA carrots and sticks. For an example of a stick, an agency that fails its BOTE duties might find that the RIA it submits for a proposed or final rule is subject to more searching review by OIRA. For a compelling carrot, “agencies that generate BOTE analysis could be exempted from having to prepare detailed RIAs to accompany their NPRMs or final rules.” (P. 209.) The authors concede that this particular carrot “may seem excessive” but add that “[e]liminating analyses that accompany proposed or final rules may do little to undermine the goal of selecting the best regulatory alternative” given that “RIAs are currently used more as advocacy documents than as useful tools for review.” (P. 209.)
Stepping back to look at the big picture here, the Supreme Court in Michigan v. EPA indicated that administrative rationality demands that agencies consider the costs and benefits of their rules in some fashion or other. Professors Carrigan and Shapiro have sketched a vision for how agencies should conduct such analysis that could prove attractive both to those who believe that the current regime demands excessive formality and monetization, and to those who want BCAs to have greater real impact on policymaking. Those who believe that thoroughgoing monetization provides the best means for identifying socially optimal rules will not, naturally enough, find this vision persuasive. It seems fair to ask fans of formality, however, the following very basic question: Which approach—the current regime’s or Carrigan/Shapiro’s— can best deliver BCAs that are actually likely to impact, rather than merely justify, agency policy choices? (I don’t have a pat answer myself—but it seems like a good question.)
Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts
, 96 Tex. L. Rev.
71 (2017), available at SSRN
President Donald Trump is a loquacious man. He speaks at rallies, he speaks at interviews, he speaks at press conferences, he speaks in addresses to Congress, and—nearly every day—he speaks on Twitter. Sometimes, he speaks about his own speech, as when, at a recent rally in Phoenix, Arizona, he quoted at length, though with notable omissions, from his own earlier statements concerning the recent events in Charlottesville, Virginia, where a woman was killed at a protest by neo-Nazis and white nationalists.
In her recently published article, Beyond the Bully Pulpit: Presidential Speech in the Courts, Professor Kate Shaw examines the phenomenon of presidential speech and explains how the courts should treat presidential statements in the course of deciding cases that challenge executive-branch action. Her article has already (and rightly) enjoyed a fair share of the limelight; Professor Shaw’s work on presidential speech was featured in the New Yorker and in the National Law Journal. She also wrote an op-ed on presidential speech in the New York Times earlier this summer. So, while this Jot comes late to the party, I hope it will persuade administrative law scholars who haven’t yet encountered this article that it is still well worth a read. Public presidential statements aimed at influencing agency behavior are an increasingly important facet of “presidential administration,” in the phrase coined by then-Professor Elena Kagan in her famous article. And while Professor Shaw’s discussion ranges far beyond the words of the sitting President, this article is especially salient nowadays, when the headlines are often consumed with reporting and dissecting President Trump’s every utterance.
Professor Shaw’s article rests upon the observation that the President is both a person and an office, and that conflating the two is an error. Although the President may sit atop of the executive branch, all of the President’s personal pronouncements cannot be attributed to the executive branch as if they were the official positions of that branch. At times—like the Pope—the President speaks “ex cathedra,” with the “full force of the authority of the office”; at other times, however, the President speaks more in the capacity of a private citizen. (P. 130, N.312.) When statements by the President contradict official pronouncements by agencies or undercut the executive branch’s litigating positions, how should courts respond?
This is one of the key questions addressed by this article. To tackle it, Professor Shaw begins by describing the process of writing presidential speeches (Pp. 79-83) and sketching the institutions and procedures that structure presidential speech (Pp. 83-88). She then examines how presidential speech relates to ongoing scholarly debates in administrative law and in statutory interpretation. (Pp. 89-99.) After offering a helpful taxonomy of the types of statements that Presidents make (“views on constitutional power or authority; views on statutory meaning or purpose; statements that might bear on the meaning or purpose of executive action; statements of conclusions with specified legal consequences; and statements of fact, either legislative or adjudicative”), she next explores how the courts have treated statements from each category. (Pp. 99-123.) There appears to be a remarkable degree of variation in the degree to which courts have relied on presidential statements, a disarray that makes clear that some guiding principles need to be articulated.
In the final part of the article, Professor Shaw offers this guidance. (Pp. 129-140.) She proposes that courts eschew reliance on presidential statements “offered in the spirit of advocacy, persuasion, or pure politics, where those statements do not reflect considered legal positions” or a “manifest … intent to enter the legal arena,” but with one important exception: in situations where those statements are offered as evidence of the President’s purpose or intent. (P. 129). That is because, when the President’s own purpose or intent is at issue in a case, the executive branch is best viewed as an “it, not a they.” Or, as she puts it, “[w]hen it comes to the president’s purpose, other executive-branch submissions could not possibly overcome the president’s own words. Accordingly, presidential statements should clearly control in such cases.” (P. 139.) As Professor Shaw notes, this carve-out has relevance to the ongoing litigation challenging the “travel ban” executive orders on the basis that the bans flow from religious animus by the President against Muslims; the courts, she argues, can properly rely on presidential statements if they go to show illegitimate animus, while they should not rely on presidential statements concerning the “scope or operation” of the executive orders if they were to conflict with the orders’ language or DOJ’s litigating positions. (P. 139.)
It is important to stress that much of Professor Shaw’s paper focuses on actual presidential speeches—i.e., on statements that are normally preceded by some degree of advance planning and discussion. (See Pp. 78-79 and N.14.) But what of presidential utterances in informal formats—for example, on Twitter or on Facebook—and what of extemporaneous or unscripted remarks made by the President—such as in response to journalists’ questions, or at campaign rallies or other events? President Trump has already made an enormous number of such informal statements, and plenty of them have already prompted litigation. And what should courts do in the event that the President disowns the authorship of speech (such as tweets) that he appears—online, anyway—to have written? It would be interesting to see Professor Shaw revisit this topic to provide a sustained examination of how courts should address these more informal varietals of presidential speech.
Expanding the inquiry beyond courts to agencies would also be valuable. A long-running debate in administrative law has focused on whether the President should act as an “overseer” or a “decider” of executive-branch action. (Pp. 89-91.) Professor Shaw’s article highlights an important aspect of that question: how the President uses public statements to attempt to “decide” or “oversee” executive-branch action. Sometimes, the President’s words alone may not produce policy change within the executive branch, unless those words assume a particular form and are communicated through the proper channels. For example, a tweet from the President was evidently not enough to end the policy of accepting transgender recruits and soldiers; instead, the Pentagon announced that it would await formal guidance to that effect, which subsequently arrived. At other times, however, it may be that executive-branch officials will take their cue to act from the President’s public statements alone, and take consequential administrative actions without first waiting for all the paperwork to be completed. When do executive-branch officials do the first thing, and when do they do the second? When ought they do the first thing, and when ought they do the second? As the growing literature on internal separation-of-powers suggests, examining how presidential speech is received and weighed by subordinates within the executive branch may matter quite as much as how it is received and weighed by Article III courts. The response by executive-branch subordinates to informal presidential speech may determine the future evolution of “presidential administration”—and may prompt some to reappraise then-Professor Kagan’s largely positive assessment of its legitimacy and desirability.
In the years to come, there will be ample time and occasion to consider these and other questions that may be raised by “all the president’s words.” I will look forward to reading what Professor Shaw has to say about what the President has to say.
Cite as: Mila Sohoni, Did He Really Just Say That?
(January 31, 2018) (reviewing Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts
, 96 Tex. L. Rev.
71 (2017), available at SSRN), https://adlaw.jotwell.com/really-just-say/
Since January 2017, the news headlines have been screaming about one administrative law issue after another—everything from the Congressional Review Act to regulatory rollbacks, from Executive Orders to agency enforcement priorities. These news headlines have quite understandably prompted a flood of questions about what the law does, and does not, allow the president and others within the Executive Branch to do. For example, can a president use an Executive Order to unilaterally revoke an agency rule that is already on the books? Or, at an even more basic level, what exactly is an Executive Order?
Notably, it is not just those in the legal profession who are asking these sorts of questions. Rather, the 2016 election made many members of the public hungry to learn more about how our government works and what constraints the law places on executive power. This is where Environmental Protection in the Trump Era, a new e-book published jointly by the Environmental Law Institute and the American Bar Association’s Civil Rights and Social Justice Section, comes into play. The book, which is free for any member of the public to download, aims to further the public’s “understanding of the legal mechanisms that the White House, federal agencies, and Congress are using to change the regulatory approach to environmental, natural resources, and health and safety protections.”
To this end, the book consists of thirteen short chapters that address different legal tools that could be used to change existing environmental protections, as well as different mechanisms for public participation. For example, one chapter addresses what the Trump administration’s “Two-for-One” Executive Order means for environmental law, and another focuses on federal funding for environmental protection.
To be clear, this book is not the typical kind of scholarship that one sees reviewed by Jotwell contributors. The book, which adopts a simple and straightforward tone, is not aimed at legal scholars. Nor does it set forth some grand legal theory, as many articles published in the pages of legal journals aim to do. But that is precisely the beauty of this book: It recognizes the value, particularly at this moment in our nation’s history, of helping the general public to better understand the law. To this end, the book aims to educate interested members of the public about how agencies set policy in our nation—and how members of the public might use different tools of engagement to participate in that policymaking process.Although the book focuses on policymaking in the environmental law arena, its lessons could easily be transferred to other areas of the law as well.
Demystifying the complex web of legal tools that can be used to shape policy in our country is no easy task. Yet Environmental Protection in the Trump Era does an admirable job of clarifying the law for interested members of the public—and, even more importantly, of explaining how citizens can make their views on environmental policy heard beyond the ballot box.
Some of our country’s founders recognized the necessity of an educated and engaged citizenry right from the beginning. Thomas Jefferson, for example, noted that “[a]n enlightened citizenry is indispensable for the proper functioning of a republic,” and Benjamin Franklin remarked at the close of the 1787 Constitutional Convention that we had a republic rather than a monarchy—only so long as we could “keep it.” Yet, according to a 2016 study, only 26 percent of Americans can name all three branches of government, and 31 percent cannot name even one of the three branches. These statistics are alarming, and, in my mind, they underscore the need for law professors and others in the legal profession to do what they can to help interested members of the public better understand our nation’s legal structures. For those who want to try to help in this regard, Environmental Protection in the Trump Era provides an extremely useful model. Its value extends far beyond the specific environmental law arena.
David Pozen, Freedom of Information Beyond the Freedom of Information Act
, 165 U. Pa. L. Rev.
1097 (2017), available at SSRN
The literature on the Freedom of Information Act is replete with familiar claims about FOIA’s shortcomings. It takes too long to get a response. Agencies over-withhold records. The exemptions to mandatory disclosure are too broad. Congress fails to adequately fund FOIA offices. Judicial remedies are difficult to pursue and often unavailing. And as I have argued, FOIA is overtaken by commercial and individual uses that do not promote democratic accountability. But rarely does scholarship in this area provide a compelling critique of the underlying premise of FOIA: that the Act, if functioning as envisioned, promotes the ideal of democratic accountability.
David Pozen’s Freedom of Information Beyond the Freedom of Information Act has compellingly questioned this fundamental assumption, giving me more pause than anything else I have read in quite some time. In essence, Pozen argues that FOIA acts as a regressive, not a progressive, tool, hobbling the administrative state in its missions to protect the public’s health, safety, and opportunities, all while rubber stamping the excess of secrecy that characterizes the national security state where transparency may be most needed.
The work begins by situating FOIA within a suite of disclosure mechanisms, honing the point that FOIA is not the only transparency tool that might achieve oversight goals. For example, affirmative disclosure regimes provide ex ante requirements that agencies publish certain categories of records. In other instances, the legal effect of agency documents can be conditioned on prior publication. Whistleblowing and leaking promote transparency by acting as institutional safety valves. Meanwhile, in carrying out its agency oversight activities, Congress often requires agencies to publicly share information. Yet, as the article details, among these various methods of forcing disclosure of government activities, FOIA stands alone in being divorced from any public policy goal other than disclosure for disclosure’s sake.
Because FOIA places control over the objective of disclosure in the hands of any member of the public who wants to avail themselves of the right to request records, without regard to motive, the right to records is decoupled from any vindication of a normative public good. Indeed, my own work documents how FOIA is largely used to advance private, not public, interests, including commercial uses of FOIA (see FOIA, Inc.) and individuals seeking their own records (see First-Person FOIA). Taking this insight one step further, the most interesting and central claim of Pozen’s article is that “FOIA ultimately serves to legitimate the lion’s share of government secrecy while delegitimating and debilitating government itself.” (P. 1100.)
As to legitimating secrecy, national security is the area where transparency and public oversight is arguably most needed, but FOIA is doing little to combat the problem. Well-documented overuse of authority to classify records in the interests of national security and the near complete judicial deference granted to agency’s decisions to withhold on the basis that records are classified combine to blanket the national security state with exemptions to the law’s requirements. Despite occasional wins under FOIA by watchdog groups seeking national security information, FOIA has done markedly little to curb ever growing national security secrecy norms.
On the other side of the ledger, FOIA imposes significant costs on agencies. Some of those which Pozen lists are familiar. Agencies not only expend real dollars complying with the law (in sums that are not trivial), but also divert a substantial amount of program staff’s time to comply with FOIA, thereby presenting an opportunity cost. Moreover, FOIA frequently interjects procedural barriers to internal deliberation and cooperation with private entities, because government officials and the private parties with whom they interact are reticent to freely communicate in writing where the possibility of public disclosure looms large.
But the most interesting piece to me was the reputational costs to agencies. With FOIA used as a tool to embarrass agencies and make them appear incompetent, the legitimacy of government suffers in the eyes of the public. Worse yet, the fact that insufficient resources are dedicated to FOIA offices sets agencies up to fail at adequately responding to FOIA requests, thereby further harming the reputation of the agency in the eyes of the public when it avails itself of the law. Given that, for the reasons described above, national security agencies largely get a FOIA pass, these costs end up being borne most heavily by non-security agencies—that is, those agencies serving the welfare side of the state to protect health, environmental, safety, and public benefits. Seen this way, FOIA may operate as a regressive, not progressive, tool for democratic accountability.
The article ends by deftly acknowledging other possible benefits of FOIA not accounted for by an analysis strictly focused on what documents FOIA pries loose. And it suggests various ways in which alternatives to a reactive, privately driven transparency model might look like, including greater reliance on the other mechanisms originally set out as part of the transparency landscape.
If FOIA is potentially increasing our complacency about national security secrecy all while undermining the important work of government agencies concerned with public welfare missions, then the costs are far greater than monetary, and reforms all the more urgent. While I am not yet ready to abandon the idea of a request-and-response model of government transparency writ large, after Pozen’s article I will have to radically rethink my overall defense of FOIA. I suspect anyone else who writes and practices in the area will be doing the same.
Kristin Hickman and Nicholas R. Bednar, Chevron's Inevitability
, 85 Geo. Wash. L. Rev.
5 (2017), available at SSRN
Chevron deference is the cause of more wasted energy than any other doctrine in administrative law. True, the hopes and illusions that spur Chevron’s opponents onwards are perfectly intelligible. In some cases, the cause is a fervent, if cockeyed, constitutional vision; in other cases, a principled free-market libertarianism that becomes associated with opposition to Chevron (even though it is hardly obvious that Chevron has any intrinsic pro-regulatory bias); or a principled legalistic concern that judges, rather than agencies, should “say what the law is” (even though the law may itself mandate deference). But the result is so much less than the effort. A handful of lower-court judges, including then-Judge Gorsuch, have criticized the doctrine on constitutional grounds; so has one Justice, Clarence Thomas. But of course Justice Gorsuch might or might not see the issue the same way from his new seat, and the Court’s other Justices range themselves somewhere between “comfortable with the prevailing approach,” on one end of the spectrum, and “inclined to cabin Chevron around the edges,” on the other end. But there is no realistic prospect of a majority to overrule Chevron or even to narrow it to death.
Hickman and Bednar’s calm, learned and commonsensical paper explains why Chevron isn’t going anywhere. Part of the problem is that “Chevron” denotes a particular case decided in 1984, but connotes a far broader and more enduring phenomenon of deference, one that results from long-run structural and institutional causes. Deference to executive officials on questions of law predates Chevron by decades, at the least. With convincing examples, including an illuminating analysis of AT&T Co. v. United States (U.S. 1936), Hickman and Bednar show that there has long been a category of cases, involving difficult questions of public policy, in which judges know that they don’t know enough to spell out in detail what exactly ambiguous statutes should mean. In such cases, “deference” is just shorthand for the entirely pragmatic thought that if the front-line decision maker hasn’t obviously gone off the rails, the judges aren’t likely to make things better by substituting in their own judgments, which may perhaps be ill-informed, eccentric, harmful or politically unacceptable.
It is not that Chevron will necessarily remain nominally static over time. No one will be surprised if the Justices add something here and subtract something there, and the strength of deference doctrines fluctuates or cycles over time, within a constrained range. But some recognizable version of Chevron will persist, buoyed up not so much by legal theorizing but by the realities of the Justices’ institutional situation and knowledge of their own limitations. An implication of this analysis is that even officially overruling Chevron-the-case by statute — assuming that is constitutionally valid, another hardly obvious proposition — would do little to bar Chevron-style deference as a general judicial practice, de facto at least. Whatever Congress says at the meta-level, the judges simply will not read ambiguous statutes to dictate the details of EPA policymaking choices. At most deference could be driven underground, an unhealthy situation.
The authors’ main point, however, is that Chevron is in the end merely a standard of review — a legal framework that judges use to structure their own approach to review of legal questions. (I will return to the general concept of a legal framework shortly.) Hickman and Bednar demonstrate that the Chevron review framework is a standard in the rules-and-standards sense. It is sufficiently flexible to include and subsume a range of approaches from a range of Justices. Since 1984, the Court has seen a Scalia version of Chevron, a Breyer version, a Roberts version, and others, all co-existing and partly overlapping in time. On doctrinal dimensions, various approaches have treated Chevron more or less formalistically, allowing or rejecting legislative history and purposivism; have variously incorporated or rejected substantive canons of interpretation at various stages of the analysis; have differed about the relationship between Chevron and judicial precedents; and have even treated Chevron as having multiple steps or only one step. Whatever these differences in important detail, all these Justices and their colleagues have bought into the larger framework. Chevron has served as a kind of governing regime, a broad and open-ended constitution for judicial deference, one that tolerates and incorporates a diversity of approaches in a modus vivendi.
If this is so, what explains the recent spate of opposition to Chevron? The authors conclude that it is largely a case of misplaced or displaced anxiety. The real worry of Chevron’s opponents is expansive delegation by Congress. (Technically speaking, what is at issue are grants of statutory authority, not “delegation” in the constitutionally invalid sense of “delegation of legislative power.” Under current law, and in my view under the Constitution rightly understood, these grants do not constitute an invalid delegation at all. However “delegation” is a common shorthand here, and it is the terminology that Hickman and Bednar use, so I will follow suit.) Absent delegation, agencies would lack the relatively open-ended discretion that triggers Chevron’s opponents. Congress sometimes does sharply limit agency discretion; the opponents would be better off spending their energy and resources on that dimension. Conditional on discretion being granted, Hickman and Bednar are entirely persuasive that nothing on earth will persuade the judges to decide everything for themselves, although judges may and will decide to intervene in particular cases for particular reasons.
Given the reality that (some recognizable version of) Chevron will persist indefinitely, what if anything of enduring interest can we salvage from the orgy of pointless tree-killing that is the Chevron literature, especially the anti-Chevron subset of that literature? Hickman and Bednar, quite understandably, focus on their immediate topic, but there is a hint of a broader theoretical point in the paper when they compare the Chevron framework to the Erie doctrine, which in their view has a similarly flexible and overarching character. Let me amplify this hint, although with clear disclosure that Hickman and Bednar do not themselves do so.
The right doctrinal genre within which to situate Chevron, I mean to suggest, is the legal framework — paradigmatically, a doctrine with multiple parts, prongs or components that internally accommodates competing concerns. Frameworks have staying power insofar as they are both flexible and coordinating. They must be flexible to appeal to judges with competing views, who can all articulate their positions within the framework. They are coordinating insofar as they provide a common language within which those judges may articulate their concerns and render them mutually intelligible. Too much flexibility and open-endedness will produce radical indeterminacy and thus undermine coordination. Conversely, overly confining doctrine will enhance coordination but so reduce flexibility as to alienate a critical mass of judges, who will start to object to the framework itself. Doctrinal frameworks typically persist when, and because, they strike a plausible balance between these twin objectives.
Why is it, exactly, that although Justice Hugo Black wrote for the Court in Youngstown Sheet & Tube Co. v. Sawyer, everybody remembers, recites and applies the approach of Justice Jackson’s concurrence, with its three categories? The reason is that Jackson’s concurrence supplied a capacious-but-coordinating legal framework that allows various judges on various occasions to express the major competing concerns about the relationship between legislative and executive power. The framework can and has been invoked by judges hospitable to executive power and by judges anxious about executive overreach. It has been used by opinions invalidating legislation (or executive action) and by opinions sustaining legislation (or executive action). It has been all things to all judges, but it has the great virtue of giving them a conceptual structure within to speak to one another and disagree with each other.
Legal frameworks, in this sense, are not only a doctrinal genre but also a rhetorical one, albeit a specialized rhetorical genre of use largely within the professional community of lawyers. They enable a kind of persuasive communication between and among judges, who each may pursue their individual ends within the framework. Non-legal frameworks serve similar functions in other domains; consider, as arguable examples with the hallmarks of flexibility and coordinating power, the platforms of the major political parties, the Generally Accepted Accounting Principles (GAAP), and the Nicene Creed.
If all this is correct, it helps to explain why Chevron became important in the first place and why Hickman and Bednar are able to argue so plausibly that (some recognizable version of) Chevron will persist. It also helps to see that deference on legal questions, on the one hand, and Chevron, on the other, are distinct topics that need to be disentangled. Deference arose for institutional reasons long before Chevron and would persist even if Chevron-as-precedent were overruled. It doesn’t at all follow, however, that Chevron adds nothing to deference. On the contrary, as Hickman and Bednar’s memorable contribution suggests, Chevron adds an indispensable legal framework for channeling, coordinating and making explicit the practice of judicial deference that would occur in any event, whether in articulate or inarticulate form.
Wendy Wagner, William West, Thomas McGarity & Lisa Peters, Dynamic Rulemaking
, 92 N.Y.U. L. Rev.
183 (2017), available at SSRN
Retrospective review remains a hot topic in administrative law. The Administrative Conference of the United States and the American Bar Association have both recently advanced recommendations to improve agency review of existing regulations. As I have explored elsewhere, the Portman-Heitkamp Regulatory Accountability Act would amend the Administrative Procedure Act to encourage retrospective review. The Obama Administration had also encouraged it, and the Trump Administration has embraced an even more aggressive form of retrospective review in its “one-in, two-out” regulatory budgeting executive order.
Despite bipartisan calls for more-rigorous retrospective review, we have little empirical insight into how agencies review regulations today. Enter a groundbreaking new study by Wendy Wagner, William West, Thomas McGarity, and Lisa Peters. In Dynamic Rulemaking, which was published in the NYU Law Review, the authors present the findings of their study of the rulemaking process with respect to four programs at three agencies: the Environmental Protection Agency (EPA), the Federal Communications Commission (FCC), and the Occupational Safety and Health Administration (OSHA). In total, they analyze 183 parent rules and all 462 revisions of those rules since the 1970s. This article is a must-read for those of us interested in agency rulemaking.
The study’s headline is that the agencies revised nearly three-fourths of original rules at least once (73%), if not multiple times. Indeed, revised rules (462 rules) outnumbered parent rules (183 rules) by a factor of 2.5. In other words, for decades the EPA, FCC, and OSHA have been involved in substantial retrospective review of existing rules. Or, as the authors put it, “[t]he rich revision activity reveals a vibrant ‘culture’ of dynamic rulemaking that occurs without formal commands or directives, even in settings where those formal requirements are in place.” (P. 217.)
The depth and breadth of the authors’ analysis serve as a model for others to emulate. For example, they code for the extent of revision at issue, the means of soliciting public input, the apparent impetus for the revised rule, and the adequacy of the agency’s explanation for rule revision—just to name a few. They have also published online a dozen case studies on a small, medium, and large dynamic rulemaking from each agency program: EPA Air Toxics Small/Medium Rules, EPA Air Toxics Large Rule, EPA TSCA Rules, FCC Rules, OSHA Rules. These case studies are great resources for the classroom and for further research. But perhaps more importantly, they provide important qualitative texture for the study’s quantitative findings.
Consider one set of findings: the impetus for rule revision. As detailed in Figure 7, the preambles of the revised rules indicate that interest group input as well as petitions for rulemaking and motions for reconsideration triggered many revisions, whereas congressional, presidential, or judicial oversight appeared to play a lesser role. (P. 218, reproduced with permission below.)
As the authors explain, however, their qualitative case studies reveal that “courts were nevertheless an important force behind some of the more significant changes.” (P. 218.) The influence of Congress or the President on dynamic rulemaking, the authors note, “was slim or nonexistent in the vast majority of cases”—though the case studies illustrate several examples of congressional influence. (P. 219.) Notwithstanding presidential mandates for retrospective review in certain circumstances, moreover, the authors find that such an express requirement “was rarely cited as a trigger for revision.” (P. 220.) This wonderful mix of quantitative and qualitative analysis provides a much richer description.
What should we make of this phenomenon of “dynamic rulemaking”?
After developing a helpful typology of dynamic rulemaking in Part III, Part IV of the article sketches out the virtues and vices of dynamic rulemaking. As for the virtues, such dynamism underscores that the studied agencies are constantly reevaluating the wisdom of existing rules and modifying them to take account of changed circumstances, unexpected outcomes, and unintended consequences. These findings have obvious and important implications for theories of agency ossification in rulemaking.
As for the vices, dynamic rulemaking may take place through less-transparent processes than the original rule—often without public comment or centralized presidential review. One of the authors’ more provocative conclusions is that “at least some of this dynamism occurs in response to information provided formally or informally by regulated parties, with the diffuse public potentially on the losing end of the stick.” (P. 241.)
From these findings, the authors seem to express skepticism about calls for more-formalized, agency-wide retrospective review. In the Introduction, for instance, they contend that calls for more-formalized “retrospective review reflect the assumption that agencies are not already actively engaged in revising their regulations in light of real-world implementation experience and changes in the physical, economic, and political environments.” (Pp. 186-87.) In the Conclusion, they similarly argue that “the largely reactive process of dynamic rulemaking is arguably more efficient and reliable mechanism for identifying ‘unnecessary regulatory burdens’ than resource-intensive lookback requirements.” (Pp. 260-61.)
But those of us who support more-formalized, agency-wide retrospective review may alternatively read the study’s findings to provide some significant empirical support. After all, the study demonstrates that federal agencies can (and at least three do) engage in retrospective review on an ongoing basis. The study shows that the agencies believe their rules should not be static, but must be routinely updated. At the same time, however, the study reveals that retrospective review differs in substantial respects at the EPA, FCC, and OSHA. And, as noted above, the authors suggest that interest-group pressures may distort informal retrospective review.
That last finding merits further examination. If interest groups drive agency rule revision contrary to the public interest, more-formalized, agency-wide retrospective review is all the more important. But the same is true if this interest-group distortion turns out to be less of a problem than the authors suggest and many agencies already engage in effective retrospective review of their entire regulatory scheme. Under those circumstances, a more-formalized review process should not impose significant burdens on those successful agencies while producing substantial benefits for any agencies not already engaged in effective retrospective review through less-formal means.
In all events, the authors are cautious in advancing arguments for or against more-formalized retrospective review based on their study, refusing to generalize their findings beyond rulemaking with respect to the four programs at the three agencies analyzed in their study. Such caution is admirable. Perhaps most agencies already engage in the level of dynamic retrospective review this study uncovers at the EPA, FCC, and OSHA. That would be excellent news, especially if interest group pressure does not distort such review in a way that undermines the public interest. Although the authors’ study does not endeavor to assess the state of dynamic rulemaking across the modern administrative state more generally, it provides a critical empirical window into how three agencies approach retrospective review today.
Much more empirical and theoretical work needs to be done, and I hope this pioneering study will spark that further inquiry.
Robert C. Hockett & Saule T. Omarova, The Finance Franchise
, 102 Cornell L. Rev.
(forthcoming, 2017), available at SSRN
In The Finance Franchise, Bob Hockett and Saule Omarova take on the dual myths underpinning contemporary financial regulation: that capital is both inherently scarce and privately provided. They painstakingly document (and illustrate in simple graphics for those of us whose banking savvy is confined to remembering their ATM PIN number) the state’s role in the provision of financial products and services ranging from plain-vanilla loans to digital currencies. They reveal how, at base, all of these products and services depend on the full faith and credit of national governments to assume ultimate liability for privately-issued debt and to monetize privately-issued debt by allowing the putative private debt-holder to spend the debt proceeds as if they were currency.
In short, Hockett and Omarova demonstrate that because the state serves these two functions, “modern finance is not primarily scarce, privately provided and intermediated but is, in its most consequential respects, indefinitely extensible, publicly supplied, and publicly disseminated. At its core, the modern financial system is effectively a public-private partnership that is most accurately, if unavoidably metaphorically, interpreted as a franchise arrangement.” (P. 4.)
Why does this matter? Because, Hockett and Omarova argue, the myth of scarce private capital has impeded meaningful systemic regulation of the financial system and has justified policy choices, like austerity, that place control over the allocation of financial resources entirely in private hands. The myth also allows policymakers and those who benefit from inequity in the private distribution of capital to dismiss the resulting social harms as the “unavoidable cost that society must bear in return for a viable market economy.” (P. 3.) Hockett’s and Omarova’s franchise metaphor provides a basis for a “fundamental … attitudinal shift with respect to the proper balance between public and private interests, capabilities, and roles in finance and the broader economy.” (P. 64.) Specifically, it justifies an active role for the public, through the state, to make collective, political choices about the appropriate allocation of capital across the economy and to enforce those choices through regulation. The Finance Franchise does not present radically new financial regulation policies. Rather, its innovation is to understand that regulatory policies advocated elsewhere by the authors and others are unlikely to be adopted without a “comprehensive analytical and normative justification for thoroughgoing structural reform in the financial sector.” (P. 62.)
This struck me as an urgent insight for administrative law and regulatory scholars more broadly. The state has been largely absent from or actively resisted in much legal scholarship. The mine run of legal scholarship has simply ignored empirical and normative questions about the state’s role in markets, going about the routine work of analyzing doctrine and proposing regulatory programs based on some unarticulated set of background assumptions about the existence and nature of the state that might implement them. On the one hand, this approach seems unassailable given the state’s obvious presence in law and legal institutions like agencies and courts. On the other hand, there is reason to believe that the state’s role in regulation can no longer simply be assumed as a static background condition. Indeed, it has become a first-order question.
What kind of state would adopt the regulatory programs painstakingly crafted and persuasively proposed by regulatory scholars? Unfortunately, it turns out, not the kind envisioned by many of their colleagues, who have spent the last several decades resisting the state’s role in regulation. Since the mid-twentieth century, economists have theorized states and markets as distinct spheres of human activity and argued that well-functioning markets have superior regulatory capacities to states because of the informational and normative advantages they enjoy.
In this account, government regulation is justified only to correct market failures, and only to the extent that it does so, a significant limit on the type of regulatory role the state may play. New governance scholars have continued the project of distancing the state from regulation, arguing that private collectives like citizen groups and corporations are often better positioned than governments to generate and enforce norms. New economy scholars have taken this project to new heights, culminating in Gillian Hadfield’s recent paean to private ordering, Rules for a Flat World. Who needs the state when you have the crowd?
These legal scholars have plenty of company in their turn from the state. Every major social science discipline has had such a moment. The irony is that other disciplines long ago reconciled themselves to “bringing the state back in” to a place of theoretical and analytical prominence. Law has come late to this intellectual project, perhaps because the notion that the state ever left the law seems bizarre on its face. Most of us simply assume its existence as an essential and invariable background condition underlying our primary scholarly agendas. Hockett and Omarova are not so complacent. And in a world where the stroke of a pen may wipe out a generation of regulatory and administrative law, none of us should be. We should follow their lead in theorizing not just the law, but the kind of state that will implement it.