Miriam Seifter, Understanding State Agency Independence
, 117 Mich. L. Rev.
__ (forthcoming 2018), available at SSRN
In recent decades, our field of administrative law has taken an empirical turn, at least in part. We now know more about on-the-ground practices of federal agencies and their treatment in the federal courts, for example. Our focus, however, has been relentlessly on the federal level. To the extent that scholars look outside the federal government, to states or to private entities, for instance, they almost always examine the interaction with federal entities. Miriam Seifter’s work should divert your attention to the states—both to learn about state practices and to consider what those practices might tell us about federal institutions.
In her latest piece, Understanding State Agency Independence, Seifter examines agency independence at the state level and uses that examination to contribute a new perspective on agency independence at the federal level.
It would be easy to get lost in the details of state practices, but Seifter organizes the piece coherently to make important broader points (while not losing rich institutional details). Seifter first recaps debates about federal agency independence before looking at the constitutional origins of state agency independence, then moving onto state courts’ treatment of agency independence, turning next to the contestation of independence (and shifting agency designs) outside the courts, and concluding by thinking about lessons for federal administrative law from the state practices she has studied.
There is so much to praise in this article. To start, the descriptive work about state practices is stunning. Christopher Berry and Jacob Gersen, among others, asked us to contemplate whether a plural executive would be a better design for our federal system, drawing on the “unbundled executive” at the state level (where, for example, governors are often elected separately from attorneys general). Seifter starts with these state practices, some of which were “woven into the design of the earliest state constitutions.” There are 43 states that elect an attorney general, but only one state (Louisiana) elects an ethics official. Overall, “state constitutions establish 497 constitutional offices, 210 of which are separately elected.” You may have heard of the unbundled executive, but you may not know how many state constitutions “prescrib[e] legislative appointment of particular officials, or even an entire set of officials.”
Seifter then pivots to these constitutional agencies, where the state’s citizens do not elect their leaders and where the constitutional text does not provide for how the top officials are to interact with the governor. In addition, she considers multi-member boards and commissions that are not in states’ constitutions (except, in some instances, as a general class). Seifter, however, does not simply show the complexity of state institutions at a particular point. She also demonstrates that agency designs at the state level have often shifted over time. I am less certain of, but quite intrigued by, her claim that the independence of federal agencies “has been a sticky phenomenon,” by contrast. Federal agencies change structure too—for instance, the Post Office in 1971 and some financial agencies after the last financial crisis. These shifts at the federal level, however, do seem different from state legislatures changing agency designs to advance more nakedly partisan goals. Indeed, in lame duck sessions, several states have worked to change agency independence. (And should we compare the federal system against all the states, or just against an average state?) I look forward to more empirical work assessing Seifter’s provocative (and plausible) claim that state agency structures have been more malleable than federal ones.
Seifter makes a number of clever, original, and compelling observations and arguments from the descriptive details she has unearthed. Here are just three that struck me. First, the separate selection (by the legislature or election) of some agency leaders in the states—the unbundled executive—should not be conflated with independence. Separate elections, for example, play a role in, but do not determine, how such agency leaders will interact with the governor. Second, in contrast to the federal courts, state courts in New Mexico (and in other states) have taken a non-binary, non-categorical approach to agency independence. In other words, these courts do not see state entities as being in one of only two buckets (independent and non-independent), and they “do not use the term ‘independent agency’ (or any similar term) to invoke a trans-substantive category.” Third, unlike the federal system where removal is seen as an inherent executive power, governors’ removal power is a matter of positive law.
This article has made me rethink federal practices, particularly issues surrounding the removal of agency officials. Seifter shows, first, how some states allow policy disagreements between an official and the governor to constitute cause for firing (which federal case law does not allow) and, second, how many states explicitly make removal decisions unreviewable by the courts. On the first, as she briefly notes, Judge Griffith’s concurrence in the D.C. Circuit’s recent en banc decision on the constitutionality of the Consumer Financial Protection Bureau argues that the for cause standard should be, or is, lower at the federal level than federal case law might suggest. On the second, differences between the states and the federal government on agency independence produce such stark differences in outcome—specifically, in modern times, state officials often get removed for cause by the governor, but federal officials almost never get removed for cause by the president.
More broadly, Seifter’s impressive research on state administrative law should make all of us pause in our federal projects, to consider how state practices might shape our analysis. Inspired by her articles, I am currently learning about state practices for filling leadership vacancies on a temporary basis as I wrestle with “actings” and other interim leaders at the federal level. What might the states tell you about your work?
Lots of ink has been spilled over when Congress can give federal officials for-cause protection. One would think that a necessary antecedent to that discussion would be a determination of exactly what for-cause protection entails. What is “inefficiency, neglect of duty, or malfeasance in office”? Yet no one knows; the debate over the permissibility of that restriction proceeds in blissful uncertainty as to its scope.
The reason no one knows is that (almost) no President has ever tried to fire someone for specified shortcomings amounting to “cause.” Until reading Professor Bamzai’s article, I would not have included the parenthetical “almost.” In the best-known instances of a president removing an official with for-cause protections—Shurtleff, Myers, Humphrey’s Executor, Wiener—the president did not claim cause existed; he took the position that cause was not necessary. It is often asserted, with only the tiniest of hedges, that no president has ever fired anyone after a hearing and for cause. But it turns out that at the very end of his term President Taft did just that. This article is the engaging account of that overlooked event.
Part I sets the scene. Bamzai begins with an overview of very familiar terrain, describing the caselaw on the legal status of independent agencies. Readers engaged enough to be reading the Administrative Law section of Jotwell will find little new here. Bamzai then turns to a useful history of tariffs. Before the income tax, the tariff was entrenched because it was the government’s main source of revenue. But the details were a focus of constant political battles, and administration was difficult.
Tariff administration is plagued by two sorts of inescapable challenges. One is classification: the is-a-tomato-a-fruit-or-a-vegetable? or what’s-a-“bound diary”? problem. The other is valuation: to know the amount of tax due, one has to know the value of the item imported, and the importer has every incentive to understate that value. To help resolve such disputes, in 1890 Congress established the Board of General Appraisers. The Board heard appeals from determinations made by individual collectors. Members of the Board were appointed by the president by and with the advice and consent of the Senate, were subject to bi-partisanship requirements, and could “be removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office.” The statute did not fix a term of years for the appointment.
This setup led to the first big removal case when, in 1899, President McKinley fired Board Member Ferdinand Shurtleff without explanation. Shurtleff sued, losing in the Court of Claims and the Supreme Court. The decision was once the leading Supreme Court case on removal; Myers relies on it, and Humphrey’s Executor works hard to distinguish it. Invoking a background principle of presidential discretion in removals, the Court reasoned that the statutorily specified reasons for removal were not exclusive—no expressio unius for this Court!—and the president remained free to remove at will. Congress responded by amending the statute to specify that Board members could be fired for the three enumerated reasons “and no other.”
Part II turns to the actual firing. In August 1912, Taft created a three-member “committee of inquiry” to look into whether the Board members were doing an adequate job. One of its members was none other than Felix Frankfurter, then a twenty-nine-year-old neophyte attorney in the Department of War. Though not specified in its official instructions, the Committee had a particular target, one Thaddeus Sharretts. After months of investigation, a number of what we would today call off-line communications, and a public hearing, the Committee produced a report recommending the removal of Sharretts and Roy Chamberlain.
Regarding Sharretts, the concerns were ethical. The Committee found that he had used “his official power to compel personal favors,” requesting that a particular train make a special stop so he could get back to New York City from his weekend place in Maryland, perhaps for a quid pro quo. (This is another aspect of this story with contemporary resonance.) In addition, Sharretts seemed to have had made rulings that would be precedentially useful to his son, who practiced before the Board.
Chamberlain’s shortcomings were different: in an assessment one would not want one’s children to see, the Committee concluded that he was “totally useless to the Board,” had no “natural aptitude for [the] kind of work” the Board conducted, did not write his own opinions, and had through excessive drinking “brought scandal upon the Board.”
On March 3, Taft wrote to each, dismissing Sharretts for “malfeasance in office” and Chamberlain for “neglect of duty and inefficiency.” The next day, he left office and Woodrow Wilson became president. Neither ex-Board Member sued; President Wilson did not revisit the matter; and that was that.
Part III considers the aftermath of these little-known events and some lessons. One of the best parts of documentaries or films “based on true events” is the “where are they now?” screens at the conclusion. They certainly would be if this were filmed. William Howard Taft becomes Chief Justice and authors Myers, the single strongest judicial statement of presidential removal authority. Felix Frankfurter seems to head in the other direction—a civil service enthusiast, he goes on to write Wiener. The fate of Sharretts and Chamberlain is not revealed (though Wikipedia reports that the latter concluded his days as a grocer—a calling for which one hopes he did have a “natural aptitude”—in Bradford, PA). And the Board of General Appraisers? It goes on to greater glory as the Court of International Trade.
The normative payoff here is modest, as Bamzai acknowledges, but the incident provides useful and rare evidence indicating what qualifies as “cause.” Past practice matters, and, lo and behold, here it is! In this instance, the shortcomings and misconduct identified fall within the core and least controversial understandings of “cause.” Bamzai calls this a “crucial data point”; I am not sure I would go quite that far. First, it is only a data point, and one that involved no judicial determination. Second, one could read this story to support a narrow understanding of presidential authority, under which a President can fire an official with for-cause protection only for quite substantial shortcomings. However, precisely because those grounds existed here, the incident reveals nothing about whether the players thought more minor misconduct, or mere policy differences, were impermissible grounds for removal. (If the charges were trumped up, that would support a modest inference that Taft, Frankfurter, et al. thought that policy disagreement, for example, was not “cause,” but nothing Bamzai writes supports that conclusion.)
With regard to process, it is notable that Sharretts and Chamberlain were provided relatively full procedures, including a hearing. But, again, we do not know if this was perceived as legally required. Moreover, given the enormous doctrinal developments in the intervening century—to put it anachronistically, Sharretts and Chamberlain had a property interest in their employment because of the for-cause protection, but due process was provided, as per Mathews and Loudermill—what people thought about process a century ago is not that important.
In any event, Bamzai’s article is enjoyable and eye-opening. And, as with any good work of history, the whole story does make one think of William Faulkner.
Rory Van Loo, Regulatory Monitors
, __ Colum. L. Rev.
__ (forthcoming 2019), available at SSRN
One basic tension in administrative law is the combination in one entity of the various functions in government otherwise thought better divided: making laws, prosecuting suspected violations of those laws, and adjudicating whether the violations occurred. This mixed-function design leads to heightened concerns about accountability and oversight of agencies’ exercise of delegated authority. Various administrative law responses to these concerns are familiar. For example, for formal agency proceedings, Congress limited agency personnel communications and conflicts in the Administrative Procedure Act (APA) so as to ensure the “separation of functions” within an agency. More generally, public participation, transparency, and judicial review are mechanisms thought to constrain agencies from overreach.
But in his forthcoming article, Regulatory Monitors, Professor Rory Van Loo paints a striking picture of an underexamined group of agency actors who can de facto exercise all three kinds of agency power all while largely being exempted from APA constraints. His account of these regulatory monitors is made all the more fascinating by the methodology of his research, which captured the results of agency data, examination of public records, and interviews across nineteen large regulatory agencies. This sort of on-the-ground, trans-substantive look at the work agencies actually do is an exciting trend in administrative law scholarship (and one that I myself have found fruitful in examining how businesses and individuals seeking records about themselves invoke agency FOIA processes). This example is no exception: Van Loo’s account of regulatory monitors is powerful precisely because it complicates our understanding of agency power and suggests accountability gaps worth further exploration.
As for their tripartite power, monitors, who Van Loo defines as those “whose core power is to regularly obtain non-public information from businesses outside of the legal investigatory process,” are routinely empowered to engage in actions that go far beyond information gathering. On the prosecutorial and adjudication side, they can make decisions that result in a less formal agency sanction such as issuing a “noncompliance” notification or “warning letter.” In a majority of large regulatory agencies, they can block or suspend certain business activity. At some agencies they can investigate suspected violations of the law and even set fines or negotiate settlements. These are particularly significant exercises of power when you realize that the vast majority of suspected regulatory violations are resolved through these less formal processes. In this way, Van Loo’s piece resonates with valuable recent studies, such as Nick Parillo’s excellent research on behalf of ACUS, exploring how and why regulated parties comply even with informal or technically nonbinding agency action.
Maybe the most interesting finding to me was Van Loo’s portrait of regulatory monitors’ lawmaking function. Among other mechanisms, Van Loo describes monitors’ creation of agency common law through the precedent and patterns evidenced in inspection reports, warning letters, and other types of monitoring documentation. In the context of USDA inspections of entities regulated under the Animal Welfare Act, I am litigating a case pro bono in which I argue, among other things, that inspection reports are agency “orders” required to be proactively disclosed under FOIA’s reading room provision for exactly this reason: they form precedent on which the agency and private parties rely, and have real consequences for regulated entities. Van Loo’s government-wide look at the practice confirmed my own view that these records are of much greater importance than we often acknowledge.
One of the article’s other immensely fascinating aspects is the intersection of monitoring and government transparency. Van Loo compellingly argues that given the scope of power that regulatory monitors hold, we should be thinking distinctly about the kinds of accountability mechanisms that would best watch the watchdogs, to use a familiar phrase. Transparency is his very first and, I think, most powerful suggestion. While recognizing competing interests for which any increased transparency requirements should account, Van Loo argues that greater transparency over individual monitoring activities—such as routine disclosure of the results of inspections—would improve accountability and understanding of these important agency functions. Moreover, increased transparency over violations found through monitoring can itself be a soft form of inducing increased compliance with the law—Van Loo separately notes the “shaming” function that monitoring can provide.
While these are my favorite aspects of the article, there is a lot more to learn from Van Loo’s very rich inquiry. I suspect that regulatory monitors will become a larger part of the administrative law conversation as a result of his terrific piece.
Jennifer Nou & Edward H. Stiglitz, Regulatory Bundling
, 128 Yale L.J.
__ (forthcoming 2019), available at SSRN
Schemes for regulatory reform have taken many different tacks: improving cost-benefit analysis, preventing interest-group capture of the regulatory process, enhancing public participation in rulemaking, and myriad other ideas. To some, the most alluring idea for reform is apparently that, whatever else happens, there should at a minimum be less regulation—where “less” is measured simply by counting up the number of regulations and trying to reduce that total.
That notion has now become a “cornerstone” of federal deregulatory policy. Under President Trump’s Executive Order 13771, agencies “shall identify at least two existing regulations to be repealed” for each new regulation that they propose or promulgate. The “two-for-one” Order is the business end of a broader critique that there is “too much law”; though that idea has modern currency, it goes back at least as far as Sir Thomas More, who half a millennium ago imagined Utopia as an island of “but few laws”—and no meddlesome lawyers. Will this Order bring us closer to that Utopia?
In a forthcoming article, Jennifer Nou and Edward Stiglitz shed light on that question by assessing the phenomenon that they dub “regulatory bundling.” Under the new Order, agencies face an obvious incentive—to “pack more regulatory provisions into one rule” (P. 5) because splitting the provisions into separate rules would require the agency to find more offsetting rules to repeal. But the impetus to bundle together regulatory requirements might change what regulators choose to put into the bundle. When legislators enact omnibus laws, the authors note, they often use those more capacious vehicles for logrolling, for pushing partisan agendas through must-pass measures, and for smuggling unpopular initiatives through the vetogates of the legislative process; splitting up laws, not bundling them, is thus the option advocated by many scholars and preferred by many states. (Id.)
Professors Nou and Stiglitz begin their account by offering an empirical case that, for some time now, agencies have been increasingly bundling rules that address different subjects. To measure regulatory bundling, they refer to the list of subjects that accompanies each proposed or final rule. Agencies are required to include such a list when they publish a rule in the Federal Register, and they draw the listed subjects from a standardized set of terms in a government thesaurus. So, for example, the Obama Administration’s Clean Power Plan rule listed the subjects “environmental protection,” “air pollution control,” “administrative practice and procedure,” “intergovernmental relations,” and “reporting and recordkeeping requirements.” (Pp. 9-10.) The authors therefore treat that rule as addressing five subjects.
This may seem an odd way to measure bundling. For instance, as an example of regulatory bundling, the authors cite an OSHA rule that regulated 428 air contaminants in one go. (P. 2.) That rule listed five subjects, not 428—“air contaminants, occupational safety and health, permissible exposure limits, health, risk assessment” (see 54 Fed. Reg. 2332-01, 2920 (Jan. 19, 1989)). Would that list of subjects have been any different in an OSHA rule that regulated ten air contaminants, or indeed only two? If not, then counting up the number of listed subjects would not distinguish between a highly-bundled rule that addressed 428 contaminants and a less-bundled rule that addressed just ten.
Rather than glide over such issues, Professors Nou and Stiglitz are commendably cautious about the worth of their metric for bundling, and they are careful to address the various reasons why their “initial snapshot” (P. 18) of bundling might either under-represent or over-represent the trends they observe in this phenomenon. (Pp. 10-12.)
With those caveats in mind, their study yields some interesting observations. Between 2000 and 2017, and across a population of 19,000 proposed rules and 41,000 final rules, they find that the average number of subjects grew—by about 19% for proposed rules and by about 10% for final rules (Pp. 13-14) when the initial two-year span is compared to the final two-year span. Though upticks and downticks in bundling occur, these fluctuations do not seem to occur in close vicinity to transitions in presidential administrations, but rather within the span of a given president’s tenure in office. (P.14, Fig. 1.) Some agencies—e.g., the CFPB, EPA, and VA—are much more apt to bundle than others—e.g., the DoD and FCC. (P. 16, Fig. 2.) And, though it is difficult to isolate out the relative impact, quite a lot of the increase in bundling over the 17-year span may be a result of these “bundler” agencies issuing more rules rather than because of an increase in bundling across the board. (P. 15, n.71.)
With this empirical backdrop in hand, Professors Nou and Stiglitz then move on to explore why agencies bundle. Within an agency, bundling can help to facilitate internal agency compromise, by allowing the addition of “regulatory riders” to win sign-off from internal agency officials, and it can smooth the process of logrolling between multiple agency heads who may each have a say in whether a rule goes forward. (Pp. 19-21.) From the perspective of an agency, they note, bundling can also be efficient, at least to a degree—once an agency has embarked on a rule-making, it may make sense to use that rule to address more subjects, until the point at which adding more subjects produces a “bottleneck” (P. 22) that interferes with other tasks the rulewriters would prefer to address.
The article then turns to examine how, externally to the agency, monitors such as OIRA, Congress, and the courts may also affect agency incentives to bundle. OIRA, for its part, has tried to discourage agencies from bundling regulatory and deregulatory initiatives into a single rule, unless they are “logically connected.” (P. 26.)
Congress, because of its new enthusiasm for using the Congressional Review Act, is a hard-to-gauge factor: if Congress dislikes some portions of a bundled rule, it might overturn the whole thing, which would encourage agencies to split up their rules; on the other hand, bundling less-popular provisions with more popular ones could enable the whole package to escape safely, which would have the opposite effect of encouraging agencies to bundle more. (Pp. 27-28.)
Last—and, here, decidedly least—are courts and judicial review. Professors Nou and Stiglitz find that “judicial scrutiny” in the D.C. Circuit—in their account, the “extent to which there is preference divergence based on the partisan identity of the judge’s nominating party” (P. 30)—does not affect agency bundling activity. In other words, changes in regulatory bundling do not show any correlation with changes in the political composition of the D.C. Circuit’s set of active judges, which leads the authors to suggest that “other institutional monitors like the President and Congress are stronger motivators of bundling behavior than the courts.” (P. 31.)
The final and most interesting question addressed by the article is what reforms should be adopted to address regulatory bundling. Should the Congressional Review Act be amended to enable Congress to veto only parts of regulatory bundles, rather than—as is currently the case—requiring an “all or nothing” up-or-down disapproval? (Pp. 37-38.) Should there be a single-subject requirement for rulemaking in the administrative state, and what precise shape should such a requirement take? (Pp. 39-40.) Should courts use their powers of judicial review to deter agencies from bundling because it muddies up the administrative record and precludes meaningful judicial review of unwieldy rules touching on myriad subjects? (P. 42.) Or, conversely, should courts encourage bundling, to force agencies to address together aspects of a regulatory problem that are substantively interrelated? (Pp. 43-44.)
Professors Nou and Stiglitz advocate no hard prescriptions for reform, but their nuanced assessment of the dynamics of regulatory bundling has set the table for future scholarship. The two-for-one Order calls for less regulation as measured by nothing more than raw numbers of regulations. Despite the deep flaws of that approach, that directive is (at least for now) part of the law of the administrative state, and regulatory bundling will surely be one strategy that agencies will use to obey its command. Professors Nou and Stiglitz’s article closes by highlighting the need for more empirical work to assess the strategic abuses and costs of regulatory bundling, as well as the possibility that bundling may have more “salutary motivations and consequences.” (P. 44.) Perhaps we will then discover whether the two-for-one Order will pave the way to a Utopia of “less” federal regulation, or whether the Order will ultimately prove to be—like the regulatory bundles it incentivizes—more of a mixed bag.
Cite as: Mila Sohoni, A Mixed Bag
(November 19, 2018) (reviewing Jennifer Nou & Edward H. Stiglitz, Regulatory Bundling
, 128 Yale L.J.
__ (forthcoming 2019), available at SSRN), https://adlaw.jotwell.com/a-mixed-bag/
Nearly everyone sings innovation’s praises. Innovation brings progress and prosperity. It leads to a better tomorrow. Yet, is innovation really an unalloyed good? In a new book, legal scholar Cristie Ford argues that innovation actually “presents a clear and persistent risk—perhaps the single most significant and under-analyzed risk—to regulation itself.” (P. 215.)
Innovation poses such an “existential challenge” to regulation, Ford argues in Innovation and the State: Finance, Regulation, and Justice, because the world subject to regulatory control is constantly changing. (P. 144.) Technological change, for example, has made hydraulic fracturing economical and led to a shale gas revolution in energy extraction. New, complex mortgage-backed derivatives in securities markets proliferated in the years leading up to the financial crisis. Changes such as these are continually occurring in every economy. Yet in a certain sense, regulation inherently stands still. Regulation operates by fixing words onto the pages of a rulebook. The world is dynamic, while regulation is static.
Ford is hardly the first to call attention to regulation’s relatively static nature. Many policymakers, and even more business managers, believe that regulation impedes socially valuable progress. For example, a common argument is that the U.S. Food and Drug Administration’s strict and slow pre-marketing review protocols keep life-saving drugs from helping patients sooner. More generally, the “clunkiness” and rigidity of regulation—such as its well-known problem of one-size-fits-all commands—creates a range of perversities, including increased costs and the locking in of suboptimal business practices.
This conventional view of the tension between regulation and innovation is most compatible with a critical posture toward regulation. Yet in her thoughtful book, Ford offers a valuable scholarly perspective that both skeptics and supporters of regulation should find instructive. She shows that regulation hardly impedes all innovation. Just as water in a river finds its way around or over boulders and other obstructions, innovation manages to occur even in a regulated economy. More importantly, the existence of ever-present innovation holds major implications for regulation, as changes in economic and social circumstances bring the constant potential to make rules antiquated and ineffectual. As Ford puts it, innovation has a “persistently corrosive effect on regulatory fit and effectiveness over time.” (P. 164.)
This corrosiveness exists in part because of what legal scholar Gary Marchant has called law’s “pacing problem.” Economic and technological development simply moves much more quickly than legal institutions typically are able to act. We see constantly emerging new lines of businesses—Facebook, Uber, and more—as well as new technologies—genetic engineering, autonomous vehicles, and more. Each of these developments bring the possibility of risks to consumers and the public. But the legal system is slow to respond.
Another source of innovation’s corrosiveness arises from firms’ strategic behavior. When regulated firms maintain the same incentives and goals that created the initial need for regulation, those firms can be expected to search for—and eventually find—ways of satisfying their objectives within the parameters of the law. But sometimes these new ways still create problems for society. The starkest examples take the form of evasiveness or outright fraud—just think about Volkswagen’s “innovative” approach to designing diesel engines so they could meet regulators’ required laboratory emissions tests, even though the cars still polluted excessively when driven on the road. Adaptive behavior induced by regulation can also be more benign in intent but still allow problems to persist or even create new problems. Whatever the motivation, such strategic innovation undoubtedly underlies Ford’s view that “the capacity to be innovative…is a form of power” and that this form power, like others, is not distributed equally in society. (P. 220.)
Ford’s book helpfully reminds us that a major predicament facing society—and a major intellectual challenge confronting regulatory scholars—derives from the realization that regulation must “operate within a dynamic and uncertain environment.” (P. 140.) What might be the solution to this predicament?
For much of the 1990s and early 2000s, regulatory scholars argued that the innovation predicament could be overcome through a form of regulation that Ford refers to as “flexible regulation.” (Ford uses this common, if not oxymoronic, moniker from that earlier time period, but also explains that flexible regulation sometimes has also traveled under the banner of “responsive regulation, reflexive law, smart regulation, and new governance and experimentalism.” (P. 21.)) Throughout much of Innovation and the State, Ford tells the intellectual history of flexible regulation. She shows how flexible regulation eschews top-down governmental control through bright-line rules, typically disparaged as “command-and-control” regulation. By contrast, flexible regulation prefers to work more from the bottom up, taking advantage of industry’s superior knowledge of its operations and providing greater sensitivity to variation in business contexts. By relying on either broad principles or regulatory performance targets, as well as on softer tools or nudges (such as information disclosure), flexible regulation seeks to shape and guide private behavior rather than to control businesses’ every action through the enforcement of strict, detailed legal commands.
In theory, flexible regulation overcomes both the rigidity and corrosiveness associated with traditional regulation. Instead of locking in specific, prescribed behaviors and technologies, a principles- or performance-based regulatory regime gives responsible firms leeway to adapt and find the most cost-effective means of achieving regulatory goals. In this way, flexible regulation is more receptive to “good” innovation. And by its reliance on broad principles or outcomes instead of bright-line rules, flexible regulation can allow government regulators to respond more nimbly to evasiveness and to adapt in the face of new business practices that might not be addressed by highly detailed, prescriptive rules. Flexible regulation in this way is thought to be more protective against “bad” innovation.
But the regulatory theory that developed in the 1990s looks different from this side of the financial crisis of 2007-2008. Ford cautions regulators and regulatory scholars against putting too much faith in the precise form of regulation, flexible or otherwise. A specialist in securities regulation herself, Ford devotes much attention in Innovation and the State to financial regulatory issues. Comparing how different countries fared in response to various innovations in finance in the years prior to the crisis, she concludes that “it would be difficult to establish that more ‘flexible’ systems like the United Kingdom’s more principles-based system were any more (or less!) susceptible to gaming or weaker in regulatory terms than more rigid, bright-line systems like the United States’.” (P. 133.)
Ford’s design-agnostic conclusion merits wide consideration. Both bright-line rules and principles-based regulatory designs have their strengths and weaknesses. And neither are immune to challenges posed by innovation. It oversimplifies, but perhaps only somewhat, to say that just as bright-line rules can block both bad and good innovation, flexible regulation can be accommodating to both good and bad innovation. Both the financial crisis and the Volkswagen scandal, each of which extended across national borders, remind us that bad innovation, flouting legitimate regulatory goals, can arise in vastly different regulatory systems.
Ford is correct to identify innovation as a daunting challenge confronting any regulatory system. She makes a persuasive claim that, at least as a technical or legal matter, “we simply cannot seem to ‘solve’ the problem of innovation, no matter what flexible, bright-line, or innovation-framing strategy we take.” (P. 47.) But then, if she is right, is there ever any hope for sensible, effective regulation?
Ford offers no simple, easy answers—and surely we should be most skeptical if she did. Still, I read her to be both realistic and hopeful. In her telling, “the way forward is…through a new kind of state action.” (P. 128.) That new action, she says, should entail thoughtful, fair, public deliberation and efforts by regulators to seek to identify changes in social and economic circumstances and learn how to respond to them.
She offers near the end of the book a helpful “[f]ramework for innovation-ready regulation” (P. 226) which includes a list of questions intended to help focus regulators’ attention on possible innovation threats on the horizon. That framework encourages the leaders of any regulatory organization to assess three key features of their operating environment: (1) “the basis of the regulator’s knowledge and the nature of its assumptions;” (2) how the regulatory regime is structured, and what implications flow from that structure;” and (3) “what mechanisms exist to allow the regulatory regime to learn and adapt, and whether they are adequate.” (P. 224.)
The operative word in Ford’s ultimate solution comes down to “action.” In looking at the regulatory failings in the lead up to the financial crisis, Ford points not to any particular failure in regulatory instrument design but to the lack of appropriate and adequate action by regulatory officials: “Across jurisdictions, underfunding, under-resourcing, lack and misdirection of information, lack of focus, and lack of regulatory independent-mindedness were the common thread.” (P. 133.) The solution, then, is not so much smart regulation, but smarter regulators.
In the end, whatever form regulation itself may take, regulators must also acquire the vision to notice change as it is evolving, possess the early-warning data to anticipate seismic shifts in the larger landscape, and inculcate the independent-mindedness to take appropriate action when needed. If innovation creates regulation’s existential problem, the solution lies in constant regulatory vigilance.
Evan D. Bernick, Envisioning Administrative Procedure Act Originalism
, 70 Admin. L. Rev.
__ (forthcoming 2018), available at SSRN
Forty years ago, then-Professor Antonin Scalia published Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court in the Supreme Court Review. There, the future Justice both chastised the D.C. Circuit for ignoring the text of the APA (Administrative Procedure Act) and offered a “lament” about how faithful judicial adherence to the original public meaning of that foundational statute could not provide a durable framework for administrative governance. Thus, even for skeptics of federal common-lawmaking like Scalia, the original APA has remained in substantial part unloved, or at least often benignly neglected.
Evan Bernick, a visiting lecturer at Georgetown Law, and a thoughtful provocative new voice in administrative law, is wondering whether administrative lawyers have given up too fast on the romance. In Envisioning Administrative Procedure Act Originalism, Bernick imagines what it would look like to apply a consistently originalist approach to the APA. He does not offer a complete picture of the results those methods would yield, but pointing to that sketchy spot on the map underlines the importance of his project. Originalists have lavished far less attention on a statute that frames much of modern governance than they have on provisions of the Constitution that are less likely to affect the lives of Americans every day. What APA originalism might unearth should be of interest to originalists and also to non-originalists who see original meaning or intention as an important input in the interpretive process.
Bernick does a masterful job explaining why such an inquiry is important and lays the necessary groundwork for further work along these lines. He notes that he is not alone in asking questions about the original law the APA laid down. As he catalogues, in recent years, scholars have gone back to the original APA to criticize: Chevron deference and Auer deference; the evisceration of formal rulemaking; judicial additions to informal rulemaking procedures; the marginalization of formal adjudication; deference to administrative action by the military; and liberal approaches to pre-enforcement review of agency action.
All the examples of APA originalism above criticize one feature or another of what we generally know of as administrative common law. The insight here is that courts are not free, or at least not well-equipped, to develop norms governing administrative procedure when Congress has already made a decision on the matter. Pre-enforcement review, paper hearings in informal rulemaking, or deference on questions of law may be good, but if the APA prescribes something else, take it up with Congress.
Of course, thus far forays into APA originalism (disclosure: mine included) tend to arise when the proponent does not like the doctrinal overlay impeding the original rules Congress chose in 1946. There is a temptation, then, for fair-weathered originalism, drawing on the APA only when something has gone awry at the D.C. Circuit without thinking about broader methodological implications. Bernick recognizes that a cross-cutting APA originalism may require us to take the bitter with the sweet.
Thus, Bernick’s important contribution is to lay the theoretical groundwork for these disparate critiques of administrative law doctrine. As a scholar fluent in both constitutional interpretation theory and administrative law, he is well-suited to the task. Bernick offers reasons to believe that APA originalism is both a feasible and a worthwhile endeavor. In many ways, APA originalism is easier than constitutional originalism. The APA is of more recent vintage than most constitutional provisions, it has a robust set of historical materials, and it doesn’t raise questions about the import of state-ratifying conventions. The mists of history shrouding original public meaning are thinner, and the challenges of shared intention are fewer. Drawing on the distinction between interpretation and construction in constitutional interpretation, Bernick further argues that APA originalism neither requires crisp answers to every interpretive question nor precludes administrative common law across the board. All that it requires is that administrative common law in the “construction zone” not contradict original legal norms Congress fixed in place.
In essence, sophisticated originalists have sharpened their tools in the more challenging constitutional setting, so we should readily be able to apply them in this simpler, yet equally important domain. And Bernick contends there are good reasons in favor of doing so. The original APA is the actual law Congress passed, legislative supremacy and democratic accountability preclude judicial amendment of those norms, and a closer attention to the original law will bring stability and clarity to administrative law while blunting arguments that administrative law is illegitimate or unlawful. And, I might add, unlike in constitutional interpretation, here enforcement of the original law is easier to change if people do not like it. Although legislation is not easy to pass, loosening the dead hand of the APA does not require a constitutional amendment.
Like any good scholar should, Bernick recognizes objections and qualifies his argument accordingly. First, APA originalists must confront the bulk of precedent likely to stand between them and the original APA. As Bernick notes, most originalists have a place for stare decisis in their theories and they have addressed cognate problems in the constitutional context. Nevertheless, working through stare decisis in this context is a fresh task that requires more thinking.
At a deeper level, Bernick recognizes that the original APA might turn out to be normatively inferior to the administrative common law that supplanted it. In fact, such common law might be carrying forward the spirit of the original APA to a world that did not exist in 1946. For example, the APA was crafted before anyone thought informal rulemaking and informal adjudication would dominate administrative policymaking. The procedures attending those forms are therefore comparatively sparse (and in the case of informal adjudication, largely non-existent). Going back to barebones policymaking in those instances could shock the system and sap administrative accountability. Those concerned about the legitimacy of the administrative state might pause before giving agencies similar power but less accountability-forcing procedure.
One further question for Bernick and others to explore is the impact of post-APA legislation. As Scalia noted in his Vermont Yankee article, when Congress creates new regulatory regimes, the resulting statutory scheme often includes procedural provisions that do not map neatly onto the APA. It can therefore be hard to place agency action under these regimes into APA categories, or to identify how, if at all, the APA default rules are implicated in any given scheme. This suggests that, for at least some category of statutes, the original APA would be less relevant, or at least would allow for more judicial construction. By contrast, Congress rarely legislates on standards of review, suggesting that APA originalism may have more bite there than in the procedural context. That is, unless you think Congress “intends” courts to defer when it legislates against the background of Chevron, or that it wants courts to engage in hard-look review when it enacts a statute in the era of State Farm.
These are hard questions and Bernick recognizes them as such. It is about time someone asked them in a smart, systematic fashion, especially since we won’t be able to assess the broader normative stakes until we actually discover what the original APA has to say. In starting us down this path, Bernick has provided a great service to administrative law scholars and jurists. With the rise of originalism in the federal courts in recent decades and given the likelihood that any Justice replacing Anthony Kennedy will increase the originalist quotient on the Supreme Court, Bernick’s scholarly work is hardly “academic” in the pejorative sense of the term.
As we ask these questions and evaluate the normative stakes, we might discover, as Bernick notes, that APA originalism leads to results that cut across current debates about the legitimacy of the administrative state. It portends neither an anti-administrativist nirvana nor the triumph of presidential power and bureaucratic expertise. Rather, thoroughgoing APA originalism is at this point a formalist project animated by broader commitments about statutory interpretation, the role of courts, and legislative supremacy. These normative commitments are contestable, but do not map neatly onto standard arguments about the administrative state.
Without sustained attention to the APA, it is not yet clear what the original law will say about the powers of courts and agencies in the administrative state. That said, the work of Bernick and others suggest that APA originalism could lead to reduced deference on questions of law, increased discretion to agency procedures, and, while this is a matter of debate, dialed down hard-look review of an agency’s substantive policy choices. But this is just a hypothesis: Bernick thinks hard-look review could survive an originalist inquiry; others are less sure. Similarly, Cass Sunstein, a recent convert to APA originalism, argues that the original meaning of the APA permits Chevron deference, even if it does not require it.
Rather than resulting in complete judicial supremacy or stark judicial abnegation in administrative law, APA originalism might maintain places for both judicial and administrative power, while separating those functions more than the pragmatic blending offered by today’s administrative common law. Or it might not. The fact is, we don’t know for sure, and Bernick’s point is that it is worth trying to find out. After all, there might be a law on it.
Cite as: Jeffrey Pojanowski, Rediscovering the APA
(September 20, 2018) (reviewing Evan D. Bernick, Envisioning Administrative Procedure Act Originalism
, 70 Admin. L. Rev.
__ (forthcoming 2018), available at SSRN), https://adlaw.jotwell.com/rediscovering-the-apa/
I feel a bit like Gilligan in one of my favorite episodes of Gilligan’s island. The Professor and the Skipper are having an argument over some issue vital to the castaway’s prospects of being rescued from the island. Gilligan is standing in the middle agreeing with everything both parties to the argument say, and finally the two disputants become fed up with Gilligan’s endorsement of diametrically opposing views and they turn on him. In this Jot, I praise two articles that take conflicting views on an issue vital to the future of administrative law, namely, when should federal courts, confronted with unconstitutional or otherwise illegal Executive Branch action, issue nationwide injunctions: Sam Bray’s Multiple Chancellors: Reforming the National Injunction, and Amanda Frost’s In Defense of Nationwide Injunctions. Hopefully, the reader won’t turn on me.
Bray’s article, which was reviewed by Professor Kevin Walsh in a pre-publication Jot in the Courts Law section of Jotwell, is deeply skeptical of the nationwide injunction, arguing that federal injunctions should be no broader in scope than necessary to protect the plaintiff from the injury underlying the plaintiff’s standing to seek the injunction in the first place. By contrast, Frost’s article contends that federal courts should be willing to grant nationwide relief not only when necessary to provide plaintiffs with complete relief but also when necessary to protect numerous similarly situated parties who cannot quickly bring their claims to federal court.
Both articles attempt to come to terms with the recent proliferation of nationwide injunctions, which federal courts have issued in response to wide-ranging actions taken by the Obama and Trump administrations. As Bray reports, preliminary injunctions issued by individual federal judges shut down the Obama administration’s DAPA (Deferred Action for Parents of Americans) program and the Trump administration’s executive order restricting entry into the United States by people from a group of majority-Muslim countries.
Bray’s analysis contains historical, practical, and constitutional elements. Bray’s main historical point is that the nationwide injunction is a recent development that is generally inconsistent with traditional English and American equity practices. History and tradition are important in this context because analysis of the powers of judges sitting in equity tends to be heavily informed by those factors. Bray’s main practical points are that in the United States, plaintiffs can easily engage in forum shopping by filing their injunctive suits in districts and circuits populated by judges known to be receptive to their claims and that nationwide injunctions short circuit the percolation of issues in multiple lower courts that is vital for informed and effective Supreme Court review. Bray’s constitutional point is that nationwide injunctions frequently go beyond the scope of the case or controversy that provides the basis for federal court jurisdiction under Article III of the Constitution. For all of these reasons, he concludes that federal courts should not issue nationwide injunctions but rather should provide relief only in favor of the particular plaintiff or plaintiffs in the litigation.
Frost builds the analysis that leads her to be much more open to the nationwide injunction on a similar amalgam of practical and constitutional considerations, but she concludes they point in the opposite direction. Frost agrees with Bray that nationwide injunctions come with costs, such as increasing the effects of forum shopping, reducing the percolation of legal issues before the Supreme Court is required to intervene, and raising the possibility of conflicting injunctions based on conflicting doctrinal conclusions. To her, these problems counsel restraint but not abandonment of the nationwide injunction. Frost argues that as a practical matter, nationwide injunctions are often necessary to provide complete relief to plaintiffs and to avoid harm to thousands of similarly situated individuals. She also points out that in some situations, for example, a case concerning the validity of a federal policy with nationwide effects such as an air or water pollution rule, it would be difficult if not impossible to confine an injunction to the scope of a particular plaintiff’s injury.
As far as the traditional and constitutional powers of federal equity courts, Frost disagrees with Bray’s conclusions. She finds no rule of equity or constitutional limitation barring courts from issuing injunctions that control the government’s treatment of non-parties. Her answer to Bray’s historical arguments is basically, “things change.” As the federal government’s power expands, courts need to keep pace and augment their remedies to deal with the scope of both legislative and executive illegality.
Her focus here is mainly on executive power, which makes sense. She notes also that the rise in the nationwide injunction may coincide with increased unilateral Executive Branch activity, in which major policy initiatives are undertaken without direct legislative support. In an era of congressional gridlock, Presidents of both political parties have found it necessary to act unilaterally, and she views the nationwide injunction as a necessary counter to potentially excessive executive power.
My own view is…I find plenty to agree with in both articles. Whether one agrees or disagrees with Bray’s or Frost’s arguments, the way they present them in these articles is worthy of high praise, adding significantly to the understanding of these important legal and policy issues. They are both excellent contributions to what is certain to be an ongoing debate among scholars of administrative law, federal courts, civil procedure, and the substantive fields in which the nationwide injunction continue to play an important role. As an administrative law nut, I wish they both grappled more with the meaning of the APA’s instruction that reviewing courts should “hold unlawful and set aside” unlawful agency action. But that does not affect my bottom line which is—read these articles with an open mind and you won’t be disappointed.
Cite as: Jack Beermann, Two Views on the Nationwide Injunction
, JOTWELL (August 8, 2018) (reviewing Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction
, 131 Harv. L. Rev.
417 (2017); Amanda Frost, In Defense of Nationwide Injunctions
, 93 N.Y.U. L. Rev.
__ (forthcoming 2018)), http://adlaw.jotwell.com/two-views-on-the…nwide-injunction/
In The American Deep State, Jon D. Michaels pushes back against the increasingly shrill rhetoric charging that shadowy forces deeply embedded within the federal bureaucracy have commandeered the reins of government and are thwarting the President and undermining the democratically expressed will of the people. Michaels does not shrink from the “deep state” terminology, but rather seeks to co-opt it in an ode to what he calls “bureaucratic depth.”
Michaels extols numerous advantages of bureaucratic depth. First, he notes that bureaucratic depth is, as a practical matter, what makes the state work. It is a measure of state capacity. The deep bench of civil servants in the United States “mak[e] and enforce[e] regulations, design and run welfare programs, combat crime and corruption, and provid[e] for national defense.” These functions simply do not work—or do not work well, consistently, and non-corruptly—in states that lack bureaucratic depth. Second, Michaels argues that for precisely this reason, bureaucratic depth generally facilitates the implementation of the president’s agenda. Presidents should not, as a matter of course, wish for a hollowed out administrative state if they want to advance a political agenda. Finally, Michaels argues that bureaucratic depth can serve important stabilizing and accountability functions. “In those rare instances when presidents (and their hand-chosen agency heads) go beyond the proverbial pale, those in the civil service are particularly well-positioned to challenge, and even to resist, directives lacking a scientific, legal, or commonsensical foundation.” At base, his argument is that bureaucratic depth advances important rule-of-law values by serving as a check on lawless exercises of presidential power. Those outside the civil service are unlikely to have the combination of inside knowledge and protection from retaliation necessary to promote transparency about unlawful, unethical, or extraordinarily unwise presidential initiatives.
It is, of course, this last function that riles opponents of the “deep state.” Michaels elaborates two categories of reasons why we should not worry that bureaucratic resistance amounts to anti-democratic appropriation of presidential prerogative. First, he argues that the American deep state is knowable and transparent—in his words, it is “not shadowy.” By law and in practice, American agencies are open and accessible—far more so than either Congress or the White House. The public has many means of obtaining information about agency actions and many avenues for fully and extensively participating in agency decision-making processes.
Like routine agency decisions, Michaels argues that acts of resistance by civil servants tend to be taken publicly and supported by information gathered by the agency. For instance, bureaucrats may publicly state their opposition to political leaders or leak information or reports supporting or discrediting a particular policy or claim supported by political leaders. Michaels’ point is that “on those occasions when the American bureaucracy takes sides against the elected leadership, it tends to show its work, laying bare the justifications for any apparent affront to the White House[.]” This allows members of the public to decide for themselves which side has the better argument, effectively enhancing transparency and democratic accountability. Michaels points out that civil servants lack the legal authority to affirmatively block presidential policy initiatives by substituting their own preferred policies. Civil servants who disagree with political leadership must usually assume a defensive posture, challenging problematic initiatives rather than putting forward initiatives of their own. Even the most resistant bureaucrats cannot take the reins of the state and change laws in ways that suit themselves. In other words, the idea of a coup d’etat by civil service bureaucrats in the U.S. deep state is nonsensical.
Second, Michaels argues that the deep state is well positioned to play the important backstop role assigned to it, because it is broadly representative of the country at large—indeed, much more so than the political branches. Unlike the political branches, the federal bureaucracy is not populated by elites. Federal civil servants earn an average of $80,000 a year and only about half are graduates of a four-year college. By contrast, in 2014, there were 210 millionaires in the House of Representatives and 69 millionaires out of 100 Senators. Around this same time frame, twenty Senators had graduated from Harvard or Yale. Thus, “ordinary Americans may have far more in common with the typical federal civil servant than they do with their congressional representatives, cabinet secretaries, and certainly the president.” Beyond class composition, the bureaucracy is internally diverse and broadly representative on several other dimensions. There is substantial geographic diversity, with 85% of civilian, non-postal federal employees employed outside of Washington, DC—roughly half in red states and half in blue states. Women comprise 42% of the federal civil service, more than doubling the percentage of female representation in Congress. The civil service’s percentage of nonwhite employees is almost identical to the percentage of nonwhite citizens in the population generally (37% and 38%, respectively). Finally, there is balance in the political affiliations of civil servants, with 40% identifying as republican and 44% as democratic.
In addition to demographics, Michaels explains that the institutional design of the bureaucracy fragments its power and thus limits its ability to overbear the political branches. Each agency has limited jurisdictional reach, and overlapping agency authority generates bureaucratic competition that allows agencies to check one another’s powers. “[O]ur fragmented deep state has few of the interlocking features that characterize powerful clans’ ready control over multiple ministries and state enterprises, as we find in nations with conventionally labeled deep states. Indeed, our fragmentation makes any type of coordinated, systematic attack on the political branches (or on democracy itself) all but impossible and, in any event, implausible.” Michaels develops this internal separation-of-powers framework in much greater detail in his new book, Constitutional Coup.
I suppose that little of this will be feed-worthy news to administrative law scholars, so why highlight the piece here? I do so because I think it is an important corrective not only to the histrionic political rhetoric about the “deep state,” but also to unspoken assumptions underlying much influential administrative law scholarship. While “deep state” paranoia is not openly peddled in administrative law scholarship, the anxieties that animate it underpin much prominent work in the field. Theories of presidentialism and the turn to political accountability as the touchstone of administrative legitimacy either betray or capitulate to fears of bureaucratic tyranny, and it is high time to reckon with those fears as the political branches mount ever-more aggressive attempts to obliterate bureaucratic depth.
Administrative law scholarship seems to have largely forsaken the virtues of bureaucracy. There are, of course, the classic Weberian virtues: regularity, autonomy, decision-making based on the rule of law rather than personal interests or hostilities. While Weber recognized the dangers and limitations of bureaucratic organization, he plausibly found bureaucracy to be normatively superior to alternative models of political control—namely, domination by a charismatic leader or domination sanctioned by nothing more than longstanding tradition. In addition, there is research suggesting that bureaucracy has important instrumental values, producing social and economic goods: specifically, greater bureaucratic depth is associated with greater economic growth and less corruption. Scholars have even suggested bureaucracy is a site of myriad and diverse human passions: not only disagreeable passions like isolation and frustration, but constructive (and even enjoyable) passions like focused attentiveness, mastery, and gratitude.
Of course, there are obvious problems and pathologies associated with bureaucracy. But there is a much larger and richer conversation to be had about these issues than we have been conducting in administrative law of late. Michaels’ piece seeks to provoke that conversation by reclaiming the “descriptively powerful concept [of the ‘deep state’] from the bad guys.”
Declaring the administrative state “unlawful”—in other words, as consisting of agency efforts to evade constitutional restrictions—is all the rage these days. Despite the fact that these assertions condemn administrative undertakings (both their substance and variety), they sometimes overlook both the legislation governing agency actions and the agency policies that they categorically disparage. In Internal Administrative Law, Professors Gillian Metzger and Kevin Stack assert that “internal administrative law” is lawful by reminding us of its roots in public administration, with an argument that is based in the Administrative Procedure Act (APA) and that considers specific examples of administrative guidance. Given that it investigates a complex and sometimes opaque administrative framework, this piece also contributes to scholarship exploring the so-called “black box” of agency activity. The thoughtful execution and wide-ranging implications of this article make it a highly worthwhile read, and of a piece with Metzger and Stack’s respective bodies of work.
Metzger and Stack offer a fascinating conceptual account of the internal directives through which agencies and presidents manage, guide, and coordinate the civil service. In addition, the authors assert that these forms fulfill the criteria of “law,” based both on the original expectations of the APA and on their own consistency with legal norms. For this reason, the authors argue, the prevailing doctrinal emphasis on the external enforcement of public administration, in addition to the general assumption that a policy must create a system of private rights and obligations to be considered law, denies the fundamentally law-like nature of internal administrative law.
To be clear, the authors do not dispute that enforceability is a key component of what makes a policy law-like. Rather, they suggest that under current doctrine, “the more that agencies articulate norms of internal law and management in a way that sounds binding or mandatory, the more they invite external judicial review of their actions.” (P. 1249.) This, in turn, encourages agencies to issue vague policies in the hopes of avoiding judicial scrutiny. For this reason, the authors conclude, if mechanisms of public administration were allowed to bind bureaucrats on the basis of existing administrative hierarchy and supervisory structures, without the specter of external judgment, they would be clearer, more predictable, and better reasoned.
The article begins with a discussion of U.S. v Texas, a case concerning a recent Department of Homeland Security policy that selectively deferred the deportation of certain undocumented immigrants. The article notes that an equally-divided Supreme Court affirmed the Fifth Circuit’s invalidation of the initiative because it was not promulgated as a rule, by means of a sharply-defined notice-and-comment process. Nonetheless, the article describes this policy as a “paradigmatic” example of internal administration (p. 1241) that should be recognized as valid without adherence to external procedural requirements, because it set priorities for agency personnel only and was announced by internal memoranda.
In my view, by drawing on this case study, the article immediately and effectively highlights the tension between its portrayal of internal administrative law as autonomous and the way in which current doctrine poses an obstacle to agencies’ efforts to shape the exercise of their own discretion. However, one may find that this juxtaposition also introduces a lack of clarity regarding the actual parameters of internal administrative law. For instance, I wondered: is administrative policy that might be classified as “legislative” truly internal administrative law, regardless of whether the policy is directed solely at agency personnel, articulated merely as guidance, etc.? Or to pose a related question: should the category of internal administrative law that is exempt from external review include those inwardly-directed policies that impact non-governmental actors?
Arguably, the Obama-era immigration policy deferring deportation fell somewhere between the two poles of purely organizational and wholly legislative. On the one hand, it sought only to shape the priorities of a select group of government workers. On the other hand, it had an important, albeit not binding or even unwelcome, effect on some third parties—namely, a subset of noncitizens. And according to those challenging the policy, it also had a negative impact on the general population (notwithstanding that this assertion obscures a complex set of outcomes and has been at least partially refuted). Metzger and Stack’s nuanced historical account suggests that the Court’s decision in U.S. v Texas incorporated an inaccurate reading of the APA. But even if an outward-facing process is not required by statute, I think it is worth considering whether it is useful or even justifiable to describe the immigration policy in question as “internal,” given its significant external impact. Indeed, Metzger and Stack’s proposal does not account for instances in which internal mechanisms of public administration, including forms that might otherwise encourage administrative consistency and predictability without judicial management, might nonetheless merit an outside check because of their impact on parties outside the four walls of the government.
More specifically—and in keeping with those concerned that administrative process, in particular, is unlawful—it seems important to determine when ordinary public administration ends, and agency policies that considerably affect third parties begin, because the latter may require external oversight to ensure due process. For example, the category of internal administrative law might reasonably exclude public administration that negatively impacts individual rights, as in a Supreme Court decision, Morton v. Ruiz, that censured the Indian Health Service’s elimination of a health service program serving Native American children. Metzger and Stack describe this decision as applying Accardi, which dictates that agencies must comply with their own regulations, to “invalidate [the] agency action for failure to comply with nonlegislative rules.” (P. 1285.) However, one could also argue that this administrative policy, represented as organizational, altered the agency’s established use of funding in a “legislative” manner that disadvantaged third parties without providing them adequate process.
On the basis of this interpretation, policies such as the one criticized in Ruiz may warrant external oversight (both as a normative matter and as a result of the Court’s decision in this case), instead of a loosening of procedural requirements in the hopes that the agency will take it upon itself to further adequate notice, justification, coherence, and fairness in its application of law. Given the centrality of these values to the Constitution (and for that matter, to Accardi), their potential lack in response to fewer external administrative constraints cannot be dismissed as merely “the possibility of abuse” (p. 1266), especially to the extent that administrative guidance is, as the authors argue it should be, binding. In addition, the article notes that judicial review of administrative law began as a set of common law mechanisms offering protection from public officers’ violation of the polity’s legal rights. Therefore, to the extent this continues to motivate the expansion of external control over public administration, one might infer from the authors that the maintenance of this control at a modest level enjoys some historical backing as well.
Metzger and Stack’s otherwise compelling efforts toward a meaningful framework of internal administrative law could be modified to account for the need to uphold administrative due process. Perhaps external review of internal administrative law should be reduced when an agency both affirmatively seeks to bind itself, as the authors propose, and does so in a manner that minimizes interference with individual rights. This approach offers a strong defense of the inclusion of policies prioritizing immigration enforcement in the category of internal administrative law, if their focus is on guiding immigration officers’ exercise of discretion and they avoid clear and direct harm to third parties. Furthermore, as Metzger and Stack rightly note, agencies sometimes initiate procedure and maintain standards of their own volition, including by subjecting themselves to informal and formal hearing requirements, and by announcing and adhering to clearly structured programs. If an agency rises above the floor established by the APA to take a well-substantiated and transparent approach to public administration, the resulting policy might merit a reduction in external oversight as well.
Finally, although the article promotes decentralization in public administration, it ultimately attaches primary responsibility for the creation and preservation of internal administrative law to the President. It takes this position both because of long-standing judicial skepticism of the value of administrative guidance and because “Congress has shown little appetite or capacity for protecting spheres of agency autonomy.” (P. 1307.) While I dispute the latter claim more generally in forthcoming work, I nonetheless agree that without a somewhat integrated approach to public administration, the overall focus and effectiveness of the executive branch is apt to suffer. Furthermore, in my view, centralization seems likely to further Metzger and Stack’s aims for internal administrative law by engendering uniformity in public administration, lending it the legitimacy associated with a stamp of approval from the White House and, perhaps most importantly, holding it accountable to rule-of-law norms even in the absence of supervision by the judicial and legislative branches.
Overall, Metzger and Stack’s articulation of the self-perpetuating, law-like qualities of endogenous administrative law offers a compelling counterweight to the well-worn view that the only acceptable law is of legislative or judicial origin, and that all agency activities must therefore be validated externally. Further, by both recognizing and promoting the potentially binding character of public administration, this work supports the proliferation of more effective administrative policy.
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/.