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Nondelegation and Originalism

Originalism certainly isn’t what it used to be. From a fringe theory with few adherents it has, in recent decades, become the dominant conservative legal weapon deployed against nearly every liberal legal development since the dawn of the twentieth century, particularly the acceptance of the administrative state and the delegation of rulemaking power to agencies. Professor Kurt Eggert’s recent article adds to the mounting evidence that originalism is not a credible legal theory especially when deployed against Congress’s choices concerning the proper structure of the regulatory state.

Eggert’s opening salvo takes aim at the claim that the Framers of the Constitution adopted a theory of government embodied in John Locke’s Second Treatise of Government of 1689, which includes what originalists characterize as a sweeping rejection of legislators’ delegating lawmaking power. This is the basis of Professor Ilan Wurman’s argument in Nondelegation at the Founding, and, as Eggert points out, Justices Gorsuch, Rehnquist and Thomas have all cited Locke as a source for their argument that the Constitution incorporates a strict nondelegation doctrine. Adding to the chorus of scholars who reject the conclusion that the Framers embodied a nondelegation principle based on Locke’s Second Treatise, Eggert demonstrates convincingly that Locke’s influence had largely disappeared before the Constitutional Convention of 1787 and that his only real influence was in favor of rebellion in the 1770s, not on the structure of the new government created in the 1780s. In fact, only Anti-Federalists opposed to the Constitution relied heavily on Locke and then only to cite his natural rights theories as a reason to reject a powerful central government.

Among the most convincing discussions in Eggert’s fine article involves actual debates over nondelegation among the Framers, including James Madison’s contributions on the subject. Here he wisely cites Professor Nicholas Parrillo’s recent article on the subject, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, and an older article by Professors Eric Posner and Adrian Vermeule, Interring the Nondelegation Doctrine. Both conclude, after exhaustive study, that delegation was not a significant issue at the convention. Eggert also relies on another important set of occurrences at the convention, that James Madison twice suggested including a ban on delegation in the Constitution. Both attempts were, of course, rejected, which to many legal minds indicates that the convention disagreed with Madison. While rejection of a proposed amendment does not always indicate agreement on a contrary view, it borders on the bizarre to offer Madison’s rebuffed amendments as evidence that the convention agreed with his proposals, as some have done. Eggert convinced me that there is nowhere near enough evidence to support the view that the Framers silently but implicitly included a strong nondelegation principle in the Constitution.

Eggert refutes a litany of additional arguments for an originalist nondelegation principle including agency principles; the notion that the Constitution created a species of fiduciary relationships that prohibit delegation; and the textualist argument that the Vesting Clause of Article I, particularly because of its use of the word “all” which is unique among the Constitution’s three Vesting Clauses, implicitly prohibits delegation. This is the foundation of Professor Philip Hamburger’s originalist argument against delegation. One of Eggert’s more entertaining discussions of this concerns the meaning of the word “vest.” He notes that Professor Richard Epstein analogizes to vested property rights and points out that vested rights in property cannot be “undone by ordinary legislative action.” Eggert counters by noting that in property law under some circumstances only vested rights can be alienated, and it is a commonplace that the holder of a vested right has the power to alienate the right.

Some readers may find this whole discussion disconcerting, for it appears that Eggert is, at least in part, deploying originalist arguments to reject originalism. Eggert agrees that he is no better equipped to discern whether the historical record supports a nondelegation doctrine than the lawyers and judges who disagree with his conclusions on the matter. But, as he points out more than once, the proponents of a strong nondelegation principle are urging courts to reject Congress’s determinations concerning the optimal distribution of regulatory authority. Without clear text and unequivocal historical support, the Supreme Court should leave the decision over agency power to Congress and not arrogate to itself the powers of a Council of Revision, which Eggert notes was also unsuccessfully proposed by James Madison. Opponents of judicial activism under vague provisions like the due process clauses do not hesitate to point out problems with judges imposing their will on the political branches, and the exact same critique applies to their advocacy of a strict nondelegation doctrine.

The article concludes with an excellent critique of recent judicial opinions and scholarly work calling for an originalist revival of a strict nondelegation principle. Eggert’s discussion is insightful and compelling. If the debate over nondelegation were not so ideologically fraught, Eggert’s article together with Nicholas Parrillo’s article would have a good chance of banishing the debate over nondelegation to the fringes the way that arguments over whether “separate but equal” was a correct reading of the Equal Protection Clause have vanished from mainstream scholarship. Alas, the likelihood of a future without originalist advocacy for a strict nondelegation principle seems remote indeed. But excellent, unbiased scholarship like Kurt Eggert’s can provide solace to those committed to resisting ideologically-driven attempts to reshape American government for political ends.

Cite as: Jack Beermann, Nondelegation and Originalism, JOTWELL (May 18, 2022) (reviewing Kurt Eggert, Originalism Isn’t What it Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary, 24 Chap. L. Rev. 707 (2021)), https://adlaw.jotwell.com/nondelegation-and-originalism/.

Disputing Conflict Avoidance

Brian D. Feinstein & Abby K. Wood, Divided Agencies, 95 S. Cal. L. Rev. __ (forthcoming 2022), available at SSRN.

Political appointees of all stripes can encounter opposition from the career ranks of federal agencies. Such conflict may shorten the tenures of appointees as well as of career civil servants. Public administration scholars and commentators have emphasized the need for less conflict, often cajoling the “in-and-outers” to get along better with longtime staff.

But what if agencies shouldn’t or couldn’t avoid such conflict? Brian Feinstein and Abby Wood’s new paper, Divided Agencies, suggests that we may not need to lose much sleep. They find that agencies with greater ideological conflict between political appointees and civil servants may be more careful in their rulemaking—by taking in more perspectives (by accepting comments submitted after the deadline), by finalizing their actions more slowly, and perhaps by issuing fewer rules. In their view, civil servants “serve as a bulwark against wild changes in regulatory policy.” By “pull[ing] agency policies toward the median voter,” civil servants “can serve a democratizing function in divided agencies”—a marked contrast to the increasingly mainstream worries about “employment-protected civil servants” operating as a “counter-majoritarian force in policymaking.”

As with Congress or any other institution, a federal agency is a “they,” not an “it.” But because getting at agencies’ internal complexity is empirically difficult, many of us often end up treating agencies as singular entities. There are some fantastic surveys of agency personnel—namely, the Office of Personnel Management’s Federal Employee Viewpoint Survey and those conducted by Professor David E. Lewis (and his collaborators). Insightful as they are, those surveys do not provide good information across administrations—about policy disagreements and certain other matters.

Using Professor Adam Bonica’s database on campaign contributions and related ideology scores of contributors, Feinstein and Wood construct measures of agency conflict over thirty-four years at forty-seven agencies by pulling information on political leaders and civil servants. Agency conflict, of course, varies, but “civil servants’ [ideological] scores are closer to the typical national donor in any given year than agency heads.” For example, because “the median [Environmental Protection Agency (EPA)] civil servant is substantially to the right of that agency’s administrator during Democratic presidencies,” “even civil servants who are left of the typical political donor can pull agency policies to the political right, having a moderating effect on liberal-helmed agencies.” Feinstein and Wood treat only the chairs of independent regulatory commissions and boards as political leaders for their measures (the recent drama at the Federal Deposit Insurance Corporation between its chair and members is highly unusual as chairs are typically part of their agencies’ majority). To be sure, only about seven percent of federal civil servants are in Bonica’s database (and not all agency leaders make campaign contributions), but Feinstein and Wood’s “research design requires [only] a measure of relative differences . . . across agencies and over time.”

Feinstein and Wood then turn to potential consequences of agency conflict: specifically, whether more divided agencies take longer to issue rules or promulgate fewer regulations, whether more internal conflict between appointees and civil servants increases agency willingness to accept late-filed comments, and whether the White House takes more time to review such agencies’ proposed rules under presidential regulatory review directives.

Using different models (and a slew of robustness checks), Feinstein and Wood find that more agency conflict is linked to longer disposition times for proposed rules (often the disposition is a final rule, but sometimes it is the withdrawal of the proposal). Specifically, a change from an agency in the twenty-fifth percentile for ideological conflict to an agency in the seventy-fifth percentile is connected with an expected thirty-eight more days for disposition. In some of their models, Feinstein and Wood observe a significant connection between higher agency conflict and fewer economically significant rules. In one such model, a jump from the twenty-fifth percentile to the seventy-fifth percentile agency (in conflict) is associated with an expected annual decrease of 0.19 in significant regulations (the data show an average of 2.9 economically significant rules per year per agency).

Feinstein and Wood also determine that more agency conflict is connected to an increased willingness to accept late comments. Specifically, a shift from the twenty-fifth percentile to the seventy-fifth percentile agency is linked with an expected thirty-four percent increase in the likelihood the agency will accept late comments. They do not “detect evidence of a connection between preference divergence and length of OIRA [the Office of Information and Regulatory Affairs] review.”

Two theories could explain Feinstein and Wood’s results—“divided agencies move slowly and carefully, bringing additional voices into their deliberations, and trimming the number of the rules they issue,” and “civil servants in divided agencies, opposed to rulemakings that oppositional agency heads push on them, strategically delay these rulemakings.” They favor the first theory for a variety of reasons, including that the correlation between conflict and a willingness to accept late comments “is difficult to square with the strategic-delay theory, but fits well with [their] regulatory-caution theory.”

If comments submitted past agency deadlines represent important “second opinions,” it might be worth also looking at the number and length of comment periods (as multiple (or longer) periods could allow for timely submission of additional comments), frequency of EO 12866 meetings (could also pull ideological information from Bonica’s database on meeting participants), or agency ex parte communications policies (the EPA, for example, has a relatively open ex parte policy after issuing a Notice of Proposed Rulemaking, while the Department of Labor does not).

I am a data person, so I love learning more about how agencies function. Feinstein and Wood’s paper contributes in important ways to what we know about appointee-career conflict in federal agencies. But agencies are not just divided between leaders and civil servants. It would be fascinating to see their research design applied to partisan splits in independent regulatory commissions and boards, and between higher and lower level appointees, and examination of the connections between those divisions and agency rulemaking.

Of course, it’s not all about the numbers. Feinstein and Wood extol stability in agency decision-making by focusing on the median voter (and the tempering effects of career agency workers). Their work provides an interesting lens to reconsider debates over ossification: for instance, how do staffing constraints compare with judicial hurdles? It also has implications for the selection and removal of key agency workers, from President Trump’s proposed Schedule F (which they persuasively oppose) to recent rulings (and pending litigation) on the Appointments Clause and separation of powers. And it complements more doctrinal work that looks inside agencies. Empiricists and non-empiricists will benefit from this important research.

Cite as: Anne Joseph O'Connell, Disputing Conflict Avoidance, JOTWELL (April 13, 2022) (reviewing Brian D. Feinstein & Abby K. Wood, Divided Agencies, 95 S. Cal. L. Rev. __ (forthcoming 2022), available at SSRN), https://adlaw.jotwell.com/disputing-conflict-avoidance/.

Uncovering the Hidden World of Administrative Guidance

Guidance is a large, amorphous group of communications, often fluid and informal, by which administrative agencies instruct regulated parties about the way to comply with statutes, legislative rules and legal precedents. In-depth interviewing, as opposed to statistically analyzed surveys, is a fluid, relatively informal method of collecting empirical data. In Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, Nicholas Parrillo uses in-depth interviewing to understand the way in which guidance operates in the federal system. One reason I like it lots is that it is represents an effective combination of subject matter and methodology.

Professor Parrillo conducted 135 in-depth interviews with people in government, industry, unions and NGOs who had personal experience with the way federal agencies use guidance. Through this method, he was able to garner a great deal of information about a wide variety of guidance techniques, the effectiveness or ineffectiveness of these techniques, the subtleties of agency practice and regulated party response, the subjective reactions of the participants, and the sources of conflict and concern. Much of this would have been difficult or impossible to capture with a survey instrument, and some of the issues might not even have occurred to the researcher until highlighted by the interviewees. Of course, this method does not permit quantitative statements about the frequency of particular practices or beliefs, but when several people with decades of experience assert that a practice or attitude is widespread, that seems like convincing evidence.

The use of this method yields a number of valuable insights that are amply documented in the article, insights that are quite different, in content and tenor, from the largely doctrinal or ideological academic literature on guidance that has been available thus far. To begin with, it turns out that the difference between a legislative rule and a generally stated guidance document is often invisible to regulated parties. The distinction is codified in the Administrative Procedure Act (APA), where it determines whether the agency is required to use the notice and comment process and provide a statement of basis and purpose that is subject to judicial review. The distinction is widely discussed by scholars as determining whether the stated provisions are binding on regulated parties. But regulated parties don’t pay much attention to the distinction in cases when the agency has licensing or other pre-approval powers, where even the threat of an enforcement action can have serious consequences, or when the party values its ongoing relationship with the agency. Regulated firms are usually much less concerned with the possibility of challenging a guidance document in federal court than they are with finding out what the agency will do and what it won’t do. If they arrange a meeting with the agency for this purpose, one of the informants noted, “ ‘the last thing you want to do’ is to bring a lawyer to such a meeting.” That, another informant stated, is “like bringing a gun to a knife fight.”

Other insights in this article speak directly to two leading shibboleths of the current anti-regulatory mood in the courts and among scholars. One is the tendency to personify both agencies and regulated firms. The agency is envisioned as a strategic, often conspiratorial actor, plotting ways to impose increasing severe restrictions on American business. (This view appears in Justice Gorsuch’s dissent in Kisor v. Wilkie, which dealt with a closely related issue.) But the interviews reveal that regulated parties often deal with different levels of the agency, that agency enforcement officials want to adopt defensible or resource-conserving approaches rather than retaliating against firms that have antagonized some other unit of the agency, and that inflexibility about guidance requirements is often driven by the subordinate’s desire to avoid criticism from a superior or a superior’s desire not to alienate a subordinate. Similarly, regulated firms are not emotionally sensitive victims of agency oppression, but complex bureaucratic entities whose different components display varying behaviors. Both the firm’s regulatory affairs unit and its widely dispersed compliance officers often welcome guidance as providing useful information for their tasks, and they urge the firm to follow it as a way of increasing their own importance in the firm hierarchy.

A second shibboleth is that agencies and firms are locked in an adversarial struggle, contestants in the arena where the conflict between social engineering and free enterprise is being enacted. The mood conveyed by the interviews in this article is quite different, and this is something that would be particularly difficult to capture in a survey. For the most part, agency officials simply want to fulfill their assigned responsibilities, and they evince no particular hostility toward regulated parties. When they refuse to make exceptions to guidance documents, despite the supposed flexibility that distinguishes these documents from legislative rules, they do so out of the desire to conserve resources or a concern for fairness to competitors. As for the firms, the general sense from the interviews is that they accept, or even more basically that they have evolved into their present form in, a regulated environment. Their main concern is to avoid disruptive conflict so that they can carry out their business within the ambit of the legal requirements that the agency has established. What they want most—and what guidance often provides—is clarity. “Tell [me] what I can do and what I can’t do,” one informant said, “and I’ll devise a business model within that.”

This article’s purpose, which is achieves extremely well, is to provide a vivid portrait of an area that is an important component of administrative practice, but is also informal, recondite, highly technical and thinly documented. In doing so, however, the article challenges us to rethink basic assumptions and beliefs about the rule of law, the nature of regulation and the institutional structure of both agencies and private firms.

Cite as: Edward Rubin, Uncovering the Hidden World of Administrative Guidance, JOTWELL (March 4, 2022) (reviewing Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Reg. 165 (2019)), https://adlaw.jotwell.com/uncovering-the-hidden-world-of-administrative-guidance/.

A Timely, Thorough, and Provocative Evaluation of the Presumption of Regularity

Aram A. Gavoor & Steven A. Platt, In Search of the Presumption of Regularity, __ Fla. L. Rev. __ (forthcoming 2022), available at SSRN.

The Supreme Court has often invoked the presumption of regularity and its first cousin, the presumption of good faith. Taken together the two presumptions instruct courts to assume that the government has used the proper procedures to take an action that is properly motivated. Neither the Court nor scholars have engaged in any systematic effort to define the two presumptions, justify their existence, describe their scope and uses, or describe the evidence that is required to rebut the presumptions. Aram Gavoor and Steven Platt’s new article In Search of the Presumption of Regularity undertakes that task at a time when it is particularly important to understand the presumptions.

The Supreme Court often says that a court should apply the presumption of regularity and the presumption of good faith “except in the rare case” in which there is powerful extrinsic evidence of wrongdoing by the government. It is fair to question the Court’s characterization of the circumstances in which there is reason to doubt the applicability of the presumptions as “rare” today. Over the last few years, both the public and the courts have had many occasions to doubt the rarity of government actions that were taken without using proper procedures and for undisclosed inappropriate reasons. As I have detailed elsewhere, the Supreme Court has responded to this troubling trend by increasing the scope and intensity of the duty to engage in reasoned decision making, but it has not engaged in any systematic attempt to describe the presumptions, their justifications, their scope, or their effects.

Gavoor and Platt do an excellent job of excavating the two presumptions and describing their many uses in U.S. courts. They trace the roots of the presumptions to opinions issued by the British high court in the eighteenth century. They track the path of the presumptions across the Atlantic and identify a 1926 Supreme Court opinion as the most important and influential invocation of the presumptions in the United States. They then rely on their study of the hundreds of opinions in which U.S. courts have invoked the presumptions to identify and discuss the fourteen ways in which courts have applied the presumptions.

The authors conclude by engaging in a normative evaluation of the presumptions and their many uses. They conclude that some version of each presumption is defensible for use in some circumstances, but that other versions and uses are inconsistent with the basic principles of separation of powers or the Administrative Procedure Act. They urge either the Supreme Court or Congress to articulate “a lawful, historically supported and sensible doctrinal standard” for the presumptions.

Whether you agree or disagree with the normative part of this article, it is a must-read for anyone who wants to understand the history of the presumptions of regularity and good faith. Gavoor and Platt have provided an excellent beginning for an important discussion as well as a valuable source of data that all participants in the discussion will find to be of great value.


Editor’s note: Prof. Pierce wrote this jot and sent it in before learning that Aram Gavoor would become Associate Dean for Academic Affairs at GW Law.

Cite as: Richard Pierce, A Timely, Thorough, and Provocative Evaluation of the Presumption of Regularity, JOTWELL (February 2, 2022) (reviewing Aram A. Gavoor & Steven A. Platt, In Search of the Presumption of Regularity, __ Fla. L. Rev. __ (forthcoming 2022), available at SSRN), https://adlaw.jotwell.com/a-timely-thorough-and-provocative-evaluation-of-the-presumption-of-regularity/.

Elevating Marginalized Voices in Agency Decisionmaking

Brian D. Feinstein, Identity-Conscious Administrative Law: Lessons from Financial Regulators, __ George Washington L. Rev. __ (forthcoming), available at SSRN.

Literature exploring mechanisms for democratic accountability of the administrative state is so rich that it sometimes feels like there is no novel take left. But Professor Brian Feinstein, in his forthcoming article Identity-Conscious Administrative Law, shines a spotlight on an unexamined angle: how and when agency procedures use identity requirements to ensure otherwise-marginalized perspectives are heard.

The sets of administrative structures Professor Feinstein considers may seem specific and narrow, but as he compellingly demonstrates, the possible implications of expanding these approaches are vast and important. Indeed, what makes this article so convincing is its identification of extant and accepted tools to address deep and structural problems of inequality and injustice in administrative decisionmaking. If taken to a larger scale, these tools could be a central part of reclaiming democratic accountability over the administrative state.

Professor Feinstein first identifies our default mechanisms for democratic input into agency actions, highlighting how each of them espouses an identity-neutral set of participation rights. Notice-and-comment rulemaking is perhaps the most obvious example, allowing any person to comment on proposed agency actions and thereby channeling public participation into the agency process and democratizing the administrative state. Transparency laws are a second group of laws Feinstein categorizes as identity-neutral, providing equal access to government records, meetings, and information for any member of the public. But ordinary citizens hardly ever use any of these processes, and, as I’ve documented as to FOIA in a recent book, nothing approximating a representative sample of the public avails itself of these participation opportunities. Rather, well-funded interests are overrepresented, including most notably the business sector.

The alternative to direct citizen participation, seemingly, is presidential control over agencies, a theory of administrative accountability that has gained huge traction in efforts to empower the President to be directly involved in agency decisionmaking. The thinking goes that the President, as the most visible elected official, will be held democratically accountable for agency activities, and her oversight therefore legitimizes the administrative state. Yet, as Feinstein documents, this theory too leaves much to be desired as it relies on an assumption that each vote matters equally to a president, something that is plainly incorrect in our current electoral system of a winner-take all Electoral College and influence of money in politics.

The heart of this article then details a wide-ranging and impressive account of identity-based inputs into administrative law decisionmaking. This research represents the first such survey across federal agencies of statutory requirements for agency composition or consultation based on identity or interests represented, and as such marks a significant contribution in documenting agency accountability mechanisms not based on formal equality rules.

One set of such requirements mandate that agency leaders have certain qualifications, experience, or identities to hold that particular office. For example, the boards of Fannie Mae and Freddie Mac must each have one “advocate for consumer, community, or low-income households,” and the Women’s Bureau of the Department of Labor must be headed by a woman. In the same vein, some entities have a “fair balance” requirement for the composition of a multi-member body, something that Feinstein demonstrates empirically makes a meaningful difference in the backgrounds of appointed officials.

The second group of identity-based democratic inputs come from what Feinstein calls consultative requirements. These laws include requirements to have advisory committees or to consult with particular outside interest groups. As to advisory committees, the most identity-based of them eschews even the basic Federal Advisory Committee Act mandate of “balance” on the committee, and instead requires the committee’s membership to be drawn from an underrepresented group. For example, the Office of Comptroller of the Currency’s Minority Depository Institutions Advisory Committee is required to be made up of “officers and directors of minority depository institutions” and those supporting the institutions. Other requirements simply mandate than an agency consult with particular interest before taking action in a given area.

I found it fascinating that Feinstein discovered more of these identity-based input requirements at financial regulatory agencies than at other types of agencies. After all, one could imagine underrepresented identity groups, interests, or communities at nearly any agency. While Feinstein does not exactly theorize why this is the case, he uses two financial agencies as case studies to excellent effect, demonstrating how these kinds of requirements actually affect agency decisionmaking to the benefit of previously-overlooked or marginalized interests.

But the payoff of this piece is in the promise these mechanisms hold, and in the last part Feinstein whets our appetites with possibilities of what he calls “identity-conscious administration.” To begin, he argues that these tools may have the effect of making public participation requirements more effective at actually achieving democratic accountability. Moreover, in a moment of racial justice reckoning, Feinstein’s suggestion that “transitioning from identity-conscious administrative structures based on region to those emphasizing race and other factors is overdue” is particularly salient. And generally, Feinstein masterfully invokes the literature on group decisionmaking to explain why greater diversity of perspectives will lead to better agency decisionmaking as a whole. It has been a while since I have read an article that made me think we already have the power we need to radically improve the administrative state. Now let’s use it.

Cite as: Margaret Kwoka, Elevating Marginalized Voices in Agency Decisionmaking, JOTWELL (January 5, 2022) (reviewing Brian D. Feinstein, Identity-Conscious Administrative Law: Lessons from Financial Regulators, __ George Washington L. Rev. __ (forthcoming), available at SSRN), https://adlaw.jotwell.com/elevating-marginalized-voices-in-agency-decisionmaking/.

Immigration Law’s “Shadow Dockets”

Shalini Bhargava Ray, Immigration Law’s Arbitrariness Problem, 121 Colum. L. Rev. 2049 (2021), available at SSRN.

The “law in books” is often not the same thing as the “law in action.” And in administrative law, the reason for that disjoint is often because some agency has decided to interpret, apply, or enforce the written law in a way that changes its on-the-ground meaning. In immigration law, the “law in books”—the Immigration and Nationality Act—takes a hard line on violators: it “specifies deportation as the sanction for nearly all transgressions of immigration law, no matter how minor, and regardless of the personal circumstances of the immigrant” (P. 3.) But when we look at how that law is applied, a different picture comes into view—“a system of shadow sanctions” (P. 4) that takes the place of deportation for vast numbers of noncitizens.

Shalini Bhargava Ray maps and critiques this “shadow”1 world of immigration law in an absorbing recent article, Immigration Law’s Arbitrariness Problem. In the article, Professor Ray sets out how the immigration bureaucracy stops, or indefinitely postpones, the issuance and execution of huge numbers of removal orders through the use of various administrative devices, including deferred action, administrative closure, and orders of supervision (P. 4.) She then explains the problematic feature of these discretionary tools as a rule-of-law matter: though these shadow sanctions mitigate the harshness of deportation, they are still doled out in an entirely opaque and often arbitrary way.

Ray’s article begins by describing a much-critiqued aspect of immigration law: that the punishment (deportation) often does not fit the crime. The INA imposes deportation as a blanket sanction for a slew of offenses that bear little in common—everything from overstaying a visa to engaging in terrorism (P. 6.) Immigration law’s formal lack of proportionality has elicited myriad calls for reform, but these have mostly fallen on deaf ears. Congress has not enacted statutory revisions to the INA that meaningfully distinguish between various types of deportable immigrants, and courts have rejected arguments that the Constitution requires removal orders to be proportional.

Given these dead ends, Ray turns instead to the executive branch and its extensive immigration bureaucracy as a “potential locus of proportionality” (P. 18.) The immigration bureaucracy, she explains, does more than simply deport. It also necessarily prioritizes some noncitizens for deportation, while using “discretionary tools of lenience” (P. 24) to defer or halt deportation against others. One of these tools (the DACA program) has drawn an overwhelming share of public attention and litigation in recent years. Yet other discretionary tools, though far more obscure, are nonetheless both ubiquitous and significant—among them, deferred enforced departure, extended voluntary departure, and a suite of reprieves that are granted in the course of removal proceedings, including administrative closure, stays of removal, and orders of supervision. Frequently, such reprieves are accompanied with “benefits such as work authorization” or, at times, “the ability to obtain a driver’s license” (P. 25.) Ray estimates that, taken collectively, these “shadow sanctions” mean that millions of deportable noncitizens have “received a punishment other than deportation”—a number that makes up a “sizeable share of the deportable population” (P. 35) presently in the United States.

Ray then turns to critique this regime on rule-of-law grounds. This system of shadow sanctions appropriately leavens the harshness of the INA’s scheme, she contends, but it does so in an arbitrary fashion. Noncitizens often lack lawyers, and therefore frequently do not know to ask for deferred action, orders of supervision, or other discretionary reprieves. Moreover, agency policy for granting some of these shadow sanctions “remains internal” to the agency and is not publicly available (P. 37.) Ray urges the immigration bureaucracy to become more transparent and consistent in its use of shadow sanctions, as well as to “create opportunities for reason-giving, to promote line-officers’ and adjudicators’ ability to draw meaningful distinctions among removable immigrants” (P. 48.) Once that foundation for public reason-giving is built, she contends, public scrutiny will follow (P. 51.) Drawing lessons from European law, she concludes that “even in the absence of a legal right to lenience, deportable noncitizens are entitled, under proportionality, to a fair procedure, more than a cursory analysis of their interests, and more than a conclusory decision” (Pp. 53-54.)

In this era of whiplash and litigation concerning immigration law’s enforcement priorities, the vast, uneven, and ill-understood system of sanctions and lenience examined by Ray will continue to play a major role, whether the public knows about it or not. Immigration law’s system of shadow sanctions, she shows, is both inevitable and imperfect—but the tools of administrative law may fruitfully be harnessed to improve it. In seeking to narrow the gap between immigration law and ordinary administrative law, Ray’s exploration and critique of these discretionary tools of immigration enforcement places a much-needed spotlight on the immigration bureaucracy’s own “shadow dockets.”

  1. Immigration law, it seems, is full of shadows. Jennifer Lee Koh used the term “shadow removals” to encompass removal proceedings that occur outside of immigration courts through summary proceedings at the border and elsewhere—a phenomenon that Shobha Sivaprasad Wadhia has called “speed deportation.”
Cite as: Mila Sohoni, Immigration Law’s “Shadow Dockets”, JOTWELL (November 29, 2021) (reviewing Shalini Bhargava Ray, Immigration Law’s Arbitrariness Problem, 121 Colum. L. Rev. 2049 (2021), available at SSRN), https://adlaw.jotwell.com/immigration-laws-shadow-dockets/.

Chevron Flip-Flops of a Different Sort — Understanding the Shifting Politics of Deference

Gregory A. Elinson & Jonathan S. Gould, The Politics of Deference, 75 Vand. L. Rev. ___ (forthcoming, 2022), available at SSRN.

Like vaccinations, voter fraud, guns, taking a knee, and, well, everything, views on Chevron deference have become not just ideologically tinged but ideologically determined. Progressives are Chevron enthusiasts; conservatives are Chevron skeptics. Chevron is under siege, and the battle lines are familiar. Yet, on its face, Chevron is politically neutral. It increases agency power at the expense of judicial power; whether that is politically helpful depends on whether your team controls the White House or if it controls the courts. Furthermore, the current ideological array has not always been the case. When Chevron was decided, the enthusiasts were on the right and the skeptics on the left. So what is going on?

In The Politics of Deference, Gregory Elinson and Jonathan Gould explain. They provide a richly documented descriptive account of the shifting politics of deference dating back to the 1970s. The shifts are what you would expect; the team that controls the White House likes deference, the team that controls the courts does not. Except . . . the pendulum did not swing when Donald Trump became president. Elinson and Gould describe why in fact deference does have a political valence and it makes sense that conservatives are skeptical and liberals supportive, regardless of who is in the White House.

Notably, “Chevron” does not appear in the article’s title. This is not one more Chevron article and, happily, it avoids all the nice questions about Chevron’s meaning and scope. It is an article about the broad idea of judicial deference to agencies, not the doctrinal particulars.

Accordingly it begins not in 1984 but earlier, with the fight over the Bumpers Amendment, first introduced in 1975. Senator Dale Bumpers (D-AR) sought to amend § 706 of the APA to provide that courts would decide all questions of law de novo, with no presumption of validity in favor of any agency regulation. The article provides a nice description of the political battle over the amendment, which almost became law. Pro-regulation liberals were horrified; supporters saw the amendment as part of a larger effort to save the country from over-regulation.

So the politics of the Bumpers Amendment battles were roughly aligned with those of present-day Chevron battles. Then Ronald Reagan became president, and “conservatives came to see that deference could be harnessed toward deregulatory ends.” Writing for the American Enterprise Institute, Professor Antonin Scalia lamented that congressional Republicans “seem perversely unaware that the accursed ‘unelected officials’ downtown are now their unelected officials, presumably seeking to move things in their direction” and pointed out that the Bumpers Amendment would, disastrously, transfer authority from the Reagan Administration to a judiciary dominated by liberal Democrats.

One of the impressive aspects of this article is that the authors have uncovered a great deal of interesting historical material. This includes memos from one John G. Roberts, then a young attorney in the White House Counsel’s Office. In several 1983 memos to Fred Fielding, Roberts acknowledged broad conservative support for the Bumpers Amendment, but cautioned that it “would shift power from the agencies to the judiciary” and “giving the courts added review power could jeopardize deregulatory efforts.”

The point was well-taken. As a result, when Chevron was decided, support was overwhelmingly from the right and doubts on the left. I acknowledge I was one of the doubters. In 1985, I became a staff attorney at the Environmental Defense Fund, and it seemed quite clear that Chevron was bad for us and bad for the environment. By the mid-1980s, the “EPA” no longer stood for Every Polluter’s Ally, but the overall structure was that the 1970s had seen passage of really ferocious environmental laws, and the 1980s saw meaningful backing away. For us, deference meant losing victories that had already been won in Congress. And I think inescapably my own skepticism about Chevron—at least, about a strong reading of Chevron—arose in part from that experience.

So inescapably part of what is going on is that, as in so many questions of structure, principle yields before the appeal of preferred outcomes. Or there is a principle, and the principle is “I want the decisionmaker to be the one who agrees with me.” Federalism is Exhibit A of a “principle” that is almost always wielded instrumentally, but deference has a place on the list.

Part IV of the article, entitled “Depoliticized Deference,” covers the period 1989-2009. Among professors of administrative law, of course, Chevron has never been in eclipse, but this was a period in which it “fell nearly entirely out of mainstream political discourse.” The authors suggest a few explanations. In part, the traditional deference opponents in the right “had made their peace” with Chevron. In addition, neither the Bush I nor Clinton Administrations had a firm deregulatory or pro-regulatory approach, so neither side had a strong reason to embrace or reject deference; it was a mixed bag for each. Third, with the development of “step zero” in Christenson and Mead, the Supreme Court “lowered the political temperature around the doctrine.”

Then along came Barak Obama. Part V, “Repoliticized Deference,” recounts the new political salience of deference. Energetic and controversial agency decisions prompted a broad conservative backlash. Gillian Metzger has described the larger hostility to the administrative state of which objections to Chevron are a central piece. And, correspondingly, liberals were now Chevron enthusiasts. For both, the fight about Chevron was a thinly veiled fight about regulation.

This article recounts the story of political flip-flopping on Chevron exceedingly well. It is an important story. But what is more interesting is that it is not the whole story.

For something unexpected happens. Donald Trump becomes president, and both sides hold to their positions. In contrast to the election of Ronald Reagan or Barak Obama, the election of Donald Trump had very little impact on the political battles over deference. Recall, for example, debates over Supreme Court nominee Neil Gorsuch’s Chevron skepticism.

Part VI speculates why it is that both sides have dug in their heels. The first explanation is that the phenomenon is not quite as striking as it looks. If both parties anticipate future Democratic presidents and/or a conservative judiciary, and both have just a modicum of maturity and ability to take the long view, then the politics of deference should not shift because of one Republican (electoral college) presidential victory. Everyone may still be urging the approach that will place decisionmaking authority in those who are on their side.

Second, and most importantly, the authors conclude that deference is not ideologically symmetrical, despite common assertions to the contrary. Over time and in the aggregate, it will favor regulatory initiatives over deregulatory ones. Deference is more likely to be called into service for significant new regulatory initiatives, for updating, and not for leaving things alone. Deregulation can be achieved through measures – nonenforcement, defunding, layers of internal procedure – that are not subject to judicial review or at least will not trigger deference if they are. Chevron applies most prominently in areas such as environmental protection, where conservatives are most wary of agency activity; it applies more haphazardly in areas where they support robust executive power, such as immigration. And Chevron empowers, if only indirectly, career bureaucrats who, as a generalization, are more likely to be pro-regulation.

Third, the partisan divide is also about symbolism. Taking a strong stand on deference, despite the many studies showing that its real-world impacts do not justify the heated debate, is a way for both sides to signal their overall views regarding the administrative state.

If all of this is right, it means that political debates about Chevron have reached a kind of maturity. What politicians say about deference is still largely nonsense. But the broad shape of the debate has a kind of coherence, which one might even call reassuring.

Cite as: Michael E Herz, Chevron Flip-Flops of a Different Sort — Understanding the Shifting Politics of Deference, JOTWELL (October 29, 2021) (reviewing Gregory A. Elinson & Jonathan S. Gould, The Politics of Deference, 75 Vand. L. Rev. ___ (forthcoming, 2022), available at SSRN), https://adlaw.jotwell.com/chevron-flip-flops-of-a-different-sort-understanding-the-shifting-politics-of-deference/.

A Second Look at the Administrative State: Deconstruction as Reassessment

Aaron L. Nielson, Deconstruction (Not Destruction), 150(3) Dædalus 143 (Spring 2021).

This summer, Dædalus, the Journal of the American Academy of the Arts and Sciences, turned its focus to public administration and the regulatory state. Mark Tushnet served as the Summer 2021 Dædalus Issue’s Guest Editor, compiling essays from leading lights of administrative law like Cass Sunstein, Aaron Nielson, and Judge Neomi Rao. Professor Nielson’s piece, Deconstruction (Not Destruction), is the latest work in a line of scholarly literature that acknowledges the growing libertarian discomfort with perceived excesses of administrative governance (perhaps best embodied in the scholarship of Professor Philip Hamburger and the jurisprudence of Justice Neil Gorsuch) and proposes an alternative path forward for regulatory state skeptics. Some other such works include Professor Jeff Pojanowski’s 2020 Harvard Law Review article Neoclassical Administrative Law and Professors Sunstein and Adrian Vermeule’s new book Law and Leviathan.

Conceding at the beginning of the essay that “[t]he Supreme Court is not about to declare most of the federal government unconstitutional,” Professor Nielson is nevertheless sympathetic to the idea that today’s administrative-centric federal model presents serious issues. Professor Nielson’s thesis proceeds from the premise that, in the context of administrative law, commentators typically associate the word “deconstruction” with former White House Chief Strategist Stephen Bannon’s assertion that the Trump Administration sought to “deconstruct”—read: destroy—the administrative state. Professor Nielson takes a step back and reinterprets deconstruction in the “more technical sense of examining the administrative state to identify where theory and reality diverge and what can be done to fix it.” This reconsideration, Professor Nielson argues, is long overdue; to the extent that the federal government has constructed the administrative state over the last century or so, Professor Nielson proposes deconstruction as a way of rigorously interrogating the theories and assumptions underlying said efforts.

Professor Nielson deconstructs administrative law down to its foundation and lodges structural critiques that call important aspects of the whole enterprise into question. While Professor Nielson allows that “the ‘expertise’ theory of administrative law contains much truth,” he points out that the “theory is not always true,” explaining the many shortcomings of expert-driven governance and evincing skepticism about “the theory of policy-making as an objective science.” He also describes how modern presidents have taken control of the administrative state to achieve policies they could not get passed through Congress, calling out as “problematic” the bypassing of the bicameralism and presentment process enshrined in the Constitution, a process meant to “produc[e] higher-quality, more legitimate laws.” Furthermore, Professor Nielson showcases how the increased reliance on agency rulemaking to effectuate certain administrative goals has led to regulatory uncertainty, as different administrations quickly change directions on important policies, like net neutrality and environmental protection. As Professor Nielson puts it, “It is difficult to encourage the private sector to invest in, say, new forms of energy when policy changes every four to eight years.”

Taking stock of these criticisms, Professor Nielson makes clear that “[d]econstruction . . . does not have to mean destruction. It is possible to reform the administrative state without tossing it out.” And looking at the current composition of the Court, as well as the path of the law, Professor Nielson opines that good reform is forthcoming. He points to recent cases like Kisor v. Wilkie as examples of how the Court can balance its respect for stability with the imposition of safeguards in the administrative process. In Kisor, the Supreme Court reaffirmed the rule that courts must defer to agencies’ interpretations of their own ambiguous regulations. But Justice Elena Kagan, writing for the Court, cabined the universe of situations in which such deference applies—regulations must be genuinely ambiguous, and certain other conditions must apply. Justice Gorsuch wrote a sharp dissent, seeking to “overrul[e] this species of deference altogether.” The Court split 5-4 in Kisor, but both Justice Kagan and Justice Gorsuch did agree on a baseline principle: unchecked judicial deference to agencies’ interpretations of their own regulations is inappropriate. Justice Kagan significantly narrowed the circumstances in which deference applies, while Justice Gorsuch would have ended deference altogether. These two approaches, Chief Justice John Roberts pointed out in his decisive concurrence, are not so far apart.

Compared to some of the other scholarly works mentioned above, Professor Nielson’s ideal solution diverges from that of Professor Pojanowski, as well as that of Professors Sunstein and Vermeule. To be sure, Professor Pojanowski’s “neoclassical approach” to administrative law would restore the judicial role in answering questions of law, resolving the brouhaha over so-called Chevron deference through a shift back to a system in which judges, not bureaucrats (and their “political masters”), interpret seemingly ambiguous laws. But Professor Pojanowski advocates that courts respect agency policy choices made within “the discretionary space Congress has given them.” Meanwhile, in their book, Professors Sunstein and Vermeule take a more enthusiastic view of the administrative state. The two argue that administrative law has a kind of internal morality that flows from judicial enforcement of certain principles, like the longstanding rule that courts should not defer to the government’s after-the-fact rationalizations of agency actions.

At bottom, Professor Nielson argues for administrative safeguards. So does Professor Pojanowski. Professors Sunstein and Vermeule do, too; they just believe that the safeguards—adapted from the philosopher Lon Fuller’s principles—are already in place and simply require continued judicial enforcement. To borrow a phrase from Chief Justice Roberts’s Kisor concurrence, the distance between and among the works of Professor Nielson, Professor Pojanowski, and Professors Sunstein and Vermeule “is not as great as it may initially appear.” All agree that safeguards are necessary in administrative law. Yet all agree—perhaps contrary to the hopes of some libertarian critics of the administrative state—that the Court should not declare that “most of Government is unconstitutional.”

Now, as the Court reconsiders its approach in various areas of administrative law, scholars are working to understand what the Court is doing, while advocating what they think are the best solutions. Professor Nielson’s solution—deconstruction—has more teeth than does Professor Pojanowski’s neoclassical vision or Professors Sunstein and Vermeule’s internal morality, but it is another middle course charted between ripping the administrative state down to the studs and allowing it to operate without any guardrails. Professor Nielson’s essay, however, takes most serious account of the libertarian critiques of the administrative state, channeling them into the beginnings of a thoughtful way forward for those with serious misgivings about the structure and practice of modern government. His piece, along with the rest of this latest issue of Dædalus, is a worthwhile read.

Cite as: Eli Nachmany, A Second Look at the Administrative State: Deconstruction as Reassessment, JOTWELL (September 30, 2021) (reviewing Aaron L. Nielson, Deconstruction (Not Destruction), 150(3) Dædalus 143 (Spring 2021)), https://adlaw.jotwell.com/a-second-look-at-the-administrative-state-deconstruction-as-reassessment/.

Unearthing the Lost World of APA Adjudication

Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. __ (forthcoming), available at SSRN.

A couple years ago, Melissa Wasserman and I charted the new and old worlds of formal agency adjudication. The old world, we explained, consisted of the traditional formal adjudication framework under the Administrative Procedure Act (APA), with a trial-like hearing before an administrative law judge (ALJ). Drawing on the work of Michael Asimow, Kent Barnett, and others, we explained that the new world is more diverse and varied. Hearings do not take place just before the nearly 2,000 ALJs in the federal system, but also before more than 10,000 administrative judges, hearing officers, and examiners who are not governed by the APA’s formal provisions. We argued that, in both the old and new world, agency head final-decisionmaking authority remains the standard (and preferred) model—something the Supreme Court in United States v. Arthrex seemed to suggest may be constitutionally required earlier this year.

Another way to conceptualize the old and new worlds is that there is a type—or mode—of agency adjudication (Type B) between the APA’s “formal” (Type A) and “informal” (Type C) modes. In recent years, much scholarly inquiry has focused on the distinctions between Type A and Type B, including an entire issue of the Duke Law Journal. Despite this sustained attention, it turns out that our understanding of adjudication under the APA may be based on a historical misunderstanding. In The Rediscovered Stages of Agency Adjudication, Emily Bremer examines the historical record and concludes that, at the APA’s founding, “informal and formal adjudication were not viewed as alternative modes, but rather as consecutive stages.” It is not often that an article requires a field to fundamentally reconsider its foundations. Yet, Bremer’s Rediscovered Stages is such an article for administrative law (and agency adjudication in particular).

There is so much to like (lots) about this article. I’ll focus on four highlights in this Jot.

First, after Part I provides a helpful blackletter statement of the current understanding of federal agency adjudication, Part II conducts an exhaustive historical examination of the APA’s founding documents. Many have previously examined the Attorney General’s final report to Congress (as well as the ABA’s work) that influenced the passage of the APA. But few, if any, have examined in detail the 27 subject-matter/agency-specific monographs the Attorney General’s Committee staff (chaired by Walter Gellhorn and including Kenneth Culp Davis, among others) compiled to support the final report. Based on numerous interviews, site visits, and public and less-public sources, these monographs document the pre-APA administrative statutes, regulations, procedures, and practices at numerous independent and executive agencies.

Bremer’s major finding—that the formal-informal distinction for agency adjudication eventually codified by the APA is a matter of stages, not modes of agency action—can actually be found in the introduction (P. 5) to the Attorney General’s final report:

Administrative adjudication has two more or less distinct phases. The first…is the phase which we have called “informal adjudication,” where, in place of formal hearings, decisions are made after inspections, conferences, and negotiations. In most agencies, there is opportunity for these informal methods of considering issues which arise, and in all but a surprisingly small percentage of cases, these methods finally dispose of the matters at hand…

If informal methods do not succeed in ending a matter, or if they have not been utilized at all, the second phase, which we have called “formal adjudication” is reached. This phase is marked by hearings in which testimony is taken, subject to cross-examination, and embodied into a record. These relatively formal hearings are available in all but a handful of situations where special circumstances prevail. When formal hearings are held, the record is normally considered by officers of the agency and, after opportunity for oral argument before them, the agency heads themselves.

It is somewhat shocking that Bremer’s discovery was hiding in plain sight. But it is a field-shifting discovery nonetheless. And more importantly, Bremer documents how this informal/formal-stages framework is evident throughout the 27 monographs she reviewed. Part II exhaustively surveys the entrenched staged adjudication systems that predated the APA at federal agencies. It also confronts the potential exceptions to the staged framework. As she concludes in Part II.C, “What may appear at first to be deviations from the staged structure of adjudication are better understood as nuances that prove the overarching concept.”

Second, Bremer’s historical review does not just uncover the staged (as opposed to modal) framework for agency adjudication; it also sheds light on the contours of the hearing stage. In Part II.D, she documents how the Attorney General’s Committee found an overwhelmingly singular hearing model that predated the APA. Bremer identifies six key features of that model: (1) notice of hearing; (2) detailed powers of trial examiner; (3) detailed procedures for hearing; (4) hearing conducted on the record; (5) written decision; and (6) post-decisions procedures (noting more inter-agency variation on this sixth component). If these features sound familiar, that’s because they track the APA’s formal adjudication procedures.

Third, Bremer’s findings have important implications for administrative law, which she begins to explore in Parts III and IV. Most importantly, Bremer’s unearthing of the APA’s staged adjudication model underscores that the default for agency adjudication should include a formal, on-the-record hearing for aggrieved parties. Put differently, Congress’s failure to include detailed procedural protections for informal adjudication in the APA was not to write a blank check for agencies to adjudicate without a hearing or other procedural protections. The formal, on-the-record hearing was supposed to be the procedural backstop if a regulated entity was not satisfied with the outcome of the informal adjudication.

Congress can of course depart from this APA default in an agency’s governing statute. But if the APA’s staged default were fully appreciated, how sticky would it be in the legislative process? For instance, as Jennifer Koh has explored, the vast majority of noncitizens removed from the United States each year never get a hearing before an immigration judge. Instead, they are removed in the “shadows of immigration court,” through informal adjudications at the border and elsewhere. To be sure, this is by congressional design. But consider what Congress would have done if it had understood that the default required a second-stage formal hearing—if, as the Attorney General’s final report underscores, a formal hearing should be “available in all but a handful of situations where special circumstances prevail.”

Would Congress have so easily embraced a shadow removals process? Would it have narrowed the subset of noncitizens who could be subject to these shadow removals? Would it have considered enacting additional procedural safeguards short of a formal, on-the-record hearing? As Bremer observes, “What administrative law has lost over the decades is not the operational reality of adjudicatory stages, but rather the conscious recognition of those stages as an important element of the APA’s statutory design.”

Finally, although not fully developed in this article (which is already 74 pages long!), Bremer suggests that rediscovering the staged framework may help us better appreciate the executive-judicial divide in agency adjudication. As illustrated in Figure 2 in Part IV, the informal adjudication stage would be reconceived as executive action, with the formal stage continuing to be perceived as quasi-judicial. As reconceptualized, it is much easier to understand why the APA’s formal adjudication provisions normatively should govern any agency adjudication where a hearing is required by statute or regulation (so Type A and Type B). The much-less-formal, first-stage agency adjudications, by contrast, do not require all that quasi-judicial process, as they are purely executive in nature and, in any event, eventually would be subject to the formal adjudication stage for aggrieved parties.

Much more could be said about this landmark article. Indeed, Bremer’s article itself only begins the conversation regarding the implications of her findings. I look forward to reading the subsequent scholarship by Bremer and others on what this unearthing of the lost world of agency adjudication means for the future of administrative law and regulatory practice.

Cite as: Christopher Walker, Unearthing the Lost World of APA Adjudication, JOTWELL (August 30, 2021) (reviewing Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. __ (forthcoming), available at SSRN), https://adlaw.jotwell.com/unearthing-the-lost-world-of-apa-adjudication/.

A Definitive Work on Temporary Political Leadership

Anne Joseph O’Connell, Actings, 120 Colum. L. Rev. 613 (2020).

President Trump relied heavily on temporary leadership to run his branch. According to critics, the tenuousness of Trump’s cabinet positions—and their high turnover rate—was both a cause and reflection of an amateur and unreliable presidency. And yet, while the extent to which Trump depended on acting officials was anomalous, he was not the only president to do so; indeed, presidents have utilized temporary officials for quite some time. In addition to demonstrating that temporary officials have been fairly common across both Republican and Democratic administrations since the turn of the century, Anne Joseph O’Connell argues in Actings that these officials stabilize the government in times of crisis and transition.

Professor O’Connell, along with Nina Mendelson, is one of today’s preeminent legal experts on the Federal Vacancies Reform Act (Vacancies Act). Professor O’Connell’s prior scholarship and testimony on this topic is both detailed and accessible, and makes clear the stakes of the relevant debates. Actings, published recently in the Columbia Law Review, is no exception. This comprehensive work offers a nuanced and evocative account of the history, constitutional and legal frameworks, and problems that attach to temporary leadership in the top positions of the executive branch. It also marks a departure from Professor O’Connell’s previous writing, in that it is relatively accepting of temporary political appointees.

Professor O’Connell begins by clarifying the ins and outs of the Vacancies Act and presenting rich data illustrating that presidents from Reagan onward, and particularly during the last twenty years or so, have relied extensively on temporary officials. Next, she discusses constitutional and statutory concerns associated with acting officials, with an emphasis on cutting-edge issues. Finally, she offers a rich set of prescriptions to improve the legitimacy and value of temporary officials. Ultimately, she concludes, “actings” are in important part of how modern presidents control the administrative state, and thus deserving of more and continued attention.

The constitutionality of acting officials is uncertain. “Because principal officers must be confirmed by the Senate (if not recess appointed), the constitutional status of acting officials in principal offices presents an important legal question.” (P. 660.) “All but the strictest formalists, however, would permit a person confirmed to a ‘germane’ position to serve temporarily in a different, principal office—the classic example being a confirmed deputy secretary who serves as acting secretary.” (P. 663.) In my view, germane, confirmed officials are also the ideal pool of actings, for both constitutional and practical purposes.

Notwithstanding constitutional concerns, actings help ensure that agencies continue to function. The fact that the Vacancies Act does not cover most independent regulatory commissions serves, to my mind, as a foil for this position. Indeed, these bodies “may be paralyzed if they lose their mandated quorum as they typically both lack access to acting officials and cannot rely on delegation.” (P. 623.) While acting officials might head off agency paralysis, Professor O’Connell notes that they tend to be more caretaker than agent of change. Moreover, she concedes, “[o]n accountability, acting officials are hard to defend” (P. 701.) I imagine that when an acting is a germane and confirmed official, she is more likely to have the expertise and motivation to engage in productive and accountable policymaking. That having been said, the legislative buy-in necessary to ensure high level administrative performance may be lacking for any acting official, no matter how competent she is.

Furthermore, as Professor O’Connell explains, a lack of clarity in the Vacancies Act continues to serve as a temptation for presidents to rely on unconfirmed officials in a “temporary” capacity for too long, potentially both in violation of the Constitution and to the detriment of the executive branch. Beneficial reform could include, among Professor O’Connell’s many terrific suggestions: 1) specifying who may be a “first assistant” (the default acting official for a particular vacant position)—Professor O’Connell suggests, for instance, that the Vacancies Act make plain whether the Act itself or other statutory or regulatory agency-specific designations take precedence, and that the category of first assistant generally exclude anyone who was hired into the first assistant position after the vacancy came to be unless the vacancy occurs at the start of a new administration; 2) ensuring that the same qualification requirements, but not the removal restrictions, that apply to Senate-confirmed appointees apply to acting officials as well; 3) shortening the time period for which an acting official can serve; and 4) allowing a nominee to act in the role for which she is nominated, to minimize leadership disruptions, provided the nominee has been confirmed already to a different position.

That is not to say that, even with these statutory changes, presidents couldn’t continue to circumvent constitutional and legislative requirements if they wanted. In particular, delegation is a powerful workaround. For example, Professor O’Connell recounts that by delegating leadership duties, President Obama managed to keep a temporary director of the Bureau of Alcohol, Tobacco, Firearms and Explosives in the same role, effectively, even after the official’s formal stint as an acting had ended. Furthermore, Obama never nominated anyone for the position. The official, while no longer technically an acting, continued to perform the same duties for the first two years of the Trump administration as well. On the heels of this case study, Professor O’Connell notes that “[u]nderstandably, the media and even members of Congress often fail to distinguish acting officials from officials performing delegated functions.” (P. 635.) President Biden has filled many Cabinet and other leadership positions, but others remain open, and he continues to employ actings too. It seems to me that delegation is a sleight of hand that Biden (and future presidents) could continue to exploit in order to rely, in fact, on unconfirmed and/or temporary officials in a manner that offends the separation of powers as well as the expectations of the Vacancies Act, regardless of legislative reform.

Furthermore, one of Professor O’Connell’s suggestions (which is reflected in proposed legislation that Professor O’Connell supports)—namely, that the Vacancies Act should apply to gaps in leadership resulting from the presidential removal (firing) of an officer—gives me pause. After all, a president could take advantage of this provision to quickly replace his predecessor’s staff with unconfirmed, potentially under- or unqualified politicos, as Trump did to great consequence, instead of rightfully and humbly acceding to the requirements of the Senate confirmation process. However onerous this process may be, it is a constitutional requirement, and one that ensures (at least, in theory) that individuals in top leadership positions have garnered the support of both political branches, which is required to run an agency smoothly and effectively. Nonetheless, congressional efforts to close loopholes in the Vacancies Act just as Professor O’Connell advises could render the use of temporary leaders more legitimate, at least while they remain in their official capacities as actings, and moreover, allow for better fulfillment of their potential to promote a stable and responsive government.

Cite as: Bijal Shah, A Definitive Work on Temporary Political Leadership, JOTWELL (July 16, 2021) (reviewing Anne Joseph O’Connell, Actings, 120 Colum. L. Rev. 613 (2020)), https://adlaw.jotwell.com/a-definitive-work-on-temporary-political-leadership/.