Yearly Archives: 2019

Standing In Front of the Refrigerator

Nov 26, 2019 Mila SohoniAdd a Comment

“It is hard to sketch a river while sailing midstream,” says Jeff Pojanowski, as he begins an article that does a remarkable job of doing just that. Pojanowski’s forthcoming article offers an illuminating taxonomy of a vast array of administrative law theory and scholarship concerning the question of judicial review of agency action, which he organizes into three overarching frameworks or models. After sketching the river with aplomb, Pojanowski introduces us to a fourth model—“neoclassical administrative law”—and explains what the neoclassical framework would offer that earlier models lack. There, the image that might come to mind is not so much gazing at a river, but staring at a refrigerator. It is hard to decide what to have for dinner while standing in front of the refrigerator. A buffet’s worth of pretty good leftovers is probably sitting right there—but sometimes, to really hit the spot, you just have to roll up your sleeves and make something new anyway.

Pojanowski begins by noting the well-known “cracks” in the “comfortable, overlapping consensus” (P.3) of administrative law, including from academics and from the Court. Conventional administrative law doctrine is “under fire for being both too timid and too intrusive.” (P. 4.) Something new seems needed—but before getting to that new framework, Pojanowski presents a detailed sketch of three extant models.

This part of the article organizes an enormous range of administrative law doctrine and theory into three ideal-type frameworks: “administrative supremacy”, “administrative skepticism”, and “administrative pragmatism.” The administrative supremacists, in Pojanowski’s telling, display “an unapologetic embrace of the administrative state” (P. 7), advocate deference to agency interpretations “across the board” unless “Congress clearly did not want the court to defer” (P. 9), and resist hard-look review as “unwise and illegitimate.” (P. 11.) The administrative skeptics are the polar opposite: they reject Chevron and Auer (P. 15), demand strict adherence to procedural constraints established by positive law (P. 16), and urge the revival of a robust non-delegation doctrine. (P. 17.) Between these two camps sit the administrative pragmatists—the “largest and…least precise category.” (P. 18.) Pragmatists calibrate judicial deference to agency legal interpretation depending on the context (P. 19); they embrace a “mixture of supervision and deference” that attempts to curb agency discretion, but not overmuch (Pp. 20-21); and they endorse the balance struck by the administrative common law of hard-look review. (P. 22.) As Pojanowski usefully summarizes the three approaches, administrative supremacy “emphasizes legislative supremacy vested in agencies via congressional delegation”; administrative skepticism “emphasizes the rule of law, insisting that courts are the guardians of legal interpretation while regarding non-congressional lawmaking as ultra vires” and administrative pragmatism “seeks to integrate both values into a judicial supervised and modulated administrative state.” (P. 23.)

These three frameworks would seem to so exhaust the spectrum of possible responses to the administrative state that there could not be much room left over for a fourth approach. Yet Pojanowski then turns to the task of contending that there is indeed a fourth way—neoclassical administrative law. The neoclassicist, he explains, combines the skeptic’s approach to questions of legal interpretation with the supremacist’s approach to questions of policymaking discretion. The neoclassicist would reject Chevron deference as inconsistent with both the judicial role and the Administrative Procedure Act (APA) and would reject the general presumption that statutory ambiguity is an implicit delegation of interpretive authority to the agency. (Pp. 25-26.) Courts would apply a strong “Step One,” while also recognizing that certain types of statutory provisions (e.g., a requirement for an “adequate margin of safety”) are not amenable to analysis through formal legal tools and instead are delegations to agencies. (Pp. 27-28.) On policy questions, the neoclassicist would thus leave agencies great leeway: instead of vetting agency policy choices via hard-look review, a neoclassicist court would only “police the outer bounds of reasonableness when it comes to agency policymaking” (P. 31) in the style of rational-basis review. But even as judicial review of pure policy would become more accommodating, making policy in the first place would become more difficult: the neoclassicist might require that agencies return to formal rulemaking by overturning Florida East Coast Railway—a shift that Pojanowski acknowledges would “certainly bring a shock to the administrative system.” (P. 30.)

Pojanowski then turns to elaborate the theoretical commitments of the neoclassical vision for administrative law and to explain how that vision brokers a compromise between the “competing principles of legislative supremacy and the rule of law.” (P. 39.) The neoclassicist calls for renewed focus on the APA’s original meaning and of governing organic statutes. (P. 35.) The neoclassical approach embraces formalism and originalism in statutory interpretation, and eschews purposivism, dynamic statutory interpretation, and the legal realism of the post-New Deal Legal Process era. (P. 34.) But perhaps the chief selling point of the neoclassical framework is what it would not do. The neoclassical stance, says Pojanowski, would avoid a full-frontal collision between current administrative law and the constitutional originalism that would “[b]low[] up the administrative state with Hamburgerian dynamite.” (P. 49.) Instead, he notes, the neoclassicist would accept that the “constitutional nettle” is “too sharp to grasp today” (P. 52), and that the Court “lacks the institutional capital and perhaps even the capacity to turn the aircraft carrier around on a dime.” (P. 50.) In fact, Pojanowski explains, it is “[t]his tendency to avoid large-scale constitutional engagement with the administrative state…[that] puts the ‘neo’ in neoclassicism.” (P. 36.)

Let us return to our refrigerator. As Pojanowski is careful to signal throughout, the neoclassical framework is not a wholly new meal cooked up from wholly new ingredients. It uses many ingredients that were already in the refrigerator. But it then recombines, adds to, and plates these ingredients in a way that the current Court might find very appetizing. As Pojanowski notes, the Court’s “modest constitutional holdings have not tracked its anxious rhetoric about the administrative state.” (P. 33.) Pojanowski may well prove correct that the neoclassical framework, or something close to it, “may become the equilibrium resting point” (P. 33) for a “legal formalist” Supreme Court that “accepts the necessity, or at least the ongoing existence, of the administrative state Congress has constructed.” (P. 53.) There are certainly inklings of the neoclassical approach in Justice Gorsuch’s dissent in Gundy v. United States, as well as in the fractured opinions in Kisor v. Wilkie—both of which were decided after Pojanowski first posted his draft article, and which I hope the final published version will discuss.

In short, like his essay Without Deference, this article displays not only Pojanowski’s deft ability to map administrative law as it is, but also his talent for imagining and explaining administrative law as it might come to be in not too long from now. Even if you do not generally devote much time to poking around in the refrigerator of administrative law theory—or perhaps especially if you do not—Pojanowski’s article is thus well worth a read, as it offers a basis for anticipating what the Court may serve up to us in the coming years.

Congressional Administration

Oct 18, 2019 Jodi ShortAdd a Comment

In Congressional Administration of Foreign Affairs, Rebecca Ingber directly challenges deep-seated assumptions about presidential power in the field of foreign affairs. Her account should prompt a rethinking of reigning assumptions about presidential power over administration of domestic affairs as well.

Ingber demonstrates that Congress can shape the President’s foreign policy and national security policies without constraining the President directly or dictating the substantive terms of foreign policy, but rather by structuring and reorienting the decision-making processes and relative powers of executive branch actors. She argues that Congressional input on matters of foreign affairs is normatively desirable, but there are legal, constitutional, and political hurdles to Congress substantively mandating foreign policy. Congressional administration avoids these hurdles and, according to Ingber, actually can be more effective than direct confrontation with the President.

Ingber defines Congressional administration as “the management and manipulation of internal executive branch decisionmaking processes for the purpose of advancing a substantive agenda.” (P. 4.) Congress uses many tools to “administer” foreign affairs, including: agency design; procedural requirements; designation of decision-makers within the executive branch and definition of their employment status and relationship to the President; earmarking of appropriations to agencies and offices; and strategic requests for Congressional testimony by particular executive branch officials at particular moments during the policy-making process. Using these tools, Congress can force executive branch officials to make decisions they might wish to avoid, delay disfavored decisions by stoking internal executive branch tensions, or place a thumb on the scale in favor of Congress’ preferred outcomes by advantaging a particular set of actors engaged in intra-executive branch conflict.

Ingber notes that intra-executive branch conflict is key to the success of Congressional administration strategies to influence Presidential foreign policy prerogatives. These strategies depend largely on Congress’ ability to aggrandize the power of executive branch officials who flatly disagree with the President’s policy preferences or who bring a different set of policy orientations and substantive expertise to bear on certain foreign policy problems. So, for instance, Congress thwarted President Obama’s pledge to close Guantanamo Bay by leveraging opposition to the policy among many Department of Defense officials. Similarly, Congress sometimes empowers State Department officials to weigh in on certain foreign policy decisions in order to ensure consideration of perspectives focused on the soft power of diplomacy rather than hard military power.

Ingber provides several examples to illustrate her arguments. She recounts how Congress maintained the funding levels for the Department of State, including specific specialized offices within the Department, in direct opposition to President Trump’s requests to cut their funding. Ingber explains this maneuver as Congress maintaining “fora for particular types of decisionmaking and ensuring that they remain populated with personnel devoted to a particular mandate.” (P. 19.) She argues that this is an effective means of controlling presidential prerogatives because it “creates path dependencies and presumptions that favor continuity of particular policy objectives and hurdles to significant change.” (P. 19.)

She also describes the process controls enacted by Congress to constrain President Obama from closing the military prison at Guantanamo Bay. Congress attached riders to defense appropriations bills containing onerous procedural restrictions on the President’s ability to transfer detainees from facilities abroad. Among the requirements was a mandate that no detainee could be transferred to a foreign country unless the Secretary of Defense certified that the government of the destination country could provide adequate assurances that the individual would not be able to take any action to threaten the United States, its citizens, or its allies in the future. For obvious reasons, the Secretary of Defense was loathe to publicly make such certifications. This procedural requirement effectively halted Guantanamo transfers even before Congress took more pointed action to prohibit funding for transfers or for closure of the prison.

Based on this analysis, Ingber concludes: “The fact that the President usually ‘wins’ in foreign affairs does not mean that the position the President ultimately chooses to take is preordained.” (P. ii.) Diverse components of the executive branch are engaged in questions of national security. Different agencies and actors have different and often conflicting sets of priorities, expertise, and biases. These must coalesce into a single executive branch position. Consequently, the decision-making context, the decision-making process, and the distribution of authority among decision-makers shape the position that the President ultimately takes. And Congress has many tools to control all of these things.

Of course, for any of this to work, one must take seriously the specific statutory delegations of authority Congress makes to designated officials. If executive branch officials with decision-making authority are seen as mere arms and eyes of a unitary executive who can order them to reach the President’s preferred outcomes, Congress’ careful calibration of decision-making processes amounts to little more than tinkering. Ingber recognizes that the President has broad authority over administration generally and particularly over the foreign policy functions of the executive branch. Yet, she insists that officials within the foreign policy bureaucracy maintain some independent decision-making authority. Indeed, Ingber contends that Congress often allocates national security decision-making in ways calculated to remove certain decisions from political control.

This is, perhaps, the most provocative claim in the paper, largely because it is not clear that this is true in the realm of domestic administration. In the realm of domestic affairs, the President has long claimed the prerogative to direct executive officials exercising delegated statutory authority to reach specific policy outcomes, and there is broad scholarly, political, and jurisprudential consensus that the President may do so when the ostensible aim is to ensure that administrative policies maximize welfare based on cost-benefit criteria. Moreover, in the realm of domestic affairs there is an institutional apparatus, centered in the Office of Information and Regulatory Affairs, effectively equipped to ensure that the President’s policy priorities are achieved. Taken together, the legal endorsement of executive regulatory review and the powerful institutional apparatus for effectuating it significantly constrain the ability of agency officials implementing domestic policy to resist the President’s policy demands. Could it be that the President enjoys greater power over administration in the realm of domestic affairs than in the realm of foreign affairs?

There are many reasons to doubt that this should be the case. Presidential primacy is well established in the realm of foreign affairs for a variety of reasons that have no applicability in the domestic sphere. First, the President’s unfettered and real time access to intelligence resources affords an information advantage in the realm of foreign affairs. Not so in the administration of domestic policy. The President is unlikely to have an expertise advantage in the regulation of, say, the environment or U.S. capital markets. Second, in the realm of foreign affairs, the President has the institutional advantage of being able to speak with one voice on the world stage. This particular institutional competence has no relevance to the administration of domestic policy. Third, as a practical matter, the President often has the resources to act unilaterally in defiance of substantive Congressional constraints on foreign policy—for instance, by mobilizing the military or entering into executive agreements. Such power is lacking in domestic administration (or, at least, has yet to be broadly validated by the courts).

Thus, it is curious to contemplate that the President might actually exercise less power over the foreign policy bureaucracy than over the domestic policy bureaucracy. Ingber could go further to explain this seeming paradox in the paper. However, I do not believe that this puzzle ultimately undercuts her argument. Rather, it places the onus on proponents of presidential administration in domestic affairs to explain how it could be that we can tolerate independent bureaucratic decision-making in the realm of foreign policy but not in the realm of domestic policy. Why not Congressional administration for all affairs?

I’m Just a Presidential Directive

Sep 27, 2019 Christopher WalkerAdd a Comment

On the first day of Legislation and Regulation, I kick off class by showing the classic Schoolhouse Rock music video I’m Just a Bill. We then spend the first half of the semester exploring how the legislative process actually works today and how that process affects statutory interpretation. At the start of the second half of the course, I show How a Bill Does Not Become a Law—Saturday Night Live’s witty take on the Schoolhouse Rock classic based on President Obama’s deferred-action immigration directives. We then spend the rest of the semester exploring how the regulatory process actually works and how that process affects regulatory and statutory interpretation.¹

Although we spend some time on what then-Professor Elena Kagan coined “presidential administration,” the regulation half of the course focuses on how federal agencies regulate and how courts review such regulatory activities. In that sense, we might be stuck a bit in Dan Farber and Anne Joseph O’Connell’s “lost world of administrative law.” After all, presidential directives—like President Obama’s executive actions on immigration—play a substantial role in the modern administrative state, and even more so, it seems, in both the Obama and Trump administrations. Yet we know little about the process by which these presidential directives are made, much less how they should be interpreted. Until now. In Presidential Laws and the Missing Interpretive Theory, Tara Leigh Grove sheds important empirical and theoretical light on how presidents make directives and what that means for interpretive theory.

Grove’s bottom line is that, whatever the merits of the textualism-purposivism debate in statutory interpretation, when it comes to interpreting presidential directives, “Article II and the distinct institutional setting of the presidency point toward textualism.” (P. 3.) It is important to note that Grove broadly defines presidential directive as any presidential action that “requires, authorizes, or prohibits some action by executive officials.” (P. 6.) And, for Grove, textualism means:

[J]udges must abide by the public meaning of the text of a directive, understood in context. The relevant context encompasses, at a minimum, the text and structure of the directive at issue, other directives issued by the same administration (and likely those of past administrations), as well as linguistic conventions from legal terms of art, dictionaries, and colloquial speech.

(P. 4.) Part IV of the article advances a powerful case for this textualist approach to interpreting presidential directives, and it will no doubt spark a vibrant debate in an interpretive context lacking any serious scholarly conversation. These are important contributions to the administrative law, legislation, and legal interpretation literatures.

But my favorite part of the article comes earlier—when Grove explains how presidential directives are actually developed. In Part III, Grove develops an Article II-based theory for presidential directives. First, in Part III.A, she argues that Article II’s Opinions Clause gives the President substantial discretion in fashioning the process for making presidential directives—a novel use of a constitutional provision that has largely been left in the literature to debates about unitary executive theory and presidential supervision of the regulatory state. Grove, however, concludes that “the text of the Clause suggests that the information-gathering function may be its primary purpose.” (P. 16.) That function, she argues, fuels the modern process for presidential directives.

In Part III.B, Grove details that modern process—a process that “takes place almost entirely behind closed doors; the details are not publicly available for many years (if at all).” (P. 19.) In addition to drawing on the political science literature, Grove conducted interviews with numerous former executive branch officials. The list is impressive, including (from footnote 8): former Trump White House Counsel Don McGahn, Obama OLC DAAG John Bies, Obama Staff Secretary Raj De, Obama Deputy Counsel Chris Fonzone, Bush 43 Solicitor General Paul Clement, Bush 41 White House Counsel C. Boyden Gray, Bush 41 OLC AAG Michael Luttig, and Bush 41 Associate White House Counsel Lee Otis.

Every word of Part III.B is worth reading—and reading again. This is previously uncharted territory in the legal literature. The overriding theme is that federal agencies play a critical role in the presidential-directives drafting process. Much like agencies’ role in the legislative drafting process, as I have detailed elsewhere, there are two distinct paths for agency involvement in the directives drafting.

First, federal agencies approach the White House to ask the president to adopt a policy via presidential directive that binds other agencies. That process is highly proceduralized at the White House’s Office of Management and Budget (OMB), just as it is in the legislative context when an agency wants a presidential administration to advance the agency’s substantive policy agenda in Congress.

Second, the White House reaches out to federal agencies to solicit their input on proposed presidential directives. Like its counterpart “technical drafting assistance” in the legislative context, this process is much less formal and proceduralized. Yet, in either context, the agency-OMB drafting process is substantial: “Former officials suggested that many directives go through at least three drafts—and three rounds of comments—before leaving OMB.” (P. 21.)

In both contexts, however, Grove finds that “direct presidential involvement is the exception rather than the rule”: “Agency officials debate most directives among themselves—with the oversight of OMB—and the President does not get involved until a final draft is ready for him to sign.” (P. 21.) Again, this is remarkably similar to the role of federal agencies in the legislative process, where agency and congressional staff work out the drafting details, with members of Congress generally not involved until the legislation is ready to be formally introduced, marked up, or even voted on.

Once the agency has finalized its review, Grove explains, the draft presidential directive goes through the “form and legality” review at the Justice Department’s Office of Legal Counsel (OLC). Once such review is finalized, the White House Staff Secretary takes over—to review the directive and ensure all “relevant constituencies” at the White House approve. Only once the Staff Secretary is comfortable with the text of the draft directive does she forward it along for the president’s signature.

In other words, the president typically is not aware of the details of any of the negotiations, prior drafts, or internal debates about the directive. Instead, Grove reports, the president generally only receives: “(1) the text of the directive; (2) OLC’s ‘form and legality’ certification; and (3) a memo (typically prepared by the Staff Secretary or another White House official) summarizing the interagency consultation process and any remaining points of disagreement—with a focus on ‘high-level objections’ from Cabinet members or other top officials.” (P. 22.)

After detailing this process, Grove goes through a number of examples, notes deviations in the process, and explains how the process works for other presidential directives (that are not labeled “executive orders” or “proclamations”). Grove concludes that “officials repeatedly reaffirmed that virtually all directives go through some type of agency review” and that the process can be quite “tedious” and time consuming. (P. 27.)

This short summary does not do justice to the insights Grove uncovers about the process of drafting presidential directives. Unsurprisingly, the process is certainly more complicated than Saturday Night Live made it seem. Grove rightly focuses the normative and theoretical payoff on how this process should affect the interpretation of presidential directives. But the insights she has uncovered have important implications for administrative law and regulatory practice as well. With the increasing use of presidential directives, Grove’s pathbreaking account will certainly not be the last word on the subject.

How to Learn to Stop Worrying and Love the Administrative State

Aug 16, 2019 Jeffrey PojanowskiAdd a Comment

Every administrative law professor has been there. Perhaps you are discussing hard-look review, notice-and-comment rulemaking, or procedural challenges to non-legislative rules. Students, perhaps puzzled by the courts’ (mostly the D.C. Circuit’s) indifference to the spare requirements of the Administrative Procedure Act, may wonder where this layer of doctrine comes from or, more importantly, why it is there. At that point you go back to the beginning of the class. Remember concerns about how the “fourth branch of the Government . . . has deranged our three branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking”?² Remember the theory about agency behavior that posits regulators’ incentives will steer them toward servicing the industry they are supposed to monitor in the public interest?³ These additional procedures are here to compensate for those worries about legitimacy, capture, and public participation, thus justifying and improving the workings of the administrative state.

So far, so familiar. But then the plot takes a twist. Professor Nicholas Bagley bursts like Kool-Aid Man through the wall of your classroom. This intruder, however, is telling you to stop drinking the Procedural Kool-Aid that has sustained so many administrative law jurists and scholars. (Not so much “OH YEAH!” as “No.”) In The Procedure Fetish, forthcoming in the Michigan Law Review, Bagley contends that procedural constraints on agency action can sometimes bolster legitimacy and improve governance, but lawyers’ unexamined fealty to the cult of procedure does not hold up to scrutiny. Further, Bagley argues that for progressive lawyers and scholars this faith is misguided and plays into hands of those who seek to undermine an activist state. Although Bagley speaks primarily here to his progressive fellows-in-arms, this sharply argued paper merits the attention of administrative lawyers of every stripe. It changes the way I will teach the subject. (Also, it is a great read; the prose sings and sometimes even struts.)

Invoking a provocative blog post by Mark Tushnet, Bagley argues that progressives should abandon the “defensive crouch administrative law” that manifests itself in the eternal solicitude for ever more procedural protections in doctrine and legislation. (P. 9.) Pressing for such procedures to shore up the administrative state’s legitimacy concerns buys into the narrative, unjustified in Bagley’s view, that its legitimacy is in question at all. This, Bagley argues, is a sucker’s game: we have sought ever more procedure for decades, but complaints about legitimacy have never gone away. It is time to recognize that “a crisis that endures is not a crisis; it is the steady state.” (P. 41.) Failing to do so only plays into the hands of conservative and libertarian critics who benefit from framing the administrative state as a problem to be solved and who will never be satisfied with the half-measures on offer anyway. (P. 60) (Oddly enough, in this respect Bagley’s argument resembles originalists who view calls for judicial restraint and respect for stare decisis as unilateral disarmament against living constitutionalism.)

To make this case, however, Bagley needs to cure his fellow administrativists of procedural neuroses that, in his telling, amount to a kind of irrational faith. There is no need to “redeem” the administrative state through a “separation-of-powers liturgy” that re-presents the original constitution through a form of procedural transubstantiation. (P. 41.) Bagley both proclaims the death of the procedural gods that failed and, with reformist zeal, seeks to strip administrative law’s altars of the scholastic encrustments impeding a true, unadulterated faith in the administrative apparatus. In doing so, he smashes two idols in mainstream doctrine: arguments that administrative procedure is necessary for (1) the legitimacy of the administrative state and (2) its accountability to the public interest.

Even if concerns about legitimacy are valid (a point Bagley vigorously disputes), he contends that arguments that additional procedures will cure the problem are too abstract to be useful and fail in many particular instances. Not only is the administrative state’s legal pedigree unblemished, he contends, it’s a lawyer’s mistake to think that bulking up notice-and-comment rulemaking or allowing pre-enforcement review will put to rest broader, popular concerns about its legitimacy. “Legitimacy arises more generally from the perception that an agency is capable, informed, prompt, responsive, and fair.” (P. 49.)

Adding procedures may sometimes do that, but it can also bog down agencies and make them look more like mere producers of Federal Register tomes, not nimble defenders of the public interest. If anything, invasive judicial review can undercut legitimacy. The searching review of hard look and intricate requirements of notice-and-comment rulemaking make it such that “[a]gencies are … bashed in court and in the press for their purported negligence and carelessness. Sometimes the bashing is warranted; often it is not.” (P. 59.) An agency (often unfairly) cast as a poor student staying after school to redo homework is hardly a figure of esteem and legitimacy in the public eye. To underscore this point, Bagley notes that two of the most respected agencies in the public eye—the Federal Reserve and the Defense Department—are the least procedurally constrained.

Bagley then takes aim at the nostrum that additional procedure is necessary to prevent regulated industries from capturing agencies. If anything, he contends, this argument does not take the lessons of public choice theory seriously enough. Procedure is not always neutral, Bagley contends, but rather can help well-funded, repeat industry players trip up activist agencies that run through the many traps of administrative law and policymaking. Even when rules are not invalidated for one or another procedural flaw, the gold-plating necessary to insulate rules from judicial review diverts scares resources away from enforcement and other new regulatory projects.

In sum, proceduralism “has a complex, contingent, and often ambiguous connection to legitimacy and capture.” Bagley counsels progressive lawyers to “develop a more granular perspective” about the costs and benefits of particular procedures, greet new proposed procedures “with skepticism,” and stop the “endless handwringing over agency legitimacy and accountability,” which abets a “suspicion of the state” that is difficult “to harmonize with a progressive belief in the promise of government to achieve collective goals.” (P. 78.)

All told, we can view this work as administrative-law spin on Gerald Rosenberg or Morton Horwitz, pointing toward the hollow hope of administrative procedure and asserting that the rule of law(yers) in administrative law is not an unqualified human good. Its particular prescriptions overlap with a broader coalition of scholars skeptical of administrative common law. Kathryn Kovacs has argued, from the perspective of superstatute theory, that the administrative common law of procedure is illegitimate. Cass Sunstein and Adrian Vermeule have recently argued for judicial minimalism in this area not, as Bagley does, in the name of progressive governance, but rather based on more general welfarist concerns. Finally, a scholar more sympathetic to originalism and legislative supremacy will question departures from the Administrative Procedure Act’s often sparse requirements of agencies. Having pressed the last point myself, I will happily rely on Bagley’s analysis when critics claim that the sky will fall without administrative common law. (On the other hand, I am more open than Bagley to proposals that would require Congress to approve major administrative rules.)

Those likely to disagree with Bagley’s prescriptions form a similarly motley coalition. Small-government or constitutional originalist critics of the administrative state may find the administrative common law of procedure a second-best solution for hamstringing Leviathan. (It is no surprise that in Christopher v. SmithKline Beecham, conservative and libertarian public interest groups filed amicus briefs defending the D.C. Circuit’s Paralyzed Veterans doctrine, which required agencies to go through notice-and-comment rulemaking to amend an interpretive rule.) In the event she is not convinced by Bagley, Professor Gillian Metzger, a prominent and eloquent defender of administrative common law, might find herself lined up, methodologically at least, with the “anti-administrativists” she chastised in her recent Harvard Law Review Foreword.

All of which is to show that, as I remind my students, doctrinal positions and ideological stances do not always line up administrative law and scholarship. This is part of what makes the subject so fun and fresh. As are articles like Bagley’s, which I encourage all administrative lawyers and scholars to read.

Gandhis of the Deep State

Jul 23, 2019 Michael E HerzAdd a Comment

It is a truism that agency organizational charts are at least in part aspirational or idealized. The political appointees at the top lack perfect control over the career employees beneath them in the hierarchy. When all are rowing in the same direction, such agency costs matter little and may go unnoticed. But suppose they are not. What if they barely perceive themselves as in the same boat?

Right now, in many or most federal agencies, it seems that the always present gap between political and career officials is extraordinarily, perhaps unprecedentedly, wide. We see calls for and examples of outright defiance. The historical moment raises the question: Can direct disobedience by agency rank and file ever be justified?

Here, in Civil Servant Disobedience, Jennifer Nou offers an answer.

In two much-read blog posts, Bureaucratic Resistance from Below and Taming the Shallow State, both themselves the subject of a previous jot, Nou laid out a valuable taxonomy and practical guide to steps that both sides can take in these disputes. Civil Servant Disobedience is a different sort of project. First, Nou here focuses solely on the most extreme forms of civil servant “resistance.” This is not about job slowdowns, giving a miss to particular assignments, intentionally failing to understand, prioritizing the wrong tasks, or subtle undermining. This is about direct and overt defiance. Second, she assesses this practice from a more abstract and normative perspective.

The first step, of course, is definitional. For Nou, civil servant disobedience involves “conscientious [i.e., serious, sincere, and based on conviction] and public [i.e. visible] acts of defiance against political appointees” (Pp. 352, 355) by subordinate career staff—“overt, good-faith acts of protest by civil servants acting in their official capacity in violation of executive directives.” (P. 353.) Thus, it is the public employee equivalent of traditional acts of civil disobedience by private citizens, undertaken in the actor’s official capacity.

Nou’s premise, appropriately, is that it is extremely hard to justify such actions. After all, they violate both statutory provisions and settled norms and are at least superficially undemocratic. But regular old civil disobedience also violates laws and norms, and in the right circumstances it is not only understood to be permissible, it is celebrated. Drawing on philosophical literature regarding civil disobedience generally, Nou identifies the conditions under which civil servant disobedience is justified.

Given the constraints of the Jot form, I should just cut to the chase. For Nou, the prerequisites for legitimate civil servant disobedience are:

• A breakdown of the system of “reciprocal hierarchy.” Under many different theoretical understandings of the administrative state, bureaucracies only function properly in conditions of “reciprocal hierarchy.” Yes, there is an organizational pyramid, with the boss at the top exercising control. At the same time, there must also be opportunities for information, expertise, and ideas to flow upward. Political appointees do not have to adopt the views of the civil servants, but they must give those views attention. If the hierarchy is not reciprocal—the upward flow of ideas and expertise is blocked—disobedience can be justified and “understood as a form of bureaucratic process-perfection.” (P. 366.)
• Exhaustion of administrative remedies. Nou does not use this phrase, but it captures what she is asserting. Before turning to disobedience, the civil servant must first have explored all non-futile internal mechanisms of protest and dissent—speaking to colleagues and superiors, perhaps going to the Inspector General, perhaps the Merit Systems Protection Board (MSPB), and so on. Civil servant disobedience is a last resort.
• Observance of professional norms; essentially, protestors should stay in their lane, limiting their disobedience to matters on which they have relevant expertise and complying with the norms of their profession even while violating the norms of their workplace.
• A willingness to accept the legal consequences of one’s actions.
• A clear violation by the powers that be of a relevant value. These values include legality, scientific integrity, or morality. Nou’s focus is on the first of these—the order that is clearly illegal—but she is alert to the possibility that a legal order may be so morally repugnant as to justify disobedience.

(I might offer three very quick comments on this checklist. First, as to the last item, Nou does not discuss the importance (by what metric?) of the value violated or the extent of the violation, only its clarity. That strikes me as too narrow a focus. Second, I wonder whether a European-style proportionality test might not be helpful here; the disobedience should be proportional to its justification. Third, one wonders whether a civil servant ever has not just the option but a dutyof disobedience; that question goes unanswered.)

The article’s final section briefly touches on two further considerations. First, Nou considers the argument that civil servant disobedience is never justified, and never comparable to regular civil disobedience, because the government employee always has the option of exit. She can just quit. (Elliott Richardson leaps to mind, though as a political appointee he is not a directly relevant example.) In a somewhat inconclusive discussion, Nou points out that exit has its own set of harms, to the government and to the individual, so it is not clear that saying “so quit if you don’t like it” in fact is much of a response. Second, she acknowledges that one additional harm from civil servant disobedience, not factored into the earlier discussion, is that it will inevitably produce a presidential backlash and likely do harm to effective administration in general for some time after the immediate instance.

One might wish that the question of civil servant disobedience was moot or purely academic. Alas, its salience seems only to grow. Nou does not offer her schema as definitive or complete. So it seems unlikely that this article will be the last word on the subject. But this is an enormously useful first word in what is likely to be a vital scholarly, and practical, discussion.