Yearly Archives: 2020
Jun 24, 2020 Jodi Short
In Dimensions of Delegation, Cary Coglianese provides a principled account of the U.S. Supreme Court’s nondelegation jurisprudence. Specifically, he reconciles the seemingly idiosyncratic Schechter Poultry case with subsequent applications of the nondelegation doctrine by theorizing a multi-dimensional model of delegated power. In so doing, he provides a template for rethinking nondelegation as a matter of doctrine, rather than as a matter of political theory or political economy, as it is so often treated by partisans on both sides.
I long have puzzled over the jurisprudential treatment of Schechter Poultry. The Supreme Court has refused to overrule the case but yet has declined to follow it. More cryptically, even detailed discussions of nondelegation precedent, such as Justice Gorsuch’s recent romp in Gundy v. United States, fail to discuss important nuances of the case—including the fact that the National Industrial Recovery Act of 1933 (NIRA) contained explicit criteria for when the President could approve a code of fair conduct that would easily pass the modern “intelligible principle” test. The NIRA required that three criteria be met before the President could endorse a code of fair competition: (1) the trade association that proposed the code was “truly representative” of the regulated industry; (2) the code was not “designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them”; and (3) the code would “tend to effectuate the policy of this title.” While this standard leaves the president with broad discretion to choose which codes to approve, it can hardly be suggested that it constrains executive discretion less than delegations subsequently endorsed by the Court without a nod to Schechter Poultry—up to and including the statutory charge to many agencies to discharge their delegated authority in the “public interest.”
Instead of wrestling with the doctrinal difficulties this poses, the Court has attempted to reconcile Schechter Poultry with later and more capacious understandings of permissible delegation based on two distinctions. First, the provision of the NIRA challenged in Schechter Poultry conferred authority on the President to regulate the “entire economy.” Whitman v. American Trucking, 531 U.S. 457, 474 (2001). Second, the challenged provision allowed this authority to be exercised “on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’” Id. I have always found both distinctions dubious. After all, the Clean Air Act regulations challenged in Whitman have sweeping impacts on the entire economy, as do regulations under many other broad statutory delegations to agencies that have been upheld by the Court—for instance to restructure securities markets (American Power & Light Co. v. SEC, 329 U.S. 90 (1946)) or to regulate communications broadcast over the nation’s airwaves (National Broadcasting Co. v. United States, 319 U.S. 190 (1943)). And “fair competition” is no less precise a standard than the “public interest.”
Coglianese makes sense of all this by shifting the lens through which we view delegations. He starts by returning to constitutional first principles: the thing that Congress may not delegate to another branch is its vested legislative authority. The novel contribution of the article is to develop a new way of ascertaining when delegated authority is, indeed, legislative, and thus may not be delegated. Coglianese argues that we should conceptualize legislative authority much like we conceptualize property: as a bundle of sticks, or “distinct features which together are constitutive of that authority.” Applying this approach, it becomes clear that the intelligibility of the principle constraining delegated discretion—the current touchstone of the nondelegation doctrine—is but one of the sticks in the bundle comprising legislative authority. Even when delegated authority is not guided by clear statutory standards, it may be circumscribed on other dimensions. The constitutionality of a delegation thus depends on an assessment of all these dimensions.
Coglianese’s close reading of nondelegation precedent reveals that the constitutional permissibility of statutory delegations of authority to the executive branch is not—and never has been—solely about the intelligibility of the principle guiding the administrator’s discretion. Rather, it has been about the overall “shape” and “size” of the authority a statute grants to an executive officer and whether this coincides with the “shape” and “size” of a legislative power granted to Congress by the Constitution.
Coglianese argues that courts have assessed the “shape” and “size” of a delegated authority by reference to six key characteristics, or “six degrees of delegation.” Consistent with the reigning intelligible principle test, one dimension is the statutory basis for decision-making by the administrator, or the extent to which clearly stated standards guide the administrator’s discretion in exercising delegated authority. Coglianese’s analysis surfaces five additional dimensions that have been relevant to the Court’s nondelegation analysis. First, the Court has noted the nature of the statutorily authorized action—specifically, whether the statute authorizes the agency to take enforcement actions or make binding rules. Second, the Court has attended to the range of regulated targets, for instance, whether the delegated authority is over a single industry or a broader swath of the nation’s economy. Third, the Court has considered the scope of activities the agency is authorized to regulate, for example, limiting air pollution or regulating the fairness of business practices of any kind. Fourth, the Court has been interested in the degree of sanctioning power delegated to the agency, including both the magnitude of penalties the agency is authorized to impose and whether they may be imposed directly on private businesses or individuals. Finally, the Court has considered the extent of required process an agency must observe and the extent of constraint this imposes on the agency’s ability to exercise its delegated authority. Where a statutory delegation of authority falls on each of these dimensional spectrums determines whether it is legislative in nature and thus constitutionally impermissible.
Coglianese’s multi-dimensional approach goes a long way to providing a doctrinally coherent account of the Court’s nondelegation jurisprudence. It helps explain, for instance, why the NIRA’s delegation of authority to approve codes of fair competition is more constitutionally problematic than, for instance, the statutory delegation of authority to the FCC to allocate broadcast spectrum in the “public interest.” While the NIRA standards guiding code approval are arguably more “intelligible” than the “public interest” standard governing the FCC, the NIRA delegation of authority falls comparatively short on the other dimensions of delegation. The NIRA covered an unlimited range of regulatory targets, while the FCC regulates a single industry. The NIRA allowed the authorization of codes governing an unbounded range of business practices, while the FCC regulates a more limited set of practices by its regulated community. NIRA authorized criminal penalties for violation of approved codes, while the FCC has much more limited enforcement powers. Under the NIRA, the President’s code approval decisions were unconstrained by any formal procedures, while the FCC is constrained by numerous procedural requirements, including administrative adjudication in many cases.
Beyond its immediate aims, Coglianese’s multi-dimensional approach also provides a useful way of thinking through the “major questions” thicket that the Court has allowed to grow up around its ambivalent streams of nondelegation and deference jurisprudence. Indeed, Justice Kavanaugh explicitly linked the nondelegation doctrine and the “major questions” doctrine in a recent statement respecting denial of certiorari in Paul v. United States. After praising Justice Gorsuch’s “scholarly analysis of the Constitution’s nondelegation doctrine” in Gundy, Justice Kavanaugh suggested that perhaps there should be a “nondelegation principle for major questions.” Coglianese’s approach explains why this would be just as myopic as the “intelligible principle” test: whether a delegation authorizes an agency to address “major questions” focuses exclusively on one dimension of delegated authority—scope—without considering holistically the other dimensions that give a delegation its shape and size and determine whether it impermissibly coincides with legislative power. To be sure, under Coglianese’s approach, the scope of delegated authority is relevant to determining whether an impermissible delegation of legislative power has occurred. However, sweeping delegations of authority over major questions may nonetheless be constitutional if they are constrained on other dimensions, including clear statutory standards and rigorous decision-making procedures.
In sum, Coglianese provides the first principled account of the widely misunderstood nondelegation doctrine as a doctrine. This is a welcome corrective to the present debate, characterized by histrionic appeals to resurrect the “Constitution in exile” and dire warnings about the gutting of the administrative state. His approach invites partisans on all sides to look past the political rhetoric and to take nondelegation doctrine seriously if it is to be revived.
Editor’s note: For another review of Dimensions of Delegation, also published today, please see: Richard Pierce, Reinvigorating the Non-Delegation Doctrine, JOTWELL (June 24, 2020).
Jun 24, 2020 Richard Pierce
Cary Coglianese’s article, Dimensions of Delegation, is timely. The Court has invoked the non-delegation doctrine as the basis to invalidate a statute only once 85 years ago. The only statute that the Court has ever invalidated based on application of the non-delegation doctrine actually delegated extraordinarily broad power to private participants in markets rather than to an agency. During the past year, however, five Supreme Court Justices have made it clear that they are open to the possibility of relying on the non-delegation doctrine as the basis to hold statutes unconstitutional. Even many scholars who have long opposed attempts to reinvigorate the non-delegation doctrine have become more receptive to that possibility in today’s conditions.
A recent online symposium published by The Regulatory Review illustrates the state of the debate. Jonathan Adler and Chris Walker introduced the symposium with their excellent essay: “Delegation and Time.” They made the point that the increasing inability or unwillingness of Congress to amend broadly worded statutes that confer regulatory power on agencies has created a situation in which agencies are forced to apply statutes that are so old that they were drafted when no one could have anticipated the uses to which they are now being put. Thus, for instance, the FCC is using the Communications Act of 1934 as the basis to regulate the internet and the EPA is using the Clean Air Act of 1970 as the basis to take the actions required to mitigate climate change. The result increasingly is a series of agency actions that Congress never contemplated and that might not be consistent with the values of the Congress that enacted the old statute, the present Congress, or the people.
Other contributors to that symposium identified the hundreds of statutes that confer seemingly unlimited “emergency” powers on the President as candidates for application of a newly invigorated non-delegation doctrine. President Trump has relied on the National Emergencies Act of 1976 as the basis for his reallocation of the funds that Congress refused to appropriate to build a wall along the southern border. Senator and Presidential candidate Sanders has stated his intention to rely on the “emergency” powers conferred on the President in various statutes to support expenditure of trillions of dollars to mitigate climate change.
The Regulatory Review is published by the Penn Program on Regulation. That program is run by Cary Coglianese, the author of “Dimensions of Delegation.” Before the Justices take any action to follow through on their stated intention to reinvigorate the non-delegation doctrine, they should study with care both the symposium that Professor Coglianese’s Center published and his article.
Professor Coglianese makes two related points in the article. First, courts and scholars have traditionally framed the non-delegation debate with reference to a single dimension. They should focus instead on six dimensions of the constitutional problem that can be created by broad delegations of power. Second, if the non-delegation doctrine is understood as a response to a multi-dimensional constitutional problem, it is easy to identify ways in which courts have long addressed the problem and can continue to address the problem effectively.
Professor Coglianese begins by explaining how courts and scholars have traditionally decided whether a statutory delegation of power is constitutional by focusing exclusively on the presence or absence of an “intelligible principle” that a court can enforce to keep the agency’s exercise of discretion within boundaries set by Congress. He argues persuasively that courts should also consider the nature of the action the agency has taken, the extent of the power that Congress has delegated to the agency, the scope of the activities that the agency has been authorized to regulate, the nature and degree of sanctions that the agency is empowered to impose, the quality and quantity of the reasoning and evidentiary support for the agency action, and the nature and extent of the process the agency used to make the decision to act.
Professor Coglianese then devotes eighteen pages to a detailed discussion of the many ways in which courts have long enforced the non-delegation doctrine once we recognize that it has many dimensions. He urges courts and scholars to abandon the simplistic and futile search for an “intelligible principle” that limits agency exercises of discretion. He argues that courts can ensure that Congress and agencies act in ways that are consistent with the Constitution by continuing to apply the many administrative law doctrines that respond effectively to the multi-dimensional nature of the potential constitutional problem that can be created by broad delegations of power to agencies.
Editor’s note: For another review of Dimensions of Delegation, also published today, please see Jodi Short, 6 Degrees of Delegation, JOTWELL (June 24, 2020).
May 28, 2020 Kristin Hickman
The cooperation of public and private actors to achieve public goals is not new. More than 80 years ago, Louis Jaffe lauded the longstanding and substantial involvement of private groups in the regulatory sphere. The scope, range, and legal significance of coordination between the public and private spheres have expanded since then. Modern governance is a complicated web of relationships between public and private actors, command and cooperative structures, and hard law versus soft guidance. A robust academic literature assigns different labels to this phenomenon: privatization, public/private partnerships, and new governance, to name just a few.
By necessity, these arrangements entail the exercise of policymaking discretion by private actors, to varying degrees depending upon the scenario. The result is a diffusion of governmental power that neither Congress nor the courts are likely to roll back substantially. With The New Gatekeepers: Private Firms As Public Enforcers, Rory Van Loo identifies and explores yet another way in which government relies on private actors—by looking to large corporations to serve as “enforcer firms” or “gatekeepers” ensuring compliance with federal law.
Van Loo begins his analysis with a survey of “prior narratives of third-party private regulation.” Private firms independently monitor other firms for compliance with the law in order to protect their own interests: e.g., banks monitoring their borrowers for illegal activity that might impair the value of collateral, or insurance companies monitoring their insureds for legal noncompliance that might trigger insurance payouts. Self-regulatory organizations like the New York Stock Exchange police the actions of their members to protect the reputation of their industries. Legislatures pass laws imposing vicarious liability and information disclosure requirements, authorizing citizen suits, and protecting or even rewarding whistleblowers to encourage private enforcement of the law. Legislators and agencies also mandate private enforcement when they require certification from accredited, third-party inspectors before a business can operate.
Van Loo argues that the scholarly literature lacks “an examination of mandates that explicitly direct regulated entities to serve as enforcers.” To fill that void, he offers case studies based on “[t]he ten largest companies operat[ing] in four main industries: information technology, banking, pharmaceuticals, and oil,” asserting that these case studies “demonstrate how administrative agencies, after receiving authority from Congress, have delegated” enforcement authority to these private actors.
For the technology sector, Van Loo points to FTC third-party oversight orders against Amazon, Facebook, Google, and Lenovo, for example requiring Facebook to audit the security and privacy practices of app developers for the purpose of protecting consumer data privacy. For the banking sector, Van Loo documents CFPB lawsuits, and subsequent settlement agreements, holding banks like JP Morgan Chase and Wells Fargo responsible for the deceptive acts or practices of third-party call centers, debt collectors, software developers, and real estate lawyers with which the banks do business, thereby forcing the banks to police the behavior of those third parties. For the pharmaceutical industry, Van Loo identifies an expansive regime of FDA regulations, guidance statements, and warning letters explicitly requiring drug companies to maintain quality control units “responsible for approving or rejecting drug products manufactured, processed, packed, or held under contract by another company,” thus requiring the drug companies’ to monitor not only the “output” but also the “inputs”—i.e., materials and ingredients—of those third-party contractors.
In summary, according to Van Loo, “[f]ederal regulators have established an expectation that today’s largest companies regulate independent contractual parties for legal violations” and, thus, “serve as a new breed of gatekeepers because the regulated entities must now decide whether to give the third parties market access based on regulatory considerations.”
Van Loo next turns his attention to the ways in which large corporations perform this new regulatory role. In particular, he describes a system of private regulation through contract drafting. At the suggestion (or instruction) of federal agencies, enforcer firms incorporate into written agreements with third-party contractors their own expectations regarding compliance with regulatory requirements, as well as penalties for noncompliance. Federal regulators in turn monitor the efforts of the enforcer firms to monitor third-party compliance those contractual requirements and the law more generally. In this way, the federal government deputizes and delegates enforcement authority to a small number of large, private corporations.
Turning to concerns about this new regulatory tool, Van Loo argues that conscripting private corporations to serve as enforcer firms represents “greater federal intervention into corporate governance and operations [that allows] a large number of federal agencies to shape the firm’s relationships, contracts, board activities, and liability.” He notes further that, in some instances, government efforts to force private corporations into the enforcer firm role have extended to imposing potential legal liability upon individual corporate officers and directors for the actions of third-party contractors as well.
Irrespective of whether one favors or disfavors more government involvement in corporate activity, Van Loo posits unintended consequences and economic tradeoffs. Mandated third-party governance by large corporations will alter corporate structures by incentivizing those firms to stop outsourcing functions to third parties and instead to bring more activities back in-house or to purchase third-party service providers outright. The compliance departments of large corporate firms have grown dramatically in recent decades, expanding the regulatory state bureaucracy and resources dedicated to regulatory compliance substantially; Goldman Sachs employs twice as many compliance personnel as the CFPB, and Facebook’s compliance reviewers far outnumber the total employees of the FTC, Facebook’s main regulator. Yet, we have little evidence to evaluate whether or under what circumstances enforcement firms are an effective and efficient regulatory compliance tool.
Van Loo raises practical concerns about overlapping jurisdiction, strategic shirking, cosmetic box checking, and other efficacy issues. Moreover, accountability is a problem. Government agencies may monitor the regulatory enforcement activities of large corporations, but courts have few mechanisms and seemingly little role to play in holding enforcer firms accountable for their actions in this regard.
Van Loo’s article comes at a potentially pivotal time in administrative law jurisprudence and scholarship. We are in the midst of the latest round of debate over whether the regulatory state has become too powerful and needs to be curtailed by the courts. In Lucia v. SEC and Seila Law LLC v. CFPB, the Supreme Court has taken up issues concerning the constitutionality of how agencies are structured. The last year has seen opinions in Gundy v. United States and United States v. Paul representing a majority of the Justices signaling concerns about congressional delegations of legislative power to agencies and the desire to adopt a more robust nondelegation doctrine to curtail such actions. Yet, at this moment of national discussion and debate, and notwithstanding a robust and longstanding academic literature on the topic, the extensive delegation of regulatory power from agencies to nongovernmental actors has received much less attention. Perhaps Van Loo’s article will spark further discussion.
Apr 30, 2020 Jack Beermann
When a President who campaigned on a deregulatory platform assumes office, the question immediately arises whether, in light of the unlikelihood of significant statutory assistance by Congress, the new administration will be able to achieve substantial deregulation on its own. In most contexts, agencies looking to ease regulatory burdens have essentially two options: they can engage in a reappraisal of the regulatory record (like the Reagan administration’s failed attempt to rescind the passive restraint requirement for new automobiles), or they can reinterpret the statute or statutes underlying a regulatory program (such as the same administration’s successful reform of the regulation of “stationary sources” of air pollutants), or both.
In the most exotic permutation of the latter method, employed more by the Trump administration than any previous administration, agencies have occasionally argued that their predecessors lacked statutory power to regulate as they did, leaving them no legal choice but to abandon a prior administration’s regulatory program. In Agency Statutory Abnegation in the Deregulatory Playbook, William Buzbee describes, analyzes, and dissects this “statutory abnegation” strategy, and persuasively illustrates that it has been and is likely to remain unsuccessful without major changes to basic principles of administrative law.
Buzbee provides a clear and succinct definition of statutory abnegation: “Acting against a backdrop of unchanged statutory law, an agency reexamines its powers under that law. In a break from past agency power claims and, usually, related actions, the agency newly declares that it no longer has authority it previously asserted. This is an act of agency ‘abnegation’—self-denial of authority—because, without any statutory or judicially mandated change, the agency is denying itself statutory power previously claimed.” (P. 1518.) Examples of statutory abnegation that Buzbee describes include the EPA’s conclusion, under the George W. Bush administration, that it lacked previously asserted statutory authority to regulate greenhouse gases and among many from the Trump administration, its repudiation of the EPA’s Clean Power Plan based exclusively on its view that the CPP “exceed[ed] the EPA’s statutory authority.”
The major impediment to the statutory abnegation strategy is judicial review. Buzbee begins by showing that familiar doctrines of judicial deference to both agency policy decisions and agency interpretations of the statutes they administer might lead an administration to expect that when agencies proclaim that they lack statutory authority to regulate, courts would defer and the agencies would win. This turns out, however, to be a pipe dream. As Buzbee persuasively concludes, “[B]are statutory-abnegation claims often weaken agency power over targets of regulation, reduce agency discretion, are doctrinally disadvantageous, and appear destined in most instances for eventual judicial rejection.” (P. 1514.)
Why judicial rejection? Buzbee illustrates quite effectively that an administration’s deregulatory fervor is likely to be met by reviewing courts doing what they have always done: namely, require agencies to offer well-considered, rational judgments that take into account “the science, data, empirical assessments, and old and new legal reasoning relevant to evaluating the policy shift.” (P. 1515.) These considerations are the bread and butter of judicial review, and administrations ignore them at their peril. Instead, abnegation arguments have often been founded upon “slender legal reasoning, paid little attention to statutory criteria, avoided past rationales, and shown little or no engagement with on-the-ground impacts of the old and new policy choices.” (P. 1515.) As Buzbee so eloquently concludes, “well-established doctrine appropriately rewards actions reflecting respect for multiple sources of political accountability. As courts have found, presidential edicts are inadequate justifications for inexpert agency rollbacks that dodge full engagement with congressional requirements, do not analyze underlying science and data, and fail to grapple with past reasoning and regulatory contestation.” (P. 1563.) For courts to approve the Trump administration’s abnegation arguments, courts would have to abandon these bedrock aspects of administrative law.
Why then, Buzbee wonders out loud, have agencies in the Trump administration been employing “bare statutory abnegation” in so many instances? Although the question invites speculation, Buzbee offers what I find to be a plausible and persuasive account: Presidents and their appointees may be more interested in scoring political points than in actually achieving substantial deregulation. That the Trump administration has been challenging agency action at a record pace may be less salient to the administration’s supporters than dramatic announcements of new deregulatory initiatives such as the repudiation of the Obama administration’s Clean Power Plan, the toughening of criteria for student loan forgiveness, and the rescission of programs extending deferred action on deportation to “dreamers” (undocumented immigrants who arrived in the United States as children). Further, making new rules based on statutory interpretation is likely to be quicker and easier than rulemaking based on a detailed factual and technical record, allowing the administration to score its political points much more quickly.
One virtue of Buzbee’s article is that it anticipates virtually every consideration relevant to understanding and evaluating the statutory abnegation strategy. I want to focus on three of the issues Buzbee discusses. First, Buzbee shows that the Trump administration may have fallen into the same trap that befell the Reagan administration when it rescinded the passive restraint requirement—the temptation to conceive of deregulation as like an agency decision not to act in the first place, which would be reviewed under an exceedingly deferential standard of judicial review. It is black letter administrative law that deregulation by rulemaking is subject to the same standard of judicial review as is applied to agency adoption of a new rule increasing regulatory burdens. Second, one of the most confusing aspects of the Chevron doctrine may also be at work here—the notion that courts do not defer to agency decisions on “pure questions of statutory interpretation.” When an agency’s entire justification for a deregulatory action is that a statute unambiguously requires it, courts are tempted to assume their traditional role as the final arbiters of statutory meaning, i.e. the ever-expanding Chevron step one. Finally, Buzbee establishes that the Fox Television decision that governs judicial review of agency policy changes is excruciatingly ambiguous on the justification required to validate a significant policy change, leading agencies to believe, perhaps erroneously, that they will receive great deference whenever they change course.
In sum, this article is a great read, highly interesting, relevant and enlightening—just what I look for in a Jot-worthy law review article.
Apr 2, 2020 Miriam Seifter
The field of Administrative Law typically focuses on federal agencies, but there are tens of thousands of state and local agencies that administer the law on matters of tremendous consequence. As Nestor Davidson recently put it, the field’s “myopic federal focus obscures a massive, submerged, and surprisingly vibrant domain of administration that exists at the local-government level.” Thinking about these other levels of administration can both illuminate the actual workings of important policy areas and prompt fruitful reflection on recurring administrative-law questions.
Maria Ponomarenko’s thought-provoking new article, Rethinking Police Rulemaking, accomplishes both of these worthy goals. One significant species of local administration, she reminds us, is policing. There are close to 18,000 law enforcement agencies across the country, and they make a range of policy choices of great consequence, including regarding the use of force, stop and frisk, enforcement priorities, and “the persistent creep of the surveillance state.” In Rethinking, Ponomarenko brings fresh perspective to debates over how to oversee police agencies. In particular, she challenges a longstanding idea that an administrative-law mainstay, notice-and-comment rulemaking, is the most promising solution for holding police more accountable.
In one sense, the vintage of this debate reveals that policing has not been overlooked as a species of state and local administration at all; scholars have been discussing the use of notice-and-comment rulemaking for agencies since the 1960s. Yet as Ponomarenko observes, rulemaking is just one tool in the administrative law toolbox. And “despite more than five decades of scholarship devoted to making the case for police rulemaking, there has been very little attention paid to how rulemaking would actually work in practice.” In Rethinking, Ponomarenko gives us reason to believe that rulemaking is a poor fit for policing’s ills and provides a sketch of more promising solutions.
The article begins by synthesizing the substantial existing literature on police rulemaking—both its origins and a more recent “rulemaking renaissance.” Ponomarenko then identifies four types of problems that beset the rulemaking idea. First, and “perhaps the biggest challenge,” police departments are not required to make rules and have little incentive to adopt them. Unlike other rulemaking agencies, which adopt rules to make it easy to govern the public, police enforce rules made by others; they lack authority to alter or even formally clarify the law themselves. The rules we care about for police are the rules they make to govern themselves. And for many reasons, police agencies lack incentives to adopt internal rules on challenging topics (like enforcement discretion, which would likely draw undesired attention).
All of that suggests that if we want police rulemaking, legislatures will have to mandate it. But that leads to a second set of challenges: how could legislatures isolate the policy choices that should be made through a rulemaking process? It’s coherent to talk about rules for decisions that involve concrete steps, like the adoption of new surveillance technologies. But most of the problems associated with policing, like the use of enforcement discretion or force, are part of gradually evolving practices for which it will be hard to specify either the trigger for rulemaking or the desired content of ensuing rules. Third, and related, it may be difficult for legislatures to determine the types of decisions that would benefit from public input, given that most of the prime topics for police rulemaking are internal rules (which, at the federal level, would typically be exempt from the Administrative Procedure Act’s notice-and-comment process).
Finally, and to my mind most fundamentally, Ponomarenko argues it is just not clear that rulemaking will provide the accountability benefits its proponents seek. The problem areas in policing contain few digestible “referendum moments” conducive to public input. Even on discrete questions, the public is at a significant information disadvantage when trying to assess what sorts of police rules will generate desired policy outcomes in communities. A Department of Justice , for example, ultimately concluded that the New Orleans Police Department’s lax secondary employment policy led to poor police service—but that connection is far from self-evident to a lay person. This discussion may resonate for administrative law scholars beyond the policing context, as we consider how much of the critique is not unique to policing. Rethinking’s take on the realistic limitations of public input, for one, resonates with existing concerns about rulemaking itself.
Part III of Rethinking considers alternatives to rulemaking to address governance problems in police departments. At least for large jurisdictions, Ponomarenko proposes “regulatory intermediaries” like police commissions or inspectors general. Building on the agency design literature, Ponomarenko posits that such intermediaries might help to solve the problems of incentives, information, and representative legitimacy that impede police accountability at present. Indeed, a few large cities have Inspectors General for police agencies in recent years.
One particularly praiseworthy aspect of Ponomarenko’s account is her clarity regarding what we know and what we don’t about administrative interventions. Like her analysis of rulemaking, her examination of regulatory intermediaries embraces the complexity and tradeoffs that such interventions might entail. While generally supporting the intermediary approach, she notes that cities that have established regulatory intermediaries have done so without a clear theory of what they should achieve, and that “the reality is that we know far too little about what it would in fact take for such an entity to be effective.” To build such knowledge, Ponomarenko suggests a research agenda for the study of police intermediaries that would assess their ability to (1) generate useful information about shortfalls in police practices; (2) supply the missing incentives to address those shortfalls; and (3) engage with affected stakeholders in reaching decisions.
One final insight in the piece is worth noting. Inspectors general and the like may not be realistic in small jurisdictions. There, Ponomarenko suggests that solutions might come from the state level. States already play a role in regulating policing—commissions on Police Office Standards and Training already set minimum standards for police training—and statewide entities could be given more active roles. A statewide audit bureau, for example, could mirror the work of inspectors general in jurisdictions where it wouldn’t make sense to have one. She grants that “states have not been particularly hospitable grounds for police reform,” but reminds us that prescriptions must be comparative, and “ordinary local politics has not been particularly conducive to effective regulation of policing either.”
Rethinking Police Rulemaking is an important read not just for policing scholars, but also for administrative law and state and local government scholars. For administrative law scholars, the piece’s fresh analysis of the potential and limitations of both rulemaking and regulatory intermediaries deserves attention. For state and local government scholars, the piece provides a deep dive into the available remedies for governance dilemmas that extend beyond policing. Spanning all of these fields, Ponomarenko’s article is an insightful, generative contribution, and I liked it a lot.
