The “toothpaste tube theory” in administrative law predicts that when there are too many legal constraints placed on an agency (pressure on the tube), the agency will simply find another way to accomplish the same task more expeditiously (the toothpaste bulge moves). Examples are everywhere. The National Highway Traffic Safety Administration (NHTSA) deploys automotive recalls to avoid the travails of the rule-making process. Some agencies rely on pre-NPRM communications to shore up rule proposals and avoid the logical outgrowth test. Agencies might even rely on guidance to sidestep onerous notice-and-comment requirements for rulemaking. By following the path of least resistance, agencies can accomplish their statutory assignments more swiftly and with fewer risks.
In The Invisible Driver of Policing, which is forthcoming in the Stanford Law Review, Farhang Heydari brings the toothpaste tube theory to a new level in unveiling NHTSA’s displaced efforts at enhancing the safety of vehicle transportation. In sixty riveting pages, Heydari details how NHTSA—finding itself effectively blocked from regulating the powerful auto industry—shifted significant energies towards targeting the drivers themselves. Indeed, a whopping 80% of NHTSA’s budget is apparently dedicated to traffic enforcement. (P. 54.) Heydari then links a significant component of this enforcement to encouraging the use of “high traffic stops, ostensibly as a tack both to improve traffic safety and fight crime” (P. 2), transforming the agency into the “unexpected enabler of pretextual stops.” (P. 1.) To that end, NHTSA’s sponsored research “called for a 400-500% increase in traffic enforcement.” (P. 33.) Although Heydari’s article was intended to alert his fellow criminal law scholars to the prevalence of clandestine law enforcement by nonexpert governmental agencies (Pp. 52-55), his article is perhaps even more jolting for administrative law readers.
By Heydari’s account, over the last three decades, NHTSA’s energies have been significantly diverted from its central mission of advancing safety through regulation of the auto industry. (Pp. 14-17.) To be sure, NHTSA is still engaged in the intricate oversight of automotive safety and design. But starting in the 1990s, NHTSA began dedicating a large portion of its resources and attention to the very different objective of encouraging state and local police to find and punish aberrational drivers on the road. (P. 17.) Both initiatives are aimed at reducing roadway fatalities, but they are worlds apart in all other respects.
For administrative lawyers, The Invisible Driver of Policing raises a number of red flags, only a few of which I have the space to consider here. First, in contrast to the more familiar experiences with the toothpaste tube theory in administrative law, NHTSA’s shift from regulating industry and toward enforcement actions against drivers requires an entirely new and different type of agency expertise. Auto engineers at NHTSA will not be very useful in figuring out how to locate and sanction unsafe drivers. Indeed, by Heydari’s account, the retooling of NHTSA’s expert staff to bolster its enforcement program was far too narrow in scope. NHTSA apparently hired primarily former law enforcement officers rather than a more well-rounded set of enforcement experts (P. 39), and the enforcement experts in turn “trained tens of thousands of officers across the country” to increase traffic stops. (P. 2.)
Second, NHTSA also failed to develop metrics or collect data to assess whether its expenditures in law enforcement were actually improving the safety of roadways. (Pp. 28-31.) This failure to assess its program reduces public visibility and makes oversight of NHTSA’s work effectively impossible. As a result, we do not know whether NHTSA’s investments in law enforcement had any positive effect, a particularly worrisome outcome given the negative ramifications Heydari traces from the increased traffic stops. Moreover, this new focus on enforcement has likely diverted scarce resources away from the agency’s primary mission of regulating the auto industry. The toothpaste tube theory says as much. But without any data, we do not know the extent of these opportunity costs either.
Third, the most concerning takeaway from Heydari’s account is the fact that the displacement of the agency’s mission happened in plain view. There is no indication that NHTSA was either acting as a runaway agency or ignoring its political principals. In fact, Congress mandated NHTSA to take this new direction toward law enforcement twice, first in 1991 and again in 2006. (P. 17.) And, while political appointees at DOT and NHTSA were well situated to provide needed oversight and direction to NHTSA’s project and staffing decisions, Heydari’s analysis suggests they were generally asleep at the wheel (certainly individual drivers were ill-equipped to lobby them about NHTSA’s misplaced energies). (Pp. 39-40.) Thanks to Heydari’s sleuthing, we can even see—with the benefit of hindsight—a clear paper trail detailing each step in NHTSA’s decision to employ crime-fighting traffic stops as a major strategy to advance roadway safety. (Pp. 18-24.)
In the final section of the article, Heydari presents a mini-case study of how other agencies are similarly “refram[ing] . . . [regulatory] solution[s] in terms of criminal law enforcement.” (P. 55.) The Food and Drug Administration has targeted opioid addicts rather than drug manufacturers; the Federal Trade Commission prosecutes hackers and identity thieves as an alternative to imposing vigorous requirements on companies for security breaches; and the Bureau of Alcohol, Tobacco, Firearms, and Explosives pursues charges primarily against illegal weapon owners as opposed to illegal dealers. (Pp. 43-51.) Each of these examples differ in important ways from NHTSA, as Heydari concedes, but they appear to follow a worrisome trend. Rather than regulate industry, the agencies focus on prosecuting individuals whose crimes result from that very same lack of preventative regulation.
So administrative law scholars are left with a puzzle—or maybe a train wreck. Is NHTSA’s regulatory displacement an aberration or the tip of the iceberg? To answer that question, we need big-picture views of other agencies whose programs drifted from their core expertise. But how do we learn more about what the agencies are doing without imposing more counterproductive red-tape requirements on beleaguered agencies? Maybe instead of targeting agencies, our attention should focus initially on Congress’ own incomprehensible lawmaking, which at least in the case of NHTSA precipitated its unlikely journey into law enforcement. But whatever the answer(s), gaining a better understanding of this kind of fundamental change in agency mission warrants more attention from administrative law scholars.
