Congress often instructs agencies to act in the “public interest,” but what does that mean? Does it mean anything at all? Professor Jodi Short tackles this in an important new article, In Search of the Public Interest. How one defines the term “public interest” matters, for as Short explains, it appears approximately 1,280 times in the U.S. Code. (P. 767.) Critics of the administrative state decry the term as vacuous—an indication of congressional abdication and unconstitutional delegation of legislative power. Proponents of the administrative state, on the other hand, view “public interest” standards as integral to sound regulatory schemes—a meaningful instruction to administrators that can help ensure Congress’s policy goals are achieved. The debate, which is often abstract and ideologically freighted, can seem intractable.
Short seeks to cut the Gordian Knot with an empirical analysis of how agencies have interpreted and applied “public interest” standards in the real world. She begins by offering a thorough yet concise overview of various theoretical approaches to defining the public interest, breaking them down into categories centered on substantive values, efficiency claims, and procedural arguments. This primer swiftly orients the reader to the contours of the broader debate, while providing a taxonomy for the subsequent analysis. The remainder of the article offers a real-world view of how a sampling of federal and state agencies have given the concept of the public interest content and effect.
The empirical analysis delves deep into the work of four agencies, including the Interstate Commerce Commission (ICC), the Federal Communications Commission (FCC), the Federal Energy Regulatory Commission (FERC), and the California State Water Resources Control Board (the Board). Although the statutes these agencies administer include multiple public interest provisions, Short undertook case studies in ones that are outcome-determinative in the agency’s process and have been subject to active litigation over a long period of time. This approach skews the sample toward adjudications in licensing and permitting regimes, but it also allows Short to evaluate trends in how robust discussion and application of the public interest have (or haven’t) changed over time. The inclusion of both federal and state agencies adds further dimension to Short’s analysis and findings.
Short uses qualitative coding methodology to analyze a sample of adjudicatory decisions from each regulatory context. She codes for the following:
(1) explicit definitions of the public interest state by the agency; (2) explicit claims made by the agency about the scope of its discretion under the public interest standard; (3) justifications made by parties and agencies about why a particular outcome is—or is not—in the public interest; (4) the agency’s treatment of these public interest justifications (i.e., whether it accepted them, rejected them, or raised them itself).
(Pp. 783-84.) For each of the regulatory contexts Short analyzes, she provides an overview of the applicable statute and its history before reporting the findings of her analysis.
There is so much to love about this article, but I particularly appreciate how Short’s careful study of agency decisions produces a nuanced picture of administrative action. Sampling the decisions makes the volume manageable. At the ICC, Short’s case study is in the agency’s implementation of the public interest standard for railroad mergers under the Interstate Commerce Act. Here, she samples 35 cases between 1923 and 1999. For the FCC, the focus is on the public interest standard for evaluating the transfer of licenses incident to merger under the Communications Act. This case study is based on a sample of 60 cases decided between 1943 and 2019. The FERC case study also centers on merger review, this time under the Federal Water Power Act, and entails a sample of 94 cases between 1937 and 2020. Finally, Short evaluates the California Water Board’s consideration of the public interest in allocating water rights. Here, the sample includes 87 decisions issued between 1927 and 2015.
As Short puts it, “[t]he study’s findings will surprise many and please few.” (P. 765.) Perhaps so. But they will fascinate all.
The findings shed light on how the studied agencies have defined “public interest,” but they do much more than just that. They reveal a tendency for these agencies to define the public interest explicitly and consistently, downplaying and even seeking to cabin the discretion that scholars so commonly associate with statutory public interest standards. Moreover, the agencies typically find content for the term in law rather than in personal or freewheeling judgments. That is, they define “public interest” based on the statutory and regulatory context, the common law, and the interpretations that emerge from judicial review. When the agencies change their approach, they generally do so in response to statutory amendments or new judicial decisions. In her study, Short finds not only the public interest, but also the rule of law.
What emerges from Short’s study of agency-level decisions is a compelling picture of how administration operates within the separation of powers. It’s a different picture—more complex, measured, and hopeful—than one might get by studying the same statutory provisions exclusively through judicial decisions. My sense from Short’s analysis is that the agencies are responsive first and foremost to the legislature, followed closely by the courts, with regulated parties a somewhat distant third. Moreover, the legislature and the courts do not merely constrain the agencies. Instead, they contribute to the administrative process, each in their own way, by producing material that the agencies use to develop law and policy through the day-to-day work of administration. The law produced by coordinate branches does not only limit: it empowers and enriches. The dialogic model of the separation of powers may be out of fashion these days, but one can see it at work in the regulatory contexts Short studies.
Short is careful to acknowledge that her study, though deep, is narrow. The federal case studies are few and probably more like each other than they are like many of the other “public interest” standards that Short does not study. “Yet, the fact that the agencies studied are not representative of the whole of the administrative state is both beside the point and precisely the point.” (P. 827.) Short puts her finger directly on the central tension of administrative law. This is a field defined by uniform, cross-cutting legal principles that must be drawn from the vast and varied expanse of the administrative state and applied to individual agencies in a way that furthers rather than impairs their unique functions. Scholars are better positioned than courts to attend simultaneously to the competing demands of uniformity and exceptionalism in administrative law. Short’s article contributes to the literature in many ways, not least of all by providing an exemplar of how to navigate this extraordinary challenge.
