What Do We Want from Open Government – and What the Heck is “Open Government”?

Aug 13, 2012 Peter Shane

Peter Shane

Jotwell prefers that its contributors “like” one piece of scholarship at a time.  But (a) I have to atone for submitting my contribution late, and (b) the two manuscripts that have caught my fancy most recently are wonderfully complementary and deserve to be attended to jointly.

Literally from Day One, a welcome mantra of the Obama Administration has been “open government,” to which the Administration has variously linked the adjectives, “transparent,” “participatory,” and “collaborative.”  As both conceptualized and practiced, however, the very idea of “open government” is highly ambiguous.  Even its arguably most straightforward aspiration – transparency – is rife with uncertainties.  Two important steps forward in understanding the Obama open government “moment” are The New Ambiguity of “Open Government”, by Princeton doctoral student Harlan Yu and Yale law student David G. Robinson, forthcoming in Discourse, the online journal of the UCLA Law Review, and Transparency With(out) Accountability: The Effects of the Internet on the Administrative State, by Jennifer Shkabatur, an SJD candidate at Harvard Law School, forthcoming in Vol. 31, No. 1, of the Yale Law & Policy Review.  Each is a significant contribution to a much undertheorized domain.

The Yu-Robinson paper traces the conceptual history of “open government,” pointing out the rhetorical and political slippage between the demand for institutionally significant disclosures that would make government more accountable for its decision making (think, “FOIA”) and the movement towards government provision of valuable data in machine-readable structured formats that would support various forms of public knowledge and entrepreneurship (think, “U.S. Census”).  As documented by the authors:

Public policy has increasingly blurred the boundaries between the technologies of open data and the politics of open government. This blurring paves the way for frustration and disappointment. Open government and open data can each exist without the other: A government can be an “open government,” in the sense of being transparent, even if it does not embrace new technology (the key question is whether stakeholders end up knowing what they need to know to keep the system honest). And a government can provide “open data” on politically neutral topics even as it remains deeply opaque and unaccountable. The Hungarian cities of Budapest and Szeged, for example, both provide online, machine-readable transit schedules, allowing Google Maps to route users on local trips. Such data is both open and governmental, but has no bearing on the Hungarian government’s troubling lack of transparency. The data may be opening up, but the country itself is “sliding into authoritarianism.”

The authors’ point that “open data” may or may not support actual accountability has been made by others, e.g., Steven Waldman and the Working Group on Information Needs of Communities, The Information Needs Of Communities: The Changing Media Landscape In A Broadband Age 202-211 (FCC 2011), but the independent sources and eventual tangling of the intellectual roots undergirding the “open government” and “open data” movements have never, as far as I know, been elaborated with such care.

This is not to say, of course, that open data are irrelevant to government accountability.  Congressional members’ votes, government officials’ financial records, and the geographic distribution of public spending are all potentially critical to improving public accountability.  Yet, as Yu and Robinson detail how the 2008 Obama campaign and then the Obama Administration conflated “open data” with “freedom of information,” it becomes clear how rhetorical slippage poses a risk that government claims for increased “openness” may be unaccompanied by matching levels of improved transparency.  The authors likewise relate how “the ambiguity of open government remains alive and well in the international sphere,” with governments abroad launching splashy new data portals while simultaneously deprioritizing genuine open government reforms.

A final contribution by Yu and Robinson is a suggestive schematic of how the “open data” and freedom of information movements intersect both normatively and in operation.  The “open data” movement is, at its core, really about taking data in the hands of government and making it more adaptable.  The freedom of information movement is really about securing access to data, adaptable or not, that increases accountability.  Governments maximize joint value for both movements when they release adaptable data that relate to government performance.  FOI champions, however, are inevitably disappointed if government releases data, adaptable or not, that has more to do with service delivery than transparency; open data champions are equally disappointed when government releases its information in “inert” forms that are difficult to analyze or reorganize for public value.

Jennifer Shkabatur’s paper springs from very much the same motivating insight, but she attacks it from a different angle.  Transparency, Shkabatur notes, is arguably the central device through which U.S. administrative law seeks to foster accountability for the regulatory bureaucracy.  She outlines what she calls the “architecture” of government transparency, which comprises mandatory components (e.g., notices of proposed rulemaking; required statements of regulatory basis and purpose), discretionary transparency (wherein she places the open data movement), and “involuntary transparency,” i.e., government openness through leaks.  In each sector, she regards public policy as having the capacity to marry transparency with accountability, but, in each sector, she sees the U.S. government falling short.  She believes our rules of mandatory transparency are not well-tailored to “offer the public a meaningful explanation and justification of agencies’ decisions and activities.”  Voluntary transparency gives agencies too much discretion to disclose information that puts them in a positive light to an undeserved degree.  Our policies on “involuntary transparency,” in Shkabatur’s judgment, undervalue the positive contributions of leakers and thus under-protect whistleblowers.

Unlike Yu and Robinson, Shkabatur accompanies her diagnosis with a series of suggested improvements in policy and institutional practice that go beyond the call for more precise rhetoric and analysis.  In general, these suggestions have three aims:  to focus government disclosure efforts on “the decision-making processes of agencies and their performance”; to ” lower[] access and participation barriers for individual citizens or diffuse social groups” and to toughen up the enforcement of transparency obligations.  As much as I like some of these suggestions, readers may well feel, in canvassing the concluding sections of both Shkabatur, and Yu and Robinson, that we are simply “not there yet” in terms of identifying all that could or should be expected from efforts of governments to hold their own feet to the fire.  But you will also come away from these papers with a far clearer sense of how we got to where we are, the multiple dimensions to both our challenges and opportunities, and why a lot of frustration still accompanies so much of what appears to be a sincere and, to some extent, consequential effort on the part of the Obama White House to make government more open.

Serial Litigation in Administrative Law: What Can Repeat Cases Tell Us About Judicial Review?

Jun 25, 2012 Gillian Metzger

Gillian Metzger

In Deference and Dialogue in Administrative Law, Emily Meazell takes up the topic of serial administrative law litigation.  These repeated rounds of challenges and remands, which Meazell finds are particularly prevalent in contexts of risk regulation, provide a new lens on court-agency relationships.  Meazell closely reviews several instances of such litigation, spanning topics as diverse as endangered species, potential workplace carcinogens, and financial qualifications of nuclear plant operators.  She argues that such close examination reveals a process of dialogue, with agencies ultimately (if not immediately) responding to judicial concerns and courts in turn acknowledging administrative responses.

According to Meazell, serial litigation merits attention because it demonstrates that judicial review may not function as we think it does.  In particular, Meazell flags two features of serial litigation that deserve particular note.  The first is that agencies frequently considered new information and evidence on remand, even though that might entail greater effort and new rounds of notice and comment.  She argues that serial litigation thus can provide an opportunity for agencies to refine their analyses and gain greater expertise over time.   The second is that, despite their initial sometimes stern rejections of agency determinations, courts often ultimately took quite a deferential stance. From this Meazell concludes that, when viewed over the long lifetime of some of this litigation, hard look review resembles more the soft look of constitutional rationality review than the more searching scrutiny administrative law cases and scholarship claim it to be.

I agree with Meazell that the serial character of administrative law litigation merits greater scrutiny, and her careful case studies offer a great start.  At a minimum, Meazell underscores (along with Wendy Wagner’s recent investigation of the impact of judicial review on EPA rulemaking, Rulemaking in the Shade:  An Empirical Study of EPA’s Air Toxic  Emission Standards, 63 Admin. L. Rev. 99 (2011)), the need to take into account what happens after a court reverses and remands in our assessments of the value and function of judicial review.   I also appreciate Meazell’s effort to examine the extent to which agencies and courts are responsive to each other’s concerns and arguments, and the pattern she reveals—that it often takes repeated tries before agencies directly engage the issues flagged by courts—is striking. That pattern seems somewhat in tension with the standard ossification thesis, which argues that the substantial agency resources and time on the line in rulemakings means that agencies are too attentive to possible judicial concerns.

Still, I think it remains open whether the instances of serial litigation Meazell identifies actually demonstrate court-agency dialogue, in the sense of a meaningful “conversation in which the participants strive towards learning and understanding to promote more effective deliberation and outcomes.” (111 Colum. L. Rev. 1722, 1773). To be sure, Meazell shows how agencies eventually often speak directly to the issues courts raise, and how courts frequently turn deferential when agencies do so. But the cynic in me was left wondering whether a more accurate description than court-agency dialogue is straightforward compromise, with both agencies and courts deviating from their real views of the best answer, perhaps significantly, in order to put an end to litigation that clearly has gone on way too long.

Dueling Visions of the Social Security Disability Adjudicatory System

May 21, 2012 William Funk2 comments

William Funk

The Social Security Administration’s administrative appeals system is touted as one of largest administrative judicial systems in the world.  No one claims it is one of the best.  Professor Richard Pierce, writing in the Cato Institute’s Regulation magazine, proclaims that it is seriously broken, and he has suggestions for how to fix it.  One might say radical suggestions.  Dubin and Rains, writing an Issue Brief for the American Constitution Society, take issue with Pierce, rebutting his assertions and defending the basic system as it is, warts and all.  One might believe that publications of the Cato Institute and the American Constitution Society would be hopelessly biased, and of course they do represent different views of the American polity, but to read these two pieces, whatever your political inclinations, will inform you about one of the most important issues in administrative law – how to deal with a mass administrative justice system that seems to be running amok.

To establish that the system is broken, Pierce provides statistics on the increase in disability determinations, the total cost involved in paying for disabled workers, and the role that pain and other non-objective causes of disability play in the increase in disability findings.  Pierce’s theme is that the use of administrative law judges and formal adjudication to re-decide what professionals determined on the basis of paper records is responsible for the breakdown, because their use is needlessly inefficient, results in non-uniform determinations, is skewed in favor of granting benefits, and is unconstitutional to boot.  Why use formal hearing adjudication for what is basically a medical determination?  Pierce suggests that the justification is to allow ALJs to assess the credibility of the claimants on the basis of their demeanor, but he then cites to an important law review article, Olin Wellborn, Demeanor, 76 Cornell L. Rev. 1075 (1991), that concludes that empirical evidence suggests that one cannot determine truthfulness (or falsity) on the basis of demeanor.  Ipso Facto: we don’t need formal adjudications for disability determinations.  The fact that there are wide disparities between ALJs in the outcomes of cases suggests that the hearings are not accurate determinations of the truth.  Moreover, under the current system, the claimant, usually represented by counsel, appears before an ALJ who, according to judicial decisions, is supposed to aid the claimant in making his case, but there is no one to represent the “other side.”  This hopelessly skews the system.  Finally, Pierce argues from the recent case of Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S.Ct. 3138 (2010) that having ALJs decide these cases is unconstitutional because they can only be removed for cause by persons who also can only be removed for cause, violating the prohibition announced in that case on limiting the President’s ability to remove an officer by creating a double for-cause removal system.  Although he provides several possible responses to the problem, his apparently preferred suggestion is simply to eliminate the ALJ review altogether, using the funds saved to review the continued eligibility of current beneficiaries.

Dubin and Rains first take on Pierce’s statistics, and while many of their critiques seem on the mark, such as the fact that as the population ages we would expect more people to become disabled, they cannot hide the fact that the number of disability beneficiaries has grown tremendously.  They then argue that the ALJ adjudicatory hearing has nothing to do with the growth in beneficiaries.  The hearings are not primarily about demeanor, nor are they merely repeats of what was in the paper files.  As a de novo determination, there is often new evidence; the claimant’s counsel is able to present the facts in a better way than the unassisted forms considered by the bureaucrats before; and the claimant himself can explain and answer questions left open in the paper file.  In short, the ALJ hearing does provide greater accuracy in outcomes than the paper review.  The disparity between ALJs in outcomes is simply the bell curve in operation with the vast majority of ALJs having rates of finding disability around the agency decisional norm.  Finally, Dubin and Rains attack Pierce’s claim of unconstitutionality.  ALJs, they maintain, are simply not “officers” for constitutional purposes and therefore are not subject to the double for-cause prohibition found in Free Enterprise Fund, noting that in that case the Court referred to ALJs as “agency employees.”  Pierce had argued that the Social Security ALJs were officers because they made final decisions for the agency; that is, their finding of disability was not subject to any further review.  However, as Dubin and Rains point out, that is not really true.  The Social Security Appeals Council can, and occasionally does, review on its own motion findings of disability, and any denial of disability by an ALJ can be appealed to the Council, so ALJs do not actually make the final decision for the agency either for or against disability.  Professor Pierce would respond, I am sure, that technically that may be true, but as a practical matter ALJ decisions almost invariably are the final decision of the agency at least with respect to findings of disability.

Dubin and Rains’ article is more heavily footnoted, and it is the (currently) last word, but despite their often convincing argumentation and authorities, its impact really is to rebut Pierce’s suggestion to eliminate the ALJ review altogether, a suggestion as likely to be adopted as a suggestion to eliminate the filibuster.  What is valuable about these articles, which really need to be read together, is to portray the difficulty of improving a system that involves millions of people and billions of dollars and yet is badly backlogged with a high variation in decisions by different ALJs.  In addition, the discussion of the constitutionality of ALJs is academically valuable, for sooner or later some court will have to address the issue, as Justice Breyer in his dissent in Free Enterprise Fund predicted.

The Search for Slowness

Apr 11, 2012 Cary Coglianese

Cary Coglianese

Administrative law scholars widely consider it to be a fact that the rulemaking process has become substantially burdened with analytical requirements, a burden that either has caused agencies to retreat from rulemaking or has significantly delayed agencies’ ability to adopt new rules.  Lamentation about this ossification of rulemaking pervades much scholarship in administrative law and underpins many scholars’ prescriptions about procedural reform.

In a recent article in a leading, peer-reviewed public administration journal, Jason Yackee and Susan Yackee try to measure the ossification of rulemaking, statistically analyzing the time needed to complete all non-routine rules initiated by every federal agency over nearly a two-decade period.  What they find stands in stark contrast with the prevailing view among administrative law scholars and draws into doubt whether the ossification effect is real.

The “ossification thesis” – as Yackee and Yackee refer to it – is grounded in a commonsensical idea that the more procedural hurdles an agency has to jump over, the longer it will take it to complete a rulemaking and overall the fewer rules it will promulgate.  The legal literature from the 1990s contains a number of case studies of both individual rulemakings that took a long time to promulgate and individual agencies that purportedly retreated from rulemaking.

Despite its appeal and widespread acceptance, the ossification thesis has been supported by what is, at best, a thin evidentiary record when judged by conventional standards of social science.  The limitations of case study research will be familiar to any scientist.  Individual cases may not be representative of the larger universe of cases and, particularly when such cases have been selected on an ad hoc, nonrandom basis, they cannot support valid, generalizable inferences.

More importantly, individual cases cannot be used to rule out alternative explanations for observed outcomes.  For example, if an individual rulemaking subject to review by the Office and Management and Budget (OMB) took a long time to finalize, it is impossible to conclude, just by looking at that one rulemaking, whether it was OMB review that caused the delay or something else altogether, such as policy uncertainty or internal agency controversy.  It might well look like it was OMB review, but without some greater variation that can be analyzed it is impossible to be sure.  Consequently, we need more than individual case studies to support the kinds of general causal claims that have been made about the ossification of rulemaking.

Yackee and Yackee take an important step forward in their recent article by subjecting such claims to systematic empirical analysis.  In doing so, they build on previous research that has already cast doubt on the validity of the ossification thesis.  A 1992 study by Neil Kerwin and Scott Furlong analyzed 150 Environmental Protection Agency (EPA) rules and could find barely any meaningful association between OMB review and regulatory duration.  A 2000 study by Bill Jordan examined 71 cases subjecting rules to judicial remand and found judicial review “did not significantly impede agencies in the pursuit of their policy goals.”  In 2002, I reported data on the quantity and costs of federal regulations that ran “counter to the prevailing understanding among administrative law scholars.” Stuart Shapiro, also in 2002, published a well-designed study that matched states with different procedural hurdles and found partisan factors rather than procedures affected the pace of state rulemaking.  In 2008, Anne Joseph O’Connell reported results from her study of twenty years of federal rulemaking that “suggest[ed] that the administrative state is not significantly ossified.”  Of the ten agencies O’Connell scrutinized closely, nine had completed their rulemaking proceedings in less than an average of two years.

Yackee and Yackee add richly to this accumulation of research.  They analyze rule completion for all federal agency rules initiated between 1988 and 2006 – a total of 14,495 rules!  Their data derive from the Unified Agenda of Federal Regulatory and Deregulatory Actions, a biannual report in which each federal agency is supposed to list all non-routine rulemaking proceedings.  Much like O’Connell, Yackee and Yackee find that “[t]he majority of rules are estimated to be promulgated well within 2 years.”

What sets the Yackee and Yackee study apart is that its authors also statistically analyze the determinants of the time it takes agencies to move through the notice-and-comment process.  They seek to determine whether rules subject to, for example, OMB review or the Regulatory Flexibility Act took longer to complete than other rules, controlling for other factors that could be expected to affect rulemaking duration, such as the size of departmental budgets or the existence of congressional or court-imposed rulemaking deadlines.

Controlling for these other factors, Yackee and Yackee find that each of their ossification variables turns out to be statistically significant — but in a way opposite of what the prevailing wisdom would predict.  Subjecting rules to OMB review apparently “speeds up the rule-making process.”  The three other supposedly ossifying variables Yackee and Yackee tested are associated with similar hastening effects.  As would be expected, they do find that factors such as deadlines and larger departmental budgets are associated with speedier rulemaking completion.

Yackee and Yackee decompose their counterintuitive findings.  They find that the hastening associated with OMB review, for example, appears in the vast majority of rules that are completed within a 21 month period of time.  They report that OMB review is associated with additional delay, over and above delay caused by other forces, only for a minority of rules that otherwise persist much longer than the typical rule, that is, for “the relatively rare rules that, for nonprocedural reasons, have proven exceptionally resistant to promulgation.”  Yackee and Yackee speculate that agencies give more attention to rules that go through OMB review, which generally speeds them along in most cases.  But once a rule gets mired down for other reasons, perhaps due to political controversy, then OMB review can add a bit of a drag.

Obviously more work is needed to test this and other alternative theories, but the counterintuitive results from the Yackee and Yackee study should spur consideration of a more nuanced account of the impact of procedures on the rulemaking process.  Clearly their study is the most sophisticated test of rulemaking ossification to date.  The authors are sensitive to important methodological issues, they recognize the limits of their data, and they confirm their results with tests including alternative variables (such as congressional and presidential party control) and using other available measures of delay (such as duration from advance notices of proposed rulemaking to final rules).  Notwithstanding this care, they not only fail to find confirmation of the ossification thesis but their results actually turn that thesis on its head.

The Yackee and Yackee study will by no means be the final, definitive study on rulemaking ossification.  It has its limitations, including that it only covers rules dating back to 1988.  To their credit, Yackee and Yackee have continued their line of inquiry, producing additional work to appear later this year: an article in the George Washington Law Review, and a chapter in a forthcoming book I have edited on the current crisis in regulation in the United States.  Their GW Law Review article has the advantage of drawing on data spanning a period twice as long as in the study described here, although it only focuses on rulemaking at seventeen rulemaking agencies within the Department of Interior rather than across the entire federal government.  The statistical analysis in their forthcoming law review article is not as sophisticated as that in the study described here, but like this study it also fails to find much that supports the conventional wisdom.

Their GW Law Review article also has the distinction of having already generated a pointed response from an eminent administrative law scholar, Richard Pierce, who recently wrote that his response “should end … debate” over the validity of the ossification thesis.  But debate is good, especially when it is conducted in the pursuit of scientific inquiry.  The ossification thesis is first and foremost an empirical claim about the effects of procedure and oversight on organizational behavior.  Given the complexity of administrative organizations and of the business of rulemaking, neither administrative law scholars nor social scientists should kid themselves that they have unlocked the code.  I realize, of course, that ossification has taken on important normative and policy implications, ones that seem especially salient at the present time when Congress is considering procedural reform legislation.  Yet such policy implications only make it more important to try to get the underlying empirical account right.  Rather than cling to ossification as an article of faith, administrative law scholars would do well to view it as a proposition that merits inquiry, especially in the wake of research like that produced by scholars like Yackee and Yackee.  We would do well, in other words, to follow in their footsteps in a search for slowness.

In Praise of a Comparativist Rubric for Administrative Law

Mar 21, 2012 Mark Seidenfeld

Mark Seidenfeld

Administrative law scholars in the United States who seek to borrow ideas from approaches tried by other liberal democracies face a substantial problem: each country’s government is structured differently.  There is no recognized metric for evaluating how administrative law will play out in a state with a different structure of government. The lack of such a metric is especially troubling as governments seek to take advantage of flexible regulatory approaches that harness the knowledge and incentives of stakeholders in the regulatory process.  A fascinating article, “From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law,” by Professor Francesca Bignami, provides a first stab at providing such a metric.

Professor Bignami criticizes the traditional characterization of administrative law, as “organization of public administration” and “judicial review of administrative action,” for its inability to “engage with contemporary debates on the desirability and future possibilities of administrative law.”  To surmount this inability, Bignami begins to “develop . . . a comparative framework by recasting administrative law as an accountability network of rules and procedures through which civil servants are embedded in their liberal democratic societies.”Bignami breaks down the concepts of accountability network into four sets of relations: those between civil servants and elected officials, organized interests, the courts and the general public, respectively.  The accountability network description is “well equipped to capture such phenomena in administrative governance as: the political objectives of the bureaucracy; the role of organized interests in providing new mechanisms of regulatory control, and the ability of the public to hold the bureaucracy accountable.

Professor Bignami proceeds to explore these network relations in various European liberal democracies and the United States.  She points out that, despite the differences between parliamentary and presidential systems, the domain of public administration has grown over the past century, threatening the primacy of legislatures as the policy-making organ of government.  But she also shows how the differences between parliamentary and presidential systems does affect the perceived legitimacy of the expanded administrative state.  Under a presidential system, she argues, competition between legislative and executive branches for control over the bureaucracy also explains the propensity of American administrative action to be characterized as either political or legal in nature.

Turning to the relationship of the bureaucracy to organized interest groups, Bignami observes that European administrative systems are neo-corporatist while the American system is pluralist.  That is, “in European legal systems, producer groups such as workers and employers are organized into a few, all-encompassing and broadly representative labor unions and employer associations.”  In the American legal system, by contrast, organized groups compete to represent particular constituents and “implementation of government policies rarely  depends upon official collaboration with [designated] interest organizations.”

With respect to the relationship of administration and the courts, Bignami sees the central divide as between common law and civil law systems.  In civil law countries, review of administrative action often occurs in specialized tribunals within the administration itself.  In England and the United States, by contrast, the common law tradition has resulted in generalist judges having authority to hear challenges to administrative action.  Also, review in traditionally common law legal systems tends to focus on the fairness of administrative procedures, especially in particular adjudications, while review in civil law systems focus on the substantive correctness of decisions.

Finally, Bignami identifies two recent developments in the relationship of the bureaucracy to the general public that increases accountability of administrative government.  The first, a European development, is the parliamentary  creation of the ombudsman, who performs oversight and complaint resolution functions.  The second, which seems universal within liberal democracies in Western Europe and the United States is the public’s right of access to agency documents and records.  Although the structures of government in Europe and the United States result in different organization for the system of access to agency information, both parliamentary and presidential systems have developed liberal rights of public access to agency information that, in this era of instantaneous and cheap  communication, has great potential to hold the administrative state accountable for its actions.

For comparativists, Professor Bignami’s accountability network provides a well-organized outline for describing and comparing various countries’ systems of administrative government, and her article includes many interesting historical and structural explanations for why those various systems look as they do.  As a non-comparativist, what I like best about this article is the rubric it provides for evaluating various proposals for improved administrative governance in the United States.  The rubric is, of course, just an outline.  It can be further developed and improved by recognizing that the relationships Bignami identifies within her accountability network are themselves not self-contained, but rather interact with each other.  Thus, for example, the operation of judicial review depends on bureaucrats and the public’s ability to get information from organized interest groups.  And, the demands of judicial review will themselves affect the structure of the bureaucracy and how it interacts with its political overseers, those it regulates and the general public.  But, if one recognizes and investigates such interdependencies, then the set of four accountability network relations that Bignami identifies go a long way toward providing an all-encompassing metric for organizing and evaluating the various conceptions of the administrative state.

State Interpreters

Mar 2, 2012 Anne Joseph O'Connell

Anne Joseph O'Connell

Oral arguments on the constitutionality of the Patient Protection and Affordable Care Act will consume three days of the Supreme Court’s schedule, an unusual assignment of the Court’s time. But the constitutional challenge, assuming it fails, will be just the first act in a long performance.  Abbe Gluck’s tremendous essay recently published in the Yale Law Journal takes up some of the fascinating potential statutory interpretation questions waiting in the wings.

These questions arise from the mix of institutional design choices involving the states in the Act (and in other legislation). The choices include provisions implemented only by the federal government, provisions implemented only by the states, and, of particular interest, provisions involving both sets of actors. Gluck trains on this last category, noting that the Act “appears to deploy the [state-federal] relationship strategically – as a way to expand the federal presence into several key areas of traditional state control – and somewhat paradoxically, also expressively, as a way to acknowledge the states’ traditional authority over health insurance.” (pp. 584-5)

These design choices, interesting on their own as a descriptive matter, motivate Gluck to construct an “intrastatutory federalism” framework to consider the decisions’ normative implications. These implications should grab the attention of anyone interested in administrative law: “Should federal agencies have less discretion, for example, to use their regulatory power to constrain interstate implementation variation in statutes that give states a lead implementation role? Does Congress’s purpose for intervening in the first place – the reason Congress decided national legislation was necessary – matter in answering these questions? When, if ever, does Congress’s use of state implementers signal Congress’s assent to – even encouragement of – the idea that the federal statutory law will mean different things in different states?” (p. 540)

Gluck does not want to join the policy debate over whether state actors are better than others in carrying out assignments. Rather, she takes as given that Congress can choose whether to task state actors in federal statutes and examines what should follow for how those statutes are interpreted. It is unsettled, complicated doctrinal territory. Should canons concerning state-federal relations govern (i.e., the presumption against preemption and the federalism canon)? These canons, however, help when federal law conflicts with state law, which does not capture the complex institutional design choices in the recent health care legislation and other statues. Or should canons concerning agency action dominate (i.e., Chevron/Mead)? Yet, these canons also ignore state actors as interpreters of federal statutes.

After demonstrating how both approaches are deficient, Gluck suggests that “a Mead-like approach may be the easiest way to incorporate the role of state implementers into familiar interpretative doctrines.” (p.599) Her suggestion is not simply to have courts apply Chevron to state interpreters – in the language of Mead, did Congress intend to delegate to the states the power to interpret particular provisions with the force of law and did the states act with that authority? Gluck rightly realizes that some of the justifications for deference to federal agencies do not map directly onto state actors. In the end, her tentative proposal may come, in many contexts, closest to having courts apply Skidmore (and its multifactor framework) to state interpreters. If Mead was a muddle for the courts with only federal agencies¹, it may become sheer chaos with complicated yet prevalent institutional design choices involving federal and state actors.

In sum, Gluck’s essay (a bit of a misnomer, since the piece runs close to 90 pages) reminds us that we ignore states at our peril. States are not bit actors in major areas of public policy, but instead often play critical parts. The Patient Protection and Affordable Care Act is only one example. Gluck deftly demonstrates how their presence interpreting federal statues (here, in execution, and, in other work, in judicial review) should force us to reassess how we think about fundamental questions in federal legislation and administrative law.

1. Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443 (2005).

Superfriends of the APA

Feb 10, 2012 Richard Murphy

Richard Murphy

In early December 2011, the House passed two alarming bills that, if ever enacted, would wreak havoc on the rulemaking process. ((At this point, guild rules require reference to Representative John Dingell’s advice from nearly thirty years ago, “I’ll let you write the substance … you let me write the procedure, and I’ll screw you every time.”))  On December 7, it passed the REINS Act—the acronym stands for “Regulations from the Executive In Need of Scrutiny.”  This bill is simple in its design, requiring congressional approval for regulations that have an economic impact in excess of $100 million.  Considered as a reform of the rulemaking process, it has the honest virtues of a clean kill—a bullet to the head.  Less than a week before, on December 2, the House passed the Regulatory Accountability Act (“RAA”). ((All legislation must now have a catchy acronym—e.g., the REINS Act will “rein” in the out-of-control beast that is the administrative state.  A quick check of Wikipedia suggests that “RAA” could signify, among other many other possibilities:  (a) support for Rise Against Alliansen, a group of Swedish supporters of the Chicago punk-rock band Rise Against; (b) homage to Raa, the god of the sun in Maori mythology; or (c) an effort to frighten regulators with an “[o]nomatopoeic description of the sound that a beast makes when expelling a terrifying roar.”))  The RAA would cripple rulemaking by adding dozens of new procedural and analytic requirements to the process.  These requirements include, among many other things, extensive cost-benefit analysis at multiple stages of the process and even formal rulemaking for “high impact” rules.  Yes—that’s right, formal rulemaking could come back from the (almost) dead.  Rather than a clean kill, the RAA promises to haul rulemaking into a back alley and beat on it until maybe it dies.

If you are the sort of person who frequents JOTWELL’s administrative law page, then you probably already know something about both these bills.  Regarding the REINS Act, it may be fair to say that there isn’t all that much to know—it is easy to describe what it does and its anti-regulatory intent is as plain as the summer sun.  The RAA is a far more complex beast, which makes it very difficult to summarize and concisely assess.  Such work is important because proponents of the RAA might find themselves in control of the Senate and the Presidency someday not too long from now.  If this eventuality occurs, one must hope that the powers-that-may-be can be persuaded that they didn’t really want to cripple administrative rulemaking.  They just said they did when they didn’t have the power to make it happen.

It is with this context in mind that I want to draw your attention to two excellent pieces of administrative law scholarship that were submitted to the House Judiciary Committee as it considered the RAA.  (Links to both are at the top of this short essay.)

For a thorough assessment of both the vices and virtues of the RAA, check out the ABA Administrative Law Section’s Comments on H.R. 3010, The Regulatory Accountability Act of 2011.  The Ad Law Section, which includes private and government attorneys as well as a considerable amount of administrative-law-professor firepower, put together this document faster than any committee should be able to produce any work product at all—much less something this good.  As an institutional work, the Section’s comments naturally strive for balance and do so against the backdrop of decades of earlier policy statements.  Stressing the positive, the Section praises, among other things, the RAA’s codification of the transparency requirements of the Portland Cement doctrine, which requires agencies to disclose information on which they rely in fashioning a proposed rule.  (Comments at 17.)  It also praises the RAA’s move to define the notion of “record” as applied to informal rulemaking.  (Comments at 17.)  Perhaps more controversially, but in keeping with past ABA recommendations, the Section also “strongly support[s]” extension of OIRA oversight to rulemaking by independent agencies.  (Comments at 18-19.)

For the most part, however, the Section explains why so many of the RAA’s provisions are deeply troubling.  Some of these criticisms are technical but important objections that you need sharp-eyed lawyers wearing green eyeshades to find.  For instance, the RAA requires, innocuously enough one might think, that a rulemaking agency “shall base its preliminary and final determinations on evidence.”  (Proposed § 553(b) (emphasis added))  Who on earth could be against basing important decisions on “evidence”?  Administrative lawyers who know that this requirement may not fit legal and policy determinations well, who know that courts already review agency action for factual support, and who know from experience that judicial glosses on ambiguous terms in the APA can lead in unexpected directions—that’s who.  (Comments at 10-11.)

Other criticisms come at a loftier level.  The RAA contains a lengthy and detailed list of “rulemaking considerations” that an agency must discuss both in a notice of proposed rulemaking (NPRM) and on final issuance of a rule—e.g., analysis of “direct, indirect, and cumulative costs and benefits and estimated impacts on jobs, economic growth, innovation, and economic competitiveness.”  (Proposed § 553(b)(6)(A).)  The Section observes that these requirements will slow rulemaking, make it more expensive, and encourage policymaking by less transparent means.  It also, however, is careful to fit these objections into the broader context of the history of the ossification problem that has developed as legislative and executive requirements for rulemaking have accreted over time.  Finding a reasonably positive note to sound, the Section suggests that APA reform should be an occasion for streamlining and rationalizing these accretions rather than worsening them.  (Comments at 9-10.)

The second piece I want to draw to your attention is the testimony submitted to the House Judiciary Committee by Professor Sidney A. Shapiro (Wake Forest University School of Law and the Center for Progressive Reform).  If, for whatever reason, you find yourself in need of a 17-page, devastating critique of the RAA—you really need look no further.  Professor Shapiro’s full-throated defense of the benefits of sound regulation demolishes the rationales for the RAA (e.g., that the current system allows unaccountable agencies to create overly expensive rules that inhibit economic growth).  It also concisely documents numerous ways in which the RAA would damage both the process and the substance of administrative law (e.g., by imposing a super-mandate of cost-benefit analysis that would, in effect, partially repeal dozens of substantive statutes designed to protect health and safety).

Both the Ad Law Section’s Comments and Professor Shapiro’s testimony are, like the bill they critique, very difficult to summarize, and this short note does not do them full justice.  They weave together an immense amount of administrative law experience and scholarship, and they direct these efforts towards an important goal.  They are both excellent examples of engaged scholarship, and everyone involved is really to be commended.

Political Oversight of Agency Decisionmaking

Jan 23, 2012 Michael E Herz

Michael E Herz

Administrative agencies are often said to possess (a) expertise and (b) accountability.  These are the attributes that Justice Stevens relied on in Chevron, for example, to justify judicial deference to agency “interpretation” that is really policymaking.  Both of these admirable characteristics are exaggerated, but neither is mythical.  What is to be done, however, when they conflict?

This is a recurrent question.  Whether and when agencies should be set up as independent commissions, the disagreement between the majority and the dissent in State Farm, much of the battle over regulatory review – all involved at least in part the question whether the president’s preferences, or “political” considerations, should trump the agency’s (expert) judgment.  One doctrinal locus of this dispute is the arbitrary and capricious test. Is it “reasoned decisionmaking” if an agency does something simply because the White House told it to?  State Farm and Massachusetts v. EPA suggest the answer is no.  Four, and arguably five, Justices in FCC v. Fox Televisions Stations  imply the answer may be yes, and a number of commentators – most recently, Kathryn Watts – have argued for judicial acceptance of political justifications for agency action.

One standard move by administrative lawyers – common in but not unique to the field – is to seek procedural responses to substantive problems.  We don’t know what the right answer is, but we can figure out a procedure that will resolve most of the concerns so we don’t have to figure out the right answer.

In a superb recent article,Disclosing “Political” Oversight of Agency Decision Making, which was selected by the ABA’s Section of Administrative Law and Regulatory Practice as the best article in administrative law last year, Professor Nina Mendelson has taken the procedural approach to the substantive problem of White House influence on agency decisionmaking.  She argues against regulation, limitation, or special judicial deference and in favor of disclosure of political reasons for a particular decision.  (Importantly, by “political” she means not a particular type of reason – such as a reason that will appease important constituencies and advance the President’s chances of re-election – but rather reasons that have their source in the White House.)

Mendelson begins with two important but often overlooked points.  First, we know remarkably little about the content and scope of presidential oversight of rulemaking.  Second, there’s presidential oversight and there’s presidential oversight; that is, some presidential influence is almost indisputably appropriate and enhances the legitimacy of agency decisionmaking, and some (e.g. leaning on the agency to ignore scientific fact or to do something inconsistent with statutory constraints) is not.

Although presidents have long exerted significant influence on agency rulemaking, and although that influence has been regularized and concentrated in OIRA for three decades, it remains quite invisible.  The OIRA review process is fairly opaque (though less so than it once was), influence by other parts of the White House even more so, and official explanations of agency action almost always are silent about political considerations.  As a result, the democratic responsiveness and accountability that, in theory, presidential oversight provides goes unrealized.  Presidents take credit when it suits them, but keep their distance from controversy.  (Although Mendelson does not make the connection explicit, her account resonates with critiques by supporters of a nondelegation doctrine with teeth who are dismayed by Congress’s desire to take credit but not blame.)

Mendelson proposes that agencies be required, ideally by statute, to summarize the content of regulatory review in issuing rulemaking documents.  (She offers a relatively transparent recent fuel economy rulemaking as a possible model.)  First, this would allow the public to see the president’s hand in the final decision and, for better or worse, hold him accountable.  Second, it would enhance our understanding of executive review and, in a sunlight-is-the-best-disinfectant sort of way, discourage inappropriate interference.  Third, this information would be useful to Congress, which might respond legislatively.

The thorniest problems raised by this proposal involve judicial review.  How should this newly available information affect courts?  Here, as she acknowledges, Mendelson edges somewhat closer to Watts, calling for courts to be deferential to “value preferences or policy calls,” as long as they are consistent with statutory factors relevant to the decision and do not reflect a skewing of the factual analysis.  She acknowledges, and warns against, the possibility of courts being too deferential, and insists on the importance of their scrutinizing with some care agency determinations of legal or technical issues as opposed to “value-laden policy questions.”  This analysis raises some larger questions about what, exactly, the legitimate bases of agency decisions are, which are explored, though not fully resolved, in the final section.

Mendelson’s turn to disclosure – to procedure rather than substance – does not completely escape the underlying conundrum regarding the appropriate scope of presidential influence over agency decisionmaking.  Nonetheless, among her proposal’s many benefits would be that it would place us (Congress, or the courts, or the voters) in a far better position to answer that question.

New Ideas for Agency Design

Jan 13, 2012 Edward Rubin1 comment

Edward Rubin

One of the most interesting areas of current administrative law and political science scholarship is the attention being devoted to the design of administrative agencies. Some of this work is empirical, and much of it is interdisciplinary, the two buzz words for contemporary cutting edge scholarship in this area, and so many other areas as well. But the real source of this work’s value and promise –and an underlying source of both its empirical and interdisciplinary character– is that it takes law seriously without viewing it from the judicial perspective. The political science scholarship, such as David Epstein & Sharyn O’Halloran, Delegating Powers (1999) and David Lewis, Presidents and the Politics of Agency Design (2003), has begun to free itself from the idea that only politics matters, and looks at the way that legal structures, having been generated by politics, affect the governmental process. The legal scholarship, such as Lisa Schultz Bressman & Robert Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599 (2010) and Jacob Gersen, Designing Agencies: Public Choice and Public Law, in Daniel Farber & Joseph O’Connell, eds., Research Handbook on Public Choice and Public Law (2010), has begun to free itself from the idea that law is to be defined, or at least perceived, through judicial decisions, and looks at the way that it shapes, and is shaped by, executive and legislative actors.

Rachel Barkow’s Insulating Agencies: Avoiding Capture Through Institutional Design, exemplifies this approach. Barkow’s topic is agency independence, but she does not address the tired question of whether such independence offends the Constitution, either in its entirety or in its details. Not only does she ignore the old chestnuts of judicial doctrine in this area, such as Myers v. U.S., 272 U.S. 52 (1926) and Humphrey’s Executor v. U.S., 295 U.S. 602 (1935) but she resolutely resists having anything to say about the recently decided bit of Roberts Court weirdness, Free Enterprise Fund v. PCAOB, 561 U.S. ____(2010) (the aptly nicknamed Peekaboo case). Instead of the children’s game of discussing constitutional limits on the administrative apparatus, her concern is the basic, and extremely serious question of why we want agencies to be independent of political control and how we achieve that goal.

There are several major reasons to structure agencies in a way that makes them partially independent of control by elected officials, Barkow argues. These include expertise, non-partisanship and stability, but the one she is concerned with is insulation from capture. Many agencies are created to regulate sectors of the economy in the public interest. The difficulty is that these sectors are often inhabited by powerful private entities that either do not want to be regulated or want to use the regulatory process for purposes of their own. In order for the agency to achieve its intended goals in the face of this resistance, it must be insulated from the political pressure that such powerful entities exert. The classic ways of doing so are to place a multi-member commission, rather than a single individual, at its head, to restrict the President’s power to remove the agency’s leaders, whether commissioners or individual directors (the defining feature of independence), and to exempt the agency from supervision by OMB and OIRA. Long experience has taught us, as Barkow notes, that the effectiveness of these devices is limited. Many agencies headed by commissions whose members can only be dismissed for cause, and that are not subject to OIRA’s cost-benefit analysis, nonetheless succumb to industry group pressure.

Barkow proceeds to discuss other, less familiar design features that can contribute to the insulation of an agency from industry pressure, and thus assist it in achieving its intended purposes. The agency can be authorized to submit its budget requests directly to Congress, rather than through OMB. Its leaders can not only be protected from presidential removal, but also required to possess certain types of expertise. They can be restricted from accepting employment by the entities they regulate upon departure from the agency. Regulatory authority can be granted simultaneously to several different federal agencies or shared among these agencies. Similarly, it can be shared with state agencies whose political environment may differ from the one the federal agency experiences. Even if the agency has sole authority to enact regulations in a given area, authority to enforce these regulations can be divided among different federal or state agencies. The agency can be authorized to provide information directly to the public, thereby enlisting private enforcement or recruiting political allies. It can also be authorized or encouraged to obtain allies directly, either by establishing relations with public advocacy groups or by giving such groups a role within the agency. Barkow concludes her discussion with a brief case study of the Consumer Products Safety Commission (CSPC), and Consumer Finance Protection Bureau (CFPB), newly established under Dodd-Frank. The CSPC, which relied on traditional means of insulation from regulated entities, has been notoriously ineffective; CFBB employs several of the additional devices Barkow discusses, and will, it is hoped, experience more success.

The great virtue of Barkow’s article is that it addresses the question of agency independence from a new and much more significant perspective than either pure politics (why did interest groups permit or oppose independence?) or pure law (is the result constitutional?). Rather, the question is how agencies should be designed in order to implement certain social goals, a major one being the regulation of powerful business entities. Framing the inquiry in this fashion opens up an extensive range of possibilities that we, as a society, have only begun to explore. The ones we use, such as restrictions on removal power, are relatively minor variations on a single theme. That theme is the one identified, and to some extent entrenched, by Weber. It is a product of the transition from government agencies as extensions of the king’s household to agencies modeled largely on the hierarchical military organizations of the Early Modern Era that reflect a rationalized, professionalized modern state. Now that this type of governance is securely established, we should be thinking about ways to go beyond the Weberian model. As Barkow suggests, we can think about designing agencies that have their own funding sources, that actively promote their mission by forming alliances with private groups, that provide public information and proselytize in favor of their mission, that redesign themselves based on such interactions with their constituents, that make use of flexible employment policies to change the type of people they recruit and the incentives of those whom they employ. Barkow’s article points us toward the next stage in the development of administrative governance, which is why I like it a lot.

The Appellate Review Model of Agency Adjudications

Dec 14, 2011 Linda Jellum

Linda Jellum

In our field, there are a few articles that every academic, even practitioners, should read for an understanding of modern administrative law: the so-called seminal works.² In my opinion, Professor Thomas Merrill’s latest article—Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law—should be added to this list. In his article, Professor Merrill examines the historical development of the appellate review model as applied to administrative adjudication, and while this choice for judicial review was not inevitable, it has had wide-ranging consequences. Professor Merrill’s article explores both the origins and consequences of this model to explain, in part, why the Supreme Court “never seriously grappled with” the constitutionality of administrative adjudication. With this Article, Professor Merrell aims to explain and, perhaps, reignite the age-old question: “How … do we square adjudication on a mass scale by administrative agencies with text of Article III?”

In the first half of the Article, Professor Merrill details the adoption of the appellate review model in the administrative context and concludes that the adoption of this model explains why the Supreme Court so readily accepted agency adjudication. Prior to the twentieth century, courts either reviewed administrators’ actions pursuant to the prerogative writs (e.g., mandamus and habeas corpus) or did not review these actions at all. Yet, around the turn of the century, the courts adopted the appellate review model, which allowed agencies and courts to share decisional authority. Specifically, the appellate review model of judicial review, which mirrors the relationship between appellate and trial courts in civil litigation, has three salient features. First, a reviewing court decides appeals using only the evidentiary record generated below; if more evidence is needed, the court remands the case. Second, the appropriate standard of review varies according to whether the issue falls within the area of expertise of the reviewing court (law) or the lower tribunal (facts). Lastly, the law-fact distinction is the key variable for dividing judicial competence.

Professor Merrill suggests that the Court adopted the appellate review model to address and resolve concerns regarding judicial encroachment into the legislative arena generally and to curtail aggressive judicial oversight of the Interstate Commerce Commission specifically. Along the way, Professor Merrill explains how this model allowed the Court to tailor judicial review to fit the prevailing approach to administrative law of the time. For example, hard look review and Chevron deference both fit the model, yet allow increased judicial oversight during a time of perceived agency capture. After reading his historical account, it comes as little surprise to the reader that, in Crowell v. Benson, 285 U.S. 22 (1932), the Supreme Court rejected an Article III challenge to agency adjudication of worker’s compensation claims. The Court reasoned that, as long as Article III courts had de novo review of any jurisdictional facts (a constraint later abandoned), the remaining fact-finding authority could constitutionally remain with the agency. The constitutionality of such adjudication was “never seriously deliberated by the Supreme Court.”

After explaining his theory as to why the Supreme Court adopted the appellate review model so readily while remaining unconcerned about the conflict with the text of the constitution, Professor Merrill refutes two modern, alternative theories regarding this Article III conundrum: the adjunct theory and the public rights theory. The adjunct theory posits that agencies function much like juries or masters in chancery, as adjuncts to federal courts deciding routine factual questions. Professor Merrill believes that this model fails because there is no textual basis in Article III for agencies, unlike juries and masters in chancery, to have such power. Additionally, agency powers today are much further reaching. Modern scholars have adjusted the adjunct theory by suggesting that “judicial power of the United States” simply means appellate power, an approach that would constitutionalize the appellate review model. Yet, Professor Merrill rejects this theory because some agency orders are self-executing and judicial review is discretionary. Similarly, he rejects the public rights theory, which defines agency adjudication as limited to addressing issues of public, rather than private, rights. Professor Merrill notes that the distinction is blurred and the theory fails to explain the emergence of the appellate review model.

At the conclusion of his Article, Professor Merrill suggests the possibility of an alternate universe, one in which Article III courts review only the legitimacy of agency policy-making within the confines of legislative boundaries. Other countries, such as England, have made this choice. Such an option would give “reviewing courts much less influence over the formation of policy.” However, the exact contours of this alternative universe are merely posited and not explored. Perhaps he plans a follow-up piece on this topic; although change is unlikely at this point, so any suggestion would likely be theoretical rather than practical. “By the time complications or objections come to the fore, the inertia of institutional change is too great to undo them.”

At bottom, Professor Merrill’s article is primarily descriptive, but it is thoroughly so, exploring the history of judicial review from the early twentieth century to Chevron and beyond. I have no doubt that this Article will find a place in the proverbial “electronic bookshelf.” As I teach administrative law for the seventh time this fall, I am reminded that much, if not all, of modern administrative law revolves around judicial review. Given that reality, understanding how we got here is critical. For all these reasons, Professor Tom Merrill’s latest article is a must-read.

1. E.g., Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863 (1930); Charles Reich, The New Property, 73 YALE L.J. 733 (1964); Richard Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669 (1975); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612 (1996).