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When Agencies Sue Each Other

Bijal Shah, Executive (Agency) Administration, 72 Stan. L. Rev. __ (forthcoming), available at SSRN.

Independent agencies are subject to a host of interesting academic debates, including debates that go to the heart of what makes an agency independent and which agencies qualify. Most of those debates focus, however, on the relationship between independent agencies and the President. Some of them explore the relationship between independent agencies and the public, the courts, or Congress. But the horizontal examination of the relationship between independent agencies and executive agencies has gone under-examined.

In a meticulous accounting, Professor Bijal Shah documents one fascinating aspect of that relationship in her forthcoming article, Executive (Agency) Administration. There, she focuses on litigation brought by the Justice Department (DOJ) on behalf of executive agencies against independent agencies. This litigation dynamic is unusual, but as she shows, not unheard of; her painstaking gathering of all such cases since 1900 yielded about 175 cases. What is more, these cases are incredibly illuminating. The vast majority fall into one of three categories. First, when an independent agency adjudicates a matter against an executing agency as a party—typically labor-related—these cases serve as the means for judicial review. Second, when independent agencies assert power that interferes with executive agencies’ own authority, lawsuits serve to protect executive agencies’ purview. And third, there is a smaller category of cases where DOJ has challenged independent agency decisions to approve certain antitrust matters.

Even just identifying this body of litigation and describing how it has evolved over time contributes meaningfully to our understanding of the relationship between executive and independent agencies. This sort of work—using original data to illuminate a previously unexamined aspect of administrative law—is gaining traction in the field, and with good reason.

Beyond these insights, however, Professor Shah goes much further and demonstrates how this litigation actually forms a powerful tool of executive control over independent agencies. While Shah explains that sometimes these decisions are made at the presidential level, and thus can be categorized as an attempt to exert presidential influence over independent agencies along the lines of now-Justice Kagan’s “presidential administration,” more often the decisions are made by career DOJ staff at the behest of executive agencies as their clients. These instances mark a very different kind of balance of power between executive and independent agencies.

And the executive agencies are very successful in this litigation, winning around two-thirds of the cases they bring. This flips traditional administrative challenges on their head; typically defending agencies win about two-thirds of the time. Indeed, as Professor Shah explains, this phenomenon is one example of judicial review as an ex post check on independent agencies’ decision-making, where ex ante political checks are not possible. Some of her data even suggest that the quality of independent agency decision-making may truly be improved by these checks—independent agencies’ least defensible decisions are overturned routinely in this context.

Though there are many other aspects of Professor Shah’s work that are notable, including implications for judicial standards of review of independent agency actions, I found the most salient her observations about implications for aggrandizement of presidential control over independent agencies. As she says, litigation on behalf of executive agencies against independent agencies can easily be harnessed for the political aims of the president. Although some past examples suggest court skepticism in cases where such goals are blatant, the changing nature of the presidency and the Supreme Court may, in her view, suggest more openness to that strategy in the future.

Her evidence is convincing, and in some ways quite troubling. In particular, Justice Gorsuch recently rejected the NLRB’s interpretation of its own organic statute in favor of DOJ’s views on the Federal Arbitration Act, a statute of general applicability where DOJ has no special expertise. And now-Justice Kavanaugh, then a D.C. Circuit judge, wrote a panel decision and a dissent in the en banc decision that later reversed it, taking the position that certain kinds of for-cause removal restrictions are unconstitutional, demonstrating some appetite for additional presidential control over independent agencies. If these trends hold, and if the current or future administration shows a willingness to engage the courts for political ends, we may see this phenomenon gain traction.

Professor Shah’s ability to shed light on an under-appreciated aspect of administrative law is a refreshing addition to the literature that I am certain will be the beginning of much more consideration of the topic in the future. I personally believe that her troublesome predictions about the future of independent agencies’ independence will prove both prescient and problematic for administrative law.

Cite as: Margaret Kwoka, When Agencies Sue Each Other, JOTWELL (January 6, 2020) (reviewing Bijal Shah, Executive (Agency) Administration, 72 Stan. L. Rev. __ (forthcoming), available at SSRN),

Standing In Front of the Refrigerator

Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 Harv. L. Rev. __ (forthcoming 2019), available at SSRN.

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

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

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

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

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

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

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

Cite as: Mila Sohoni, Standing In Front of the Refrigerator, JOTWELL (November 26, 2019) (reviewing Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 Harv. L. Rev. __ (forthcoming 2019), available at SSRN),

Congressional Administration

Rebecca Ingber, Congressional Administration of Foreign Affairs, 106 Va. L. Rev. __ (forthcoming, 2019), available at SSRN.

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

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

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

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

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

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

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

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

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

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

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

Cite as: Jodi Short, Congressional Administration, JOTWELL (October 18, 2019) (reviewing Rebecca Ingber, Congressional Administration of Foreign Affairs, 106 Va. L. Rev. __ (forthcoming, 2019), available at SSRN),

I’m Just a Presidential Directive

Tara Leigh Grove, Presidential Laws and the Missing Interpretive Theory, 168 U. Pa. L. Rev. __ (forthcoming, 2020), available at SSRN.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. For more on structuring the 1L Leg-Reg course, check out my essay with Dakota Rudesill and Dan Tokaji. This essay was part of a terrific Journal of Legal Education symposium issue on the course—a must-read issue for anyone who teaches administrative law, legislation, or Leg-Reg as well as for law schools considering to add such a course to the first-year curriculum.
Cite as: Christopher Walker, I’m Just a Presidential Directive, JOTWELL (September 27, 2019) (reviewing Tara Leigh Grove, Presidential Laws and the Missing Interpretive Theory, 168 U. Pa. L. Rev. __ (forthcoming, 2020), available at SSRN),

How to Learn to Stop Worrying and Love the Administrative State

Nicholas Bagley, The Procedure Fetish, 118 Mich. L. Rev. __ (forthcoming, 2019), available at SSRN.

Every administrative law professor has been there. Perhaps you are discussing hard-look review, notice-and-comment rulemaking, or procedural challenges to non-legislative rules. Students, perhaps puzzled by the courts’ (mostly the D.C. Circuit’s) indifference to the spare requirements of the Administrative Procedure Act, may wonder where this layer of doctrine comes from or, more importantly, why it is there. At that point you go back to the beginning of the class. Remember concerns about how the “fourth branch of the Government . . . has deranged our three branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking”?1 Remember the theory about agency behavior that posits regulators’ incentives will steer them toward servicing the industry they are supposed to monitor in the public interest?2 These additional procedures are here to compensate for those worries about legitimacy, capture, and public participation, thus justifying and improving the workings of the administrative state.

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

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

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

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

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

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

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

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

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

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

  1. FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952).
  2. Thomas W. Merill, Capture Theory and the Courts: 1967-1983, 72 Chi.-Kent L. Rev. 1039 (1997).
Cite as: Jeffrey Pojanowski, How to Learn to Stop Worrying and Love the Administrative State, JOTWELL (August 16, 2019) (reviewing Nicholas Bagley, The Procedure Fetish, 118 Mich. L. Rev. __ (forthcoming, 2019), available at SSRN),

Gandhis of the Deep State

Jennifer Nou, Civil Servant Disobedience, 94 Chi.-Kent L. Rev. 349 (2019).

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

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

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

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

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

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

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

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

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

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

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

Cite as: Michael E Herz, Gandhis of the Deep State, JOTWELL (July 23, 2019) (reviewing Jennifer Nou, Civil Servant Disobedience, 94 Chi.-Kent L. Rev. 349 (2019)),

Why Energy Companies Must Use the Power of Eminent Domain

James W. Coleman & Alexandra B. Klass, Energy and Eminent Domain, 104 Minn. L. Rev. __ (forthcoming, 2019), available at SSRN.

Energy and Eminent Domain, by James Coleman and Alexandra Klass, is a must read for anyone who is interested in administrative law, government regulation, constitutional law, property law, energy law, environmental law, or climate change. I hope that I have not left anyone out, because I think that anyone who has any interest in law or public policy should read this article. Its substance is important and timely, and its narrative style makes it an easy and pleasant read.

The topic of the article is the use of eminent domain by privately-owned companies that construct oil and gas pipelines and electricity transmission lines. I suspect that many legal academics are not even aware of the routine use of eminent domain by private energy companies. I know that the Justices of the Supreme Court are not aware of that longstanding and ubiquitous practice. In its unanimous April 29, 2019 opinion in Thacker v. TVA, the Court held that TVA is immune from tort suits only when it performs a governmental function and not when it “acts like any other company producing and supplying electric power.”1 The Court referred to use of the eminent domain power as an illustration of a uniquely governmental function that cannot be performed by a private company: “When the TVA exercises the power of eminent domain, taking landowners’ property for public purposes, no one would confuse it for a private company.”2

Coleman and Klass begin the article by describing the “Kelo Revolution”—the major changes in state laws governing the exercise of the eminent domain power by government that took place after the Supreme Court issued its 2005 opinion in Kelo v. City of New London. (P. 1.) Many people reacted with anger to what they perceived as judicial tolerance of government overreach by allowing government to take private property for purposes that they considered illegitimate. State legislatures and courts responded by narrowing the circumstances in which government can exercise eminent domain power.

The authors contrast government uses of eminent domain with use of eminent domain by private companies:

These examples make it clear that the public, legislative, and judicial eminent domain reform at the time of the Kelo decision were focused squarely on government-initiated economic development takings and that energy, utility, and transportation takings were not perceived as a problem. To the contrary, such takings were used as illustrative examples of acceptable “public uses” even though the property at issue would be placed in private ownership.

(P. 10.) Coleman and Klass then discuss in detail the ways in which takings by private energy companies have increased over the past decade and the recent backlash that those takings have produced. The authors include references to the many federal and state statutes that authorize virtually any private company that wants to construct an oil or gas pipeline or electric transmission line to use eminent domain to obtain the property rights required for the construction.

The authors explain why there has been a dramatic increase in the need to construct new pipelines and transmission lines in the last decade. In the case of oil and gas pipelines, the increased need is tied to the increased use of fracking. The fracking revolution has massively increased the quantity of cheap oil and gas produced in locations that were not previously served by pipeline capacity that is sufficient to transport the oil and gas to markets. In the case of electricity transmission lines, the increased need is tied to the enormous increase in the quantity of electricity that can be generated at low cost through the use of wind farms that are in locations that are a long distance from the major markets for electricity.

Both the increased availability of cheap gas and the increased availability of cheap wind power have been critical to the successful U.S efforts to mitigate climate change. A decade ago, electric generating plants accounted for 38% of U.S. emissions of carbon dioxide—the most important cause of climate change. Over the last decade the U.S. has reduced its emissions of carbon dioxide by much more than any other nation. The International Energy Agency described the U.S. role well in 2017: “The decline was driven by a surge in shale gas supplies and more attractive renewable power that displaced coal. Emissions in the United States [in 2016] … were at their lowest level since 1992.”3

Coleman and Klass then describe the opposition to the use of eminent domain by private companies to construct pipelines and transmission lines that has emerged in reaction to the increase in proposals to construct new pipelines and transmission lines. The opposition comes primarily from landowners and environmental advocacy groups. As the authors describe it:

Notably, the advocacy groups partnering with affected landowners in these eminent domain challenges to oil and gas pipelines have a very different mission than the advocacy groups that represented Suzette Kelo and drove the post-Kelo reforms in the states. The opponents in Kelo were libertarians attempting to limit government power that needs to be limited by defining public use narrowly. For them, eminent domain represents government intrusion into individual rights that needs to be limited by defining public use narrowly. By contrast, the primary advocacy groups opposing fossil fuel energy projects come from the other end of the political spectrum. They advocate broad government intervention in the energy economy to protect the environment by (among other things) limiting the ability to burn fossil fuels. The energy project opponents generally favor government action on behalf of the public interest over private rights. As illustrated below, the environmental advocacy groups have strategically adopted many of the arguments of their libertarian predecessors despite the differences between their philosophies and ultimate objectives.

(Pp. 17-18.) Coleman and Klass attribute similar motives to the parties that oppose the use of eminent domain to construct electric transmission lines: “Despite the renewable energy benefits associated with these new electric transmission lines, states, counties, and landowners often continue to oppose such lines because of their impact on local land values and aesthetics.” (P. 34.) Given the critical role that new gas pipelines and electric transmission lines have played, and will continue to play, in mitigating climate change, it is ironic that the opposition to gas pipelines and transmission lines comes primarily from parties that are trying to protect the environment.

The authors then describe well the powerful arguments that support the of use of eminent domain to take property for public purposes, including for purposes of implementing critical infrastructure projects like pipelines and transmission lines. Notwithstanding those justifications for use of eminent domain for energy transportation projects, they express concern that the opposition to use of eminent domain for energy projects is so vocal and widespread that it “may spur the courts or Congress to adopt further restrictions on eminent domain. Perhaps a challenge to a pipeline could be a vehicle for overturning the Kelo case outright.” (P. 25.)

Coleman and Klass conclude their excellent article by suggesting ways in which proponents of the use of eminent domain for energy transportation projects might be able to blunt the attacks on that use of eminent domain and head off a potentially catastrophic defeat in court or in Congress. They place their proposals in three categories: (1) redefinition of public use in ways that might render the use of eminent domain for energy projects acceptable to more segments of the public; (2) use of the dormant Commerce Clause by states that would benefit from a project as an argument against a state that opposes the project; and, (3) experiments with the use of different methods of compensating landowners or changing the procedures for use of eminent domain for energy projects.

I cannot imagine a better use of time than to read this well-written and important article.

  1. Thacker v. TVA, 139 S. Ct. 1435, 1443 (2019).
  2. id.
  3. Press Release, Int’l Energy Agency [IEA], IEA Finds CO2 Emissions Flat for Third Straight Year Even as Global Economy Grew in 2016 (Mar. 17, 2017) (summarizing IEA, World Energy Outlook 2017 (Nov. 16, 2017)).
Cite as: Richard Pierce, Why Energy Companies Must Use the Power of Eminent Domain, JOTWELL (July 5, 2019) (reviewing James W. Coleman & Alexandra B. Klass, Energy and Eminent Domain, 104 Minn. L. Rev. __ (forthcoming, 2019), available at SSRN),

A Broad and Sobering View of Constitutional Safeguards

Mariano-Florentino Cuéllar, From Doctrine to Safeguards in American Constitutional Democracy, 65 UCLA L. Rev. 1398 (2018).

The September 2018 volume of the UCLA Law Review is a must-read page-turner (or its equivalent for the digital age) for followers of JOTWELL’s Administrative Law section. That volume collects the written essays originally delivered as talks at the Law Review’s symposium on The Safeguards of our Constitutional Republic, organized by UCLA Professor Jon Michaels, along with his colleagues Professors Kristin Eichensehr and Blake Emerson. As Michaels writes in his introductory essay for the volume, “The first two years of the Trump presidency have been marked by scandals, standoffs, travesties, and tragedies. Customs have been flouted, compacts broken, laws transgressed, responsibilities ignored, and individuals and communities threatened and debased.” In their contributions for the symposium, participants—distinguished public law scholars and civic institutional leaders from different corners of the nation—collectively “explored whether we are in a time of simple flux or full-blown crisis; whether any such crisis rises to the level of a constitutional—as opposed to just a political or cultural—dislocation; and how we can steer the ship of State back on course.”

While readers would be rewarded for perusing all of the essays, the one I want to focus on here is Mariano-Florentino Cuéllar’s essay, From Doctrine to Safeguards in American Constitutional Democracy, which he presented as the keynote address at the symposium. Justice Cuéllar (on the Supreme Court of California since 2015, and before that a member of the Stanford Law School faculty) soberly cautions “against facile rule-of-law optimism” about “the prominent role of courts in setting constitutional constraints on official power.” (P. 1400.) While Justice Cuéllar rightly does not name President Trump in the essay (in fact, he alludes to the “[d]ilemma” of “a judge seeking to thread the needle at a UCLA symposium when alluding to transgressions of norms by elected officials” (P. 1422)), the animating concern of the essay resonates closely with contemporary challenges in the administrative state and our republic more generally. Whether the legal question centers on arbitrary-and-capricious review, statutory authority, or constitutional permissibility, judicial review of the Trump administration’s actions is a daily occurrence, in ways both familiar and breathtaking.

Justice Cuéllar asks us to consider whether judicial review is enough—not simply to cabin the chief executive and his officials but to sustain “the constitutional order.” It is not, he concludes. To believe that it is reflects “an unrealistic worldview in which courts are assumed capable of shouldering the primary responsibility for protecting the constitutional order despite fraying norms, weak institutions, economic uncertainty, and interference from geopolitical rivals.” His account is important. It provides yet another reason why those of us who teach and write in public law fields like administrative law must focus on institutions beyond courts.

The headers of each of the essay’s five sections provide a high-level set of takeaways for the piece—the elevator pitch for the tightly constructed argument that follows. Constitutional Safeguards are Undertheorized says Part I. We might think of the Steel Seizure case as a primary example of such a safeguard, where the Court held that “the president did not have the power—in the midst of what he considered a national security emergency, but without any apparent statutory authority—to seize private property.” (P. 1404.) But that view ignores other contemporaneous public activities (federal loyalty screenings, state Jim Crow laws) that are constitutionally concerning but were for a long time legally sanctioned. A “more robust understanding of American constitutional democracy” must include attention to geopolitical considerations, nonjudicial institutions, and “the evolving norms and values of people with meaningful influence over the use of public power.” (P. 1407.)

Of course, says Part II, Judicial Institutions Matter to Constitutional Safeguards. We would be foolish to think otherwise. But, Part III continues, Safeguards Depend Even More on Nonadjudicatory Factors. For example, “the existence of some measure of shared public sentiment supporting constitutional democracy—assigning value to its larger project despite the costs of accepting leaders one may disdain or even loathe—seems valuable in no small measure because constitutional democracy’s underlying logic is precarious without such sentiment.” (P. 1415.) That shared public sentiment depends in part on the extent of “economic distress,” among other varied conditions, however. “[G]overnment’s demonstrated capacity to mitigate risks and deliver reasonably effective social outcomes” is thus an important part of “[t]he public’s perception that safeguards matter.” (P. 1420.) Also important are “norms and institutions,” and the symbiotic relationship between them, that bolster the existence of shared public sentiment about key features of constitutional democracy.

Meaningful Constitutional Safeguards Raise Nuanced Institutional Design and Implementation Questions, Part IV elaborates. How, for example, should we think about the value of “[c]ourt decisions and other official pronouncements of law” once we understand that their “importance is contingent and limited by the relevance of other institutions with competing agendas, the crucial role of groups and the public who must accept certain broad norms, and the realities of life in a noisy, uncertain world”? (P. 1421.)

For one thing, we should stop assuming that “American institutions are fundamentally resilient merely because the country has seen much worse.” (Id.) It is easy to see how bit by bit, norms that support these institutions can be chipped away—a point more fully examined in an essay by Josh Chafetz and David Pozen in the same UCLA volume. It is therefore important to acknowledge that, while “actors and institutions” like “universities, courts, individuals with ties to law enforcement” must generally “stand apart from partisan politics,” norms bolstering constitutional democracy are nonetheless “largely in the hands of public officials willing to send costly signals of their concern by speaking out, resigning, or going against perceived interests.” (P. 1422.) Laws governing our “communications infrastructure,” including internet platforms like Facebook and YouTube, are additionally a critical but underappreciated part of our constitutional safeguards.

For another thing, we should acknowledge that “some processes requiring a measure of insulation from the rough-and-tumble of ordinary politics—whether they involve adjudication or rulemaking—may also benefit from engagement with the often-messy world of public discourse and political action.” (P. 1424.) This engagement may involve doctrine (“cautiously, as in modern procedural due process doctrine and perhaps in the incorporation of concerns for institutional stability in statutory interpretation” (Id.)). It may involve public statements by lawyers, policymakers, and judges about important “norms of civility, restraint, comity, and decency underlying the institutions within which they are operating, or to which they are contributing through their work” (where, of course, “ethically appropriate”). (Id.) At the very least, it should involve clarity in judicial opinions to make concrete what legal “justifications imply about society’s painful trade-offs and subtle vulnerabilities.” (Id.)

In the end, Part V concludes, Constitutional Democracy’s Strength Depends on Recognition of Its Fragility. Unlike authoritarian systems, ours is one with “fractured, contradictory ideas about social welfare,” which acknowledges a troubling “gap between aspirations and reality.” (P. 1426.) When the foundations that protect this system are shaken— “safeguards rooted in public democratic sentiment, the opposition’s legitimacy, state capacity, and resilience against economic and security shocks”—it is not simply “wrong policy choices or stark ruptures of doctrinal sensibility” that are at issue: “The silent but no less serious specter is the slow undoing of extraconstitutional factors on which constitutional doctrine—and ultimately, law itself—depends for relevance.” (P. 1427.)

We can be thankful, as Chief Justice Roberts exhorts, for an independent judiciary. But Justice Cuéllar offers serious caution about the potential for overreliance on formal law and doctrine while paying insufficient attention to broader societal and institutional safeguards of our democracy. Our teaching in law schools, and in other educational institutions, should take this caution to heart.

Cite as: Eloise Pasachoff, A Broad and Sobering View of Constitutional Safeguards, JOTWELL (June 3, 2019) (reviewing Mariano-Florentino Cuéllar, From Doctrine to Safeguards in American Constitutional Democracy, 65 UCLA L. Rev. 1398 (2018)),

Data Processing Detective Story

Caleb Nelson, “Standing” and Remedial Rights in Administrative Law, 105 Va. L. Rev. __ (forthcoming 2019), available at SSRN.

After the slog of teaching constitutional standing—Lujan, Massachusetts, Freedom from Religion, Akins, Spokeo, and the rest of that crowd—it is always a relief to get to statutory standing. “Here’s the deal,” I say to the class, “statutory standing is just a matter of finding a statutory right of action to challenge agency action. You can find that ticket to judicial review in many enabling acts. But the most important one for our purposes is the APA’s right of action established by 5 U.S.C. §§ 701-706. Section 702 says you can use that right of action so long as you have ‘suffer[ed] legal wrong because of agency action, or [have been] adversely affected or aggrieved by agency action within the meaning of a relevant statute.’ The Supreme Court has told us that a plaintiff can qualify under the ‘adversely affected or aggrieved’ prong of § 702 by claiming that agency action has harmed interests that ‘arguably’ fall within the ‘zone of interests’ protected by a statute or constitutional provision that the plaintiff asserts the agency action has violated. And the Supreme Court has also told us, a whole bunch of times, that this arguably-within-the-zone test for invoking the APA’s right of action is super-easy to satisfy.”

Thanks to reading Caleb Nelson’s splendid article, “Standing” and Remedial Rights in Administrative Law, I see that things are not so simple as I thought. The major project of Professor Nelson’s article is to explain how the consensus understanding of the expansive reach of remedial rights under the APA evolved from a profound misreading of the source of the arguably-within-the-zone test, Justice Douglas’s opinion for the Supreme Court in Association of Data Processing Service Organizations v. Camp. The upshot of Professor Nelson’s analysis is that Data Processing, properly understood, does not stand for the proposition that satisfying the arguably-within-the-zone test is enough for a plaintiff with constitutional standing to invoke the APA’s right of action. To get to this conclusion, Professor Nelson takes a deep dive into the evolution of standing doctrine during the middle half of the twentieth century. The result is a terrifically lucid and engaging account, filled with telling details—notably including Professor Nelson’s recounting, based on both published opinions and internal correspondence, of the doctrinal duel between Justice Douglas and Justice Brennan over the framework for standing in Data Processing and its companion case Barlow v. Collins. (Pp. 37-52.)

Part I of the article sets the stage by offering a concise and informative account of the evolution of judicial review of agency action during the decades of the twentieth century that preceded Data Processing. Then as now, judicial review might take the form of nonstatutory review—e.g., a plaintiff might sue an officer in equity to enjoin illegal action. Professor Nelson emphasizes that, to make use of this device, a plaintiff needed to show that, in addition to violating the law, an officer’s action invaded the plaintiff’s “legal rights.” Complicating matters, however, he also observes that “[t]he Supreme Court never fully specified the criteria for determining whether a particular statutory or constitutional provision gave ‘legal rights’ to particular people.” (P. 13.)

Alternatively, a plaintiff might be able to pursue statutory review, i.e., make use of an express right of action created by Congress for review of particular agency actions. For instance, § 402(b) of the Communications Act of 1934 authorized “any…person aggrieved or whose interests are adversely affected by any decision of the [Federal Communications] Commission granting or refusing any such application” to seek judicial review from the D.C. Circuit. Unlike nonstatutory review, a person invoking statutory review did not need to establish that she had suffered a “legal wrong” or invasion of a “legal right.” Such a plaintiff just needed to satisfy the requirements that Congress had spelled out for using the statutory right of action.

Then along came § 702 of the APA, which provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” At first, courts and commentators, for the most part, interpreted this provision as carrying forward the rights to judicial review available before the APA’s enactment. The first prong, covering persons who had suffered “legal wrong,” carried forward the availability of nonstatutory review; the second prong, covering persons “adversely affected or aggrieved,” recognized that plaintiffs might make use of express statutory review proceedings where available. (Pp. 23-27.)

Before Data Processing, two doctrinal impulses worked to broaden availability of the APA’s right of action. First, the Warren Court developed a practice of finding implied rights of action to challenge agency statutory violations that seemed premised on a very generous understanding of the scope of plaintiffs’ “legal rights.” (P. 29.) Second, Professor Kenneth Culp Davis pushed for a far more expansive understanding of the reach of the “adversely affected or aggrieved” prong of § 702. According to Professor Davis, rather than merely acknowledging that a plaintiff might invoke statutory review, this prong of § 702 instead authorized any person “who is in fact adversely affected” by illegal agency action to obtain relief through the APA. (P. 25.)

Whew. That’s a lot of ground to cover. The key thing to see for the present purpose, however, is that, before Data Processing, to satisfy § 702 and use the APA’s right of action, a plaintiff had to either demonstrate that she had suffered “legal wrong” or else satisfy the terms of a particular enabling act’s statutory right of action.

At last we come to Part II and Professor Nelson’s detailed dissection of Data Processing itself. Most readers of JOTWELL’s Administrative Law page will recall that Data Processing involved a challenge to a decision by the Comptroller of the Currency that allowed national banks to perform data processing services incidental to their banking services. The plaintiffs were, just as one might expect, in the data-processing business. They contended that the Comptroller’s decision conflicted with provisions of the National Bank Act and the Bank Service Corporation Act of 1962. Justice Douglas, writing for the Court, explained that standing has both constitutional and non-constitutional dimensions. The data processors satisfied the constitutional requirement for standing, rooted in Article III’s case-or-controversy limitation, as they had plainly suffered an “injury-in-fact” due to increased competition from banks. As for standing’s non-constitutional requirement, Justice Douglas explained that this turns on “whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” The Court concluded that the plaintiffs’ interest in avoiding competition from banks “arguably” fell “within the zone of interests protected” by § 4 of the Bank Services Act. Therefore, the plaintiffs had what we have come to call statutory standing.

The key to Data Processing is to understand just what Justice Douglas meant by “standing.” As Professor Nelson explains, before Data Processing, courts had often used this term when assessing whether a source of law gave a plaintiff a right of action in the circumstances of a case. (P. 5.) By contrast, in Data Processing, Justice Douglas intended the non-constitutional dimension of “standing” merely to screen out plaintiffs who were “not even in the ballpark of having a right of action.” (P. 107.) He did not contemplate that the lax arguably-within-the-zone test would determine whether a plaintiff actually had the proper type of “legal interest” to support a remedial right to challenge a given violation of law.

Over time, however, courts began treating Data Processing’s arguably-within-the-zone test not as a preliminary “ballpark” screen but as a definitive test for determining availability of the APA’s right of action. Characterizing the consensus that evolved on this point after about 1980, Professor Nelson writes, “[f]or more than a generation,…courts have assumed that when an agency violates statutory or constitutional limitations on its authority, everyone who is suffering ‘injury-in-fact’ and whose interests are even ‘arguably’ within the relevant ‘zone’ can obtain relief under the APA (unless a more specific statute supplants this right of action.” (P. 4.) He adds that, in keeping with this expansive understanding of Data Processing, some of the very brightest lights of administrative law have characterized this opinion as a “watershed” (Mashaw), a “Revolution” (Justice Breyer), and an “Earth-Shattering Kaboom” (Lawson). (P. 4.)

But, according to Professor Nelson, Data Processing itself did no such kabooming. More particularly, properly read, Data Processing does not stand for the proposition that any plaintiff who satisfies the arguably-within-the-zone test can, without showing anything more, lay claim to statutory standing under the APA. Instead, in keeping with earlier law, Data Processing contemplates that a plaintiff, at least absent help from an express statutory right of action, must still demonstrate that she challenges an agency action that did harm to her cognizable “legal interests.” On this view, statutory standing to use the APA’s right of action does not extend nearly so far as most everyone has been saying it does for the last few decades.

After Part II’s dissection of Data Processing, Part III turns to exploration of how and why this opinion came to be so widely misunderstood as well as some “ironic consequences” of the modern reading. (Pp. 68-69.) As with the rest of the article, Professor Nelson tells an intricate and detailed story—interweaving judicial precedents and academic work of another era—in a remarkably engaging way.

Speaking of ironies, I would just like to share a half-baked thought about constitutional standing that crossed my mind after reading “Standing” and Remedial Rights in Administrative Law a couple of times. According to Professor Nelson’s account, at the time of Data Processing, Justice Douglas intended “standing” to function as a preliminary screen with modest constitutional and statutory requirements. Justice Brennan pushed for an even more modest framework that would have confined the “standing” inquiry to the question of whether a plaintiff had suffered an injury-in-fact sufficient to satisfy Article III. On either approach, constitutional standing would not do a lot of work. The great misreading of Data Processing, however, made remedial relief generally available under the APA without regard to whether agency action infringed on a plaintiff’s “legal rights.” Might eliminating the legal rights inquiry from statutory standing have left greater space for it to complicate constitutional standing? We speak of constitutional standing as requiring an “injury-in-fact,” but we all know that this requirement might better be styled as an “injury-in-law”—i.e., the type of injury that the law is willing to recognize as sustaining standing.1 If statutory standing had stayed a bit tougher, might constitutional standing have had less work to do and remained a little easier? That might have been nice.

In closing, “Standing” and Remedial Rights in Administrative Law is a terrifically informative and well-written article that makes the development of the doctrine of statutory standing and the availability of the APA’s right of action into a page-turner.

  1. Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (declaring that injury-in-fact requires “an invasion of a legally protected interest”).
Cite as: Richard Murphy, Data Processing Detective Story, JOTWELL (April 30, 2019) (reviewing Caleb Nelson, “Standing” and Remedial Rights in Administrative Law, 105 Va. L. Rev. __ (forthcoming 2019), available at SSRN),

In Praise of Practical Scholarship

In 2011, Chief Justice John Roberts notoriously criticized the legal academy when he declared at a judicial conference, “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” Legal scholars were unimpressed, to say the least, by Chief Justice Roberts’s flippant dismissal of their work. Perhaps the best response was Professor Orin Kerr’s tongue-in-cheek Green Bag essay in which he documented that, in fact, the Bulgarians really only became interested in Kant’s pronouncements in the late-19th Century and even then mostly ignored his ideas as “obscure and awkward.” Nevertheless, although Chief Justice Roberts’s criticism was a gross exaggeration, like most such overstatements it grew from at least a small kernel of truth—echoing similar, if more soberly presented concerns raised almost twenty years earlier by D.C. Circuit Chief Judge Harry T. Edwards about a “growing disjunction between legal education and the legal profession.”

Legal scholars know, of course, that quite a lot of the scholarship they collectively produce is of use to practitioners, courts, and legislators. Simultaneously, however, legal scholars must, and I think do, acknowledge that not all legal scholarship is useful or of interest to nonacademic readers. Legal scholars sit at the sometimes-awkward intersection of a larger academic community and the practicing bar, each with its own goals, values, norms, and needs. The fact that some legal scholarship appeals more to the former than the latter audience merely reflects that reality and does not diminish its value. Nevertheless, it is in our own interest as legal scholars to counter the narrative promoted by Chief Justice Roberts and others by calling attention to legal scholarship that may be of use to the more practical of our two audiences, even while it appeals to the more academic as well. Nick Parrillo’s groundbreaking work on federal agency guidance is an exemplar of this kind of legal scholarship.

As administrative law scholars know, federal agencies routinely issue informal pronouncements articulating their views regarding what the law requires of regulated parties. These informal pronouncements carry many distinct labels—to quote Parrillo, “advisories, circulars, bulletins, memos, interpretive letters, enforcement manuals, fact sheets, FAQs, highlights, you name it.” (P. 167.) Administrative Law experts commonly refer to such informal pronouncements collectively, irrespective of label or category, as “guidance.” In the parlance of the Administrative Procedure Act, guidance is categorized as either interpretative rules or general statements of policy (aka policy statements). As such, guidance is exempt from notice-and-comment procedures designed to facilitate public participation and transparency, and generally is understood to be nonbinding. Nevertheless, prudent regulated parties pay close attention to guidance as indicative of agency thinking. And regulated parties commonly complain that agencies apply guidance inflexibly, so that it is practically if not legally binding. Agency use—and arguable abuse—of guidance to direct regulated party behavior is a perennial topic of discussion and concern among administrative law scholars, courts, legislators, and practicing lawyers.

As Parrillo notes in his article, however, the scholarly literature on guidance has focused on doctrinal and theoretical approaches to distinguishing between legislative rules that must be adopted using notice-and-comment rulemaking procedures and guidance that is exempt from those procedures. Much has been assumed about how agencies and regulated parties think about and utilize guidance. Parrillo’s article fills this void.

Parrillo’s article grew from work that he performed initially on behalf of the Administrative Conference of the United States, or ACUS. Specifically, Parrillo interviewed 135 individuals working in government, industry, and nonprofit organizations across eight different regulatory fields, seeking to assess the role of guidance in the day-to-day decision-making and operations of agencies and regulated parties. The initial result of the study was a 200-page report for ACUS, rich and thorough in its detail, and a set of recommendations for agency use of policy statements that ACUS adopted and published in the Federal Register in 2017. ACUS recommendations are deliberately nondoctrinal, avoid making definitive legal conclusions, and are couched in terms designed to persuade agencies to adopt them. Although Parrillo’s ACUS report and his article overlap considerably, the article format offers more latitude for academic reflection.

Parrillo’s article finds that regulated parties have a legitimate basis for complaining that even nonbinding guidance really is more binding than not. Regulated parties often, though not always, face tremendous pressure to comply with guidance. Agencies often, though not always, exacerbate the difficulty by applying guidance inflexibly.

Regulated parties routinely find themselves in a position of needing to adhere to guidance—and not just to avoid becoming the target of an agency enforcement action, although enforcement is an obvious concern. For example, many regulated parties must pursue agency pre-approval processes to obtain permits, licenses, certifications, and the like. Complaining about or failing to adhere to agency guidance can result in delays, if not outright denials. Also, regulated parties are repeat players before agencies, meaning that they must maintain good working relationships with agency officials that might be undermined by complaining about or failing to adhere to agency guidance. For some regulated parties, the perceived need to maintain good working relationships with agency officials in turn prompts internal regulatory affairs employees to push for compliance with guidance, even where a good case may be made at law that a particular guidance document exceeds the agency’s authority.

In turn, agency officials are often inflexible rather than open-minded in their application of guidance. Parrillo rejects, however, the common conventional wisdom that agencies just want to bind regulated parties while avoiding the hard work and inconvenience of notice-and-comment procedures. Instead, he observes, agency inflexibility more often comes from demands by regulated parties, Congress, the courts, and nearly everyone else demands that agencies act consistently. Departures from guidance may be seen as ad hoc and unprincipled, contrary to statutory and political expectations that agencies not act arbitrarily or capriciously. In other words, the same parties that complain about agency inflexibility impose demands that make such inflexibility more likely.

For all of the above, Parrillo suggests that agencies pursue what he labels principled flexibility—meaning “that agency officials make departures from guidance, but for each departure, they give a written explanation that is accessible to other agency officials and to regulated parties, with the understanding that the exception thereby becomes generally applicable to like facts going forward.” (P. 241.) The result, he contends, would be “a body of rationally evolving precedent that informs future decisions about departure requests.” Parrillo acknowledges that this suggestion faces its own obstacles. Evaluating and documenting principled departures from guidance is more time consuming and expensive than simply applying guidance inflexibly. Regulated parties seeking pre-approval may prefer speed over flexibility, and thus may resent bearing the burdens of principled flexibility. Additionally, Parrillo recognizes that some inflexibility may simply be due to genuine faith by agency officials that the guidance in question is simply right. In such instances, Parrillo suggests that such cases represent “the archetypal scenario calling for legislative rulemaking.” (P. 262.) He encourages agencies to resist this sort of inflexibility and expend the resources necessary to pursue a policy of principled flexibility with respect to guidance.

Parrillo’s article, and the ACUS report from which it draws, are too full of interesting and useful observations to do justice in this short review. Together, they will provide a useful resource for anyone interested in the topic of agency guidance for years to come. His observations are not only insightful but balanced—reminding those of us working in this administrative law and regulatory space that there is more than enough “blame” to go around for the deficiencies of the status quo. Meanwhile, Parrillo’s proposal for a principled flexibility is eminently sensible as well as doctrinally sound. One can only hope that agencies take up his suggestion, and if they do, that regulated parties do not shortsightedly thwart such efforts.

Cite as: Kristin Hickman, In Praise of Practical Scholarship, JOTWELL (April 2, 2019) (reviewing Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Reg. 165 (2019)),