Re-theorizing Administrative Law in the Great Unsettling

Jun 2, 2025 Jodi Short1 comment

Jodi Short

In Oligarchy, State, and Cryptopia, Julie Cohen lays the groundwork for re-theorizing the administrative state in the age of Trump II, DOGE (otherwise known as the Department of Government Efficiency), and their unparalleled assault on the institutions of government. Before now, generations of deregulatory politics and rhetoric have tended paradoxically to produce more rules rather than less, and they have decidedly not produced any radical restructuring of government regulatory institutions. The settled explanation from scholarship in a variety of fields is that while businesses often spout the rhetoric of deregulation, they actually want—perhaps need—regulation for reasons including competition control, market making, and firm survival and stability. The extensive and unprecedented dismantling of government institutions spearheaded by DOGE radically unsettles those understandings, which begs questions about why this time is different.

Cohen’s article begins to address those questions and, more broadly, sets the terms for future theorizing about administrative law and regulation in a cogent, meticulous, and frankly chilling account of the tech oligarchy and its relationship to, and ambitions for, state power. Cohen starts from the premise that existing theories of administrative law and regulation give too little attention to oligarchy as a phenomenon that shapes the use of state power and regulatory authority in ways that go beyond the familiar industry capture story. Based on influential research in political science, she defines oligarchy as “a particular form of concentrated power based on the accumulation of extreme material wealth and the use of such wealth to obtain systemic, inescapable advantage within a political system or community” (P. 6). Cohen argues that the principal difference between tech oligarchs and capitalist oligarchs of yore is that the former are becoming increasingly unwilling to submit to a rule-of-law system to advance and protect their dominance. Instead, tech oligarchs increasingly seek to move towards a system in which they displace the state and exercise coercive power directly—including by individual fiat.

Cohen explains how the political economy of informational capitalism enables this gambit. Her account starts with the infrastructural nature of information technology: the dominant tech platform firms do not merely provide essential products or services; they “have become essential infrastructures for an increasingly wide variety of computing, communication and control-based functions that, in turn, now underlie and infuse every conceivable domain of human and social activity” (P. 15). This powerful techno-social position provides tech oligarchs with the means to multiply their extraordinary personal wealth and to control communications about issues that concern them. Tech oligarchs have also managed to untether themselves from traditional channels of market and legal accountability. They have largely consolidated control of their firms, adapting corporate governance structures to advance their personal aims and evade market accountability mechanisms such as share price and stockholder discipline—for instance, by keeping their companies private or adopting dual-class ownership structures. They have also engaged in “flamboyant defiance” of the law (P. 18), often with impunity, in part by exploiting the states’ deep dependence on the operational and surveillance services tech platform companies provide.

Oligarchs always, predictably, use their structural advantages to amass ever greater wealth, and certainly tech oligarchs have done so through traditional means such as lucrative government contracts and strategic regulatory capture. But Cohen argues that tech oligarchs are distinct from their capitalist predecessors in their “increasingly profound disenchantment with the prevailing terms of the state-oligarch relationship” (P. 22) which expects oligarchs to surrender coercive power to a rule-of-law system administered by the state. While their capitalist predecessors settled for strategies to capture state regulatory institutions for their advantage, tech oligarchs are pursuing a much more ambitious strategy to re-structure the terms of the state-oligarch relationship entirely.

Cohen explores two key channels through which this relationship is being renegotiated: finance and public administration. In the financial domain, tech oligarchs are working to break states’ power over exchange value through cryptocurrency systems for decentralized economic exchange. In the domain of public administration, the second Trump administration has empowered tech oligarchs to attack the state from the inside through DOGE. Cohen trenchantly observes that the unprecedented and ultra vires acts of DOGE are not merely “neoliberal downsizing on steroids” (P. 28). Rather, “Musk and his team of loyal coders are laying the groundwork for a far more durable realignment in the oligarchy-state relationship” (P. 28). Specifically, Cohen describes DOGE as a vehicle to transform “the federal government and its constituent institutions and processes into forms more amenable to oligarchic direction” (P. 30). While it remains to be seen exactly how DOGE will ultimately reconfigure regulatory institutions and operations, Cohen posits that the realignment will be guided by theories influential among the tech elite that envision massive ideological and personnel purges of government employees, yielding to unencumbered control by the tech oligarchy of whatever government institutions survive.

One of Cohen’s signal contributions is to situate this account of oligarchy within a techno-futurist ideology that supplies moral justifications for tech oligarchs’ dominance and their drive to replace existing state institutions and social settlements. Many prominent tech oligarchs adhere to a philosophy known as Effective Altruism, which holds that “amassing great wealth is a necessary first step to achieving great and long-lasting social change” (P. 21). This philosophy not only tolerates but celebrates grossly unequal distributions of material resources as a “precondition to achieving long-term human betterment” (P. 21). In this epistemology, “human betterment” is achieved not through collective, democratic deliberation and institutions, but rather through the use of “cutting edge computational technologies to radically alter a wide range of human and social processes in the services of utopian goals” (P. 37). It follows that all resources should be devoted to developing such technologies, and it is wasteful to devote resources to ameliorate immediate social ills such as homelessness or to redistribute resources to populations harmed by such short-term ills. So, for instance, there is “[n]o need to impose regulatory measures to mitigate climate change; invent [artificial general intelligence] and it will solve climate change” (p. 39). And if it doesn’t, and instead climate change ravages the earth, by that time the tech oligarchs will have decamped to Mars.

This epistemology leads tech oligarchs to view predictable and historically unremarkable attempts to regulate them—for instance, through antitrust law, privacy protections, and precautionary risk regulation—not merely as inhibiting their business interests, but as “existential threats to a brightly beckoning, data-driven future” (P. 21). Unlike other corporate titans who simply resist or flout regulation, tech oligarchs “fancy themselves misunderstood idealists, devoted to improving the human condition via the inevitable forward march of technological progress” (P. 20) and they view state regulatory demands as misguided and immoral attempts to impede human progress.

This all raises serious questions about the capacity and role of administrative law in judicial challenges to the tech oligarchy’s administrative machinations. Administrative law is an outgrowth of particular social and political settlements about the relationship between state and market. How will it respond to the great unsettling sought by the tech oligarchy? Will it, too, be transformed? Will tech oligarchs be able to flout administrative law as freely as they do many other laws? If not, what is it about the qualities and context of administrative law that will save it from irrelevance?

Cohen’s account also highlights how moral theory can be used to shape and justify administration. In my article, The Moral Turn in Administrative Law, I observe a growing constellation of theories that explicitly invoke substantive moral values as the basis for administrative law and policy, cutting against the field’s tendency toward proceduralism, formalism, and technocracy. Tech-futurist ideology is a provocative entry into conversations about moral administration. In a recent analysis, my co-authors and I show that the mainstream media has paid little attention to tech oligarchs’ ideologies in coverage of tech platform regulation. At the time, we interpreted this absence of coverage as indicative of broad public disinterest in or even rejection of these ideologies, but Cohen’s article suggests that they have flourished out of the public spotlight, and they continue to motivate the behavior of powerful actors irrespective of their public appeal. By foregrounding the values underlying DOGE’s project, Cohen subjects the tech oligarchy’s moral code to the public scrutiny it deserves and invites a broader dialogue about the moral aims and imperatives of administration.

The “Phantom Public” Exposed and Transformed

Apr 29, 2025 Wendy Wagner1 comment

Wendy Wagner

If you have ever advocated for a greater “public” role in administrative law without specifying who that public actually is or how they might realistically engage, then Nikhil Menezes’ and David Pozen’s terrific new article, Looking for the Public, is a must-read. Menezes and Pozen call out our bad habits, trace the many adverse consequences that result from our imprecision, and challenge us to do better while offering concrete suggestions for how we might do so. Their analysis makes it clear that until we address the phantom public problem, well-meaning efforts to create more inclusive or public-spirited policies and processes will be missing the most critical ingredient of all—evidence that the policies or processes actually benefit a “credible public.”

Looking for the Public begins by tracing how, despite our reliance on the public as the lodestar for virtually every policy and process in administrative law, lawmakers and scholars regularly appeal to the public without providing evidence-based accounts of who the public is or how they might engage. Efforts to ground policy or accountability mechanisms in “public opinion,” the “public interest,” and “public participation” often neglect to locate these same publics, while at the same time steadfastly ignoring mounting literature that suggests the public is absent or not credibly represented.

Perhaps if there were a shared normative vision of who the public is and how they should engage, some of this imprecision might be harmless. But as Menezes and Pozen point out, there is no shared vision of public engagement. To make this point, they recount the dueling positions taken by Walter Lippmann and John Dewey and their followers. Lippmann considered public engagement to be doomed from the start given the complexity of the issues and collective action problems. He advocated instead for executive leadership and natural law constraints. (P.19). Even the more optimistic Dewey acknowledged many practical realities that undermine meaningful public engagement. He proposed in place of the undefined public various “designed activation strategies [that . . .] aim to create conditions under which effective publics might emerge.” (P.24 emphasis added).

If we appeal to an undefined “public” to guide policies and processes, serious problems are likely to follow. In the third part of Looking for the Public, Menezes and Pozen document a variety of adverse consequences, many of which are growing increasingly urgent as voters become more polarized and leadership more centralized. For example, just as Lippmann and followers predict, the “phantom” public is routinely used as a makeweight by elites to advance their own ends and goals. At the same time, processes referencing an unspecified “public” end up defaulting to the free market, providing these same elites with still more ways to torque policies in their favor.

To address these and many other hazards, Menezes and Pozen insist that, going forward, public officials and commentators should speak more clearly about which “public” they have in mind, and “appeals to the public should come with evidence or hypotheses on how the public in question can fulfill its designated function.” (P.40). To that end, they draw upon deliberative democratic theory to offer a suggestion for how we might accomplish this: by designing “credible publics” or “mini-publics” (e.g., representative panels or juries) as a substitute for the phantom public. (P.42). Institutionalizing mini-publics would provide, at least to some extent, an empirically-based approach for identifying what a representative slice of the public actually thinks or wants on a specific topic, as well as engaging the public as co-collaborators in authoring policies.

Looking for the Public is overflowing with insights and other goodies, but two contributions bear particular spotlighting. First, in their deep dive into the role of the “phantom public” over time, Menezes and Pozen discover that the public’s role in our government has steadily drifted from “author” to “monitor.” Innovations that situated the public as a collaborator in authoring policies in our democracy, such as constitutional conventions, the use of congressional petitions, criminal juries, and citizens’ assemblies, are now largely obsolete. Instead, today’s institutional processes engage the public primarily at the backend—as monitors through familiar notice and comment, opinion polls, and the like. As the authors conclude, “[t]he late twentieth-century shift from authors to monitors means that ordinary Americans today almost never get to pose, much less decide, specific questions of law or policy through formal procedures.” (P.39).

A second stand-out contribution is Menezes’ and Pozen’s pragmatic response to this problem—urging the deployment of mini-publics to begin to fill the void. Mini-publics take many forms but generally are composed of a representative subgroup of the population assembled to deliberate on topics and inform governmental processes. The authors immerse the reader in a surprisingly large theoretical and empirical literature advancing this idea and then offer specific suggestions for how mini-publics might be deployed in the future. For example, mini-publics could be assembled to resolve ambiguities in the texts of ballot initiatives so that presiding courts cannot make up an underlying public sentiment on their own and attribute their policy choices to “the people.” (P.49). Or “mini-publics” could be assembled to play an “authorial” role in helping agencies or even Congress draft agendas, ideas, and policies. (Pp. 50-51).

In advocating for a greater role for credible publics, Menezes and Pozen acknowledge there are substantial challenges ahead. In my own field of environmental law, for example, there is a long history of manipulating expert panels, which could presumably carry over to institutionalizing the use of mini-publics as well. Even first-order choices about the type of information to share with a mini-public are susceptible to bias and could have profound implications for how mini-publics think about problems. Yet these and other worries are exactly what Menezes and Pozen hope to anticipate and counteract in urging a research and reform agenda.

Looking for the Public never finds the public. As the authors point out, the public is both nowhere and everywhere. But by exposing the phantom for what it is, Menezes and Pozen challenge those of us eager for more inclusive policies and processes to design institutional structures that insist on the need for “credible publics” at the start.

Avoiding the Demon Lurking Around the Corner (Post)

Apr 1, 2025 Michael E HerzAdd a Comment

Michael E Herz

In recent terms, the Supreme Court has had its nose to the grindstone, transforming American administrative law. In a series of striking decisions, it has created the major questions doctrine, overruled Chevron and reined in Auer, shifted toward the elimination of independent agencies and a full-throated endorsement of the unitary executive theory, come close to remaking the nondelegation doctrine, reinvigorated arbitrary-and-capricious review, and opened the courthouse doors to challenges to regulations issued long ago. Most of these developments have spawned a flurry of academic commentary. The major questions doctrine in particular has created an itch it seems everyone needs to scratch. And overruling Chevron has given all those who had written about the case in the past (which is practically everyone) a chance now to write about its demise.

In the face of this tsunami, what is a poor JOTWELL reviewer to do? How to select the best from among them? It can’t be done. (Though, as Jack Beermann has written, if you want to understand the major questions doctrine you can’t go wrong by starting with Anita Krishnakumar.) But there is one exception. When it comes to Corner Post, there is a standout article. While others have been hypnotized by the shiny new objects of the MQD and Loper Bright, an undistracted Susan Morse has kept her attention focused where it has been for a couple of years. Her latest, Time Bars for Administrative Procedure Claims After Corner Post is a standout not only because, let’s be honest, there is not a lot of competition, but because it is so good.

Reading the article, one wonders why Corner Post has not received more attention. After all, its potential consequences are both significant (it could subject a large swath of regulations understood to be valid to re-examination, often under standards of judicial review more searching than those applied initially) and uncertain. Morse lays out the background, describes the decision’s significance, and argues that it should be read narrowly.

The basics are widely known, but here’s a primer. Many statutes impose specific time limits during which regulations adopted thereunder can be challenged. But absent such a restriction, the catchall statute of limitations for actions against the United States requires that the complaint be “filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). Corner Post held that in a challenge to a regulation the right of action “accrues” not when the regulation is issued but when the challenger is first subject to it. Thus, if, as in Corner Post, the plaintiff did not exist when a regulation was promulgated, began operations seven years later, and challenged the regulation in court three years after that, the suit is timely. As to this plaintiff, the right of action only accrued when it began operating.

As Morse describes, prior to Corner Post the courts of appeals had developed a fairly clear and stable body of law. Latecomers could challenge old regulations, but (a) they did so as a defense to an enforcement action (i.e., an as-applied challenge) and (b) the challenge was limited to claims that the regulation violated a statute or the constitution (was ultra vires), not that it was procedurally defective. Corner Post indisputably changed the law regarding point (a). It allowed a facial challenge—just the sort of claim one generally sees in a pre-enforcement challenge brought immediately after a rule is promulgated—to be brought a decade after the rule was issued. The great uncertainty about Corner Post involves point (b): does its holding also apply to challenges that do not rest on an ultra vires theory? The holding of Corner Post might but does not necessarily reach that far, and a frustratingly vague footnote in the majority opinion arguably leaves open the possibility that it does not.

Here then is the current state of the law as set out in a chart Morse provides:

Morse accepts as-applied ultra vires challenges to a regulation long after promulgation. She acknowledges a plausible constitutional argument (sounding in due process as well as separation of powers) that such review must be available to entities that did not exist at the time a regulation was promulgated. And she predicts that in two Hobbs Act cases being heard by the Supreme Court in its 2024-2025 Term, NRC v. Texas and McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, the Court will carve out an exception for ultra vires challenges tracking the Corner Post holding.

Procedural challenges are a different matter. (Except in her title, Morse sticks with “ultra vires” and “non-ultra vires” rather than “substantive” and “procedural.” Because of an allergy to law Latin, I prefer the latter terms, but when I use them I do not mean to depart from her categories. She spends several pages pinning down the difference between the two types of challenges. The trickiest edge cases involve arbitrary and capricious challenges, which can be kind of procedural (a failure of explanation) or kind of substantive (failure to consider a statutorily relevant factor).) Morse’s essential claim is that procedural challenges “accrue” when the regulation is adopted, period.

Morse develops three arguments for a time-bar on procedural claims. First, in light of various practical and conceptual problems, Congress simply could not have intended down-stream procedural review to be available. For one thing, allowing a court to retroactively set aside a decades-old regulation on the ground that the agency violated procedural requirements that courts developed after the rulemaking in question is unfair if not nonsensical. In addition, procedural harms are generally conceptualized as occurring at a specific moment in time; they do not persist into the future.

Second, powerful reliance interests, which increase over time, argue against allowing challenges to longstanding regulations. Of course, reliance interests argue just as powerfully against challenges on substantive grounds. Morse does not say so explicitly, but the necessary implication is that the justifications for such review are more substantial than for review of procedural claims – sufficiently so as to outweigh reliance interests.

Third, “it is unbearably costly to evaluate and correct long-ago rulemaking process.” Stale evidence, the challenges judges would face evaluating cold records from long ago and out of context, and, one might add to Morse’s list, the likelihood that none of the advocates will have been present at the creation, create such a risk of error that the game is not worth the candle.

The article’s final section addresses where to go from here. The simplest alternative, of course, is to read Corner Post and its confounding footnote eight to apply only to substantive claims. But if that does not happen? At a minimum, Morse says, if courts are to find a procedural error long after a rule’s promulgation, they should remand without vacating, which would minimize the disruption and allow agencies to cure the defect. Alternatively, and far preferable in her view, the courts or Congress could directly bar distant procedural claims.

The judicial route could rely on standing doctrine. One possibility is to find that a challenger who did not even exist at the time of an alleged procedural error did not suffer a (procedural) injury in fact. Morse rejects this theory, because courts generally find standing to make procedural claims rests on the harm from the final action itself, not the procedural error. More promising, in her view, would be to deny standing because the challenger is not within the zone of interests of the procedural requirements relied on. (I will say I am not persuaded that the latter argument succeeds where the first fails; if the downstream harm from the regulation is an injury in fact, then it would seem also that those suffering such an injury are within the zone of interests protected by the procedural requirements.)

The cleanest resolution, of course, would be new legislation. Morse offers a tidy proposal: an amendment to the APA, limited to arbitrary-and-capricious or procedural challenges, that tracks the statute of limitations in the Hobbs Act, though with a 6-year rather than a 60-day limit. The success of this strategy will depend on just what the Court does this term with the two Hobbs Act cases mentioned above. Morse predicts, with a good deal of (no doubt well-founded) confidence, that the Court will carve out an ultra vires exception, but only an ultra vires exception, to the flat 60-day limit. If it does so, then identical new language in the APA would presumably be read the same way: facial and as applied substantive challenges could be brought a century after the regulation was promulgated if the challenger had first been harmed in the last six years, but procedural challenges could only be brought within some specified period (she suggests also the “tried and true” six years) after the regulation is promulgated.

Seems pretty sensible, no?

Re-Routing Power

Feb 26, 2025 Mila SohoniAdd a Comment

Mila Sohoni

Since the Supreme Court overturned Chevron in Loper Bright, the administrative law community has been consumed with the question of what will come next—and how much it will differ from what has gone before. Some predict that deference by courts to agencies will persist, albeit in renamed or reconceptualized form. Some worry that the combination of Loper Bright with other cases decided last term will empower courts to kneecap regulatory schemes, both old and new. Others posit that agencies will turn to regulatory tools that bypass whatever pitfalls may emerge as a consequence of Loper Bright and its brethren.

As scholars and policymakers grappled with the past term’s implications for federal agency power, Professor Adam Zimmerman’s Ghostwriting Federalism arrived to remind us that the reach of administrative influence extends far beyond the realms of formal rulemaking and judicial deference. This rich and thought-provoking new article is about much more than the post-Loper Bright world. The paper points out a great number of routes — fifty, to be precise — that agencies might use to promote policy objectives even in a world of federal courts inhospitable to federal regulatory power.

In each of the fifty statehouses, federal regulators have found cooperative partners capable of advancing regulatory goals that federal agencies could not accomplish on their own. Through these federal agency-statehouse collaborations, Zimmerman explains, “federal agencies actually influence, craft, and occasionally write state law” (P. 1810). Even if Loper Bright does meaningfully constrain federal agencies’ ability to interpret federal statutes, Zimmerman’s article shows that federal policies may yet be implemented by state sovereigns in ways that fall outside the purview of direct control by federal courts, Congress, or the White House.

This is an often overlooked but vital aspect of administrative policymaking with significant implications for both administrative law and federalism in the post-Chevron era. How does this ghostwriting happen? As is typical of Professor Zimmerman’s work, this article grounds its discussion of theory and doctrine upon a painstakingly assembled empirical foundation. After conducting extensive interviews with agency officials from over a dozen agencies and performing original archival research, Professor Zimmerman identifies five key mechanisms through which federal agencies shape state legislation: agenda-setting; expertise-lending; institution-building; policy coordination; and federal funding. Using these tools, agencies exercise “soft power” to achieve regulatory goals without having to formally conduct rulemaking.

Professor Zimmerman is not totally enamored of these collaborations — he aims to examine and document this phenomenon and to evaluate its promises and perils, not to sing its praises. He teases out two particularly interesting implications, one for administrative law and the other for federalism. As for administrative law, these federal agency-statehouse collaborations fall into a no-man’s-land where neither the APA’s procedural restrictions nor judicial review can get much purchase: “No formal legislative, executive, or judicial oversight applies to the soft power and influence that federal agencies exercise over state legislation” (P. 1859).

On the mainstream view that such checks are essential safeguards of administrative legitimacy, this lacuna will seem troubling. Professor Zimmerman points out, though, that several agencies have developed their own internal protocols “to hear from stakeholders, promote transparency, and ensure more formal oversight inside and outside the agency, which others could easily adopt” (P. 1866). And rather than checking by Congress and in federal courts, here it is state legislatures and state courts that ultimately will most directly constrain federal agency efforts to move state law in a preferred direction.

Turning next to federalism, Professor Zimmerman makes the pleasingly counterintuitive observation that federal agencies working hand-in-hand with states may promote, rather than undermine, state sovereignty. How can this be? The reason, he explains, is that agencies may help resource-strapped states to develop technical expertise and pursue policy innovation while also helping them to avoid capture and lobbyist influence. (P. 1881.) For example, agencies have provided states with legislation adopted by other states and shared their evaluations of how that legislation has performed, thus supplying alternatives to the model laws promoted by lobbyists and organized interest groups. This can be a great help to state legislatures, particularly in states in which lawmakers are paid little and have few policymaking staff. (P. 1871). As Professor Zimmerman concludes, “in our increasingly intertwined federal and state system of government, . . . it almost no longer makes sense to debate whether federalism serves national interests or state interests” (P. 1883).

This is a time of tumult and transition — and not just because of Loper Bright. A new presidential administration has returned to Washington. Professor Zimmerman’s article stresses that it is not just the levers of federal regulation that are in play today but state lawmaking as well: “Presidential control . . . does not just mean more power over federal law. Whoever commands more control over federal agencies can assume a greater role inside state legislative agendas as well” (P. 1865). State legislative changes may endure on the books well after a given President leaves office. At this pivotal moment for the administrative state, Professor Zimmerman’s fascinating article offers a must-read account of how the future of federal regulatory policy will be shaped and realized not just in Washington, but in the fifty state capitals as well.

What the Hell is the Major Questions Doctrine?

Feb 3, 2025 Jack BeermannAdd a Comment

Jack Beermann

When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence and prominence of the MQD in administrative law has led scholars to ask just what kind of legal doctrine the MQD is. If the voluminous scholarship on Chevron is any indication, there will be much, much more to come.

Sometimes, to figure out what something is, you first have to figure out what it isn’t. That is what Professor Anita Krishnakumar has helped us do with her excellent article What the New Major Questions Doctrine is Not. In this article, Professor Krishnakumar persuasively argues that neither scholars nor jurists have provided convincing characterizations of the doctrine. After illustrating how all attempts thus far to categorize the MQD have failed, she offers her own tentative characterization, recognizing that a definitive answer is impossible because it’s relatively early in the life of the current MQD and because the Court’s opinions invoking the MQD are somewhat inconsistent and unclear, making a definitive characterization impossible. Remind anyone of Chevron scholarship?

Professor Krishnakumar tells us that scholars and Supreme Court justices have offered at least four potential characterizations of the MQD: (1) a proxy for the nondelegation doctrine; (2) a textualist device requiring that statutory language be read in its ordinary context as understood by the reasonable reader; (3) a linguistic canon; and (4) a return to purposivist or intentionalist statutory construction. Professor Krishnakumar offers two possible characterizations of her own: (1) a standard of judicial review concerning the implementation of statutes and (2) “old-fashioned pragmatic reasoning akin to the absurd results doctrine. (P. 1120.)”

Professor Krishnakumar’s explanation for why the MQD is not a proxy for or even a “close cousin” of the nondelegation doctrine is as simple as it is insightful. She shows, using the two vaccine-mandate cases as examples (one in which the Court rejected a mandate for all workers and another in which the Court upheld a mandate for health care workers), that the MQD is concerned with agency overreach while the non-delegation doctrine is concerned with the clarity of delegations. Professor Krishnakumar’s analysis compels the conclusion that an explicit statutory delegation to an agency to do “whatever the agency finds necessary no matter how major” might violate the nondelegation doctrine, but a court would be unlikely to be able to invalidate agency action under that statute based on the MQD.

Professor Krishnakumar also examines and rejects “Justice Barrett’s attempt to characterize the major questions doctrine as part of the ‘common sense’ context surrounding congressional delegations of power to administrative agencies. (P. 1130.)” Professor Krishnakumar notes that others have criticized Justice Barrett’s view on two grounds, first that “her definition of ‘context’ is ‘so broad’ that it leaves no distance between textualism and the more capacious interpretive approaches,” and second that “judges can easily accomplish policymaking under the label of ‘context.’ (P. 1130.)” Professor Krishnakumar adds to these critiques that “Justice Barrett’s ‘common sense’ context consists of a lot of background considerations that far exceed the capacity or awareness of most ‘reasonable readers’ or users of English—the textualist guidepost for determining a statute’s ordinary meaning. (P. 1131.)” In other words, the MQD cannot be textualist if ordinary readers do not understand the text in the ways that the MQD requires.

Professor Krishnakumar also refutes Ilan Wurman’s characterization of the MQD as a linguistic canon by noting that the MQD “does not share the usual features of a linguistic canon in that it is not triggered by sentence structure or grammar, and that it leaves courts too much wiggle room to determine what counts as “‘important.’ (Pp. 1121-1122.)” Importance, Professor Krishnakumar argues, is not a linguistic matter; it’s a practical understanding of the situation addressed by the statute on which there is likely to be significant disagreement. As she puts it “what counts as ‘important’ is a subjective, open-ended, often difficult to define inquiry—different in kind from the more straightforward determination that a statute contains a particular grammatical device or sentence structure. (P. 1137.)”

Finally, in the “what it’s not” portion of the article, Professor Krishnakumar rejects the notion that the MQD is a return to a more purposivist and less textualist form of statutory interpretation. She acknowledges that this characterization appears facially sensible, but she finds a fatal flaw. She explains that the Court’s MQD cases do not rest on any “objective historical or legislative record (P. 1145)” to establish the relevant statutes’ purposes. Rather, they appear to be based on the Justices’ own intuitions about what powers Congress would have likely delegated to an agency in language that at least plausibly does so. Further, she argues that the Court focuses on the wrong congressional purposes because the Court looks not at the legislative purpose of the enacting Congress but rather seems more concerned about what powers the current Congress would want the agencies to exercise. This, again, seems more about the Justices’ views than the purposes underlying the statutes involved in the cases.

Okay, so now we know what it’s not. What is it? Here, Professor Krishnakumar admirably admits that it is a bit early to come to a definitive answer to this question, especially in light of the numerous factors the Court invokes when it applies the MQD. She offers a couple of possibilities and encourages us to stay tuned as the courts elaborate the MQD in future cases. For now, her most plausible tentative characterization of the MQD is that it is a form of “practical consequences reading” similar to the absurdity canon, which counsels against reading statutes in a way that produces absurd results. Her support for this view lies in the way the Court has deployed the MQD: it “is open-ended, leaving it entirely up to courts to determine what counts as economic or political ‘significance,’ or as a matter of ‘robust’ political debate, or a ‘novel’ as opposed to typical agency practice. (P. 1158.)” Finally, the fact that the Court has been inconsistent in how and when it applies the MQD supports the theory that the doctrine most closely resembles a practical-effects-based test.”

I have to confess that ordinarily I have little patience for statutory construction scholarship, probably because I have never been convinced that any of the traditional principles of statutory construction, rather than the policy views of the deciding judges, explain the results in interesting cases. Professor Krishnakumar’s article is a refreshing exception to my usual aversion to this sort of scholarship. It was a pleasure to read and I learned a great deal from it. My advice: read it!

Wait a Second – Who Put The President in Charge of Everything?

Dec 13, 2024 Richard MurphyAdd a Comment

Richard Murphy

Ninety years ago, a unanimous Supreme Court thought it obvious that Congress has constitutional authority to restrict presidential removal authority over FTC Commissioners because, without such limits, the President would have unconstitutional power to direct the FTC’s quasi-legislative and quasi-adjudicative functions. Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935). These days, thanks in large part to a series of executive orders issued over the last fifty years, it is broadly accepted that presidents have power to direct agency rulemaking discretion, at least if we exclude independent agencies (which, on a closely related note, are hanging on to their independence by the thinnest of constitutional threads). We live in an “age of presidential administration.” (P. 2221).

In The Making of Presidential Administration, Professors Ahmed, Menand, and Rosenblum (collectively, “AM&R”) provide a fascinating, critical retelling of this transformation that focuses on the roles of politics and ideology in driving institutional and legal development. Plus, they accuse Justice Kagan of committing Whig history. Whigs, as note 685 explains, like to “present historical arcs as ‘progressive,’ moving from primitive pasts to enlightened presents.” (P. 2212 n. 685).

AM&R maintain that bloodless accounts of the development of presidential administration have helped lend it a false sense of inevitability, a bit like death and taxes. Debate does not center on whether there should be presidential administration; rather, it centers on the degree to which Article II of the Constitution demands an especially potent form of it. (P. 2198). AM&R seek to undo this intuition that “our current institutional arrangements” amount to a “fait accompli.” (P. 2139). To this end, they seek to refocus attention on the “political, intellectual, and legal battles” that gave rise to presidential administration. (P. 2136).

AM&R contend that, for most of the Republic’s history, “[p]residents derived their authority over the administrative state largely from statute.” (P. 2131). Under this regime of “administration under law,” absent statutory authorization, the President lacked authority to direct administrative action. Part I of The Making develops this claim by offering an account of the “Managerial Presidency” that starts with the Progressive Era and then focuses on developments during the Nixon, Ford, and Carter administrations in the 1970s. These administrations, while generally continuing to hew to a model of “administration under law,” began to explore means for exercising greater influence, if not direct control, over agency rulemaking through devices such as the Nixon administration’s scheme for “Quality of Life” review of select rules. (P. 2149).

The Making next turns to President Reagan’s “hot wiring” of the administrative state via Executive Order 12,291, which gave the Office of Management and Budget (OMB) “something close” to veto power over major agency rules. (P. 2156). This seizure of power prompted “shock” and “major resistance” in Congress and the legal academy that, according to AM&R, has been largely forgotten. (Pp. 2153, 2159-2171). It also rested on a remarkably thin legal basis, “a stretched reading of a single clause of Article II, namely the Take Care Clause.” (Pp. 2157-2158).

This “stretched reading” of the Take Care Clause proved to be one of the foundations for the Unitary Executive theory that now dominates the courts’ understanding of presidential constitutional authority over administration. Part III of The Making provides a blow-by-blow account of early judicial and scholarly development of this doctrine that “claimed for the President expansive, exclusive authority over huge swaths of government action.” (P. 2173). AM&R focus on how the Burger Court’s decisions in INS v. Chadha, 462 U.S. 919 (1983), and Bowsher v. Synar, 478 U.S. 714 (1986), laid the groundwork for future developments by limiting congressional power to control administration. With their acute eyes for fascinating historical detail, the authors note that these cases made for “strange bedfellows,” with the Reagan administration and Alan Morrison of Public Citizen teaming up together against Congress, albeit with different political and institutional goals in mind. (Pp. 2180, 2183). AM&R then provide a brief intellectual history of the development of the Unitary Executive theory during the 1980s and 1990s, canvassing contributions from Justice Scalia, Peter Strauss, Geoffrey Miller, Steven Calabresi, Kevin Rhodes, Lee Liberman, Saikrishna Prakash, Lawrence Lessig, and Cass Sunstein. (Pp. 2186-2198).

For a contested practice to mature into a settled norm or expectation, the major interested parties need to stop fighting about it. Part IV of The Making recounts development of this consensus for presidential administration, explaining how the Clinton administration entrenched rather than abandoned White House control of agency rulemaking by adopting E.O. 12,866, which made substantial revisions to E.O. 12,291 but kept its basic substance and structure. AM&R attribute this decision to the Clinton administration’s ideological commitment to neoliberalism, market solutions, efficiency, and deregulation. Keeping centralized control over rulemaking gave the administration a means to ensure that New Deal agencies toed a neoliberal line.

After steering us from the Progressive Era through the Clinton administration, The Making culminates with its critique of Justice Kagan’s magisterial, Presidential Administration, 137 Harv. L. Rev. 2131 (2001). According to AM&R,

Kagan adopted and reworked the dominant account to make presidential administration appear, if not inevitable, at least logical and providential—the obvious solution to the problems generated by the whole history of American administration. In that sequence, Clintonian presidentialism has a special place: as the riddle of history solved, resolving the problems that President Reagan’s near-solution had generated.

(P. 2212). For Clinton’s former Solicitor General Kagan, “Clintonian presidential administration ‘represents the best accommodation of democratic and efficiency values,’ and ‘may well generate the optimal form of political oversight over administrative action, measured in terms of both accountability and effectiveness.’” (P. 2215 (quoting Presidential Administration at 2341 & 2348)).

AM&R criticize Justice Kagan’s account for offering a Whig history, i.e., telling a story of things getting better. History does, every now and then, work out this way, so a Whig history is not necessarily a wrong history. For AM&R, however, Justice Kagan’s Whig history of presidential administration suffers from two big problems. One is that it “obscures the risks posed by constitutionalized presidentialism.” (P. 2136). Modern governance demands a vast and powerful administrative apparatus. Is it really such a great idea to put one person in charge of all its power? Might the possibility of “plebiscitary dictatorship” spring to mind? (P. 2143). Presidential control of agency discretion may look a little different in 2024 than it did in 2001 when Presidential Administration was published.

The other problem is that Kagan’s “irenic” account “submerges the substantive political agenda that drove the rise of presidential administration as well as the legal revolution that rise produced,” and it leaves out the “institutional politics, legal innovations, and ideological conditions that made the shift to presidential administration possible.” (P. 2136). This leads us back to AM&R’s claim at the outset of The Making that sanitized stories regarding the development of presidential administration “deprive [ ] us of tools to assess its internal dangers, as well as the concepts to push back against its excesses.” (P. 2136). Most of The Making, as we have seen, is devoted to redressing this problem by offering its unsanitized history of presidential administration redder in tooth and claw.

Across its span of 90 pages, The Making contains so many thought-provoking claims and arguments that I imagine every reader somewhat familiar with the development of presidential administration and the Unitary Executive theory will find some bone of contention or doubt. (Ideological opponents will find lots, of course). For example, I find myself wondering if we need to attribute the Clinton administration’s decision to build upon rather than abandon Reagan-era presidentialism to neoliberal reflexes. Might it simply be the case that presidents, regardless of ideology, don’t like giving up power over government institutions?

But one need not accept all (or maybe even many) of the characterizations and critiques that AM&R level at presidential administration to find their account of its development extremely illuminating and interesting. It is also a fluid, excellent read, which is not the easiest thing to pull off when giving detailed accounts of topics like the evolution of executive orders governing agency rulemaking. Maybe, like me, you sometimes read a long law review article with 774 footnotes, and, absent special effort, only a modest bit sticks in your brain. I feel like a much larger bit of The Making is sticking with me thanks to its authors’ combination of clarity, coherence, and eye for telling details.

In short, I learned a lot from The Making and thoroughly enjoyed reading it. If you have made it all the way to the end of this jot, I bet you will, too.

The Labor Movement’s Reconceptualization of Constitutional Rights and Administrative Policy

Nov 27, 2024 Edward RubinAdd a Comment

Edward Rubin

The American labor movement has been revitalized in the past few decades. Detached at its outset by American exceptionalism from the ideology that supported European movements, and content to rest upon its success in obtaining the Wagner Act, it settled into a defensive mode following World War II, failing to move beyond its traditional strategies or build alliances with the progressive forces of civil rights and feminism. But labor is now demonstrating new energy and imagination, organizing aggressively among previously unrecruited workers in firms such as Starbucks, Amazon, and Walmart, and among previously excluded groups such as agricultural workers, domestic workers, gig workers, and public employees.

In Constitutional Clash: Labor, Capital, and Democracy, Kate Andrias documents various features of labor’s revival. She then argues that these efforts are not merely advocacy for a particular group of Americans, as extensive as that group may be, but also a reconceptualization of our constitutional and administrative order. With respect to constitutional rights, she identifies labor’s demand that the right to unionize should no longer be seen as the creature of statute, but as a fundamental entitlement of all employees, as it is in the U.N. Universal Declaration of Human Rights. Intrinsically related, and thus equally fundamental, is the right to strike. Labor leaders also insist on free speech in the workplace, not only as a necessary adjunct of the right to organize, but also to provide workers with personal autonomy and the opportunity for self-expression. They demand that the arbitrary and oppressive practice of at-will dismissal be replaced by due process protection. Going further, Andrias perceives labor’s minimum wage demands and associated calls for paid sick time, parental leave, and vacation time as potentially grounded on a constitutional right to minimal basic needs.

Andrias is aware, of course, that the current Supreme Court will not grant any of these rights and is, in fact, moving in the opposite direction, undermining current statutory rights with contrived interpretive stratagems. She confronts this issue directly, arguing that business interests have captured the Court and used it to impose a competing constitutional vision. That vision builds on employer free speech claims that limit labor laws, expanded protection of property based on the Due Process and Takings Clauses, a new-found non-delegation doctrine, and even a revival of the long-abandoned liberty of contract from the Lochner Era. Because the Court is unlikely to change in the foreseeable future, labor knows it must rely on a version of popular constitutionalism. Its alternative vision of constitutional rights will thus be articulated and instantiated through social mobilization, statutory enactments, and private contracts.

These rights, if implemented in any form, would represent a revolutionary change in our legal system. But the reconceptualization of our administrative system that Andrias perceives in labor’s new initiatives is even more far-reaching. She begins this part of her analysis conventionally, noting the narrow interpretation of the Wagner Act and other statutes by current administrative agencies, most notably the National Labor Relations Board. In fact, administrative law scholars regularly point to the NLRB’s adamant refusal to deploy its rulemaking power and its consequent reliance on case-by-case adjudication as the classic example of agency capture or timidity. But Andrias then discerns, in labor’s current efforts, a truly transformative approach to the way we administer the very basis of our economic system.

This approach can be described by beginning with the cry of “Socialism!” that conservatives level at those who favor more stringent regulation of American business. While often little more than name calling, the intellectual grounding of the accusation is Frederick Hayek’s Road to Serfdom. Hayek’s central argument is that socialism, which he correctly defines as a system of economic administration where the state owns the means of production, inevitably requires central planning, which in turn leads to oppressive and perhaps totalitarian government control. His account is dishonest, however, because he simply ignores the fact that ownership and control are not necessarily connected. This is something he clearly knew, since it was the central insight of a famous work of economic scholarship published just a decade before his own, Berle and Means’ The Modern Corporation and Private Property. Once their insight is acknowledged, it becomes clear that economic policy does not consist of a dichotomous choice between central control and the free market, but rather the familiar four-box grid for describing the interaction between two independent variables, in this case public versus private ownership and public versus private control.

© Edward L. Rubin, 2024.

The first cell in the grid is the one Hayek identifies as socialism, where the government owns and controls the means of production. The diagonally opposite cell, where private parties own and control the means of production, is the current system in the United States, with the debate between progressives and conservatives focusing on the extent to which these ownership and control functions should be regulated. But it is also possible to move along the public ownership axis from public control to private control. This cell in the grid (public ownership and private control) is one that Hayek knew perfectly well, since it was the policy that the Labour government in Britain (where he was living) adopted in the years between the time he published his book and the time he wrote the preface to the paperback edition. Again, he dishonestly ignores this option, but Andrias identifies it as one of the themes of labor’s current effort. She does not perceive this effort as endorsing the Labour Party version of public ownership and private control, which was based on independent management boards, but rather the version discussed by Carole Pateman, namely worker democracy. Labor’s current efforts include the demand for a voice in the management of their employing firm, particularly in areas that affect their own working conditions. In the U.S., this is likely to be implemented, if at all, by administrative regulation rather than the more comprehensive means of public ownership, but it represents the entry of the company’s workers into a decision-making process now regarded as the exclusive preserve of private owners.

It is also possible to move along the public control axis from public ownership to private ownership. This cell (public control and private ownership) is often described as corporatism. It is common in many democratic nations, such as Finland, the Netherlands, and Japan. Andrias identifies current labor initiatives to obtain mandatory sectoral bargaining, where the government requires employers and unions to establish working standards for an entire industry, as implementing this approach. While labor’s business antagonists will be quick to echo Hayek’s charge of socialism in response, it is not socialism, but an alternative and potentially more effective means of administering our system of private enterprise.

Given the results of the 2024 election, the labor movement will need to continue its efforts to reach out to larger constituencies, particularly among the disadvantaged, and continue to seek innovative approaches to the challenges it faces. Labor leaders would do well to devote serious attention to Professor Andrias’ article.

Surfacing Agencies

Oct 14, 2024 Margaret KwokaAdd a Comment

Margaret Kwoka

Most arms of government are subject to stringent transparency requirements in an effort to improve public accountability and, relatedly, public trust. For example, the Freedom of Information Act requires public access to most government records, and the Administrative Procedure Act requires agency explanations for final actions such as new regulations or adjudicatory decisions. By contrast, other powerful institutions in society, namely businesses and corporations, are required to reveal very little about their operations or publicly to justify their positions. Paradoxically, though, the public distrusts government far more than these opaque actors and believes government is incompetent, at best, and nefarious, at worst.

Shedding remarkable light on the underlying reason for this illogical result is a new article, The Submerged Administrative State, by Gabriel Scheffler and Daniel Walters. Scheffler and Walters persuasively argue that a significant contributing factor to the lack of public trust in government is that the work of administrative agencies is “submerged.” Some scholars have studied the incomprehensibility of government documents and disclosure to the public, while others (myself included) have examined the failures of transparency laws. What makes Scheffler and Walters’ approach to studying the visibility of government unique, though, is their ability to deftly amalgamate a variety of legal constraints, doctrines, and incentives that push agency work under the radar. Indeed, they convincingly demonstrate that this phenomenon works to the detriment of government by breeding distrust among the citizenry.

To begin, Scheffler and Walters do not shy away from the challenge of linking the lack of public trust to the submerged nature of agency actions. They consider alternative explanations, including the fact that government does actually fail, sometimes spectacularly, and that such failures might be the root cause. They also concede that ideological attacks on big government may contribute to the problem. However, they explain how failure is not unique to government; indeed, reputational attacks are also launched against businesses. Yet corporations spend significant portions of their budget on public relations, branding, advertising, and other activities specifically designed to boost public opinion. Thus, while these factors no doubt contribute to the lack of public trust in government, they do not fully explain it.

Enter the “submergence perspective,” that is, the fact that “[d]espite agencies doing the vast bulk of government work, it is inordinately difficult for even the most informed Americans to appreciate the extent to which agency action affects their lives.” (P. 811.) Indeed, the article opens with a powerful example: data collected by the National Oceanic and Atmospheric Administration about the weather, which most members of the public would never know is the primary data relied upon by nearly every commercially produced weather forecasting service. By contrast, as the authors explain, there are much more favorable attitudes towards agencies that the public interacts with personally, such as the National Park Service.

Scheffler and Walters explain that the lack of visibility is more than just agencies’ failure to harness adequate resources for publicity, but rather is due in large part to legal constraints and incentives they face in communicating with the public. Some laws contain direct restraints on agency communications, such as laws that prevent public relations campaigns or spending of money on publicity experts. Other constraints arise from presidential directives such as those requiring pre-clearance of certain agency statements to Congress through OMB review.

For the administrative law folks out there, you, like me, may be particularly fascinated by the argument the authors advance that various judicial review doctrines themselves have the effect of submerging the administrative state. For example, they point to the old precedent of HBO v. FCC that banned agency ex parte contacts with the public during the pendency of a rulemaking in an effort to ensure a complete public rulemaking record justifying the eventual agency decision. While this precedent was later overturned, the authors argue that it continued to chill agency speech since agencies always have an eye toward creating an adequate record for judicial review. Similarly, the newer major questions doctrine most famously described in West Virginia v. EPA incentivizes agencies to make their actions seem less consequential, lest they be accidentally promoting them into a “major” question ripe for invalidation. I would add to this list the Court’s recent decision in Ohio v. EPA, which seems to require of agencies even more verbose and hyper-technical justifications for their actions, potentially further obfuscating the relevancy of the agency action to most ordinary citizens.

Still, resource allocation decisions also play a role. An ever-increasing reliance on contractors to perform government work makes that work less visible, an accountability gap that has been documented in the rulemaking context. Additionally, agencies are simply not spending money on communications, with the singular exception of the military, which is specifically authorized to do publicity for recruitment. By contrast, corporations, which enjoy higher public regard, spend significant parts of their budgets on public relations.

A second set of submergence factors arises from the legibility of what government does. Simply put, government action is so technical and bureaucratic that it can hardly be understood by the public. Not only are the documents that implement government policy extremely difficult to understand, but the actions lack what the authors call “salience” and “traceability.” On salience, members of the public are often not aware, and on traceability, even if members of the public are aware of a change in their lives, they do not trace that change to an agency action. For example, when social policy is implemented through the tax code it may be submerged, or if agency action creates a “nudge” in behavior, the entire point of the action may be to affect private conduct unconsciously. Finally, and for some most egregiously, the law has sanctioned a body of regulations that incorporate by reference standards set by private standard-setting bodies not generally available to the public, making the law itself submerged in some instances.

Admirably, the authors endeavor not only to describe how to “unsubmerge” administrative actions but also seriously contemplate the possible pitfalls. These downsides include potential backlash, a risk of government propaganda, or skewing agency priorities. Ultimately, they convinced me that the advantages to surfacing agency actions through better messaging, improved processes for the public, and greater public participation in agency decision making outweigh any possible downsides. Surfacing agency action in discrete settings has been explored elsewhere, including my own proposal for an information commission, and Leigh Osofsky and Joshua Blank’s excellent work on automated legal advice. These types of interventions are bolstered by Scheffler and Walters’s great piece, which I am sure will provoke more such proposals for innovation to come.

Toward a Cross-Branch Perspective on Administration

Sep 12, 2024 Emily BremerAdd a Comment

Emily Bremer

What is administrative power and where does it fit within the federal government’s tripartite structure?  These questions are difficult because the Constitution seems to contemplate only three sovereign powers—legislative, executive, and judicial—each vested in a separate branch of the federal government. As Jerry Mashaw memorably put it, “there is a hole in the Constitution where administration might have been.” Administrative law deals with the many questions raised by this deficit, and it usually examines the work of executive branch agencies and the boards and commissions that execute the law with greater independence from the White House.  In short, a major premise of administrative law is that “administrative power” is at home in Article II.

In The Judicial Administrative Power, which is forthcoming in the George Washington Law Review, Jonathan Petkun and Joseph Schottenfeld find administrative power in a different place: Article III. This is not an article about judicial review of agency action—it’s about administrative institutions and activities wholly internal to the judicial branch. It’s a terrific contribution to a growing literature that recognizes the reality that bureaucracy and administrative power are often found outside of Article II’s core territory. For example, Anne Joseph O’Connell has examined Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841 (2014), between government and the private sector, while Jesse M. Cross & Abbe R. Gluck, have uncovered The Congressional Bureaucracy, 168 U. Pa. L. Rev. 1541 (2020).

Petkun and Schottenfeld begin by providing an historical account of the emergence and proliferation of the institutions that make up the judicial bureaucracy. These institutions assist with “judicial administration,” which the authors define as the “activities performed by judges or judicial employees that do not arise from within a case, but that nonetheless relate to the primary Article III function of … decid[ing] cases.” (P. 8.) The most prominent of these are the Judicial Conference (established by Congress in 1922); the Administrative Office of the U.S. Courts (AO) and judicial councils (1939); the Federal Judicial Center and the Judicial Panel on Multidistrict Litigation (1960s); and the Sentencing Commission and pretrial service agencies (1980s). (Pp. 10-15.) As its bureaucracy grew, the judicial branch became more hierarchical. The Chief Justice of the U.S. Supreme Court acquired new responsibilities “at the helm” of the judicial bureaucracy. (P. 21.) And the judicial payroll expanded to include the many non-judge employees needed to undertake Article III’s new administrative activities.

The authors provide a “broadly descriptive account” of the forms of action that make up judicial administration, which they group into three categories: “rulemaking,” “managing,” and “communicating.” (P. 16.) The first category most prominently includes what the authors call “Big R rulemaking,” which consists of the quasi-legislative development of federal procedural rules (such as the Federal Rules of Civil Procedure) and of the now-nonbinding Sentencing Guidelines. (Pp. 16-19.) But the authors shine a light on many other types of “quasi-legislative rulemaking or policy-setting” that take place within the judicial bureaucracy. (P. 19.) The authors define the second category of “managing” expansively to include the selection and supervision of personnel; research, training, and the implementing of new reforms; controlling judicial infrastructure, both physical (e.g., courthouses) and digital (e.g., PACER); and providing pretrial supervision and probation services to criminal defendants. (Pp. 22-27.) Finally, “communicating” includes judicial lobbying of Congress and executive officials, as well as various other forms of collective messaging on behalf of the judicial branch, both internally and externally. (Pp. 27-32.)

For administrative lawyers accustomed to thinking of administrative action as either rulemaking or adjudication, the absence of the latter category will be conspicuous. Since Article III’s core work is adjudication, the authors (as noted above) define it out of the judicial “administrative power.” The very clear conception the authors have of the scope of the judicial power thus has critical consequences for how they define administrative power. At the same time, the authors’ last two categories of judicial administration include activities that, in the Article II context, might be swept into administrative law’s catch-all category of “adjudication.” For example, Petkun and Schottenfeld define the sanctioning of judicial employees and persons subject to judicial supervision in connection with criminal proceedings as “managing” activities. But these seem like “adjudicatory” actions in the usual parlance of administrative law because they involve the imposition of sanctions based on the application of established law or policy to particular individuals. See 5 U.S.C. § 551(5)-(7) & (10). It’s fascinating to see how administration must be redefined when the core concept of “adjudication” is simply off the table.

There is much else in the story of The Judicial Administrative Power that will be familiar to the administrative lawyer. First, there is the taking over of responsibilities from other branches of government, which results in a combination of functions within Article III. For example, when it created the AO, Congress shifted the work of managing the courts from the executive branch to the judicial branch. (P. 12.) Similarly with Pretrial Services Act, Congress gave direct enforcement authority to the courts that might otherwise be vested in executive officers. Second, there is the shift away from formal adjudication (a category of activity that is easier to define when one is examining the Article III courts and not Article II administrative agencies). The authors explain that much of the judicial bureaucracy’s expansion was motivated by “efforts to problem-solve around adjudication and, in particular, the judiciary’s role in federal criminal matters.” (P. 14.) Third (and often overlapping with the first two phenomena), there is the ongoing project of establishing hierarchical control of discretionary decisions. Big-R rulemaking constrains the discretion of individual judges through the development of procedural rules and sentencing guidelines that apply across all courts. Over time, more important decisions are shifted up, out of the hands of individual judges, and into the hands of judicial agencies. At the top of this modern, formalized branch sits the Chief Justice. Looking at the whole of what Article III has become over the past century, it seems unsurprising that the most prominent actor present at its creation was Chief Justice Taft, a former U.S. President. (P. 10.)

The authors’ normative concerns will also feel familiar to administrative lawyers, but The Judicial Administrative Poweroffers an opportunity to examine those concerns unencumbered by the usual fights over federal regulation. One set of concerns is internal to the judicial branch. (Pp. 34-43.) The authors argue that judicial administration affects—even warps—the judiciary’s ability to do its core Article III work. A second set of concerns involves broader separation-of-powers considerations. (Pp. 43-53.) Here, the authors argue that judicial administration changes interbranch dynamics by authorizing the judiciary to perform functions historically allocated to the political branches and by making the judiciary a more powerful and proactive component of the federal government. Although the authors do not argue that judicial administration is broadly unconstitutional, they do offer a handful of reforms that involve “treating administration as administration.” (P. 53.)

Petkun and Schottenfeld have provided a crucial part of the foundation necessary for scholars to develop a cross-branch conception of administrative power. Clearly, bureaucracy is not confined to Article II—it is alive and well in all three branches of government. Like Cross and Gluck’s work on the congressional bureaucracy, Petkun and Schottenfeld’s work clarifies the need to conceptualize “administrative power” in cross-branch perspective and to attend to how it affects the core work of each branch of the federal government. By revealing this imperative, the authors implicitly cast doubt on administrative law’s tendency to treat administration as synonymous with executive power.   This in turn suggests that conceptualizing “administrative” power may require a more robust understanding of “executive” power. The possibilities for deepening our understanding of administration and its place within our broader constitutional order are tantalizing.

A World Without Humphrey’s Executor?

Aug 7, 2024 Christopher WalkerAdd a Comment

Christopher Walker

If it is true that the Roberts Court overrules one precedent per year, Humphrey’s Executor is likely one of its next targets. Nearly ninety years ago, the Supreme Court in Humphrey’s Executor upheld the constitutionality of statutory for-cause removal protections for the multimember heads of the Federal Trade Commission (FTC). That precedent allowed Congress to continue to insulate the leaders of so-called independent agencies from at will firing by the president. Many progressives view Humphrey’s Executor as critical for preserving expert-driven regulatory governance insulated from excessive politics. Many conservatives, by contrast, view Humphrey’s Executor as a direct threat to political accountability through presidential control.

As the debate over Humphrey’s Executor intensifies, one may reasonably wonder whether independent agencies are as great as progressives believe or as dangerous as conservatives fear. In The Independent Agency Myth, Neal Devins and David Lewis shed some important empirical light on those questions. Based on two large surveys of agency officials, they conclude that “the independent agency model no longer works; most independent agencies are not particularly expert, not particularly influential, and their policies and policy-making processes are subject to (not insulated from) elected branch oversight and manipulation.” (P. 1309.) This conclusion is reminiscent of my colleague Dan Crane’s take that today’s FTC “bears almost no resemblance to the Progressive-technocratic vision articulated by the [Humphrey’s Executor] Court. The Commission is not politically independent, uniquely expert, or principally legislative or adjudicative.”

There is so much to like about The Independent Agency Myth. After detailing the rise and purpose of independent agencies, Part II of the article presents the findings from the two surveys of 554 political appointees and 4,776 career executives during the Obama (2014) and Trump (2020) administrations. In unpacking the survey results, they focus on the findings related to the three main reasons for independent agencies: (1) expertise; (2) insulation from politics; and (3) policy stability.

With respect to agency expertise, Devins and Lewis assess agency respondents’ perceptions of workforce skill—i.e., whether independent agencies attract a more expert workforce. In the 2014 survey, “executive agencies (Mean: -0.02) have a higher average estimated workforce skill than independent agencies, and this difference is statistically significant (Mean: -0.45; p<0.02).” (Pp. 1329–30.) In the 2024 survey, independent agencies are estimated to have a slightly more skilled workforce, though the difference is not statistically significant. From both survey results, Devins and Lewis conclude that these findings are “at odds with the expertise justification for the independent agency design.” (P. 1331.) It is an interesting choice to frame agency expertise in terms of skilled workforce. That is one way to get at whether independent agencies are more technocratic. It would also be interesting to learn the agency respondents’ perceptions about whether agency policymaking is driven more by facts and science (as opposed to political considerations) at independent agencies compared to executive agencies.

With respect to insulation from politics, both surveys suggest that independent agencies are less influenced by the White House than traditional executive agencies, though similarly influenced by congressional committees and political appointees. For both types of agencies, however, political appointees exercise the most policy influence. Accordingly, Devins and Lewis conclude that “[t]he primary means by which the president influences agency decisions may be through personnel and appointees; these individuals influence policy decisions the most in the larger (and fully staffed) independent agencies.” (P. 1335.) This is another fascinating finding. Unlike Devins and Lewis, I see this finding as potentially strong evidence that the president does not have as much political control over independent agencies compared to executive agencies. If the president’s control comes mainly through the personnel power, the president has less power to control an agency if she cannot easily fire—or threaten to fire—that agency leadership.

By policy stability, Devins and Lewis mean that “agency policy would not shift from administration to administration,” but “[i]nstead, commissioners would reach across party lines and produce stable fact-based policies.” (P. 1336.) Especially when it comes to major agencies, the survey results reveal no difference between independent and executive agencies when it comes to partisan influence and instability during changes in presidential administration. This probably comes as no surprise to those of us who follow the major independent agencies—whether that’s the Federal Communication Commission’s flip-flopping on net neutrality or the variety of major actions being pursued by the FTC under Chair Lina Khan’s leadership.

Assuming these survey responses reflect reality in the modern administrative state, why are independent agencies failing to live up to their Progressive Era ideal of apolitical and technocratic regulatory policymaking? Devins and Lewis turn to this question in Part III. They blame the failure on two related changes in American politics: with the rise of political polarization, more-partisan leaders are being appointed to run independent agencies; and with the further expansion of the administrative state, presidential administration has likewise strengthened. Devins and Lewis conclude their article with the recommendation that “[m]ost independent agencies can be safely folded into executive departments, leaving only the visible and high-functioning independents in their current form.” (P. 1374.)¹ Those high-functioning agencies would include major agencies like the Federal Reserve and FTC.

If the Supreme Court ends up taking a case to decide whether to overrule Humphrey’s Executor, I expect The Independent Agency Myth to feature prominently in the briefing and at oral argument. Although much more empirical work should be done, Devins and Lewis’s findings cast at least some doubt on the continuing effectiveness of statutory removal restrictions in terms of increasing technocratic decisionmaking, reducing political influence, and preserving stability in regulatory policymaking. I hope to see further engagement with their study and findings.

In a world without Humphrey’s Executor, we will have to turn to other tools and doctrines to encourage expertise, predictability, and stability in the areas of regulatory governance where we may be most concerned about the shifting political winds. Agency adjudications, internal government corruption investigations, election administration, and financial markets regulation come immediately to mind. For instance, as Aaron Nielson and I detail elsewhere, Congress has a powerful anti-removal toolkit it can and should further employ to create a greater measure of decisional independence at such federal agencies. For those who believe that the independent agency structure provides the answer, however, The Independent Agency Myth should provide at least some cause for concern and should encourage further exploration.

1. In this short review, I do not address their important findings regarding the political neglect of smaller independent agencies—those agencies that Devins and Lewis recommend should be folded into the executive branch.