Nearly everyone sings innovation’s praises. Innovation brings progress and prosperity. It leads to a better tomorrow. Yet, is innovation really an unalloyed good? In a new book, legal scholar Cristie Ford argues that innovation actually “presents a clear and persistent risk—perhaps the single most significant and under-analyzed risk—to regulation itself.” (P. 215.)
Innovation poses such an “existential challenge” to regulation, Ford argues in Innovation and the State: Finance, Regulation, and Justice, because the world subject to regulatory control is constantly changing. (P. 144.) Technological change, for example, has made hydraulic fracturing economical and led to a shale gas revolution in energy extraction. New, complex mortgage-backed derivatives in securities markets proliferated in the years leading up to the financial crisis. Changes such as these are continually occurring in every economy. Yet in a certain sense, regulation inherently stands still. Regulation operates by fixing words onto the pages of a rulebook. The world is dynamic, while regulation is static.
Ford is hardly the first to call attention to regulation’s relatively static nature. Many policymakers, and even more business managers, believe that regulation impedes socially valuable progress. For example, a common argument is that the U.S. Food and Drug Administration’s strict and slow pre-marketing review protocols keep life-saving drugs from helping patients sooner. More generally, the “clunkiness” and rigidity of regulation—such as its well-known problem of one-size-fits-all commands—creates a range of perversities, including increased costs and the locking in of suboptimal business practices.
This conventional view of the tension between regulation and innovation is most compatible with a critical posture toward regulation. Yet in her thoughtful book, Ford offers a valuable scholarly perspective that both skeptics and supporters of regulation should find instructive. She shows that regulation hardly impedes all innovation. Just as water in a river finds its way around or over boulders and other obstructions, innovation manages to occur even in a regulated economy. More importantly, the existence of ever-present innovation holds major implications for regulation, as changes in economic and social circumstances bring the constant potential to make rules antiquated and ineffectual. As Ford puts it, innovation has a “persistently corrosive effect on regulatory fit and effectiveness over time.” (P. 164.)
This corrosiveness exists in part because of what legal scholar Gary Marchant has called law’s “pacing problem.” Economic and technological development simply moves much more quickly than legal institutions typically are able to act. We see constantly emerging new lines of businesses—Facebook, Uber, and more—as well as new technologies—genetic engineering, autonomous vehicles, and more. Each of these developments bring the possibility of risks to consumers and the public. But the legal system is slow to respond.
Another source of innovation’s corrosiveness arises from firms’ strategic behavior. When regulated firms maintain the same incentives and goals that created the initial need for regulation, those firms can be expected to search for—and eventually find—ways of satisfying their objectives within the parameters of the law. But sometimes these new ways still create problems for society. The starkest examples take the form of evasiveness or outright fraud—just think about Volkswagen’s “innovative” approach to designing diesel engines so they could meet regulators’ required laboratory emissions tests, even though the cars still polluted excessively when driven on the road. Adaptive behavior induced by regulation can also be more benign in intent but still allow problems to persist or even create new problems. Whatever the motivation, such strategic innovation undoubtedly underlies Ford’s view that “the capacity to be innovative…is a form of power” and that this form power, like others, is not distributed equally in society. (P. 220.)
Ford’s book helpfully reminds us that a major predicament facing society—and a major intellectual challenge confronting regulatory scholars—derives from the realization that regulation must “operate within a dynamic and uncertain environment.” (P. 140.) What might be the solution to this predicament?
For much of the 1990s and early 2000s, regulatory scholars argued that the innovation predicament could be overcome through a form of regulation that Ford refers to as “flexible regulation.” (Ford uses this common, if not oxymoronic, moniker from that earlier time period, but also explains that flexible regulation sometimes has also traveled under the banner of “responsive regulation, reflexive law, smart regulation, and new governance and experimentalism.” (P. 21.)) Throughout much of Innovation and the State, Ford tells the intellectual history of flexible regulation. She shows how flexible regulation eschews top-down governmental control through bright-line rules, typically disparaged as “command-and-control” regulation. By contrast, flexible regulation prefers to work more from the bottom up, taking advantage of industry’s superior knowledge of its operations and providing greater sensitivity to variation in business contexts. By relying on either broad principles or regulatory performance targets, as well as on softer tools or nudges (such as information disclosure), flexible regulation seeks to shape and guide private behavior rather than to control businesses’ every action through the enforcement of strict, detailed legal commands.
In theory, flexible regulation overcomes both the rigidity and corrosiveness associated with traditional regulation. Instead of locking in specific, prescribed behaviors and technologies, a principles- or performance-based regulatory regime gives responsible firms leeway to adapt and find the most cost-effective means of achieving regulatory goals. In this way, flexible regulation is more receptive to “good” innovation. And by its reliance on broad principles or outcomes instead of bright-line rules, flexible regulation can allow government regulators to respond more nimbly to evasiveness and to adapt in the face of new business practices that might not be addressed by highly detailed, prescriptive rules. Flexible regulation in this way is thought to be more protective against “bad” innovation.
But the regulatory theory that developed in the 1990s looks different from this side of the financial crisis of 2007-2008. Ford cautions regulators and regulatory scholars against putting too much faith in the precise form of regulation, flexible or otherwise. A specialist in securities regulation herself, Ford devotes much attention in Innovation and the State to financial regulatory issues. Comparing how different countries fared in response to various innovations in finance in the years prior to the crisis, she concludes that “it would be difficult to establish that more ‘flexible’ systems like the United Kingdom’s more principles-based system were any more (or less!) susceptible to gaming or weaker in regulatory terms than more rigid, bright-line systems like the United States’.” (P. 133.)
Ford’s design-agnostic conclusion merits wide consideration. Both bright-line rules and principles-based regulatory designs have their strengths and weaknesses. And neither are immune to challenges posed by innovation. It oversimplifies, but perhaps only somewhat, to say that just as bright-line rules can block both bad and good innovation, flexible regulation can be accommodating to both good and bad innovation. Both the financial crisis and the Volkswagen scandal, each of which extended across national borders, remind us that bad innovation, flouting legitimate regulatory goals, can arise in vastly different regulatory systems.
Ford is correct to identify innovation as a daunting challenge confronting any regulatory system. She makes a persuasive claim that, at least as a technical or legal matter, “we simply cannot seem to ‘solve’ the problem of innovation, no matter what flexible, bright-line, or innovation-framing strategy we take.” (P. 47.) But then, if she is right, is there ever any hope for sensible, effective regulation?
Ford offers no simple, easy answers—and surely we should be most skeptical if she did. Still, I read her to be both realistic and hopeful. In her telling, “the way forward is…through a new kind of state action.” (P. 128.) That new action, she says, should entail thoughtful, fair, public deliberation and efforts by regulators to seek to identify changes in social and economic circumstances and learn how to respond to them.
She offers near the end of the book a helpful “[f]ramework for innovation-ready regulation” (P. 226) which includes a list of questions intended to help focus regulators’ attention on possible innovation threats on the horizon. That framework encourages the leaders of any regulatory organization to assess three key features of their operating environment: (1) “the basis of the regulator’s knowledge and the nature of its assumptions;” (2) how the regulatory regime is structured, and what implications flow from that structure;” and (3) “what mechanisms exist to allow the regulatory regime to learn and adapt, and whether they are adequate.” (P. 224.)
The operative word in Ford’s ultimate solution comes down to “action.” In looking at the regulatory failings in the lead up to the financial crisis, Ford points not to any particular failure in regulatory instrument design but to the lack of appropriate and adequate action by regulatory officials: “Across jurisdictions, underfunding, under-resourcing, lack and misdirection of information, lack of focus, and lack of regulatory independent-mindedness were the common thread.” (P. 133.) The solution, then, is not so much smart regulation, but smarter regulators.
In the end, whatever form regulation itself may take, regulators must also acquire the vision to notice change as it is evolving, possess the early-warning data to anticipate seismic shifts in the larger landscape, and inculcate the independent-mindedness to take appropriate action when needed. If innovation creates regulation’s existential problem, the solution lies in constant regulatory vigilance.
Evan D. Bernick, Envisioning Administrative Procedure Act Originalism
, 70 Admin. L. Rev.
__ (forthcoming 2018), available at SSRN
Forty years ago, then-Professor Antonin Scalia published Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court in the Supreme Court Review. There, the future Justice both chastised the D.C. Circuit for ignoring the text of the APA (Administrative Procedure Act) and offered a “lament” about how faithful judicial adherence to the original public meaning of that foundational statute could not provide a durable framework for administrative governance. Thus, even for skeptics of federal common-lawmaking like Scalia, the original APA has remained in substantial part unloved, or at least often benignly neglected.
Evan Bernick, a visiting lecturer at Georgetown Law, and a thoughtful provocative new voice in administrative law, is wondering whether administrative lawyers have given up too fast on the romance. In Envisioning Administrative Procedure Act Originalism, Bernick imagines what it would look like to apply a consistently originalist approach to the APA. He does not offer a complete picture of the results those methods would yield, but pointing to that sketchy spot on the map underlines the importance of his project. Originalists have lavished far less attention on a statute that frames much of modern governance than they have on provisions of the Constitution that are less likely to affect the lives of Americans every day. What APA originalism might unearth should be of interest to originalists and also to non-originalists who see original meaning or intention as an important input in the interpretive process.
Bernick does a masterful job explaining why such an inquiry is important and lays the necessary groundwork for further work along these lines. He notes that he is not alone in asking questions about the original law the APA laid down. As he catalogues, in recent years, scholars have gone back to the original APA to criticize: Chevron deference and Auer deference; the evisceration of formal rulemaking; judicial additions to informal rulemaking procedures; the marginalization of formal adjudication; deference to administrative action by the military; and liberal approaches to pre-enforcement review of agency action.
All the examples of APA originalism above criticize one feature or another of what we generally know of as administrative common law. The insight here is that courts are not free, or at least not well-equipped, to develop norms governing administrative procedure when Congress has already made a decision on the matter. Pre-enforcement review, paper hearings in informal rulemaking, or deference on questions of law may be good, but if the APA prescribes something else, take it up with Congress.
Of course, thus far forays into APA originalism (disclosure: mine included) tend to arise when the proponent does not like the doctrinal overlay impeding the original rules Congress chose in 1946. There is a temptation, then, for fair-weathered originalism, drawing on the APA only when something has gone awry at the D.C. Circuit without thinking about broader methodological implications. Bernick recognizes that a cross-cutting APA originalism may require us to take the bitter with the sweet.
Thus, Bernick’s important contribution is to lay the theoretical groundwork for these disparate critiques of administrative law doctrine. As a scholar fluent in both constitutional interpretation theory and administrative law, he is well-suited to the task. Bernick offers reasons to believe that APA originalism is both a feasible and a worthwhile endeavor. In many ways, APA originalism is easier than constitutional originalism. The APA is of more recent vintage than most constitutional provisions, it has a robust set of historical materials, and it doesn’t raise questions about the import of state-ratifying conventions. The mists of history shrouding original public meaning are thinner, and the challenges of shared intention are fewer. Drawing on the distinction between interpretation and construction in constitutional interpretation, Bernick further argues that APA originalism neither requires crisp answers to every interpretive question nor precludes administrative common law across the board. All that it requires is that administrative common law in the “construction zone” not contradict original legal norms Congress fixed in place.
In essence, sophisticated originalists have sharpened their tools in the more challenging constitutional setting, so we should readily be able to apply them in this simpler, yet equally important domain. And Bernick contends there are good reasons in favor of doing so. The original APA is the actual law Congress passed, legislative supremacy and democratic accountability preclude judicial amendment of those norms, and a closer attention to the original law will bring stability and clarity to administrative law while blunting arguments that administrative law is illegitimate or unlawful. And, I might add, unlike in constitutional interpretation, here enforcement of the original law is easier to change if people do not like it. Although legislation is not easy to pass, loosening the dead hand of the APA does not require a constitutional amendment.
Like any good scholar should, Bernick recognizes objections and qualifies his argument accordingly. First, APA originalists must confront the bulk of precedent likely to stand between them and the original APA. As Bernick notes, most originalists have a place for stare decisis in their theories and they have addressed cognate problems in the constitutional context. Nevertheless, working through stare decisis in this context is a fresh task that requires more thinking.
At a deeper level, Bernick recognizes that the original APA might turn out to be normatively inferior to the administrative common law that supplanted it. In fact, such common law might be carrying forward the spirit of the original APA to a world that did not exist in 1946. For example, the APA was crafted before anyone thought informal rulemaking and informal adjudication would dominate administrative policymaking. The procedures attending those forms are therefore comparatively sparse (and in the case of informal adjudication, largely non-existent). Going back to barebones policymaking in those instances could shock the system and sap administrative accountability. Those concerned about the legitimacy of the administrative state might pause before giving agencies similar power but less accountability-forcing procedure.
One further question for Bernick and others to explore is the impact of post-APA legislation. As Scalia noted in his Vermont Yankee article, when Congress creates new regulatory regimes, the resulting statutory scheme often includes procedural provisions that do not map neatly onto the APA. It can therefore be hard to place agency action under these regimes into APA categories, or to identify how, if at all, the APA default rules are implicated in any given scheme. This suggests that, for at least some category of statutes, the original APA would be less relevant, or at least would allow for more judicial construction. By contrast, Congress rarely legislates on standards of review, suggesting that APA originalism may have more bite there than in the procedural context. That is, unless you think Congress “intends” courts to defer when it legislates against the background of Chevron, or that it wants courts to engage in hard-look review when it enacts a statute in the era of State Farm.
These are hard questions and Bernick recognizes them as such. It is about time someone asked them in a smart, systematic fashion, especially since we won’t be able to assess the broader normative stakes until we actually discover what the original APA has to say. In starting us down this path, Bernick has provided a great service to administrative law scholars and jurists. With the rise of originalism in the federal courts in recent decades and given the likelihood that any Justice replacing Anthony Kennedy will increase the originalist quotient on the Supreme Court, Bernick’s scholarly work is hardly “academic” in the pejorative sense of the term.
As we ask these questions and evaluate the normative stakes, we might discover, as Bernick notes, that APA originalism leads to results that cut across current debates about the legitimacy of the administrative state. It portends neither an anti-administrativist nirvana nor the triumph of presidential power and bureaucratic expertise. Rather, thoroughgoing APA originalism is at this point a formalist project animated by broader commitments about statutory interpretation, the role of courts, and legislative supremacy. These normative commitments are contestable, but do not map neatly onto standard arguments about the administrative state.
Without sustained attention to the APA, it is not yet clear what the original law will say about the powers of courts and agencies in the administrative state. That said, the work of Bernick and others suggest that APA originalism could lead to reduced deference on questions of law, increased discretion to agency procedures, and, while this is a matter of debate, dialed down hard-look review of an agency’s substantive policy choices. But this is just a hypothesis: Bernick thinks hard-look review could survive an originalist inquiry; others are less sure. Similarly, Cass Sunstein, a recent convert to APA originalism, argues that the original meaning of the APA permits Chevron deference, even if it does not require it.
Rather than resulting in complete judicial supremacy or stark judicial abnegation in administrative law, APA originalism might maintain places for both judicial and administrative power, while separating those functions more than the pragmatic blending offered by today’s administrative common law. Or it might not. The fact is, we don’t know for sure, and Bernick’s point is that it is worth trying to find out. After all, there might be a law on it.
Cite as: Jeffrey Pojanowski, Rediscovering the APA
(September 20, 2018) (reviewing Evan D. Bernick, Envisioning Administrative Procedure Act Originalism
, 70 Admin. L. Rev.
__ (forthcoming 2018), available at SSRN), https://adlaw.jotwell.com/rediscovering-the-apa/
I feel a bit like Gilligan in one of my favorite episodes of Gilligan’s island. The Professor and the Skipper are having an argument over some issue vital to the castaway’s prospects of being rescued from the island. Gilligan is standing in the middle agreeing with everything both parties to the argument say, and finally the two disputants become fed up with Gilligan’s endorsement of diametrically opposing views and they turn on him. In this Jot, I praise two articles that take conflicting views on an issue vital to the future of administrative law, namely, when should federal courts, confronted with unconstitutional or otherwise illegal Executive Branch action, issue nationwide injunctions: Sam Bray’s Multiple Chancellors: Reforming the National Injunction, and Amanda Frost’s In Defense of Nationwide Injunctions. Hopefully, the reader won’t turn on me.
Bray’s article, which was reviewed by Professor Kevin Walsh in a pre-publication Jot in the Courts Law section of Jotwell, is deeply skeptical of the nationwide injunction, arguing that federal injunctions should be no broader in scope than necessary to protect the plaintiff from the injury underlying the plaintiff’s standing to seek the injunction in the first place. By contrast, Frost’s article contends that federal courts should be willing to grant nationwide relief not only when necessary to provide plaintiffs with complete relief but also when necessary to protect numerous similarly situated parties who cannot quickly bring their claims to federal court.
Both articles attempt to come to terms with the recent proliferation of nationwide injunctions, which federal courts have issued in response to wide-ranging actions taken by the Obama and Trump administrations. As Bray reports, preliminary injunctions issued by individual federal judges shut down the Obama administration’s DAPA (Deferred Action for Parents of Americans) program and the Trump administration’s executive order restricting entry into the United States by people from a group of majority-Muslim countries.
Bray’s analysis contains historical, practical, and constitutional elements. Bray’s main historical point is that the nationwide injunction is a recent development that is generally inconsistent with traditional English and American equity practices. History and tradition are important in this context because analysis of the powers of judges sitting in equity tends to be heavily informed by those factors. Bray’s main practical points are that in the United States, plaintiffs can easily engage in forum shopping by filing their injunctive suits in districts and circuits populated by judges known to be receptive to their claims and that nationwide injunctions short circuit the percolation of issues in multiple lower courts that is vital for informed and effective Supreme Court review. Bray’s constitutional point is that nationwide injunctions frequently go beyond the scope of the case or controversy that provides the basis for federal court jurisdiction under Article III of the Constitution. For all of these reasons, he concludes that federal courts should not issue nationwide injunctions but rather should provide relief only in favor of the particular plaintiff or plaintiffs in the litigation.
Frost builds the analysis that leads her to be much more open to the nationwide injunction on a similar amalgam of practical and constitutional considerations, but she concludes they point in the opposite direction. Frost agrees with Bray that nationwide injunctions come with costs, such as increasing the effects of forum shopping, reducing the percolation of legal issues before the Supreme Court is required to intervene, and raising the possibility of conflicting injunctions based on conflicting doctrinal conclusions. To her, these problems counsel restraint but not abandonment of the nationwide injunction. Frost argues that as a practical matter, nationwide injunctions are often necessary to provide complete relief to plaintiffs and to avoid harm to thousands of similarly situated individuals. She also points out that in some situations, for example, a case concerning the validity of a federal policy with nationwide effects such as an air or water pollution rule, it would be difficult if not impossible to confine an injunction to the scope of a particular plaintiff’s injury.
As far as the traditional and constitutional powers of federal equity courts, Frost disagrees with Bray’s conclusions. She finds no rule of equity or constitutional limitation barring courts from issuing injunctions that control the government’s treatment of non-parties. Her answer to Bray’s historical arguments is basically, “things change.” As the federal government’s power expands, courts need to keep pace and augment their remedies to deal with the scope of both legislative and executive illegality.
Her focus here is mainly on executive power, which makes sense. She notes also that the rise in the nationwide injunction may coincide with increased unilateral Executive Branch activity, in which major policy initiatives are undertaken without direct legislative support. In an era of congressional gridlock, Presidents of both political parties have found it necessary to act unilaterally, and she views the nationwide injunction as a necessary counter to potentially excessive executive power.
My own view is…I find plenty to agree with in both articles. Whether one agrees or disagrees with Bray’s or Frost’s arguments, the way they present them in these articles is worthy of high praise, adding significantly to the understanding of these important legal and policy issues. They are both excellent contributions to what is certain to be an ongoing debate among scholars of administrative law, federal courts, civil procedure, and the substantive fields in which the nationwide injunction continue to play an important role. As an administrative law nut, I wish they both grappled more with the meaning of the APA’s instruction that reviewing courts should “hold unlawful and set aside” unlawful agency action. But that does not affect my bottom line which is—read these articles with an open mind and you won’t be disappointed.
Cite as: Jack Beermann, Two Views on the Nationwide Injunction
, JOTWELL (August 8, 2018) (reviewing Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction
, 131 Harv. L. Rev.
417 (2017); Amanda Frost, In Defense of Nationwide Injunctions
, 93 N.Y.U. L. Rev.
__ (forthcoming 2018)), http://adlaw.jotwell.com/two-views-on-the…nwide-injunction/
In The American Deep State, Jon D. Michaels pushes back against the increasingly shrill rhetoric charging that shadowy forces deeply embedded within the federal bureaucracy have commandeered the reins of government and are thwarting the President and undermining the democratically expressed will of the people. Michaels does not shrink from the “deep state” terminology, but rather seeks to co-opt it in an ode to what he calls “bureaucratic depth.”
Michaels extols numerous advantages of bureaucratic depth. First, he notes that bureaucratic depth is, as a practical matter, what makes the state work. It is a measure of state capacity. The deep bench of civil servants in the United States “mak[e] and enforce[e] regulations, design and run welfare programs, combat crime and corruption, and provid[e] for national defense.” These functions simply do not work—or do not work well, consistently, and non-corruptly—in states that lack bureaucratic depth. Second, Michaels argues that for precisely this reason, bureaucratic depth generally facilitates the implementation of the president’s agenda. Presidents should not, as a matter of course, wish for a hollowed out administrative state if they want to advance a political agenda. Finally, Michaels argues that bureaucratic depth can serve important stabilizing and accountability functions. “In those rare instances when presidents (and their hand-chosen agency heads) go beyond the proverbial pale, those in the civil service are particularly well-positioned to challenge, and even to resist, directives lacking a scientific, legal, or commonsensical foundation.” At base, his argument is that bureaucratic depth advances important rule-of-law values by serving as a check on lawless exercises of presidential power. Those outside the civil service are unlikely to have the combination of inside knowledge and protection from retaliation necessary to promote transparency about unlawful, unethical, or extraordinarily unwise presidential initiatives.
It is, of course, this last function that riles opponents of the “deep state.” Michaels elaborates two categories of reasons why we should not worry that bureaucratic resistance amounts to anti-democratic appropriation of presidential prerogative. First, he argues that the American deep state is knowable and transparent—in his words, it is “not shadowy.” By law and in practice, American agencies are open and accessible—far more so than either Congress or the White House. The public has many means of obtaining information about agency actions and many avenues for fully and extensively participating in agency decision-making processes.
Like routine agency decisions, Michaels argues that acts of resistance by civil servants tend to be taken publicly and supported by information gathered by the agency. For instance, bureaucrats may publicly state their opposition to political leaders or leak information or reports supporting or discrediting a particular policy or claim supported by political leaders. Michaels’ point is that “on those occasions when the American bureaucracy takes sides against the elected leadership, it tends to show its work, laying bare the justifications for any apparent affront to the White House[.]” This allows members of the public to decide for themselves which side has the better argument, effectively enhancing transparency and democratic accountability. Michaels points out that civil servants lack the legal authority to affirmatively block presidential policy initiatives by substituting their own preferred policies. Civil servants who disagree with political leadership must usually assume a defensive posture, challenging problematic initiatives rather than putting forward initiatives of their own. Even the most resistant bureaucrats cannot take the reins of the state and change laws in ways that suit themselves. In other words, the idea of a coup d’etat by civil service bureaucrats in the U.S. deep state is nonsensical.
Second, Michaels argues that the deep state is well positioned to play the important backstop role assigned to it, because it is broadly representative of the country at large—indeed, much more so than the political branches. Unlike the political branches, the federal bureaucracy is not populated by elites. Federal civil servants earn an average of $80,000 a year and only about half are graduates of a four-year college. By contrast, in 2014, there were 210 millionaires in the House of Representatives and 69 millionaires out of 100 Senators. Around this same time frame, twenty Senators had graduated from Harvard or Yale. Thus, “ordinary Americans may have far more in common with the typical federal civil servant than they do with their congressional representatives, cabinet secretaries, and certainly the president.” Beyond class composition, the bureaucracy is internally diverse and broadly representative on several other dimensions. There is substantial geographic diversity, with 85% of civilian, non-postal federal employees employed outside of Washington, DC—roughly half in red states and half in blue states. Women comprise 42% of the federal civil service, more than doubling the percentage of female representation in Congress. The civil service’s percentage of nonwhite employees is almost identical to the percentage of nonwhite citizens in the population generally (37% and 38%, respectively). Finally, there is balance in the political affiliations of civil servants, with 40% identifying as republican and 44% as democratic.
In addition to demographics, Michaels explains that the institutional design of the bureaucracy fragments its power and thus limits its ability to overbear the political branches. Each agency has limited jurisdictional reach, and overlapping agency authority generates bureaucratic competition that allows agencies to check one another’s powers. “[O]ur fragmented deep state has few of the interlocking features that characterize powerful clans’ ready control over multiple ministries and state enterprises, as we find in nations with conventionally labeled deep states. Indeed, our fragmentation makes any type of coordinated, systematic attack on the political branches (or on democracy itself) all but impossible and, in any event, implausible.” Michaels develops this internal separation-of-powers framework in much greater detail in his new book, Constitutional Coup.
I suppose that little of this will be feed-worthy news to administrative law scholars, so why highlight the piece here? I do so because I think it is an important corrective not only to the histrionic political rhetoric about the “deep state,” but also to unspoken assumptions underlying much influential administrative law scholarship. While “deep state” paranoia is not openly peddled in administrative law scholarship, the anxieties that animate it underpin much prominent work in the field. Theories of presidentialism and the turn to political accountability as the touchstone of administrative legitimacy either betray or capitulate to fears of bureaucratic tyranny, and it is high time to reckon with those fears as the political branches mount ever-more aggressive attempts to obliterate bureaucratic depth.
Administrative law scholarship seems to have largely forsaken the virtues of bureaucracy. There are, of course, the classic Weberian virtues: regularity, autonomy, decision-making based on the rule of law rather than personal interests or hostilities. While Weber recognized the dangers and limitations of bureaucratic organization, he plausibly found bureaucracy to be normatively superior to alternative models of political control—namely, domination by a charismatic leader or domination sanctioned by nothing more than longstanding tradition. In addition, there is research suggesting that bureaucracy has important instrumental values, producing social and economic goods: specifically, greater bureaucratic depth is associated with greater economic growth and less corruption. Scholars have even suggested bureaucracy is a site of myriad and diverse human passions: not only disagreeable passions like isolation and frustration, but constructive (and even enjoyable) passions like focused attentiveness, mastery, and gratitude.
Of course, there are obvious problems and pathologies associated with bureaucracy. But there is a much larger and richer conversation to be had about these issues than we have been conducting in administrative law of late. Michaels’ piece seeks to provoke that conversation by reclaiming the “descriptively powerful concept [of the ‘deep state’] from the bad guys.”
Declaring the administrative state “unlawful”—in other words, as consisting of agency efforts to evade constitutional restrictions—is all the rage these days. Despite the fact that these assertions condemn administrative undertakings (both their substance and variety), they sometimes overlook both the legislation governing agency actions and the agency policies that they categorically disparage. In Internal Administrative Law, Professors Gillian Metzger and Kevin Stack assert that “internal administrative law” is lawful by reminding us of its roots in public administration, with an argument that is based in the Administrative Procedure Act (APA) and that considers specific examples of administrative guidance. Given that it investigates a complex and sometimes opaque administrative framework, this piece also contributes to scholarship exploring the so-called “black box” of agency activity. The thoughtful execution and wide-ranging implications of this article make it a highly worthwhile read, and of a piece with Metzger and Stack’s respective bodies of work.
Metzger and Stack offer a fascinating conceptual account of the internal directives through which agencies and presidents manage, guide, and coordinate the civil service. In addition, the authors assert that these forms fulfill the criteria of “law,” based both on the original expectations of the APA and on their own consistency with legal norms. For this reason, the authors argue, the prevailing doctrinal emphasis on the external enforcement of public administration, in addition to the general assumption that a policy must create a system of private rights and obligations to be considered law, denies the fundamentally law-like nature of internal administrative law.
To be clear, the authors do not dispute that enforceability is a key component of what makes a policy law-like. Rather, they suggest that under current doctrine, “the more that agencies articulate norms of internal law and management in a way that sounds binding or mandatory, the more they invite external judicial review of their actions.” (P. 1249.) This, in turn, encourages agencies to issue vague policies in the hopes of avoiding judicial scrutiny. For this reason, the authors conclude, if mechanisms of public administration were allowed to bind bureaucrats on the basis of existing administrative hierarchy and supervisory structures, without the specter of external judgment, they would be clearer, more predictable, and better reasoned.
The article begins with a discussion of U.S. v Texas, a case concerning a recent Department of Homeland Security policy that selectively deferred the deportation of certain undocumented immigrants. The article notes that an equally-divided Supreme Court affirmed the Fifth Circuit’s invalidation of the initiative because it was not promulgated as a rule, by means of a sharply-defined notice-and-comment process. Nonetheless, the article describes this policy as a “paradigmatic” example of internal administration (p. 1241) that should be recognized as valid without adherence to external procedural requirements, because it set priorities for agency personnel only and was announced by internal memoranda.
In my view, by drawing on this case study, the article immediately and effectively highlights the tension between its portrayal of internal administrative law as autonomous and the way in which current doctrine poses an obstacle to agencies’ efforts to shape the exercise of their own discretion. However, one may find that this juxtaposition also introduces a lack of clarity regarding the actual parameters of internal administrative law. For instance, I wondered: is administrative policy that might be classified as “legislative” truly internal administrative law, regardless of whether the policy is directed solely at agency personnel, articulated merely as guidance, etc.? Or to pose a related question: should the category of internal administrative law that is exempt from external review include those inwardly-directed policies that impact non-governmental actors?
Arguably, the Obama-era immigration policy deferring deportation fell somewhere between the two poles of purely organizational and wholly legislative. On the one hand, it sought only to shape the priorities of a select group of government workers. On the other hand, it had an important, albeit not binding or even unwelcome, effect on some third parties—namely, a subset of noncitizens. And according to those challenging the policy, it also had a negative impact on the general population (notwithstanding that this assertion obscures a complex set of outcomes and has been at least partially refuted). Metzger and Stack’s nuanced historical account suggests that the Court’s decision in U.S. v Texas incorporated an inaccurate reading of the APA. But even if an outward-facing process is not required by statute, I think it is worth considering whether it is useful or even justifiable to describe the immigration policy in question as “internal,” given its significant external impact. Indeed, Metzger and Stack’s proposal does not account for instances in which internal mechanisms of public administration, including forms that might otherwise encourage administrative consistency and predictability without judicial management, might nonetheless merit an outside check because of their impact on parties outside the four walls of the government.
More specifically—and in keeping with those concerned that administrative process, in particular, is unlawful—it seems important to determine when ordinary public administration ends, and agency policies that considerably affect third parties begin, because the latter may require external oversight to ensure due process. For example, the category of internal administrative law might reasonably exclude public administration that negatively impacts individual rights, as in a Supreme Court decision, Morton v. Ruiz, that censured the Indian Health Service’s elimination of a health service program serving Native American children. Metzger and Stack describe this decision as applying Accardi, which dictates that agencies must comply with their own regulations, to “invalidate [the] agency action for failure to comply with nonlegislative rules.” (P. 1285.) However, one could also argue that this administrative policy, represented as organizational, altered the agency’s established use of funding in a “legislative” manner that disadvantaged third parties without providing them adequate process.
On the basis of this interpretation, policies such as the one criticized in Ruiz may warrant external oversight (both as a normative matter and as a result of the Court’s decision in this case), instead of a loosening of procedural requirements in the hopes that the agency will take it upon itself to further adequate notice, justification, coherence, and fairness in its application of law. Given the centrality of these values to the Constitution (and for that matter, to Accardi), their potential lack in response to fewer external administrative constraints cannot be dismissed as merely “the possibility of abuse” (p. 1266), especially to the extent that administrative guidance is, as the authors argue it should be, binding. In addition, the article notes that judicial review of administrative law began as a set of common law mechanisms offering protection from public officers’ violation of the polity’s legal rights. Therefore, to the extent this continues to motivate the expansion of external control over public administration, one might infer from the authors that the maintenance of this control at a modest level enjoys some historical backing as well.
Metzger and Stack’s otherwise compelling efforts toward a meaningful framework of internal administrative law could be modified to account for the need to uphold administrative due process. Perhaps external review of internal administrative law should be reduced when an agency both affirmatively seeks to bind itself, as the authors propose, and does so in a manner that minimizes interference with individual rights. This approach offers a strong defense of the inclusion of policies prioritizing immigration enforcement in the category of internal administrative law, if their focus is on guiding immigration officers’ exercise of discretion and they avoid clear and direct harm to third parties. Furthermore, as Metzger and Stack rightly note, agencies sometimes initiate procedure and maintain standards of their own volition, including by subjecting themselves to informal and formal hearing requirements, and by announcing and adhering to clearly structured programs. If an agency rises above the floor established by the APA to take a well-substantiated and transparent approach to public administration, the resulting policy might merit a reduction in external oversight as well.
Finally, although the article promotes decentralization in public administration, it ultimately attaches primary responsibility for the creation and preservation of internal administrative law to the President. It takes this position both because of long-standing judicial skepticism of the value of administrative guidance and because “Congress has shown little appetite or capacity for protecting spheres of agency autonomy.” (P. 1307.) While I dispute the latter claim more generally in forthcoming work, I nonetheless agree that without a somewhat integrated approach to public administration, the overall focus and effectiveness of the executive branch is apt to suffer. Furthermore, in my view, centralization seems likely to further Metzger and Stack’s aims for internal administrative law by engendering uniformity in public administration, lending it the legitimacy associated with a stamp of approval from the White House and, perhaps most importantly, holding it accountable to rule-of-law norms even in the absence of supervision by the judicial and legislative branches.
Overall, Metzger and Stack’s articulation of the self-perpetuating, law-like qualities of endogenous administrative law offers a compelling counterweight to the well-worn view that the only acceptable law is of legislative or judicial origin, and that all agency activities must therefore be validated externally. Further, by both recognizing and promoting the potentially binding character of public administration, this work supports the proliferation of more effective administrative policy.
In the Fifth Edition of the Administrative Law Treatise, released in 2010, Richard Pierce described a raging debate within the academic community and the courts at that time over the appropriate role of democratic values and institutions in the administrative state. This debate encompassed such topics as the validity of unitary executive theory, how best to resolve disagreements between Congress and the President, and how to manage the risk that courts would become “the primary architects of national policy through their efforts to keep agencies within legal boundaries.” Eight years later, that same debate over the values, institutions, and structures of contemporary governance still rages on. A trio of pieces published last fall by Harvard Law Review both exemplifies and contributes to that ongoing conversation. As the author of this academic year’s Harvard Law Review Foreword, Gillian Metzger has penned a bold and provocative defense of the modern administrative state. Aaron Nielson and Mila Sohoni provided thoughtful response essays. Collectively, these pieces demonstrate scholarly engagement at its best.
As one might expect of the Foreword, Metzger’s article is masterful in its articulation and support of two separate but related propositions. The first is her identification of a combined political, jurisprudential, and scholarly trend that she labels “anti-administrativism” and characterizes as the contemporary resurrection of a very old fight. As she opens her piece, “Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal.” Metzger characterizes as anti-administrativist various actions and initiatives of the Trump Administration and the Republican Congress to reduce regulatory burdens, downsize the federal government, and reform the Administrative Procedure Act. Other presidents have pursued a similar agenda, but Metzger says their “promises … largely went unfulfilled” as compared to present efforts. Metzger also classifies as anti-administrativist a number of Supreme Court and D.C. Circuit cases—some from the 2016 Term, others predating it—concerning separation of powers principles, the Chevron and Auer standards of judicial review, and other constitutional issues.
Finally, Metzger turns to the academic literature, contending that the “growing judicial resistance to administrative government is supported by increasing academic attacks on the constitutional legitimacy of administrative government.” Exhibit A is Philip Hamburger’s controversial and hotly debated book, Is Administrative Law Unlawful?. But she also calls out Randy Barnett, David Bernstein, and Richard Epstein for their libertarian critiques of federal regulation as unconstitutional and a threat to individual rights. And, in a footnote, she cites Nielson and Sohoni along with other scholars as “pushing back at administrative governance more incrementally … through administrative law.” From all of this, Metzger synthesizes three “core themes” of anti-administrativism: “strident rhetoric” (aka “bureaucracy bashing”); a greater role for the Article III courts as a counterweight against excessive exercises of executive power; and a “constitutional flavor,” “marked by originalism,” emphasizing—in stark contrast to the modern administrative state—separation of powers as the critical and constitutionally-designated tool for constraining the federal government and protecting individual liberty. Metzger’s article then goes on to draw at length “striking parallels” between anti-administrativism and 1930s resistance to the New Deal.
Metzger responds to the anti-administrativist trend she identifies with her second main proposition: that the Constitution not only accommodates but requires the modern administrative state. To a fair extent, Metzger’s conclusion is dictated by her assumptions. Most critically, Metzger assumes that modern conditions require an expansive federal government and that accomplishing everything the federal government takes on requires Congress to delegate large amounts of discretionary power to the executive branch. Metzger also assumes a method of constitutional interpretation, particularly with respect to separation of powers principles, that is not especially constrained by the Constitution’s text. In her view, the Framers may have wanted limited government and checks and balances to protect against the abuse of governmental power, but they also wanted government to be effective. Thus, constitutional.
In sum, the goal of constitutional separation of powers principles is “an accountable, constrained, and effective executive branch.” And, Metzger argues, if expansive federal government and broad delegations of discretionary power to the executive branch are givens, then bureaucracy rather than presidential administration is the best way to accomplish that constitutional goal. Concentrating too much power in presidential hands is potentially dangerous. By contrast, diffusing governmental power across multiple agencies, separating functions within agencies themselves by segregating prosecutors and adjudicators, and relying on managerial oversight and supervision within agencies are better constraints on the exercise of governmental power while facilitating governmental accountability and effectiveness. Thus, contemporary bureaucracy is constitutionally required as the best means of effectuating the goals of separation of powers.
Whether or not they did so intentionally, Nielson and Sohoni seem to have divided responsibility for responding to Metzger’s Foreword, with Nielson principally addressing Metzger’s first proposition and Sohoni addressing her second. Nielson questions the assignment of people into two distinct camps of “anti-administrativists” and “those who are committed to the administrative project.” Virtually no one, he asserts, “thinks all administrative action is bunk” or “the administrative state can do no wrong.” If being critical of the administrative state qualifies one as anti-administrativist, then Nielson suggests that the label extends to “a majority of members of Congress, at least four justices of the Supreme Court …, a bipartisan collection of former Presidents, legal academics holding a wide variety of views, and a Nobel Prize winner,” as well as prominent New Dealers such as Justices Douglas and Jackson and “the liberal lion himself,” Justice Brennan—all of whom questioned or criticized one or some aspects of the administrative state. Taking Metzger’s three core themes of anti-administrativism as a three-part test for anti-administrativist status yields similarly mixed results. Nielson does not make this suggestion, but perhaps Metzger’s dichotomy is better recast as a continuum, with most people falling somewhere in the middle but some closer to the ends based on a combination of their views. But, of course, a continuum is not quite so easily reconciled with a trend.
Regardless, to Nielson, the critical point is that “history did not end in 1946.” The external pressures that agencies face continually evolve and change, and the internal cultures and operations of agencies themselves also have evolved and changed, so administrative law statutes and doctrines must evolve and change, too. “And because not everything has worked out as rosily as the optimists in the 1940s hoped, today’s anti-administrativists are not chasing boogeymen.” Reasonable people inevitably will debate and disagree about the direction and scope of administrative law changes as they are contemplated and occur. If such debate and disagreement are to be fruitful, then we should neither confuse nor dismiss criticism of the administrative state as the wholesale rejection of it. Rather, we need to recognize rather than resist the need for legal evolution and change, search for common ground, and pursue compromise as we all strive to make government effective.
Sohoni, meanwhile, takes on Metzger’s argument that the modern administrative state is constitutionally required rather than merely constitutionally permissible. Sohoni is more sympathetic toward Metzger’s characterization of some subset of politicians, judges, and scholars as anti-administrativist. She also agrees with many of Metzger’s observations that contemporary rhetoric is sometimes excessive and that history can be a useful tool for thinking about present debates. The main focus of Sohoni’s essay, however, concerns the doctrinal consequences of Metzger’s constitutional argument.
Sohoni questions Metzger’s assumption that congressional delegation of power to the executive branch is required for contemporary governance. As Sohoni observes, this foundational premise for Metzger’s constitutional argument is “precisely the kind of idea that many anti-administrativists most fiercely contest.” Going along with Metzger’s argument, however, Sohoni asks, “If we take it as a given that delegation is constitutional and a necessary feature of government, what are the kinds of arrangements that are also constitutionally necessary to ensure that the executive branch has the necessary tools to carry out its duty to govern accountably and effectively?” The simplest answer, Sohoni says, is to read the Constitution “as implicitly giving the executive branch something like its own ‘necessary and proper’ power” and to constitutionalize many or even most executive branch practices as essential to effectuate delegated power. But doing that, Sohoni contends, would more or less deprive Congress of its authority to specify through legislation “how administrative government ought to operate.” If we try to avoid that outcome and instead draw narrower constitutional lines around the executive branch’s power and scope, we run into exactly the sorts of questions and arguments that Metzger decries as anti-administrativist.
Metzger’s Foreword is an impressive work of scholarship, but the scholarly enterprise is best observed by reading it in conjunction with Nielson’s and Sohoni’s thoughtful responses. Administrative law scholarship is often intertwined with political events of the day. Government acts, and administrative law scholars react. Our current political moment, however, includes so much harsh rhetoric, and along with that rhetoric, an almost eager willingness to cast those with whom we disagree politically as an evil “other.” Metzger, Nielson, and Sohoni do not mince words or shy away from objecting to or criticizing each other’s arguments and ideas. But they disagree without becoming disagreeable. They prod one another, but productively. They engage rather than talking past one another. In this spirit, may the raging debate over the values, institutions, and structures of contemporary governance continue.
Cite as: Kristin Hickman, Administrative Law Scholarship in Our Present Political Moment, JOTWELL (May 15, 2018) (reviewing Gillian Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017); Aaron L. Nielson, Response, Confessions of an “Anti-Administrativist,” 131 Harv. L. Rev. F. 1 (2017); Mila Sohoni, Response, A Bureaucracy—If You Can Keep It, 131 Harv. L. Rev. F. 13 (2017)), https://adlaw.jotwell.com/administrative-law-scholarship-in-our-present-political-moment/.
Ronald Levin, Rulemaking and the Guidance Exception
, 70 Admin. L. Rev.
(forthcoming 2018), available at SSRN
The late, great Kenneth Culp Davis was known for many things, but humility was not among them. He knew the answers; he knew them better than did the Supreme Court; and he knew that he knew them. So it is remarkable that there was a problem in administrative law he found “baffling.” That was the distinction between legislative rules, interpretive rules, and statements of policy.
Interpretive rules and statements of policy are now generally labeled “guidance documents,” although that term does not appear in the Administrative Procedure Act. (At least not yet. Indicative of the attention and controversy that surround them, the Senate version of the pending Regulatory Accountability Act would amend the APA to define and attempt to constrain the use of “guidance.”) Agency reliance on guidance documents has led to two related controversies. One is normative and empirical: is the phenomenon an instance of responsible and helpful governance or, rather, an abusive end-run around notice-and-comment requirements? The other is doctrinal: how can one tell what’s a legislative rule and what’s a guidance document? The distinction matters, because the former are subject to the APA’s notice-and-comment requirements and the latter are not. Yet the courts have been as baffled as K.C. Davis, unable to construct a coherent and manageable body of law. Umpteen pages of law review commentary have not improved matters, and the recent politicization of the debate has only compounded the confusion and disarray.
With his usual clarity and breadth of knowledge, Ron Levin has now waded into this swamp. The article begins by reviewing the normative debate, ending with a summary of various “institutional pronouncements” – from the ABA, ACUS, OMB, and others. He describes and endorses a professional consensus. Guidance documents can be abused and agencies should be careful not to give them the force of law. Nonetheless, they are an important and legitimate tool for providing important information to agency staff and the public and agencies should and will continue to rely on them.
He then turns to the doctrinal mess, taking a cue from the fact that most of the aforementioned institutional pronouncements draw no distinction between interpretive rules and policy statements, lumping them together in the guidance documents category. Levin’s essential point is that the courts have done a better job than is generally acknowledged with the exception for general statements of policy, and that they should now take the principles developed in that setting and apply them to the exception for interpretive rules.
In Part II, then, Levin provides a thorough overview of the caselaw on general statements of policy. The core idea developed by the courts is that a statement falls within that exemption if, both in its wording and in its application by the agency, it does not create a binding norm. “The key inquiry is whether the document in question expresses or implements a policy judgment in a binding fashion.” And the essential justification for this approach is that public participation is less important in formulating a non-binding statement because there will be later opportunities for reconsideration. In a lengthy review, Levin describes how this test operates, focusing in particular on what “binding effect” means. He defends the test against various objections, including (a) arguments for abandoning the judicial effort to distinguish legislative and non-legislative rules at all in favor of what David Franklin has labeled the “short cut,” (b) the suggestion that judges should not police procedures but should vary the level of substantive scrutiny for different kinds of rules, and (c) a recent attack by Cass Sunstein, who argues that the binding effect test violates Vermont Yankee.
Part III turns to the interpretive rules exception, which fares much less well. Here, Levin finds the existing caselaw incoherent. There is a little fancy theorizing about the nature of interpretation, but the core position is practical and purposive: whatever it is that an agency is doing when it purports to “interpret” a statute, either its pronouncement is a true no-brainer, in which case notice and comment can and should be forgone for good cause, or public input might actually be valuable but for just the same reasons as it might be valuable for statements of policy. So why forgo it? Well, again, for the same reason as for statements of policy—the “interpretation” is not binding and there will opportunity to fight about it later.
Along the way, there is a great deal of insightful discussion of the key precedents in the area, which I will gloss over. But perhaps the most valuable is Levin’s two objections to the key D.C. Circuit precedent, American Mining Congress v. MSHA, with its famous four-prong (later reduced to three-prong) test for identifying a legislative rather than an interpretive rule. Levin finds the test useful enough, but emphasizes two limitations. First, while the prongs tell you when a rule is legislative, they are useless in explaining what’s interpretive. Accordingly, they could be equally useful in distinguishing legislative rules from statements of policy. Second, they are extraordinarily narrow; it will be the rare guidance document that can be found to be “really” a legislative rule under this test alone.
All of which forms the foundation for Levin’s suggestion: courts should apply the same test—the binding norm test—to all guidance documents. There is no need to struggle to define “interpretative rule” or distinguish such a creature from policy statements. Notice-and-comment is required for legislative rules, i.e. binding substantive rules. If something lacks binding effect, it is not a legislative rule. Easy peasy.
A recent best-seller by Marie Kondo, The Life-Changing Magic of Tidying Up: The Japanese Art of Decluttering and Organizing, urges us to find happiness through cleaning out our closets. (Reportedly it really is like magic.) Ron Levin has a similar Thoreauian admonition, and while “life-changing” may be a little strong, he offers an attractive and pragmatic pathway to decluttering and tidying up the law of interpretive rules.
Regionalism in America is having a renaissance—in conceptualizing the shared and competing interests of red, blue, and purple states; in developing new possibilities for governance across the country; and in administrative law scholarship. Into this mix comes Jessica Bulman-Pozen’s timely and thoughtful article, Our Regionalism. I had the pleasure of reading an earlier version of the article for the “Reflections on Executive Power and Administrative Law” conference organized by Miriam Seifter at the University of Wisconsin last spring. While we usually talk about “Our Federalism,” regionalism has in fact “shaped American government over the past century,” helping to define “how power flows to and within the federal government.” (Pp. 381-382.) In making this case and exploring how regionalism’s different governance forms have, over time, both expanded the federal bureaucracy and increased state power within federal programs, Bulman-Pozen’s work also helps frame the contemporary stakes for the American polity of “regionalism’s ‘bad twin,’ sectionalism.” (P. 380.)
After first offering a “stripped-down understanding” of the term “region”— “a subnational area encompassing all or part of multiple states” (P. 383) —the article begins with a helpful taxonomy that justifies Bulman-Pozen’s claim that “regional organization pervades state and federal administration.” (P. 388.) In her conception, regional governance has developed over time to encompass three main varieties. First is interstate collaboration, in which states band together to solve a common problem. The interstate compact, provided for by Article I, Section 10 of the Constitution, is the oldest and most common of this form of regional governance, but other types exist as well, including interstate agreements (less formal than compacts because they allow for unilateral withdrawal), and “the synchronized adoption of substantially similar laws” in neighboring states. (P. 387.)
The second variety of regional governance, emerging during the New Deal, is “the division of purely federal administrative agencies into regional offices”, a top-down mirror of the bottom-up interstate collaboration. (P. 388.) It turns out that the vast majority of federal employees – 85% – work outside DC in these regional offices. Despite periodic efforts within the federal government to standardize these regions, Bulman-Pozen describes the “chaos” that reigns, under which different agencies, and sometimes different units within a single cabinet department, divide the country into different regions.
The last variety of regional governance, first emerging during the 1960s and growing more common today, is “the joint state-federal regional body.” (P. 392.) These organizations draw not only from contiguous state leadership but also from federal leadership, often across agency lines, in an effort to address a multivalent problem, such as the Deepwater Horizon oil spill. Sometimes local and private actors are formally engaged in these organizations as well.
This descriptive categorization is itself conceptually useful. But Bulman-Pozen also makes a contribution in her rich historical work on the role of regions in the New Deal and the Great Society. She uses this history to make a counterintuitive point: While “[t]hroughout American history, regions—usually traveling under the label ‘sections’—have been sites of resistance to the federal government,” in fact “regions have also facilitated the growth of the federal government.” (Pp. 394-395.)
How? As Bulman-Pozen tells it, serious, self-conscious attention to regionalism emerged in the 1920s as a way to push back against the federal government’s increase in responsibilities during World War I, as well as against the perceived homogenizing force of the new national media. The idea was that regions could solve—sometimes even without formal new governmental arrangements—problems that lay beyond individual states’ capacities, and thereby preclude federal intervention. But “regionalism soon proved congenial to the burgeoning project of federal administration itself.” (P. 401.) It did so in two ways, in Bulman-Pozen’s categorization. First was by accommodation: “Major New Deal programs were designed to look different in different regions of the country,” thereby alleviating some state-level concern about federal power. (P. 402.) Second was through administration: whether by creating field offices to manage “purely federal programs,” by establishing regional structures to supervise the new cooperative federalism programs, or by instituting regional planning commissions, “regionalism had gone from being a creed of resistance” to federal encroachment “to serving as a tool for expanding the reach of the federal government.” (P. 409.)
For its part, regionalism during the Great Society played an important role in entrenching the period’s vast expansion of federal grants. States sought federal financial assistance through hybrid state-federal regional programs, such as the Delaware River Basin Commission and the Appalachian Regional Commission. These programs increased state capacity and let states play an important role in distributing funds, and at the same time cemented the importance of federal funds and the policies in question. More generally, regionalism provided a way to coordinate the influx of federal assistance to states, thereby bringing some order to federal administration of grants. With many different federal agencies giving overlapping grants for the same purposes, regional administration helped coordinate “not only between the federal government and state and local governments, but also within the federal government itself.” (P. 423.) President Nixon eventually succeeded where President Johnson and previous efforts had failed to standardize the boundaries of the federal regions, at least among the primary grant-making agencies, and further created Federal Regional Councils to coordinate the federal government’s work in the field. While these efforts were pitched in part as devolutionary, they also served to “amplify the power of the White House vis-à-vis the bureaucracy,” given the importance of OMB officials in this work. (P. 425.) The Councils were eventually disbanded, but the other aspects of regional administration have continued “to integrate the states more fully into federal programs.” (P. 426.)
What does regionalism look like today? On the one hand, Bulman-Pozen argues, the bulk of the regional structures created during the New Deal and Great Society remain alive and well, and the regional form has been still further expanded by the twenty-first century’s preoccupation with the idea of the network. This newest form of regional governance involves “flexible, modular, interjurisdictional cooperation” with “a continually changing partnership among a large number of federal, state, and local government actors, as well as nongovernmental institutions” designed to address a particular regional problem. (Pp. 428-429.) The Chesapeake Bay restoration effort represents the primary example of this kind of effort already in existence. Attention to broader “environmental, economic, cultural, and infrastructure” needs of so-called “megaregions,” or “networks of metropolitan centers and their surrounding areas” all over the country, represents the idea’s potential expansion. (Pp. 430-431.)
On the other hand, Bulman-Pozen invites us to think about “today’s most significant regional development” as “regionalism without regions.” That is, regionalism is no longer tied solely to geography; instead, extreme partisanship has connected non-contiguous groups of red and blue states with contrasting sets of shared policy interests. (P. 436.) President Obama’s term saw the rise of this new form, as the administration primarily worked with one set of states to advance shared goals while attempting (ultimately unsuccessfully) to make concessions to another set of states that engaged in policy resistance. Under President Trump, “the partisan valence of multistate opposition to the federal executive has, unsurprisingly, flipped.” (P. 435.) Still, “[i]n the policy decisions and chosen alliances of blue Minnesota and Colorado and their red neighbors Wisconsin and Utah, partisanship trumps place.” (P. 439.)
This important insight underscores the larger question Bulman-Pozen’s article suggests: How does today’s hyperpartisan regionalism without regions fit into the American experiment? New Deal planners framed regionalism as a more positive approach to the project of nation-building than its close relative, sectionalism; “‘sectionalism’ was a divisive force,” while “‘regionalism’ was instead integrative and union-bolstering.” (P. 410.) Regionalism provided a way to reframe “nationalism in a plural society”—not “the destructive sectionalism of the Civil War,” which had led to secession, and also not the “‘toxic’ European nationalism” that was veering abroad into totalitarianism or fascism, but rather a multivalent celebration of America’s regional diversity. (P. 410-411.)
This was likely too cheery a view even then. As Bulman-Pozen points out, regional accommodation helped entrench Jim Crow. (P. 402.) But it is even less clear to me that today’s regionalism has a nation-building effect. Or rather, hyperpartisan regionalism may strive towards nation-building, but with irreconcilable views of what it means to build the nation—in immigration policy, in LGBT antidiscrimination policy, in abortion policy, and in much else. This kind of regionalism seems less about embracing regional diversity than it is about striving towards embedding at the federal level a specific set of policies that are currently only regional.
Bulman-Pozen acknowledges that today’s regionalism without regions “has the potential to exacerbate already-fever-pitch-level partisan rancor and divisiveness” while nonetheless suggesting the tentative aspiration that it may at the same time “foster governance and solidarity amid such division.” (P. 441.) Time will tell. At the very least, her article provides an analytic, historical, and conceptual framework to help us understand and respond to future developments.
For over thirty years, every President has issued or maintained executive orders that require agencies to prepare highly formal benefit-cost analyses (BCAs) for significant rules and to submit these BCAs to the Office of Information and Regulatory Affairs (OIRA) for review. For just as long a time, administrative law scholars have been fighting about the merits of both formal BCAs and centralized review. Over time, the locus of this debate has shifted from whether to conduct BCA as part of rulemaking to how to conduct it. The Supreme Court contributed to this shift a couple of years ago in Michigan v. EPA, when all nine justices agreed that reasonable rulemaking requires an agency to give some form of consideration to costs and ensure that they do not wildly outweigh benefits.
The debate over how to conduct BCA, in turn, centers on the problem of monetization. Although President Trump’s issuance of E.O. 13,771 has in many respects dramatically altered White House controls on agency rulemaking, the key executive order governing this process, E.O. 12,866, remains in place. It instructs agencies to monetize costs and benefits “to the extent feasible” as they prepare BCAs as part of their regulatory impact analyses (RIAs). This requirement can put agencies in the difficult position of placing monetary values on nonmarket goods such as preventing a parent from backing a vehicle over a young child. Notwithstanding such difficulties, some scholars contend that to ensure socially optimal rules, agencies should increase their commitment to monetization—even an educated guess on a dollar value, properly explained, is better than giving up on quantification.
Professors Christopher Carrigan and Stuart Shapiro, by contrast, make a concise and provocative case for a dramatically different vision: Make agency BCAs so easy and informal that they could fit on the back of the proverbial envelope. That way, agencies could obtain “simpler analyses of more alternatives performed earlier in the regulatory process.” (P. 207.) The authors maintain that this approach would help change BCAs from burdensome tools of policy justification into genuine aids to policy formation.
Carrigan and Shapiro start from the proposition, which they characterize as widely shared across the ideological spectrum, “that BCA is frequently used to justify decisions already made, rather than to inform those decisions.” (P. 203.) If, indeed, BCAs are exercises in justification, then we should naturally expect agencies to fashion them in a manner that supports rather than undermines their preexisting policy commitments. Accordingly, agencies will have incentives to make their BCAs intimidatingly complex, to hide uncertainty, and to “ignor[e] marginal alternatives to their preferred policy.” (P. 204.) And the problem of complexity seems to be growing worse—Carrigan and Shapiro observe that the average length of RIAs has more than quadrupled (!) between 2000 and 2012, increasing from 31,072 to 128,289 words.
As these word counts suggest, one obvious reason that BCAs may serve more as justifications than as genuine aids to policy formation is that full-blown, highly monetized BCAs of significant rules are massive undertakings. Any policymaking process must include a rough-cut stage where various alternative approaches to a problem are considered. One can imagine a world in which agencies apply BCA to each alternative they consider as part of this critical preliminary process. This is not our world, however, in part because the BCA process, at least as contemplated by E.O. 12,866, is so demanding.
To enable agencies to make real use of BCA during, rather than after, the policymaking process, Carrigan and Shapiro propose making them far easier to prepare. Citing heavyweight authority, they note that Enrico Fermi, father of the first nuclear reactor, “asserted that complex scientific equations could be approximated within an order of magnitude using simple calculations. If this is true for even complex scientific equations, surely it must also hold for economic analysis.” (P. 206.) In this same spirit, BCAs should take a “back-of-the-envelope” or “BOTE” form. (P. 203.) A BOTE analysis “should focus on the largest benefits and costs (regardless of whether they are direct or indirect) and should approximate the monetary magnitudes of those effects rather than generate a precise estimate of their impacts.” (P. 205.) Smaller effects, for the most part, would make do with qualitative descriptions. The BOTE approach sacrifices precision (or an ambition for precision), but this shift does not trouble the authors given their view that RIAs under the current regime are often “unrealistically precise.” (P. 205.) For example, Carrigan and Shapiro were not impressed by the precision of a recent RIA from the Occupational Safety and Health Administration estimating that the costs of complying with a new standard would be $2,102,747,140.
In return for making BCAs a whole lot easier to prepare, Carrigan and Shapiro propose that, before settling on a particular policy option in a major rulemaking, an agency should have to complete BOTE-style BCAs of multiple meaningful policy alternatives. Agencies would expose their BOTE-style BCAs to public comment early in the policymaking process and before issuing a notice of proposed rulemaking. This process would help ensure that public commenters have a chance to submit input before rather than after fundamental policy choices have been made. In addition, the relative simplicity and transparency of BOTE-style BCAs would tend to highlight important agency assumptions and thus “empower potential critics to more effectively participate in the regulatory process.” (P. 207.)
To encourage agencies to conduct proper BOTE analyses, the authors suggest a set of OIRA carrots and sticks. For an example of a stick, an agency that fails its BOTE duties might find that the RIA it submits for a proposed or final rule is subject to more searching review by OIRA. For a compelling carrot, “agencies that generate BOTE analysis could be exempted from having to prepare detailed RIAs to accompany their NPRMs or final rules.” (P. 209.) The authors concede that this particular carrot “may seem excessive” but add that “[e]liminating analyses that accompany proposed or final rules may do little to undermine the goal of selecting the best regulatory alternative” given that “RIAs are currently used more as advocacy documents than as useful tools for review.” (P. 209.)
Stepping back to look at the big picture here, the Supreme Court in Michigan v. EPA indicated that administrative rationality demands that agencies consider the costs and benefits of their rules in some fashion or other. Professors Carrigan and Shapiro have sketched a vision for how agencies should conduct such analysis that could prove attractive both to those who believe that the current regime demands excessive formality and monetization, and to those who want BCAs to have greater real impact on policymaking. Those who believe that thoroughgoing monetization provides the best means for identifying socially optimal rules will not, naturally enough, find this vision persuasive. It seems fair to ask fans of formality, however, the following very basic question: Which approach—the current regime’s or Carrigan/Shapiro’s— can best deliver BCAs that are actually likely to impact, rather than merely justify, agency policy choices? (I don’t have a pat answer myself—but it seems like a good question.)
Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts
, 96 Tex. L. Rev.
71 (2017), available at SSRN
President Donald Trump is a loquacious man. He speaks at rallies, he speaks at interviews, he speaks at press conferences, he speaks in addresses to Congress, and—nearly every day—he speaks on Twitter. Sometimes, he speaks about his own speech, as when, at a recent rally in Phoenix, Arizona, he quoted at length, though with notable omissions, from his own earlier statements concerning the recent events in Charlottesville, Virginia, where a woman was killed at a protest by neo-Nazis and white nationalists.
In her recently published article, Beyond the Bully Pulpit: Presidential Speech in the Courts, Professor Kate Shaw examines the phenomenon of presidential speech and explains how the courts should treat presidential statements in the course of deciding cases that challenge executive-branch action. Her article has already (and rightly) enjoyed a fair share of the limelight; Professor Shaw’s work on presidential speech was featured in the New Yorker and in the National Law Journal. She also wrote an op-ed on presidential speech in the New York Times earlier this summer. So, while this Jot comes late to the party, I hope it will persuade administrative law scholars who haven’t yet encountered this article that it is still well worth a read. Public presidential statements aimed at influencing agency behavior are an increasingly important facet of “presidential administration,” in the phrase coined by then-Professor Elena Kagan in her famous article. And while Professor Shaw’s discussion ranges far beyond the words of the sitting President, this article is especially salient nowadays, when the headlines are often consumed with reporting and dissecting President Trump’s every utterance.
Professor Shaw’s article rests upon the observation that the President is both a person and an office, and that conflating the two is an error. Although the President may sit atop of the executive branch, all of the President’s personal pronouncements cannot be attributed to the executive branch as if they were the official positions of that branch. At times—like the Pope—the President speaks “ex cathedra,” with the “full force of the authority of the office”; at other times, however, the President speaks more in the capacity of a private citizen. (P. 130, N.312.) When statements by the President contradict official pronouncements by agencies or undercut the executive branch’s litigating positions, how should courts respond?
This is one of the key questions addressed by this article. To tackle it, Professor Shaw begins by describing the process of writing presidential speeches (Pp. 79-83) and sketching the institutions and procedures that structure presidential speech (Pp. 83-88). She then examines how presidential speech relates to ongoing scholarly debates in administrative law and in statutory interpretation. (Pp. 89-99.) After offering a helpful taxonomy of the types of statements that Presidents make (“views on constitutional power or authority; views on statutory meaning or purpose; statements that might bear on the meaning or purpose of executive action; statements of conclusions with specified legal consequences; and statements of fact, either legislative or adjudicative”), she next explores how the courts have treated statements from each category. (Pp. 99-123.) There appears to be a remarkable degree of variation in the degree to which courts have relied on presidential statements, a disarray that makes clear that some guiding principles need to be articulated.
In the final part of the article, Professor Shaw offers this guidance. (Pp. 129-140.) She proposes that courts eschew reliance on presidential statements “offered in the spirit of advocacy, persuasion, or pure politics, where those statements do not reflect considered legal positions” or a “manifest … intent to enter the legal arena,” but with one important exception: in situations where those statements are offered as evidence of the President’s purpose or intent. (P. 129). That is because, when the President’s own purpose or intent is at issue in a case, the executive branch is best viewed as an “it, not a they.” Or, as she puts it, “[w]hen it comes to the president’s purpose, other executive-branch submissions could not possibly overcome the president’s own words. Accordingly, presidential statements should clearly control in such cases.” (P. 139.) As Professor Shaw notes, this carve-out has relevance to the ongoing litigation challenging the “travel ban” executive orders on the basis that the bans flow from religious animus by the President against Muslims; the courts, she argues, can properly rely on presidential statements if they go to show illegitimate animus, while they should not rely on presidential statements concerning the “scope or operation” of the executive orders if they were to conflict with the orders’ language or DOJ’s litigating positions. (P. 139.)
It is important to stress that much of Professor Shaw’s paper focuses on actual presidential speeches—i.e., on statements that are normally preceded by some degree of advance planning and discussion. (See Pp. 78-79 and N.14.) But what of presidential utterances in informal formats—for example, on Twitter or on Facebook—and what of extemporaneous or unscripted remarks made by the President—such as in response to journalists’ questions, or at campaign rallies or other events? President Trump has already made an enormous number of such informal statements, and plenty of them have already prompted litigation. And what should courts do in the event that the President disowns the authorship of speech (such as tweets) that he appears—online, anyway—to have written? It would be interesting to see Professor Shaw revisit this topic to provide a sustained examination of how courts should address these more informal varietals of presidential speech.
Expanding the inquiry beyond courts to agencies would also be valuable. A long-running debate in administrative law has focused on whether the President should act as an “overseer” or a “decider” of executive-branch action. (Pp. 89-91.) Professor Shaw’s article highlights an important aspect of that question: how the President uses public statements to attempt to “decide” or “oversee” executive-branch action. Sometimes, the President’s words alone may not produce policy change within the executive branch, unless those words assume a particular form and are communicated through the proper channels. For example, a tweet from the President was evidently not enough to end the policy of accepting transgender recruits and soldiers; instead, the Pentagon announced that it would await formal guidance to that effect, which subsequently arrived. At other times, however, it may be that executive-branch officials will take their cue to act from the President’s public statements alone, and take consequential administrative actions without first waiting for all the paperwork to be completed. When do executive-branch officials do the first thing, and when do they do the second? When ought they do the first thing, and when ought they do the second? As the growing literature on internal separation-of-powers suggests, examining how presidential speech is received and weighed by subordinates within the executive branch may matter quite as much as how it is received and weighed by Article III courts. The response by executive-branch subordinates to informal presidential speech may determine the future evolution of “presidential administration”—and may prompt some to reappraise then-Professor Kagan’s largely positive assessment of its legitimacy and desirability.
In the years to come, there will be ample time and occasion to consider these and other questions that may be raised by “all the president’s words.” I will look forward to reading what Professor Shaw has to say about what the President has to say.
Cite as: Mila Sohoni, Did He Really Just Say That?
(January 31, 2018) (reviewing Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts
, 96 Tex. L. Rev.
71 (2017), available at SSRN), https://adlaw.jotwell.com/really-just-say/