Through the Looking Glass: A Shared Vision for Economic Regulation

Jul 8, 2024 Jodi ShortAdd a Comment

Jodi Short

To ward off the dread that engulfs me when I contemplate the Court’s anti-administrative decisions and agenda, I love to read what amounts to regulatory fan fiction. Once, there was a time when administrative agencies roamed the earth, controlling the U.S. economy in minute detail. This was not just a rhetorical flourish or some feared dystopia lying down the treacherous slippery slope of judicial deference to agencies. It was life. What was that like? How did we survive it? Could it happen again?

Catherine Duryea’s article, Emergency Oversight, delivers these pleasures and more. Duryea analyzes the Emergency Court of Appeals (ECA), a specialized court that operated from 1942-1961 with exclusive jurisdiction to adjudicate challenges to price and rent regulations promulgated by the Office of Price Administration (OPA). OPA administered an extensive system of price and rent control regulations during WWII to thwart wartime inflation and ensure adequate wartime production. These regulations were promulgated under statutory authority delegating to the OPA’s Price Administrator the power to set maximum prices at a level that would “be generally fair and equitable,” giving “due consideration” to prices as they existed during a specified baseline time period. OPA regulations touched every aspect of American life during the war, “from what people ate for breakfast to what clothes they wore” (P. 13), to what rent they could charge for use of a refurbished outhouse. OPA had civil and criminal authority to enforce its price regulations.

The validity of OPA regulations could be challenged exclusively in the ECA, subject to Supreme Court review. Such challenges could not be brought in the lower federal courts and, perhaps more controversially, could not be raised as defenses to civil or criminal enforcement actions that the OPA pursued in the lower federal courts. Exclusive ECA jurisdiction ensured a uniform, national approach to the anti-inflation regulatory scheme. ECA judges were selected by the Chief Justice of the U.S. Supreme Court from among existing members of the federal bench. This task fell to Chief Justice Harlan Fiske Stone, a reliable supporter of New Deal legislation who had been elevated to Chief by President Roosevelt. As a practical matter, this meant that the ECA was staffed by judges who were ideologically aligned with the Roosevelt administration. There was very little turnover among ECA judges, allowing them to develop deep expertise in the complex field of price administration.

The ECA decided nearly 350 cases over its two decades in existence. Although many cases involved small, individual claims, “the aggregate economic value of the cases before the ECA was massive” (P. 32.) Although the ECA was seated in Washington, DC, the judges traveled to the locations where disputes arose to save parties the costs and burdens of travel. So, for instance, a panel of three ECA judges traveled to Alabama to assess whether renovations to a privy constituted a “major capital improvement” warranting an increase in the property’s rent ceiling. Cases before the ECA raised issues of statutory interpretation, the adequacy of OPA’s reasoning, and the constitutionality of the regulatory scheme.

Duryea demonstrates that the ECA approached these issues from the perspective of “shared responsibility” for implementation of the regulatory scheme. This meant protecting injured producers and property owners from extreme instances of agency overreach while ensuring the overall workability and efficacy of the pricing system. She outlines four key elements to the shared responsibility understanding. First, ECA judges were extremely deferential to OCA. While not a rubber-stamp, the ECA consistently gave great weight to OPA’s factual findings, reasoning, and procedures. Second, the ECA conducted independent economic analysis of OPA regulations, but it almost always reached the same conclusion as OPA because ECA judges shared with the agency and the Roosevelt administration a common understanding of the economic theory underlying price and rent controls. The ECA upheld OPA regulations and the statutory scheme authorizing them not simply out of deference but “because of its own understandings of the economic necessity—and wisdom—of price and rent controls” (P. 44.) Third, the ECA saw itself, and rhetorically positioned itself, as one of many government institutions jointly responsible for ensuring the success and practical workability of the complex regulatory system “keeping runaway inflation from imperiling the war effort.” (P. 44.)

Finally, the ECA recognized the imperative of imposing backstop limits on OPA’s power, particularly in cases of extreme unfairness to individual interests. In this way, it served as an important source of legitimacy for the extensive and intrusive regulatory scheme. At the end of the day, although OPA had significant enforcement authority as a formal matter, the system was so vast and sprawling that it “relied on public support for widespread compliance” (P. 37.) The ECA was sensitive to this, recognizing that price increases might be necessary in some cases “to keep products on the shelves” or “to avoid producers exiting the market or generating such public opposition to the system that it could no longer function” (P. 36.) Still, “[e]ven when pushing back against OPA, the ECA established itself as a partner in making sure the system worked as designed by Congress” (P. 37.)

Beyond the rich historical detail in Duryea’s account, the article generates important insights and interesting questions for administrative law. First, it showcases an innovative and dynamic conception of agency legitimacy that departs from the well-trod tracks of expertise, political control, and democratic participation. To legitimize the regulatory regime, the ECA adopted a model of presumptive deference, validated by the ECA’s own independent analysis, with an escape valve for egregious agency overreach. This was all in service of the ECA’s reading of the authorizing statute’s expansive purposes and textual delegations of authority.

Second, this arrangement suggests a political economy of deference that provides a useful lens on the contemporary deference wars. The lynchpin of “shared responsibility” between the ECA and OPA appears to have been ideological alignment. Clearly no such alignment exists between a majority of the current Supreme Court and agencies regulating the economy. This raises questions about whether such alignment is a necessary condition for deferential judicial review. More recent history would suggest not. Justice Scalia, the most vocal supporter of Chevron deference, was hardly ideological kin with regulatory agencies. What, then, are the possible conditions under which deference regimes arise and endure?

Third, the ideological alignment of the ECA and OPA was grounded not simply in shared preferences for political outcomes, but in a pro-regulatory economic theory. OPA officials and ECA judges did not have to resist economic theory to justify extensive regulation. They had an economic theory of prices and inflation that supported extensive regulation of the economy. This raises questions about whether there are existing, viable alternatives to today’s still-dominant Chicago School economic theory or whether alternative economic theories could be developed and effectively promoted.

Of course, all of this begs the question whether the “shared responsibility” model Duryea describes could only work in wartime. Maybe the emergency context was the necessary and sufficient condition for such an arrangement, and all the rest was superfluous. Duryea, for her part, sees emergency wartime powers as fundamental to the ECA’s understanding of and reasoning about its role. Even read within these confines, the ECA case study provides a striking contrast with the Supreme Court’s response to agency actions during the COVID emergency. The Court saw many of these cases as an opening to aggressively curtail agency authority rather than an occasion to share responsibility for safely navigating the emergency within the parameters of authorizing statutory schemes. The Court took no opportunity to legitimate agencies’ COVID-related policies. Indeed, some opinions forcefully asserted agencies’ illegitimacy in politically inflammatory rhetoric that exalted individual rights over any sense of shared responsibility. Perhaps the most enduring lesson to be taken from Duryea’s historical account of the ECA is that time changes all things.

How Do Bureaucrats Exercise Policymaking Discretion? A Glimpse Inside the Black Box

Jun 20, 2024 Wendy WagnerAdd a Comment

Wendy Wagner

Is the bureaucracy a deep state run by unaccountable bureaucrats? Most of us in administrative law think not, but when push comes to shove, we must concede that we have precious little idea of how agency staff operate on the ground to fulfill their statutory commands.

In The Accountable Bureaucrat, Anya Bernstein & Cristina Rodríguez (hereinafter B&R) step into this void and, in a manner reminiscent of the big reveal in the Wizard of Oz, expose the “man behind the curtain.” By asking the bureaucrats themselves how they transform “abstract statutes into concrete rules that govern conduct” (P. 1679), the authors make significant advances in our understanding of this important, but rarely studied world of bureaucratic discretion. Armed with a pre-prepared list of questions that structure their open-ended interviews, the authors (Bernstein holds a PHD in anthropology) canvass thirty-nine current and former employees (both political and career) from eleven different agencies, ranging from the Department of Homeland Security to the Environmental Protection Agency. (Pp. 1685-86.) B&R then code the transcripts and notes with a detailed rubric in search of patterns and behaviors that cut across the different regulatory programs.

What do they find? In an article overflowing with goodies for administrative law nerds, B&R make two particularly significant contributions—the first empirical and the second theoretical. On the empirical side, B&R provide a rich description of what is going on inside the black box of agency decision-making in the 21st century, supplementing the few dated books published on the topic. One of their several stand-out findings includes the discovery that—despite the rise of the unitary executive—the Chief Executive is rarely controlling agency policymaking or even providing clear directions in some cases. Instead, B&R find that generally the President and his appointees provide only an “overarching policy orientation,” and even this direction is negotiated dynamically throughout the decision-making process and mediated with other sources of input and influence. (Pp. 1626, 1628, 1630.) Indeed, they find that the “normal” mode of interaction between appointees and career staff was generally not one of conflict, but instead of “interdependence.” (P. 1631).

Another stand-out finding is B&R’s depiction of how, in the absence of top-down direction, agencies actually exercise this discretion. The authors portray agencies as operating essentially like massive vacuums—drawing in input from congressional offices, executive orders and speeches, stakeholders, experts, and other agencies in the process of crafting rules and policies. Characterizing what one interviewee called a “spider web”, the agencies then synthesize all this information through “multilateral negotiations among teams of officials with diverse roles and levels of seniority.” (P. 1640.) As a result, agency rules often end with a decision that is quite different from where they started.

B&R’s contribution to administrative law theory is even more impactful. The authors offer a conceptual model—consisting of several basic “scaffolding” elements—that captures the recurring behaviors the authors observe in their data. This scaffolding includes:

1. decision-making that is highly diffused among diverse staff;
2. decisions that are not hierarchical (top-down) but instead involve a kind of all-hands-on-deck, negotiated quality; and
3. agencies that are highly responsive to stakeholder input, feedback, and engagement throughout the decision process.

(P. 1606.) Based on their findings, B&R argue that this model of bureaucratic decision-making provides a more accurate description of how most rules and policies are actually made, as contrasted with the caricature of a command center run by the President and his henchmen.

However, B&R do not stop with this new, empirically grounded model of how bureaucrats often exercise policy discretion but proceed to engage their findings with normative theory as well. After canvassing the theoretical literature, which emphasizes how “accountability consists of a reasoned deliberation that considers many options; an inclusivity that takes into account a wide range of interests; and a responsiveness to both affected publics and conditions on the ground” (Pp. 1668-69), the authors observe how the default bureaucratic processes they have unearthed generally hit this normative target. (Pp. 1605, 1671, 1674.) Indeed, they suggest that the “responsible bureaucrat” model may not only be superior to the unitary executive in meeting these indicia of accountability, but the model might be used to gauge the accountability of individual agency decisions going forward. (P. 1609.)

Given the dearth of empirically grounded work on bureaucratic discretion and accountability, one cannot overstate what the authors accomplish in this one article. However, it is precisely because of the inevitable future import of this piece that the authors’ normative claims in particular deserve further attention. Perhaps the “accountable bureaucrat” title is intended to convey only a relative virtue—namely that the type of bureaucratic decision-making model they discover is at least as accountable as the unitary executive model. But just in case the authors mean to suggest that the model might also serve as an ideal template for bureaucratic accountability more generally, added troubleshooting is warranted.

One concern is that—even when followed to the letter—there are at least a few settings in which the model will not produce accountable decision-making. As one example, when the model is applied to the agencies’ scientific expertise it seems poised to undermine the reliability of the agency’s expert work rather than enhance it. The all-hands-on-deck negotiating style of the accountable bureaucrat means that everything, including the underlying syntheses of the scientific literature, is up for grabs. But this means that basic principles of scientific integrity—including the scientists’ independence from influence, the need for transparent reasoning, and rigorous expert peer review—may not only be ignored in the process of incorporating expert work but violated.

Second, while responsiveness to stakeholders is certainly a vital ingredient to accountable agency decision-making, we know in practice that stakeholder engagement is frequently one-sided—especially in high stakes, technical rules dominated by well-financed industry. To suggest that bureaucrats who respond to this machine-gun fire from regulated industries are “accountable” is perhaps factually correct (that is all the Administrative Procedure Act and the reviewing courts legally require of bureaucrats), but as a normative matter it seems wrong to consider this agency responsiveness publicly accountable when it considers only a subset of affected parties. Yet from my reading, that is where the current model leaves us.

Finally, because so much agency decision-making occurs outside of the public eye and is not transparent—thanks in part to the deliberative process privilege—the “accountable bureaucrat” still resides, at least to some extent, in a kind of “deep state” or, in the words of Peter Strauss, “shade.” Even when an agency process closely maps against the model’s scaffolding, the underlying deliberations may still be afflicted with serious blind spots, flawed assumptions, or staff biases that are invisible to outsiders and lead to systematic substantive problems in the resultant decisions. Given this lack of transparency, added refinements are needed to ensure that agency decisions are truly accountable.

Thankfully, the authors are already hard at work on some of these (and other) challenges. In two subsequent articles that mine this same data set (one of which is forthcoming in our own Texas Law Review), B&R elaborate on the implications of their findings and suggest ways to shore up the model to make it even more accountable. Thus, The Accountable Bureaucrat is not the end, but only the beginning of what this dynamic duo has in store for us.

The Dubious Validity of the System of Deportation Arrests

May 10, 2024 Jack BeermannAdd a Comment

Jack Beermann

Did you ever wonder how it came to be that people suspected of immigration violations are subject to arrest without a judicially issued warrant? That executive branch immigration enforcement officers themselves have the authority to issue enforceable arrest warrants? And further, how it came to be that alleged immigration law violators can be held in prolonged detention without a probable cause hearing before a neutral magistrate of any kind?

When I first encountered this set of related issues, I quickly learned the conventional wisdom, that based on a longstanding tradition and Supreme Court approval, immigration law is an exception to the Fourth Amendment’s requirements that only judicial officers can issue arrest warrants and that in cases of warrantless arrest, the arrestee must be brought before a neutral judicial officer within a reasonable amount of time, normally not to exceed 48 hours. Professor Lindsay Nash’s excellent recent article Inventing Deportation Arrests reveals, through meticulous historical and doctrinal analysis, that the conventional understanding is built on shaky legal and historical ground and is subject to serious abuse. The article is very well written and enlightening on an important subject that I suspect has been somewhat opaque to most scholars of administrative law.

In a nutshell, as Professor Nash explains, acceptance of today’s practice is based on Supreme Court approval of a system that no longer exists. The key aspects of the system established by Congress in the late nineteenth century and approved by the Supreme Court in 1903 involved issuance of warrants only by high-level officials including the Secretary of the Treasury and review of warrantless arrests by an uninvolved official, often also of a relatively high rank. These features have long since vanished, but the propriety of detention without judicial approval has metastasized into what Professor Nash characterizes as a regime, without significant accountability, that allows low level enforcement officials to determine “whether to subject over a hundred thousand people annually to the extended detention and the bare process of our modern deportation system.” (P. 1303.)

The premise from which Professor Nash begins is that “in most other contexts, arresting officers remain constrained by a neutral-and-detached-review rule.” (P. 1303.) This usual practice is based on the view that “because enforcement officers ‘lack sufficient objectivity’ to determine whether there is adequate cause to justify deprivations of individual liberty, neutral and detached adjudicators must intercede.” (P. 1303.) In the immigration context, by contrast, “low-level enforcement officers alone” determine whether a warrant should issue or a warrantless arrest was justified. “No magistrate—not even a neutral administrative officer—deliberates over the permissibility of the arrest beforehand…[or] evaluates probable cause after the fact.” (P. 1304.)

The result? As Professor Nash succinctly explains, “[f]reeing arresting officers from any obligation to justify the arrest to a detached arbiter has, unsurprisingly, played an important role in allowing race-based policing to persist. This arrest scheme has also allowed ill-investigated, contrary-to-statute, and retaliatory arrests, and led to countless erroneous arrests of U.S. citizens. This—and the fact that so many people are not entitled to release post-arrest —has resulted in an incalculable number of days of unlawful and unnecessary detention.” (Pp. 1304-05.) (I have omitted the extensive footnotes Professor Nash includes to support each of these conclusions.)

The most chilling aspect of the article is its description of the modern deportation arrest regime. Under current law, Congress, in the Immigration and Nationality Act, has empowered the Secretary of the Department Homeland Security to issue immigration arrest warrants. The Secretary then subdelegated this authority “to over fifty types of immigration enforcement officers, including those who investigate cases or even make arrests themselves.” (P. 1311.) Perhaps even worse, enforcement officers are also authorized to make warrantless arrests whenever they have “reason to believe” that a suspected noncitizen in their presence “is entering or attempting to enter the United States unlawfully or is likely to escape before a warrant can be obtained.” (Pp. 1311-12.) While such warrantless arrests are supposed to be reviewed by a second officer, that officer need not be neutral or detached, and this step can be skipped if there is no readily available second officer.

In what may be the article’s greatest contribution, Professor Nash demonstrates that the Supreme Court’s long-ago approval of a significantly different system of administrative immigration detention provides little or no doctrinal support for current practice and that despite this, courts have consistently turned away challenges to deportation arrests in reliance on that outdated approval. She characterizes those courts as having made “reckless jurisprudential leaps…by treating a wide range of distinct types of executive probable cause determinations as equivalents regardless of the role or position of the officer signing off on the arrest.” (P. 1315.) Professor Nash describes how judicial acceptance of subdelegation has been a major contributor to the misguided approval of the modern system of deportation arrests.

This article makes what I view as a major contribution to the study of immigration detention practices and administrative law more generally. Although Professor Nash does not propose specific reforms to the deportation arrest system, she provides ample support for her conclusion that “a closer look at this history contradicts the notion that our modern scheme was historically sanctioned, offers important insight as courts confront new challenges to the constitutional validity of these arrests, and provides robust historical support for calls to fundamentally transform the deportation arrest system.” (P. 1363.) It might also inspire scholars to take a fresh look at additional adjudicatory systems that seem unfair in similar or related ways.

It Ain’t that Broke–Agency Heads’ Approval of Enforcement Actions

Apr 8, 2024 Michael E HerzAdd a Comment

Michael E Herz

Administrative law scholarship comes in many shapes and sizes. One distinctive type is the law review article that began life as a consultant’s report for the Administrative Conference of the United States (ACUS) and then was published in revised (read: more compulsively footnoted and obsessively bluebooked) form in a law review. The ACUS lineage is always visible in the final product: these articles are grounded on and often provide an overview of current practice, they are even-handed, and they contain real-world proposals for reform. On the other hand, they tend not to be wildly abstract, coin new terms (“I call this approach neo-tripartite hyper-realism”), or end up in the Yale Law Journal (with the occasional impressive exception or two as to the last).

Michael Asimow’s recent article on greenlighting—”the process whereby the heads of a combined-function federal regulatory agency determine whether to accept the staff’s decision to charge or not charge a target with a violation of law” (P. 227)—began life as an ACUS report, and it shows. It describes the practices of five different agencies, reviews the value and the risks of looking to agency heads to approve enforcement actions, and assesses a suite of possible structural arrangements that might preserve the former and minimize the latter.

Suppose you are unfortunate enough to be the target of an FTC enforcement action. After a significant period of investigation, the agency decides to proceed, and you are served with a complaint. Disconcertingly, you notice that the complaint includes a proposed final order, all ready to go. More disconcertingly, the complaint has been issued by the very FTC commissioners who will make a final determination as to whether to issue that order. Their names are at the top of the complaint, which states that “the Commission has caused this complaint to be” issued and the complaint is “by the Commission.” In short, judge and prosecutor are combined. Things do not look promising.

Of course, this combination of functions is longstanding, is implicitly authorized by § 554(d)(C) of the Administrative Procedure Act (APA) (which exempts agency heads from its separation of functions requirements), and, as per the unanimous opinion in Withrow v. Larkin, ordinarily does not violate the Due Process Clause (even though a judge cannot sit in a case in which he had participated as district attorney). And yet, a certain unease about this arrangement never disappears, and proposals for restricting or eliminating the role of agency heads in approving enforcement actions are common.

Asimow begins with an informative review, based in part on extensive interviews, of the charging process at the SEC, FTC, FCC, FERC, and NLRB. The details vary, and can’t be summarized here, but in each an investigation begins at the staff level. At some agencies and for some cases, the staff can issue a charge and even settle the case without approval from the agency heads. But most of the time, and for more significant cases, if and when staff concludes that a charge is warranted, the case cannot proceed without a green light from the full Commission. Often, staff and the target have already worked out a settlement, but in general the agency heads must approve the agreement. The outlier is the NLRB, with its independent General Counsel, authorized to pursue enforcement actions without Board approval.

In Part II, Asimow reviews the merits and shortcomings of this arrangement. One justification is that a charging decision belongs with the agency heads because it implicates how agency resources are allocated. But, more importantly, “combined-function agencies use adjudication for policymaking, and choosing which cases to prosecute is an essential element of the policymaking process.” (P. 246.) Moreover, both the track record and Asimow’s interviews indicate that in practice greenlighting often functions to protect targets; enforcement would be more ferocious if the charging decision was simply left to the prosecutorial staff.

On the flip side, Asimow identifies two concerns. One is efficiency. Agency heads can spend a lot of time on enforcement matters, time that is not spent on other arguably more important tasks. Estimates vary; apparently time spent on enforcement matters (including settlement approvals) consumes only 10% of FERC Commissioners’ time but as much as 50% for SEC and FTC Commissioners.

The other major concern with greenlighting is the obvious one: confirmation bias. Having decided that a case is worth pursuing, that “there is a there there,” won’t agency heads always discover that—what do you know?—their judgment was correct and a violation has occurred? This concern must be taken seriously, but on Asimow’s account it may be more theoretical than real. The huge majority of cases settle, and so are not resolved by the agency heads; enforcement takes a long time, so the agency heads who make a final decision may not have been those who greenlit the prosecution; agency heads must decide the matter exclusively on the record; the actual hearing is presided over by an ALJ; most agency heads acknowledge the possibility but do not perceive themselves as biased (no surprise); empirical research is inconclusive.

Asimow’s bottom line is that the benefits of greenlighting outweigh the costs, but that some checks and balances would be useful to mitigate the latter.

A brief Part III reviews the purely legal issues. Asimow accepts the mainstream view that greenlighting violates neither the Due Process Clause (pace Andrew Volmer, a former Deputy General Counsel at the SEC) nor the APA.

In the final section, Asimow reviews existing or possible structural arrangements aimed at preserving the benefits of greenlighting while diluting its dangers. In brief, he is in favor of:

• giving targets notice of and an opportunity to comment on a proposed charge before it is brought (though only once, not twice (as occurs at FERC));
• delegating the authority to issue complaints to staff in routine cases (though most of Asimow’s interviewees were opposed to this practice);
• adopting, and regularly updating, enforcement guidelines; and
• establishing a system of peer review, under which staff prosecutors and investigators conduct an ex post review of charging decisions.

On the other hand, he is agnostic regarding, or wholly opposed to:

• allowing targets to meet directly with agency heads prior to their decision (as happens at the FCC and FTC);
• adopting strict separation of functions rules and bans on ex parte contacts with ultimate decisionmakers from the beginning of an investigation (as proposed by William Scherman et al.);
• disqualifying automatically any agency head who participated in the charging decision;
• placing the charging decision with the agency General Counsel (as Congress has done with NLRB unfair labor practice cases (except as to the decision to seek a temporary injunction, which is the Board’s to make)); or
• making major structural reforms, such as placing (or allowing targets to move) all enforcement actions to federal court or replacing the agency heads with an internal agency appellate tribunal in enforcement adjudications.

One comes away from reading this article not only better informed, but also reassured. The system ain’t broke. ACUS commissioned the report as a standalone study rather than as the basis for action by the Assembly. Perhaps that is because ACUS leadership thinks things are working sufficiently well that it need not weigh in. In any event, though Michael Asimow’s valuable report thus was denied the glory (what other word can there be?) of being the basis of an ACUS Recommendation, it at least now has the JOTWELL imprimatur.

Confronting FOIA Abuse

Mar 14, 2024 Margaret KwokaAdd a Comment

Margaret Kwoka

The Freedom of Information Act (FOIA) has been the subject of increasing controversy. Some scholars, like Mark Fenster in his recent illuminating work on transparency and populism, remain convinced it holds a singular place in protecting democracy and promoting accountability. Others, like Dave Pozen, are concerned it promotes regressive, anti-public-spirited outcomes. While my own work has defended FOIA’s continued indispensability, my research on who uses FOIA and why (upshot, it’s not journalists) is often cited as demonstrating that the law does not deliver the value we hope it will.

However, these larger structural critiques often set aside a nagging practical problem that can, at times, become centrally important: the use of FOIA for abuse and harassment of agency officials. In my own work, I have noted that occasional problems of this natures arise mostly with respect to state agencies, in particular public universities, in a way that it does not tend to at the federal level. But I have largely considered the issue an anomaly not necessarily meriting more structural reform. Still, instances involving alleged abusive FOIA requesters have seemingly been on the rise, moving behind the historic examples of targeting particular research at higher education institutions and now reaching into K-12 educational settings with respect to controversial curricula and, now, election officials. Enter Rebecca Green’s terrific new piece, FOIA-Flooded Elections, which takes on this seemingly intractable problem of abusive FOIA requests in the context of state and local election officials.

In particular, I applaud how Professor Green faces head on the tension between open access laws that eschew any barriers to transparency—and their particular salience for assuring accountability in elections—and the very real threat to the electoral process posed by a deluge of burdensome requests. To begin, she sets out a typology of requests that make up the “hydraulics” of the “FOIA flood” in election offices. This four-part typology is the first time I’ve seen a category of potentially abusive requesters broken down so thoughtfully. She describes “ringleaders” as those who have a public platform and aggressively push claims of election fraud. State activists are those who believe the claims of election fraud, are using FOIA on a personal mission to hold election officials accountable. The “foot soldiers” are heeding calls—in good faith—to file formulaic requests at the direction of the ringleaders and activists, believing they are contributing to democratic accountability. And then the “bad faith” requesters, those who, in response to distrust of election officials themselves, are organizing voluminous FOIA requests to harass particular officials, including seeking their text messages and emails of a personal nature and facilitating what can turn into threatening behavior online and in the physical world. She sums up the problematic nature of the hydraulics as stemming from “the constitutional untouchability of the ringleaders, the earnest motives of the activists and foot soldiers, and the challenges of sorting good faith from bad-faith requesters” —an apt description indeed.

Although those hydraulics seem to create an intractable problem, Green skillfully deploys analogous areas of the law that have had to grapple with similar dynamics: vexatious litigation and discovery abuse. These analogies demonstrate, Green shows, that government institutions must be able to protect their core functions, and that curbing abuse—even when sometimes curtailing fundamental rights such as access to courts—can survive constitutional challenge.

With this insight, Green suggests a suite of possible statutory reforms states could take up to curb the kinds of FOIA abuse that risk undermining our election integrity. She draws on the experience of states that have experimented with clarifying access rights to election records, changing fee structures for requests, providing blackout periods (or at least extended deadlines) right around elections to ensure FOIA responsibilities do not interfere with election preparedness, centralizing administration of election-related requests, and providing more alternative dispute resolution for FOIA requests to avoid litigation. Another set of suggestions focuses on identifying abusive requesters for possible sanctions or penalties, including curbing the rights to file future FOIA requests, a tactic that a few states have employed without apparent chilling effects on journalists or legitimate oversight.

And finally, perhaps my favorite set of her proposals is to ensure greater affirmative disclosure so as to prevent follow-on duplicative requests. As co-authors and I recently documented with respect to affirmative disclosure of agency legal materials, when affirmative disclosure works, it does so by resolving the tension between FOIA burdens and the need for transparency, satisfying the public interest while promoting administrative efficiency. Green’s proposal has this virtue going for it in spades.

The problem of abusive, vexatious, or harassing FOIA requesters is not one that is overwhelming the FOIA system writ large. But Green convincingly demonstrates that it is one that is overwhelming particular election officials and offices. For a statutory right designed to promote democratic accountability, the possibility that it is being weaponized to undermine democracy is of central concern. Without shying away from the problem, Green’s piece takes a big swing at thinking through a set of practical solutions to protect our democracy both on the inside and out.

Myers, We Hardly Knew Ye?

Feb 14, 2024 Richard MurphyAdd a Comment

Richard Murphy

To start, please forgive a few preliminaries: The Constitution provides express instructions governing appointments of Officers of the United States but not about removals (other than by impeachment). Congress has often stepped into this gap by imposing limitations on the power of the President to remove agency officials. The Supreme Court upheld for-cause style limits on presidential removal authority from the New Deal up until the arrival of the Roberts Court. The Roberts Court, following a path blazed by Justice Scalia, adheres to the principle of the “unitary executive,” which holds that the power to remove agency officials is a necessary element of the “executive power” that Article II of the Constitution provides “shall be vested in a President.” Art. II, § 1, cl. 1. Accordingly, the Roberts Court has invalidated several statutory restrictions on presidential removal power in a series of high-profile cases. To support this embrace of the unitary executive, the Roberts Court has relied upon one precedent above all others, Myers v. United States, 272 U.S. 52 (1926). Chief Justice Roberts has characterized Myers as having “conducted an exhaustive examination of the First Congress’s determination in 1789, the views of the Framers and their contemporaries, historical practice, and our precedents up until that point.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020). This “exhaustive examination” conclusively demonstrated that the President’s “executive power” must include a general authority to remove executive officials. Id. at 2197-2198.

In their terrific article, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, Professors Katz and Rosenblum take a blowtorch to this reading of Myers. On their account, President—whoops, sorry, Chief Justice—Taft’s 72-page majority opinion in Myers did not provide an accurate, originalist report on the Framers’ eighteenth-century expectations regarding the power of the presidency. Rather, Chief Justice Taft constitutionalized a twentieth-century, Progressive vision of the President as “popular tribune and chief administrator.” (P. 8.) Myers thus provides an example of, gasp, “living constitutionalism.” (P. 19.) And so does the Roberts Courts’ twenty-first century deployment of Myers for its own, not-so-Progressive ends.

One great pleasure of reading this wonderfully written article is the historical context that it provides for understanding Myers. Those who enjoy their irony in heaping doses might find that one bit of this history sticks with them in particular. The Postmaster General informed Myers by telegram in February 1920 that President Wilson had directed his removal from his patronage job as postmaster for Portland, Oregon. (P. 20.) By statute, Myers’s removal required the Senate’s concurrence, which could be obtained by the relatively straightforward expedient of nominating and confirming a new postmaster for the office. Although President Wilson had consistently followed this standard practice for other postmasters, he did not in Myers’s case. The likely explanation is that Wilson lacked the ability or inclination to focus on this problem because he had suffered a massive stroke in October 1919. During the run-up to Myers’s removal, Wilson’s wife limited access to him, officials issued documents in his name without showing them to him, and he directed such mental energy as he possessed toward the ratification fight over the League of Nations. (P. 23.) Speaking for myself, I think I will enjoy mentioning to students that the odds are pretty good that the most important precedent on the scope of the President’s removal power did not involve a President’s use of this power. (P. 24.)

Professors Katz and Rosenblum make the case that the Roberts Court has misunderstood the method, substance, and radicalism of Myers. Regarding method, we find the additional irony that the Roberts Court invokes Myers to advance an originalist project of tracing plenary presidential removal authority back to the Founding. (P. 29.) On inspection, however, Myers itself is not an originalist opinion. Rather, it is grounded in a flawed application of constitutional acquiescence that starts with a dubious construction of the “Decision of 1789” and ends by ignoring the law and practice of the Reconstruction Era and following decades. (P. 29.)

Turning to substance, Katz and Rosenblum contend that “[t]he presidency of Myers is strong, but it is not a unitary executive” in the style of the Roberts Court. (P. 6.) They note that Chief Justice Taft emphasized that “[t]he independent power of removal by the President alone … works no practical interference with the merit system” that protects the civil service. (P. 29 (citing Myers, 272 U.S. at 173).) Moreover, the Chief Justice “disclaimed any pretention to rule” on the removability of Article I judges. (P. 73.) Myers thus declined to follow unitarian principles all the way to the logical conclusion that the President can direct and remove all officials in the Executive Branch. It seems fair to note, however, that the Roberts Court has not gone so far either, given that it has not yet overruled carve-outs from plenary presidential removal authority for multi-member, bipartisan boards and for some inferior officers. If the Roberts Court is “unitarian,” perhaps it does not do too much violence to the term to call the Myers decision “unitarian,” too.

Looking beyond nomenclature, Chief Justice Taft’s carve-outs, especially for the civil service, tie directly to the main project of Administrator-in-Chief, which is to demonstrate that Myers embedded a Progressive, early twentieth-century vision of the presidency into constitutional law, marking a radical shift from earlier understandings. The presidency of the post-Civil War nineteenth century was a small thing dominated by Congress and a party system that allocated patronage jobs. The creation of a professional, merit-based civil service to replace the spoils system was one of the great triumphs of Progressive politics, and Taft had no wish to undo it. (P. 73.) This professionalized civil service provided a better, more powerful tool for modern governance, but it also needed a head manager, an Administrator-in-Chief one might even say, to lead it. An ideal candidate for this job might be a nationally elected political figure who could serve as the voice of the people, making policy in the public interest.

This powerful role would not fit the Founders’ vision of the presidency. They were dubious of democracy and regarded the President as a counterweight to Congress’s majoritarian impulses. (P. 80.) Nor would this powerful role fit the job description of late nineteenth century presidents, who often worked part-time and could not even control who got the plum jobs. This powerful role did, however, neatly fit a vision of the presidency suited to a world in which a big man such as Theodore Roosevelt, taking advantage of both modernizing communications and growing governmental power, could make the presidency big, too. Myers reasoned that, to play this (new) role, the President must be able to remove officers to control them in service of the President’s vision of the public interest. At the same time, however, this power to remove must not undermine the professionalism that empowered effective, efficient governance. (P. 76.)

Near the end of Administrator-in-Chief, Katz and Rosenblum target their fire directly at the Roberts Court’s use of Myers. Flaws include: ignoring a “veritable pile of scholarship” demonstrating a long history of congressional insulation of government actors from direct presidential control; ignoring that Myers itself acknowledged substantial congressional authority to provide such protection; ignoring Taft’s strong commitment to administrative independence; and relying on Myers’s “bad history” to further its own bad historical project. (Pp. 74-79.)

Notwithstanding these many problems, however, Katz and Rosenblum ultimately conclude that, viewed from a certain ironic angle, the twenty-first century Court is correct to rely on the twentieth century’s Myers. In their last paragraph, they explain:

Myers is thus the right progenitor for the Court’s unitary project, but not for the reason it thinks. The real story of how the president became the administrator-in-chief is one of institutional innovation and judge-led legal development. Today, with its unitary revolution, what the Court once made one way, it is trying to make anew. That is the kind of judicial revolution Myers itself engaged in. Taft would reject the presidency they are creating. But the judicial project of the Roberts Court? That, he would understand. It was what he himself had done.

(Pp. 83-84.) What goes around comes around?

Anyone with a hankering to find out more about Myers, and if you have read this far into this jot, I think that probably includes you, will find reading the Administrator-in-Chief highly informative and thought-provoking. It will certainly be on my mind as I read any future Supreme Court adventures in unitarianism—and the chance to do so might arrive as soon as this spring if the Court seizes its opportunity to rule on the constitutionality of statutory removal protections for administrative law judges in Securities and Exchange Commission v. Jarkesy, No. 22-859.

Whose Power is it Anyway?

Jan 15, 2024 Mila SohoniAdd a Comment

Mila Sohoni

As I write this Jot, it’s entry-level hiring season. Scores of exciting candidates are crisscrossing the country to present new papers, eat dinners, and tour campuses and neighborhoods. Over the years, I have come to observe that there are a few things that a candidate can reliably bet will occur during a job talk at my law school. Someone will point out your paper’s relevance to some completely unexpected area of law, or vice versa. Someone’s phone will ring while you are speaking—to the rest of the faculty’s collective mortification—and then be immediately, furiously silenced. And—if you are talking about a subject in constitutional law, administrative law, or federal courts—someone will probably ask you something about how your paper relates to INS v. Chadha.

Chadha is a staple touchpoint because it tees up a fundamental definitional conundrum that all three fields grapple with in various ways: what counts as executive power, or judicial power, or legislative power, in our system of government? If our legal system is one of separation of powers, it would seem to be important to know which is which. Yet, in the fashion of an ancient parable, the opinions in Chadha reach different answers concerning how to characterize the particular type of action at issue in that case. To the Court, an action by a house of Congress to veto a suspension of deportation seemed “essentially legislative in purpose and effect,” and therefore subject to bicameralism and presentment requirements. But, as Justice White pointed out, the Court’s opinion also characterized the suspension of deportation as an executive power; if that is the case, then why isn’t an action that merely blocks that suspension therefore an exercise of executive power, too? Justice Powell, for his part, saw things another way entirely: it was “clearly adjudicatory,” he wrote, for a house of Congress to decide whether or not Jagdish Chadha should or should not be deported. So Chadha was very much on my mind as I read The Executive Power of the Federal Courts, an interesting new paper by Adam Crews.

In this article, Professor Crews argues that when federal courts perform judicial review of agency action, they should at times be understood to be acting as arms or extensions of the administrative process itself. In these domains, imposing a requirement that federal courts act within the parameters of Article III is the wrong move, for the courts are exercising not just Article III power but executive power, too. Professor Crews’s goal is ambitious: “to free administrative law from the rigid view that everything a federal court does is—and perhaps must be—an exercise of judicial power.” (P. 10.)

Professor Crews begins by tracing historical examples of Congress enlisting federal courts to perform “what we today we think of as paradigmatic administrative tasks.” (P. 27.) Over our history, federal courts have adjusted citizenship status, assessed monetary benefits, granted patents and licenses, and settled legal disputes between agencies. (P. 27.) Today, those functions are often performed by agencies: the USCIS, the VA, the PTO, and the OLC, respectively. (P. 27.) In each of these historical contexts, he notes, the federal courts were enlisted to act in ways that fit uncomfortably with conventional wisdom concerning Article III: “[n]aturalization and monetary claims adjustments lack adverse parties; interagency litigation lacks adverse legal interests,” (P. 27), and review statutes in the late 19th and early 20th centuries gave federal courts—or at least the D.C. Circuit—“sweeping policy discretion” to revise agency action, not just to determine its legality. (Pp. 20–24.) This lengthy record of federal courts exercising “non-judicial governmental power,” Professor Crews points out, is very much at odds with the model of “traditional judicial adjudication” under which courts ascertain facts and apply the law in a case between two adverse parties. (P. 27.)

The article next contends that such exercises of power by federal courts should be understood as exercises of executive power, not as exercises of judicial power—and, moreover, that they are legitimate exercises of executive power. Drawing on Enlightenment-era philosophy and Founding-era sources, inter alia, Professor Crews contends that the core domain of judicial power is the power to divest or alter vested private rights and interests. (P. 29.) This power, though formidable, is narrow: it does not include, for example, the power to administer benefits (such as patents) or statuses (such as citizenship) by reference to statutory law. When courts do those things, they are playing a “law execution” role rather than an “interest adjudication” role. (P. 13.)

And Congress has the authority under the Necessary and Proper Clause, Professor Crews contends, to assign courts to perform such (executive or administrative) tasks as long as four conditions are met: a statute so provides; the task does not diminish or divest previously vested rights or interests; the task does no more than ask the court to resolve questions of law on a closed record; and the court’s decision is not subject to revision by the political branches. (P. 49.) That is so, he argues, because constitutional propriety is properly informed by longstanding political practices, including the practice of assigning executive tasks to federal courts. (Pp. 42–44.)

This executive power model, he goes on to note, would explain the legality of special statutory review schemes such as the Hobbs Act, which allow litigants to seek pre-enforcement review of agency rules on a closed record and to win sweeping remedies against such rules. (Pp. 50, 63.) Professor Crews argues that such a scheme should be seen as drawing on the federal courts’ executive power, rather than treated as having to rest solely on their Article III judicial power; so understood, they are constitutionally proper, including as to remedies. (Pp. 53, 62–63.) Whether or not the executive power model is necessary to underwrite the legality of special statutory review schemes, it is certainly a thought-provoking new justification for their legality.

The remainder of Professor Crews’s article unpacks the implications of his executive model of judicial power for a variety of issues at the intersection of federal courts and administrative law—among them, state standing to challenge agency action, FOIA standing, Chevron deference, remedial scope, certiorari before judgment, and military justice appeals. (Pp. 54–67.) He also discusses how his model might inform ongoing debates between formalists and functionalists. (Pp. 68–70.) While the balance of the discussion resists easy summary, it draws a variety of interesting connections and fairly makes several insightful points that readers will enjoy mulling over. The article’s lively engagement with numerous ongoing, pressing debates in administrative law, federal courts, and remedies is a great strength.

Apropos of that last point: reading Professor Crews’s paper suddenly called up a vivid memory from my own experience as an entry-level job applicant crisscrossing the country in a rumpled suit. A distinguished faculty member at a highly regarded law school quickly skimmed my CV as he sat down for a small-group interview with me. “So what are your interests?” he asked. I answered truthfully (if a bit recklessly): federal courts; civil procedure; administrative law—and certain facets of criminal law and health care law. “Oh, is that all?” he huffed, one eyebrow arched. Well, I understood why he said that, as well as the frosting of sarcasm with which he said it. Sometimes, though, it’s hard to fit everything into a neat and tidy box. That goes for people. It goes for papers—like Professor Crews’s cross-cutting, cross-pollinating article. And, last if not least, as Chadha is always there to remind us, it goes for powers, too.

Major Contradictions at the Roberts Court

Nov 30, 2023 Edward RubinAdd a Comment

Edward Rubin

The Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inconsistent with another group of the Court’s opinions, which the authors describe as the Court’s presidentialism.

Their analysis is incisive. While addressed to a Court that has a rather cavalier attitude toward doctrinal coherence, the article’s convincing empirical evidence may encourage the Justices to be more thoughtful as they move into the post-Chevron phase of administrative law. In any event, it will certainly provide observers with insights for continued criticism of the Court, and perhaps provide this Court’s successor with guidance for repairing the damage.

Roberts Court presidentialism, according to the authors, is the set of decisions insisting that the President, as the one official elected by the entire populace, should have full power to control federal agencies. This nascent doctrine, related to the unitary executive theory fashioned by conservative commentators, may soon produce another cataclysm in administrative law, a reversal of Humphrey’s Executor and the invalidation of agency independence.

In the meantime, it has led the Court, in decisions such as Seila Law v. CFPB and Free Enterprise Fund v. PCOAB, to strike down legislation that creates innovative agency structures. The problem with these innovations, according to the Court, is that they shield the agency in question from direct presidential control through the appointment and removal process, and thus from democratic accountability. The authors point out, however, that this rationale conflicts with the Court’s recently fashioned doctrine that denies Chevron deference to issues deemed to be “major questions.” Such questions, by the Court’s own definition, are matters of “extraordinary” public policy significance, questions that Congress intends to make for itself rather than leaving those decisions to administrative agencies.

The contradiction that Professors Short and Shugerman discern is that the President is part of the same policymaking process that the Court is so anxious to protect and empower. This is true as a juridical matter for at least two reasons. First, the President can veto congressional enactments that authorize administrative agencies to act. (It was the Court’s formalist solicitude for this authority that led it to strike down nearly 200 federal statutes in INS v Chadha.) Second, the President is the hierarchical superior of executive agencies and appoints new leaders of all agencies (with the Court’s formalist solicitude for this authority leading to Seila Law and Free Enterprise Fund). The same observation is also true as a pragmatic matter because the President almost always plays a major role in the formulation of extraordinarily significant public policies.

The authors document the extent of the President’s role in establishing the administrative policies that the Roberts Court invalidated in Biden v. Nebraska (student loan forgiveness), West Virginia v. EPA (control of greenhouse gas emission), National Federation of Business v. OSHA (protection against COVID transmission in the workplace), Alabama Assoc. of Realtors v. DHA (moratorium on housing evictions during the COVID crisis), King v. Burwell (health insurance for the previously uninsured), Gonzales v. Oregon (Attorney General’s guidance on assisted suicide) and FDA. v. Brown & Williamson (health-based regulation of tobacco products). In each of these cases, as the authors point out, the Court depicted the administrative actions it struck down as the work of “unruly and unaccountable agencies overreaching beyond democratic control.” (P. 4.) That depiction, however, is exactly the opposite of what actually occurred.

Professors Short and Shugerman conclude by recommending that the Court resolve the conflict they have so effectively demonstrated by modifying one of the two conflicting doctrines. It might be said in response that the effort is pointless because the Court is not inclined to listen. The two doctrines, however they conflict on logical or legal grounds, are unified by the Court’s ideological hostility to the administrative state. It opposes innovative solutions to structural problems in modern government and substantive solutions to policy problems confronting society simply because both sets of solutions are carried out through administrative agencies. In this, its decisions resemble those of the Lochner Court, which struck down progressive legislation by the states on substantive due process grounds and progressive legislation by the federal government on Commerce Clause grounds because it disliked progressive legislation, not because of any legal or conceptual connection between the two doctrines. But Professors Short and Shugerman can hardly be faulted for giving the Court the benefit of the doubt and assuming that will make some effort to at least modulate its doctrines to achieve a measure of conceptual coherence.

Even if the Court does not resolve the problem, there is a further value to this highly perceptive article. It illuminates a feature of the Chevron doctrine that hopefully will survive whatever the Court decides to do to the doctrine itself. Chevron was decided in the Term following the Court’s momentous decision in Motor Vehicle Manufacturers Ass’n v. State Farm. In addition to holding that the APA arbitrary and capricious standard applied to rescissions of regulations, developing a definitive test for applying that standard, and holding that the National Highway Traffic and Safety Administration had violated the standard in rescinding its regulation regarding for airbag—all unanimously—the Court decided that the agency had also violated the standard by rescinding the regulation regarding automatic seat belts, but in this case by a 5-4 margin.

Justice Rehnquist, in dissent, pointed out that the agency should be permitted to change its position on the basis of presidential policies that the voters had endorsed, in this case the deregulatory policies that Ronald Reagan had advanced en route to his overwhelming electoral victory. The Chevron decision is built on this position. Justice Stevens’ majority opinion pointed out that the objections to the regulation at issue—another Reagan deregulatory effort—are “policy arguments . . . more properly addressed to legislators or administrators, not to judges.” In other words, Chevron does not simply favor agency interpretation over judicial interpretation, but rather is designed to validate the democratic policymaking process in its entirety, as formulated by agencies, by Congress, and—as Professors Short and Shugerman point out—by the President as well.

Through the major questions doctrine that seems to be leading to a reversal of Chevron, the Court has impeded efforts by that policy process to address some of the most serious problems facing our nation, such as climate change, inadequate health care, epidemic disease, and the sale of unhealthful substances. As a result of these decisions, many Americans will get sick or die. Perhaps Professor Short and Shugerman’s article will communicate this aspect of Chevron to the Court when its reconsiders the doctrine.

Agency Capacity

Oct 27, 2023 Anne Joseph O'Connell1 comment

Anne Joseph O'Connell

Presidents are quite popular in administrative law these days, from Elena Kagan’s classic article, Presidential Administration, to the Supreme Court’s fixation on presidential control in its growing Appointments Clause and removal docket. As legal scholars dissect and debate the doctrinal and normative implications of presidential attention in agency decision making, we could benefit from knowing more about how that involvement actually plays out.

In Presidential Investment in the Administrative State, Nicholas Bednar and David Lewis provide critical empirical lessons for how Presidents invest strategically (or not) in agency capacity, which encompasses “the ability of an agency to perform the tasks delegated to it.” They show that Presidents are not simply public administration savants—trying only “to ensure effective policy implementation and avoid failure.” And they demonstrate that Presidents are not pure partisans—“work[ing] to increase capacity in agencies implementing policies the president likes and decrease capacity in agencies implementing policies the president opposes.” The lessons are messier.

Bednar and Lewis rely on two interesting data sources to get at “presidential effort or attention.” They “track how long it took presidents Bush, Obama, Trump, and Biden to send their first nominee to the Senate for each vacant position in their first terms.” The nomination lag provides a measure of “the priority the White House is placing on individual agencies across government, making it a useful way to evaluate where presidents make capacity investments.” And they turn to the 2020 online Survey on the Future of Government Service, answered by thousands of career and political agency executives on their views of presidential and congressional investment in their organizations.

The main lesson from Bednar and Lewis will disappoint scholars and judges touting strong presidential control as well as policy nerds seeking good governance. In short, Presidents don’t really invest much in agency capacity, though, at least, they don’t often try to destroy capacity. “[N]eglect—rather than proactive building or deconstructing of capacity—is the norm for most agencies.” (P. 2.)

Take nominations. Bednar and Lewis find that Presidents Bush, Obama, and Trump did not nominate anyone in four years for 13, 15, and 26 percent of vacant Senate-confirmed roles in federal agencies, respectively. Assuming, unrealistically, that every position got a nominee at the end of four years, it took, on average, close to 500 days for President Bush to make a nomination. That delay jumped to 520 days for President Obama and 678 days for President Trump. President Biden had not made a single pick for 40 percent of vacant top positions after 534 days.

And now consider the survey results. Bednar and Lewis tell us that “[m]ore than half of federal executives report that the White House is exerting no effort or little effort to make sure that the agency has what it needs.” (P. 10.) (The other options were some, a good bit, and a great deal of effort.) Only about one in five respondents picked a good bit or a great deal of presidential effort for their agencies.

While Bednar and Lewis focus on the White House, their findings also raise questions about Congress. When Presidents do submit picks to the Senate, it takes longer for the Senate to act, if it acts at all. While the Senate almost never votes down an agency nominee, it often returns nominations. While 16 percent of both President Ronald Reagan’s and President George H.W. Bush’s agency nominations failed to get confirmed, that number climbed to 30 percent under President Obama. It did not improve for President Trump. And although individuals are often renominated after the Senate returns their nominations, the vacancy clock keeps ticking.

The nominations that do get confirmed also take longer to do so, despite 2013 Senate rules changes requiring only a majority to advance a nomination to a confirmation vote. Delays in confirming successful nominations have doubled, jumping from 56 days under President Reagan to 112 days under President Obama (and 117 days under President Trump) and to 127 days under President Biden, according to the Partnership for Public Service. Here, the President and Congress are neglecting agency leadership.

But the political branches seem to diverge in the survey. Bednar and Lewis report in passing that “a little more than half of federal executives report that congressional committees are exerting a good bit or a great deal of effort” (Pp. 10-11) for agencies to operate successfully. We should learn more about congressional investment—as many of us often bemoan congressional dysfunction for federal agencies.

The other lessons demonstrate that presidential commitment to agencies is not uniform. Politics and policy matter. Among other findings Bednar and Lewis show:

• Presidents emphasize picks for policy jobs (i.e., positions focusing on legislation, policy planning, and law) over management roles (i.e., positions targeting “management, finances, acquisition, or personnel”). Specifically, “[a]t any point in time, presidents are 59% more likely …to make a nomination to a key policy position than other positions. In contrast, presidents are a third less likely … to nominate individuals to key management positions.” (P. 9.) Some jobs, like cabinet secretaries, combine policy and management tasks and are excluded from this analysis. In short, Presidents care more about “substantive policy than bureaucratic management.” (P. 4.)
• Presidents prioritize nominations in more ideologically aligned agencies (think EPA for Democrats and DHS for Republicans). Indeed, while it took President Obama 134 days, on average, to make selections for top jobs at the EPA, his DHS nominations waited 191 days, on average. By contrast, President Trump took, on average, 250 days for his DHS picks but 384 days for those at the EPA. Another way to think about investment is turnover in positions. There was more turnover, for instance, at the top of DHS under Trump than the EPA.
• Presidents elevate nominations in low-skilled agencies. “Agencies with the lowest skills are 78% … more likely to receive a nomination than agencies with average skills. Conversely, agencies with the highest skills are 39% less likely to receive a nomination than an agency with average skills …” (P. 9.) In the view of Bednar and Lewis, Presidents seek to avoid government failures. But it could be that Presidents know the marginal benefits to investment are greater in these agencies and look for easier payoffs. The survey showed no relationship between agency skill and perceived White House investment.
• While the nomination data did not demonstrate a clear relationship with presidential priorities or the interaction of priorities and ideology, the survey did show an interesting relationship between that interaction and perceived attention. For conservative agencies, presidential priorities increased perceived presidential investment, but for liberal agencies, such priorities decreased perceptions of White House attention. As Bednar and Lewis note, “[t]he interaction of presidential priority and ideology highlights the fact that just because something is a priority of the president does not mean the president wants to build capacity.” (P. 12.)
• In the survey, executives reported more presidential investment in entities within the Executive Office of the President and grant-making agencies (and less in independent regulatory commissions and boards). Political (as opposed to career) executives, Republicans (the survey was done in 2020), and those with more responsibility saw the most presidential attention.

We may be able to draw some simple lessons from their more complex ones. Take the White House priority for policy over management. Bednar and Lewis describe how personnel officials across recent administrations worry less about filling management positions, in part because “acting career officials often perform competently in ‘management-only positions.’” (P. 9.) Many, including Lewis and myself, have called for Congress to cut the number of Senate-confirmed positions in federal agencies. This compelling study suggests that Congress should remove the confirmation process for management roles, assuming that these positions are adequately supervised by political officials.

In justifying agency legitimacy and even judicial deference to agency actions, many legal scholars (and judges) point, in part, to both the expertise of agency career workers and the political accountability through presidential appointments of agency leaders. Capacity, for Bednar and Lewis, includes “the resources, information, and processes an agency needs to prospectively complete its tasks.” (P. 2.) This means the civil servants and political leaders, among other items. Investment in agency capacity, as Bednar and Lewis persuasively demonstrate, cannot be assumed. With Presidents featuring so large in the field of administrative law, we should take some time to see how they operate on the ground.

Revisiting Immigration Exceptionalism in Administrative Law

Oct 4, 2023 Christopher WalkerAdd a Comment

Christopher Walker

With all the changes swirling in administrative law, one trend seems to be getting less attention than perhaps it should: the death of regulatory exceptionalism in administrative law. For decades, many regulatory fields—such as tax, intellectual property, and antitrust—viewed themselves as exceptional, such that the normal rules of the road in administrative law do not apply. The Supreme Court and the lower courts have increasingly rejected such exceptionalism in many regulatory contexts, emphasizing that the Administrative Procedure Act (APA) and related administrative law doctrines are the default rules unless Congress has clearly chosen to depart from them by statute in a particular regulatory context.

Immigration exceptionalism, however, remains a puzzle. Not because administrative law does not apply. It does. But, as Jill Family has detailed, Congress has departed from the APA defaults in many respects. As a constitutional and interpretive matter, moreover, immigration regulation operates against the backdrop of the plenary power doctrine. As more administrative law scholars have turned to immigration law (and vice versa), deeper insights have emerged to better situate immigration regulation in the modern administrative state. Immigration law scholars and newer voices in administrative law have played a critical role in moving the field forward. Here, I want to highlight one such newer voice, Emily Chertoff, whose article Violence in the Administrative State makes a promising contribution.

As the title suggests, Chertoff’s main contribution is a call for the field of administrative law to better appreciate the role of violence (and force) in certain regulatory contexts. In Part I, Chertoff sketches out the conventional bureaucratic model for administrative law. An outdated view of immigration regulation might fit within this model: Congress directs immigration agencies to implement a public benefits program and accompanying regulatory enforcement scheme for the admission and continuing presence of noncitizens in the United States. A professionalized “information-processing” bureaucracy, as Jerry Mashaw defined it decades ago in Bureaucratic Justice, carries out that mission—guided and overseen by the political branches, checked deferentially for rationality by federal courts, and improved by procedural best practices developed by the agency itself through internal administrative law. The goals are accuracy, consistency, and efficiency, and the bureaucracy is structured hierarchically to advance program implementation.

This conventional bureaucratic model in immigration regulation—at least on the enforcement side—quickly gets complicated. As many immigration law scholars have noted, immigration regulation can and often does lead to criminal consequences. As such, “crimmigration” has become a burgeoning subfield. Similarly, even on the civil enforcement side, detention of the regulated party—here, the noncitizen—is a central, complicating feature. My soon-to-be-colleague Paulina Arnold’s work on immigration detention comes immediately to mind.

In Part II, Chertoff attempts to bring conceptual clarity to this type of regulatory scheme by introducing “the domain of violence.” In this type of “force agency” model (compared to the bureaucratic model), order (not accuracy and efficiency) is the legitimating value, and control (not program implementation) is the primary goal. In Chertoff’s view, the organizational structure is not hierarchical at the front-line enforcement level. Instead, there is an in-group/out-group dynamic on the front lines, often “form[ing] strong internal ties while becoming isolated from senior officials and outsiders, including the people they are meant to control and the broader public.” The decisionmaking process, moreover, is not information processing, but instead the “identification of risk in a dynamic context.”

To illustrate this agency force model, Part III presents a case study of the enforcement operations at U.S. Immigration and Customs Enforcement (ICE). To build the case study, Chertoff reviewed several thousand pages of agency guidance documents and materials and then conducted fourteen semi-structured interviews with individuals who have interacted with ICE. Obviously, this is just an exploratory study, and much more empirical work needs to be done to fully understand the role of administrative law and regulatory practice in immigration enforcement. But even this preliminary exploration reveals fascinating details about the role of agency guidance documents, bureaucratic management and quality assurance practices, and judicial review in immigration enforcement on the ground.

Part IV concludes by previewing an ambitious reform project for force agencies. In this article, Chertoff makes three recommendations: (1) training should focus more on danger for a force agency than a bureaucracy or public benefits agency; (2) street-level enforcers should have less decisional independence and be subject to more disciplinary consequences than traditional civil servants; and (3) unions in force agencies should not be treated the same as other public-sector unions, as their incentives for cultivating pathologies on the job are greater and more consequential.

There is so much to like (lots) about this article. As is typical in terrific scholarship, it raises many questions and avenues for future research. I’ll mention a few here. First, how much purchase does the concept of “force agency” have outside of immigration regulation? Chertoff gestures to prisons and law enforcement, contexts generally not studied in administrative law—with some important exceptions. Second, and conversely, how much of immigration regulation falls within the force agency model? Immigration enforcement obviously does. It seems immigration benefits—think U.S. Citizenship and Immigration Services—would not, more naturally categorized as an information-processing bureaucracy. But what about immigration adjudication that occurs in the Justice Department’s immigration courts system? It seems like that may fall outside the force agency category, and yet civil detention and potential criminal consequences flow from that regulatory system.

It is also fascinating to explore how this force agency model may play out in other agency enforcement contexts, such as tax, environmental protection, and financial regulation. (Or in the fishing industry regulatory context at issue in Loper Bright Enterprises v. Raimondo—the case the Court will decide this Term on whether to eliminate Chevron deference to agency statutory interpretations.) To be sure, Chertoff’s focus is on physical force or violence, whereas in other schemes regulatory restrictions and civil penalties more likely affect property and livelihood than life and liberty. But some of those enforcement structures are similarly decentralized, and the focus is likewise on order and control with street-level enforcers identifying risk in a fast-changing enforcement landscape. As such, similar policy proposals of different training, less decisional independence, and distinct unionization may be worth studying and exploring there as well.

In other words, is a large part of this story about enforcement per se as a regulatory tool, compared to rulemaking and adjudication? In that sense, this article is a must read for scholars who focus on agency enforcement in other regulatory contexts. (One of the unfortunate byproducts of the exceptionalism phenomenon in administrative law is that it often leads to scholarly siloing, with regulatory subfields not learning from and talking with one another.) Indeed, one may even wonder how many agencies today actually fit the conventional bureaucratic model well, or whether we need more agency- or mode-specific administrative law models and theories (even if not doctrinal exceptionalism). I am excited to see how Chertoff and others continue to explore the concept of force in administrative law in the years to come. This article is a great conversation starter, and an important contribution to the literature on immigration exceptionalism in administrative law.