Sep 30, 2022 Jodi Short
A “politics of care” has gained prominence in policy advocacy responses to the pandemic and the broad social and economic displacements and inequities it has caused and revealed. Policies such as universal preschool, funding for childcare facilities, tax credits for child and elder care, criminal justice reform, addressing systemic racism, and rebuilding of public infrastructure have been justified as ways to recognize that caregiving, which allows us all to survive, grow, and flourish, is a primary public value. Indeed, on the precipice of winning the presidency, Joe Biden embraced a vision of the President’s responsibility that includes a “duty of care for all Americans.”
In Public Care in Public Law: Structure, Procedure, and Purpose, Blake Emerson seeks to translate the growing resonance of the “politics of care” into an animating principle of public law, grounding U.S. statutory, administrative, and constitutional law in a legal principle of public care that obligates public officials to attend to the needs and values of those they govern. Emerson’s account is both descriptive and normative. He makes the case that the public care principle can be found in existing statutory, administrative, and constitutional law. And his project in this piece is to foreground that principle and claim its essential primacy.
First, Emerson argues that public care is a dominant purpose of statutory regulation, in that regulation is a primary vehicle by which the state provides the goods and services necessary for citizens to exercise moral and political agency. Emerson locates this purpose in the political theory of Progressive Era reformers who shaped the American welfare state. He then shows how the public care norm threads through the subsequent enactment of major regulatory programs such as Social Security, Medicare, Medicaid, and the Affordable Care Act (albeit unevenly).
Second, Emerson maintains that public care is a foundational procedural principle in administrative law. He interprets entrenched procedural requirements such as public participation, reasonableness, and reason-giving as obliging federal agencies to act with proper consideration of the interests of affected parties: “Administrative law, at bottom, aims to ensure that government action is attentive and responsive to human concerns. Agencies must care—and show that they care—about the people their policies impact.”
Finally, Emerson reads the Take Care Clause to require that the President consider the views of subordinate officials delegated specific legal authority or acting pursuant to relevant professional or expert authority. He anchors this conception of structural-constitutional care in Article II of the Constitution, which provides that the President “shall take Care that the Laws be faithfully executed.” He argues that this clause confers a “caretaking obligation” on the President that entails “a responsibility to defer to and respect the reasonable judgments of other officials while maintaining the integrity of law-administration as a whole.” In Emerson’s conception, structural-constitutional care is a crucial element of the general principle of public care not only because it requires one particular official—the President—to take into account the interest, viewpoints, and values of other officeholders, but more importantly because it models for the public an ethic of respectful, deliberative, and mutually responsive decision-making that can help advance more broadly public care values.
Emerson certainly recognizes the limitations of his descriptive account. Although the big statutory welfare programs he discusses provide support, benefits, and services that enable human flourishing, they embody an ethic of individual choice and responsibility that tends to efface rather than advance the ethic of public care. His account of administrative procedure as a vehicle for dialogue that is meaningfully attentive to the human cares and concerns of all affected parties is belied by empirical accounts of administrative participation and impeded in concept by significant structural inequalities across regulatory constituencies and procedural constraints on agencies. And, of course, his understanding of the Take Care clause is highly contested, not least by a majority of sitting Supreme Court justices.
To be frank, I am not sure that I am persuaded by Emerson’s descriptive or normative case for the public care principle. But I deeply appreciate his project for the questions it explicitly raises and the questions it provokes. He is confronting vexing questions about the moral content of law that have long been elided in administrative law scholarship: Do administrative and structural constitutional law have some irreducible moral content? If so, what is it? How do we know? Where should we look for it? In this sense, Emerson’s article is an important contribution to what I am coming to see as a moral turn in administrative and constitutional law, exemplified by works like Adrian Vermeule’s Common Good Constitutionalism and Alan Rozenshtein’s The Virtuous Executive.
Emerson has distinctive answers to these questions that can serve as a generative springboard for dialogue across perspectives. For instance, he looks to positive law to supply the moral content that comprises the public care principle. This is in stark contrast to Vermeule, who insists that the moral content of the law lies beyond positive law. Similarly, in contrast to Vermeule’s embrace of hierarchy as an essential basis of natural law, Emerson’s public care principle depends on an ethic of anti-hierarchy grounded in feminist theory. To be clear, Emerson does not frame his project as a critique or extension of Vermeule’s work. But, for me, it illuminates the potential to leverage the contrasts across different conceptions to think more comprehensively about the moral content of law. For instance, while anti-hierarchical values might be necessary to construct Emerson’s ethic of public care, it is not clear that his vision of public care can be executed as a principle of law and governance without hierarchy. Are there types of hierarchy that are consistent with the public care principle? I am grateful for Emerson’s contribution to these conversations, and I look forward to watching them evolve.
Aug 17, 2022 Wendy Wagner
Daniel Walters,
The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State, __
Yale L. J. __, (forthcoming 2023), available at
SSRN.
What are the key ingredients for a more democratically-grounded administrative state? The answers vary, but most scholars advocate for some type of agency decision-making that resolves Congress’ mandates expeditiously, while also providing “reasons” for those decisions that draw on the best scientific advice, solicit views from all affected groups, and follow accountable procedures. Whatever specific theory one adopts for the “democracy question,” (P. 5) however, most scholars seem to agree that the end goal for agencies is to resolve an issue and then move on.
Daniel Walters turns that conventional thinking on its head in his provocative piece forthcoming in the Yale Law Journal, The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State. A primary goal for administrative decision-making, Walters argues, is not to reach closure on the issues agencies are asked to resolve, but rather the opposite. Agencies should strive to nurture and maintain deliberation and even disagreement, without worrying so much about whether there is a clear path out of the conflict.
Walters supports his argument by summoning a political theory that is likely unfamiliar to most legal scholars (or at least it was to me), called Agonistic Democratic Theory (or Agon for short). Agon accepts existing irresolvable differences of opinion as a given and endeavors to find a democratic way to resolve society’s problems incrementally, despite sharp disagreements. Agon is thus distinctive in “emphasiz[ing] the inevitability of political conflict and build[ing] democratic legitimacy around that conflict rather than attempting to elide it by achieving or declaring a settlement.” (P. 9.)
After providing a stunning synopsis of how Agon is situated against the other leading democratic theories for the administrative state, Walters explains how Agon offers a completely different framework for thinking about administrative legitimacy. Agon finds legitimacy in the “‘unsettlement’ of the law” rather than the converse. (P. 9.) Agencies, in other words, should be judged by whether they engage diverse interests meaningfully and review past decisions for needed changes, not on how swiftly and effortlessly they forge policies despite this disagreement. Walters acknowledges that Agon is not the only or necessarily the best theory for administrative governance; there inevitably will be cycling among theories. His point instead is that an Agon approach has been largely ignored, and yet in our divided government, this paradigm-shifting theory provides a way to reconceptualize and even redesign the much-maligned administrative state.
Agon also aligns much more closely with today’s bureaucratic realities. Rather than complain about the unsettled state of divisive regulatory decisions like Biden’s vaccine mandate, Agon helps us understand and even appreciate that a “winner-take-all” approach is not the best one for democracy. Perhaps OSHA should have initiated a more incremental approach at the outset rather than allow the courts to seize control, but regardless, the end goal for value-laden regulatory decisions must be an inclusive process that provides dissenters with an opportunity to contest the results.
The novelty of this new theory for administrative law is reason enough to celebrate The Administrative Agon. But more impactful is Walters’ ability to challenge our old assumptions in ways that are bound to spark rethinking about the regulatory state. For example, Walters itemizes a number of institutional problems that can now be moved from the “liability” to the “attribute” column, including agencies’ use of guidances and “regulatory sandboxes” as opposed to final rulemakings; civil disobedience by agency staff; overlapping and sometimes conflicting agency powers and responsibilities; agency nonacquiescence in judicial rulings; and circuit splits. Even coordination problems and messy interagency conflicts within the Executive Branch should be celebrated. Indeed, rather than simply serving as a transmission belt that fills in the statutory gaps with facts and details (ala Justice Neil Gorsuch), agencies can provide a forum for democratic dialogue that is otherwise missing in our separation of powers system.
On the flip side, Agon exposes even more serious problems with the administrative state than we previously realized. If the goal is to “celebrate political conflict and seek to foster it and sustain it,” (P. 10) then many agencies may be flunking the Agon test. EPA, for example, often strives to negotiate rules with industry and slip them into the Federal Register to get the job done. Agon tells us that this is exactly the wrong way for agencies to conduct their business. Similarly, Agon tells us that centralized presidential control and an obsession with interagency coordination undermine the values of Agon. Rather, Agon counsels that we should multiply “the sites at which political contestation and democratic mobilization can occur.” (P. 58.)
Agon also raises new worries for existing problems that Walters does not (yet) explore. Foremost in my own area is how to reconcile this intriguing new theory with the development of protective rules. In setting health and environmental rules, industry typically overpowers public interest groups during the first round of pre-NPRM and notice and comment. A dynamic, never-ending approach—no matter how subsidized the diverse interests—seems poised to tip still more power in industry’s favor due to the combined beneficial effects of delay and the inevitable exhaustion of thinly financed public advocates over time.
An Agon theory will also need to be more fully reconciled with the beloved “expertise” goal of agency decision-making. Under Agon, the agency would presumably enjoy greater judicial deference as long as the agency adopts a meaningful Agon-styled deliberation and provides political reasons for its decision. Yet this added deference on scientific issues could afford agencies with too much discretionary space in settings where vigorous participants and perhaps even agency staff are inclined to bend the science to their preferred ends. Distrust of the civil service could get worse rather than better if agencies are allowed to reach interim solutions based on political preferences that run afoul of established facts.
Agon even puts added pressure on administrative architects to consider the agency’s role in educating and informing the public, since agencies may sometimes exert an oversized role in influencing lay understandings of regulatory problems.
Perhaps the best response to these and other worries is to consider a narrower role for Agon, focused on agency decisions in which the public itself is deeply divided on moral grounds, like vaccine mandates or the role of critical race theory in administrative law. (P. 68.) Indeed, Walters gestures towards this possibly narrower conception himself by suggesting that Agon may not make sense for “technical areas” (P. 65), which could reach a large set of agency activities depending on the definition. In this narrower application, Agon provides two particularly valuable pay-offs for politically contentious decisions. The first, as discussed, is to unsettle our own thinking about the long-held assumption that consensus is the ideal end for all agency decisions. Second is to provide a valuable institutional blueprint for the agencies’ role in addressing decisions that are distinctive because of the seemingly unresolvable conflicts they raise among the general public. What fits in this new bucket of Agon-styled rules and what falls out is unclear. But Walters provides the needed theory and institutional architecture for designing a space for agencies to become vital institutional players in moving what might otherwise seem like hopeless public deliberations forward at a time when we are very much in need of exactly that kind of help. In Walter’s own words, “[i]f we cannot anytime soon change the fact that there are foundational disagreements in society about what administration and regulation should look like, then the only democratic theory that can provide a source of legitimacy in administrative action is one that acknowledges those disagreements and makes a place for them.” (P. 68.)
Jul 19, 2022 Richard Pierce
Thomas Merrill’s book, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State, is timely in several ways. First, it arrives immediately after he was named one of the fifty most important legal scholars of all time. Second, it tells the story of the Supreme Court’s 1984 opinion in Chevron v. NRDC, the most frequently cited administrative law opinion in history, at a time when the Chevron doctrine is in severe jeopardy. Third, Merrill uses the history of the Chevron doctrine as a lens through which he explains and defends the administrative state at a time when it is under attack as illegitimate and unconstitutional.
Merrill begins by describing the Chevron opinion and its effects. The opinion was long, complicated, and nuanced, but many circuit courts ignored the rest of the opinion and applied only the famous two-part test that the Court announced:
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
As interpreted and applied by circuit courts, the Chevron test had the effect of increasing by ten to fifteen per cent the proportion of agency actions that courts upheld. More importantly, it encouraged agencies to stretch their statutory authority in ways that allowed them to take actions with major effects with greater confidence that courts would uphold the actions. (Pp. 3-4.)
After Merrill describes the Chevron opinion and its direct effects, he identifies and describes four values that he uses throughout the book to evaluate the Chevron doctrine as it evolved in substance and scope. The four are rule of law values, constitutional values, accountability values, and the quest for better agency decisions. Each value is complicated and multi-faceted. Merrill explains why the original version of the Chevron doctrine, as it was understood and applied by circuit courts, furthered some of the four values but ignored or discounted others.
He then devotes one chapter each to detailed descriptions of the major changes in the doctrine that the Supreme Court has made and to the ways in which each of those changes furthered each of the four values that he identified and discussed at the beginning of the book. He concludes his analysis of the 35 years of opinions in which the Supreme Court has clarified and qualified the Chevron test on an optimistic note:
Notwithstanding all these qualifications and corrections, the central lesson of the Chevron opinion—and of the entire era of jurisprudence that it eventually spawned—is that the agency, rather than the reviewing court, is the preferred institution for filling in the space that Congress has left for future interpretation in the statute under which the agency operates. This, as Chevron explained, is because the agency is more accountable to elected officials than the reviewing court, and the agency has more expertise in understanding the way the statute operates in its contemporary incarnation. (Pp. 243-45.)
Merrill then turns to what he characterizes as the important question that remains: “whether the mandate to accept agency interpretations that fall within the discretionary space left by Congress can be structured in such a way as to improve the quality of agency interpretations designed to fill this space.” He answers that question with a twelve-page discussion of the virtues of the notice and comment process.
Merrill concludes the book by describing ways in which the Court might restate the Chevron doctrine that would further the four values that he identifies at the beginning of the book. As restated, the doctrine would consist of the original two steps, restated to reflect the many qualifications that the Court has added, plus a third step—whether the agency has adopted the interpretation through use of the notice and comment process. If the agency did not use the notice and comment process, the agency interpretation should be entitled only to the court’s respectful consideration, with emphasis on the persuasiveness of the agency’s reasoning and on whether the interpretation comports with settled expectations created by prior interpretations. Like Aaron Nielson and Kristin Hickman, Merrill would not accord deference to interpretations that are announced in adjudications. (P. 264.)
Thus, Merrill’s preferred review regime would consist of two tests. The first can be summarized as a version of the Chevron test that reflects the many qualifications that the Court referred to in its 2019 opinion in Kisor v. Wilkie. Courts would apply that test only to statutory interpretations that agencies develop through use of the notice and comment process. The second test is a version of the test that the Court announced in its 1944 opinion in Skidmore v. Swift & Co. Courts would apply it to all agency interpretations that were not developed through use of the notice and comment process.
This book is a must-read for all administrative law scholars. Even if you do not agree with Merrill’s conclusions, you will learn a lot from the careful ways in which he explains and supports his conclusions.
Jun 16, 2022 Richard Murphy
Sure, we all know about Ex parte Young, the 1908 Supreme Court precedent that stands broadly for the proposition that plaintiffs can, without any express statutory cause of action, invoke a form of “nonstatutory review” to sue government officials to enjoin unconstitutional actions. But familiarity has not brought clarity regarding this cornerstone of judicial control of official action. Questions have lingered for a century regarding Ex parte Young’s evasion of the 11th Amendment, the source of its cause of action, its proper scope, and its jurisdictional basis. In just the last year, Ex parte Young made a surprisingly large splash in the news for a 113-year-old federal courts decision as the justices have sharply disputed its parameters in the challenge to Texas’s six-week ban on abortions that culiminated in Whole Woman’s Health v. Jackson (2021). The scope of the federal courts’ equitable power associated with Ex parte Young remains remarkably unsettled.
The Supreme Court has told us that, to determine the scope of the federal courts’ equitable powers, we should look to history—and especially to the English High Court of Chancery circa 1789. In their richly detailed and fascinating article, The Common Law Origins of Ex parte Young, Professor James Pfander and Jacob Wentzel contend that important and influential scholarship, consistent with this guidance, has deployed a narrow form of “equitable originalism” that threatens to unduly limit judicial power to issue injunctive relief to stop constitutional violations.
Two examples of equitable originalism especially concern them. The first is Professor John Harrison’s article, Ex Parte Young, 60 Stan. L. Rev. 989 (2008), which makes an elegant case that many deep puzzles concerning Ex parte Young dissolve if one characterizes it as an exercise of equity’s limited power to issue antisuit injunctions. The second is Professor Samuel Bray’s enormously influential article, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017), which concludes courts ought not award “national injunctions” in part because traditional equity did not use injunctions to control a defendant’s conduct vis-à-vis nonparties.
Pfander and Wentzel’s key contention is that equitable originalists have made a mistake by looking exclusively to historical equitable practices to identify history-based limits on the modern scope of federal equitable power. On its face, this claim seems jarring—after all, where else would one find historical limits on equity than the history of equity? The apt title of The Common Law Origins of Ex parte Young gives its game away—Pfander and Wentzel think we should look beyond equity to the common law to determine the limits of modern equity. The basic reason we should do so is that equity and common law are and always have been complementary parts of one broader system of judicial power. Changes in common law will tend to prompt changes in equity, and vice versa. Therefore, one cannot understand the one without understanding the other.
Stripped of its supporting evidence from several centuries of case law, here is the basic story that Pfander and Wentzel tell regarding the shift of judicial controls on administration from common law to equity: At common law, the Court of King’s Bench over the course of the seventeenth and eighteenth centuries developed the administrative writs (i.e., prerogative writs), including certiorari, mandamus, and prohibition, as means for overseeing administrative action. These writs performed functions that we might now expect to be performed by equity. Pfander and Wentzel emphasize that judgments resulting from these writs “bore significant resemblance to injunctions, in that they ordered a defendant to take or not to take specified action, on pain of contempt.” (P. 1287.) The injunction-like effects of these judgments could also benefit nonparties insofar as they were “sometimes thought to disable an illicit course of government action as a general matter.” (P. 1287.)
These administrative writs were embedded in American legal systems at the time of the Founding. Insofar as these tools provided adequate means for judicial authorities to control official action, they preempted the need for equity to intrude. In the latter half of the nineteenth century, however, various forces combined to cause judicial controls of official action to shift from the common law side to equity. One factor was the tendency of the common law writs to become larded with technical difficulties. Another factor was procedural reform as states adopted versions of the Field Code, merging law and equity and encouraging judges to choose from either remedial toolkit. This shift first took hold among the states, with federal courts following in the aftermath of the adoption of general federal question jurisdiction in 1875. As a result, 1908’s Ex parte Young rather than representing an “unprecedented assertion of judicial power,” instead “illustrates the way equity . . . embraced and then replaced the common law writs, becoming the primary mode by which the federal courts in the twentieth century enforced constitutional (and statutory) limits on government action.” (Pp. 1332-33.)
After providing this account, Pfander and Wentzel discuss its implications for debates over the scope of modern equitable power associated with Ex parte Young. Circling back to their concerns regarding the potential limiting effects of equitable traditionalism, they conclude that their common law origin story should lay to rest doubts regarding whether courts can use their equitable authority to order affirmative relief—after all, courts could use mandamus to command officials to take nondiscretionary actions. Similarly, they conclude that practice under the administrative writs suggests the existence of equitable authority to issue injunctions that reach beyond parties. Certiorari, for instance, authorized “quashing orders nullif[ying] the administrative action under review as a general matter and threatened officials with contempt for noncompliance.” (P. 1350.) Such orders “practically ended the order’s legal effect,” and benefited nonparties. (P. 1351.)
Pfander and Wentzel close by reiterating their opening argument that, to determine the scope of the federal courts’ evolving equitable power, one should consider both equitable and common law traditions given that they are both elements of the Article III judicial power. Perhaps stretching a bit to gather some traditionalist support for their holistic approach, Pfander and Wentzel add that Justice Scalia would have agreed with it. For evidence, they note that Justice Scalia cited to discussions of the development of the common law’s prerogative writs to support his declaration in Armstrong v. Exceptional Child Center, Inc. (2015) that the “ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of the courts of equity.” (Pp. 1356-57.)
If you are the sort of person who enjoys learning about the evolution of mandamus at the Court of King’s Bench during the seventeenth century, certiorari practice in New Jersey during the late eighteenth century, or the development of federal injunctive practice in the aftermath of the adoption of general federal question jurisdiction in 1875, you should be sure to read The Common Law Origins of Ex parte Young. And, let’s face it, if you frequent this website and have made it to this end of this little jot, then you very likely are that sort of person (i.e., a very good sort). In this article, you will find a fascinating account of how the federal courts’ equitable power associated with Ex parte Young flowed out of the common law as well as discussion of implications of this account for long lingering jurisprudential puzzles. Of course, you will then want to read (or reread, given this blog’s audience), the excellent “equitable originalist” targets of The Common Law Origins.
Cite as: Richard Murphy,
Whence Ex parte Young?, JOTWELL
(June 16, 2022) (reviewing James E. Pfander & Jacob P. Wentzel,
The Common Law Origins of Ex parte Young, 72
Stan. L. Rev. 1269 (2020)),
https://adlaw.jotwell.com/whence-ex-parte-young/.
May 18, 2022 Jack Beermann
Originalism certainly isn’t what it used to be. From a fringe theory with few adherents it has, in recent decades, become the dominant conservative legal weapon deployed against nearly every liberal legal development since the dawn of the twentieth century, particularly the acceptance of the administrative state and the delegation of rulemaking power to agencies. Professor Kurt Eggert’s recent article adds to the mounting evidence that originalism is not a credible legal theory especially when deployed against Congress’s choices concerning the proper structure of the regulatory state.
Eggert’s opening salvo takes aim at the claim that the Framers of the Constitution adopted a theory of government embodied in John Locke’s Second Treatise of Government of 1689, which includes what originalists characterize as a sweeping rejection of legislators’ delegating lawmaking power. This is the basis of Professor Ilan Wurman’s argument in Nondelegation at the Founding, and, as Eggert points out, Justices Gorsuch, Rehnquist and Thomas have all cited Locke as a source for their argument that the Constitution incorporates a strict nondelegation doctrine. Adding to the chorus of scholars who reject the conclusion that the Framers embodied a nondelegation principle based on Locke’s Second Treatise, Eggert demonstrates convincingly that Locke’s influence had largely disappeared before the Constitutional Convention of 1787 and that his only real influence was in favor of rebellion in the 1770s, not on the structure of the new government created in the 1780s. In fact, only Anti-Federalists opposed to the Constitution relied heavily on Locke and then only to cite his natural rights theories as a reason to reject a powerful central government.
Among the most convincing discussions in Eggert’s fine article involves actual debates over nondelegation among the Framers, including James Madison’s contributions on the subject. Here he wisely cites Professor Nicholas Parrillo’s recent article on the subject, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, and an older article by Professors Eric Posner and Adrian Vermeule, Interring the Nondelegation Doctrine. Both conclude, after exhaustive study, that delegation was not a significant issue at the convention. Eggert also relies on another important set of occurrences at the convention, that James Madison twice suggested including a ban on delegation in the Constitution. Both attempts were, of course, rejected, which to many legal minds indicates that the convention disagreed with Madison. While rejection of a proposed amendment does not always indicate agreement on a contrary view, it borders on the bizarre to offer Madison’s rebuffed amendments as evidence that the convention agreed with his proposals, as some have done. Eggert convinced me that there is nowhere near enough evidence to support the view that the Framers silently but implicitly included a strong nondelegation principle in the Constitution.
Eggert refutes a litany of additional arguments for an originalist nondelegation principle including agency principles; the notion that the Constitution created a species of fiduciary relationships that prohibit delegation; and the textualist argument that the Vesting Clause of Article I, particularly because of its use of the word “all” which is unique among the Constitution’s three Vesting Clauses, implicitly prohibits delegation. This is the foundation of Professor Philip Hamburger’s originalist argument against delegation. One of Eggert’s more entertaining discussions of this concerns the meaning of the word “vest.” He notes that Professor Richard Epstein analogizes to vested property rights and points out that vested rights in property cannot be “undone by ordinary legislative action.” Eggert counters by noting that in property law under some circumstances only vested rights can be alienated, and it is a commonplace that the holder of a vested right has the power to alienate the right.
Some readers may find this whole discussion disconcerting, for it appears that Eggert is, at least in part, deploying originalist arguments to reject originalism. Eggert agrees that he is no better equipped to discern whether the historical record supports a nondelegation doctrine than the lawyers and judges who disagree with his conclusions on the matter. But, as he points out more than once, the proponents of a strong nondelegation principle are urging courts to reject Congress’s determinations concerning the optimal distribution of regulatory authority. Without clear text and unequivocal historical support, the Supreme Court should leave the decision over agency power to Congress and not arrogate to itself the powers of a Council of Revision, which Eggert notes was also unsuccessfully proposed by James Madison. Opponents of judicial activism under vague provisions like the due process clauses do not hesitate to point out problems with judges imposing their will on the political branches, and the exact same critique applies to their advocacy of a strict nondelegation doctrine.
The article concludes with an excellent critique of recent judicial opinions and scholarly work calling for an originalist revival of a strict nondelegation principle. Eggert’s discussion is insightful and compelling. If the debate over nondelegation were not so ideologically fraught, Eggert’s article together with Nicholas Parrillo’s article would have a good chance of banishing the debate over nondelegation to the fringes the way that arguments over whether “separate but equal” was a correct reading of the Equal Protection Clause have vanished from mainstream scholarship. Alas, the likelihood of a future without originalist advocacy for a strict nondelegation principle seems remote indeed. But excellent, unbiased scholarship like Kurt Eggert’s can provide solace to those committed to resisting ideologically-driven attempts to reshape American government for political ends.
Cite as: Jack Beermann,
Nondelegation and Originalism, JOTWELL
(May 18, 2022) (reviewing Kurt Eggert, Originalism Isn’t What it Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary, 24
Chap. L. Rev. 707 (2021)),
https://adlaw.jotwell.com/nondelegation-and-originalism/.
Apr 13, 2022 Anne Joseph O'Connell
Brian D. Feinstein & Abby K. Wood,
Divided Agencies, 95
S. Cal. L. Rev. __ (forthcoming 2022), available at
SSRN.
Political appointees of all stripes can encounter opposition from the career ranks of federal agencies. Such conflict may shorten the tenures of appointees as well as of career civil servants. Public administration scholars and commentators have emphasized the need for less conflict, often cajoling the “in-and-outers” to get along better with longtime staff.
But what if agencies shouldn’t or couldn’t avoid such conflict? Brian Feinstein and Abby Wood’s new paper, Divided Agencies, suggests that we may not need to lose much sleep. They find that agencies with greater ideological conflict between political appointees and civil servants may be more careful in their rulemaking—by taking in more perspectives (by accepting comments submitted after the deadline), by finalizing their actions more slowly, and perhaps by issuing fewer rules. In their view, civil servants “serve as a bulwark against wild changes in regulatory policy.” By “pull[ing] agency policies toward the median voter,” civil servants “can serve a democratizing function in divided agencies”—a marked contrast to the increasingly mainstream worries about “employment-protected civil servants” operating as a “counter-majoritarian force in policymaking.”
As with Congress or any other institution, a federal agency is a “they,” not an “it.” But because getting at agencies’ internal complexity is empirically difficult, many of us often end up treating agencies as singular entities. There are some fantastic surveys of agency personnel—namely, the Office of Personnel Management’s Federal Employee Viewpoint Survey and those conducted by Professor David E. Lewis (and his collaborators). Insightful as they are, those surveys do not provide good information across administrations—about policy disagreements and certain other matters.
Using Professor Adam Bonica’s database on campaign contributions and related ideology scores of contributors, Feinstein and Wood construct measures of agency conflict over thirty-four years at forty-seven agencies by pulling information on political leaders and civil servants. Agency conflict, of course, varies, but “civil servants’ [ideological] scores are closer to the typical national donor in any given year than agency heads.” For example, because “the median [Environmental Protection Agency (EPA)] civil servant is substantially to the right of that agency’s administrator during Democratic presidencies,” “even civil servants who are left of the typical political donor can pull agency policies to the political right, having a moderating effect on liberal-helmed agencies.” Feinstein and Wood treat only the chairs of independent regulatory commissions and boards as political leaders for their measures (the recent drama at the Federal Deposit Insurance Corporation between its chair and members is highly unusual as chairs are typically part of their agencies’ majority). To be sure, only about seven percent of federal civil servants are in Bonica’s database (and not all agency leaders make campaign contributions), but Feinstein and Wood’s “research design requires [only] a measure of relative differences . . . across agencies and over time.”
Feinstein and Wood then turn to potential consequences of agency conflict: specifically, whether more divided agencies take longer to issue rules or promulgate fewer regulations, whether more internal conflict between appointees and civil servants increases agency willingness to accept late-filed comments, and whether the White House takes more time to review such agencies’ proposed rules under presidential regulatory review directives.
Using different models (and a slew of robustness checks), Feinstein and Wood find that more agency conflict is linked to longer disposition times for proposed rules (often the disposition is a final rule, but sometimes it is the withdrawal of the proposal). Specifically, a change from an agency in the twenty-fifth percentile for ideological conflict to an agency in the seventy-fifth percentile is connected with an expected thirty-eight more days for disposition. In some of their models, Feinstein and Wood observe a significant connection between higher agency conflict and fewer economically significant rules. In one such model, a jump from the twenty-fifth percentile to the seventy-fifth percentile agency (in conflict) is associated with an expected annual decrease of 0.19 in significant regulations (the data show an average of 2.9 economically significant rules per year per agency).
Feinstein and Wood also determine that more agency conflict is connected to an increased willingness to accept late comments. Specifically, a shift from the twenty-fifth percentile to the seventy-fifth percentile agency is linked with an expected thirty-four percent increase in the likelihood the agency will accept late comments. They do not “detect evidence of a connection between preference divergence and length of OIRA [the Office of Information and Regulatory Affairs] review.”
Two theories could explain Feinstein and Wood’s results—“divided agencies move slowly and carefully, bringing additional voices into their deliberations, and trimming the number of the rules they issue,” and “civil servants in divided agencies, opposed to rulemakings that oppositional agency heads push on them, strategically delay these rulemakings.” They favor the first theory for a variety of reasons, including that the correlation between conflict and a willingness to accept late comments “is difficult to square with the strategic-delay theory, but fits well with [their] regulatory-caution theory.”
If comments submitted past agency deadlines represent important “second opinions,” it might be worth also looking at the number and length of comment periods (as multiple (or longer) periods could allow for timely submission of additional comments), frequency of EO 12866 meetings (could also pull ideological information from Bonica’s database on meeting participants), or agency ex parte communications policies (the EPA, for example, has a relatively open ex parte policy after issuing a Notice of Proposed Rulemaking, while the Department of Labor does not).
I am a data person, so I love learning more about how agencies function. Feinstein and Wood’s paper contributes in important ways to what we know about appointee-career conflict in federal agencies. But agencies are not just divided between leaders and civil servants. It would be fascinating to see their research design applied to partisan splits in independent regulatory commissions and boards, and between higher and lower level appointees, and examination of the connections between those divisions and agency rulemaking.
Of course, it’s not all about the numbers. Feinstein and Wood extol stability in agency decision-making by focusing on the median voter (and the tempering effects of career agency workers). Their work provides an interesting lens to reconsider debates over ossification: for instance, how do staffing constraints compare with judicial hurdles? It also has implications for the selection and removal of key agency workers, from President Trump’s proposed Schedule F (which they persuasively oppose) to recent rulings (and pending litigation) on the Appointments Clause and separation of powers. And it complements more doctrinal work that looks inside agencies. Empiricists and non-empiricists will benefit from this important research.
Mar 4, 2022 Edward Rubin
Guidance is a large, amorphous group of communications, often fluid and informal, by which administrative agencies instruct regulated parties about the way to comply with statutes, legislative rules and legal precedents. In-depth interviewing, as opposed to statistically analyzed surveys, is a fluid, relatively informal method of collecting empirical data. In Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, Nicholas Parrillo uses in-depth interviewing to understand the way in which guidance operates in the federal system. One reason I like it lots is that it is represents an effective combination of subject matter and methodology.
Professor Parrillo conducted 135 in-depth interviews with people in government, industry, unions and NGOs who had personal experience with the way federal agencies use guidance. Through this method, he was able to garner a great deal of information about a wide variety of guidance techniques, the effectiveness or ineffectiveness of these techniques, the subtleties of agency practice and regulated party response, the subjective reactions of the participants, and the sources of conflict and concern. Much of this would have been difficult or impossible to capture with a survey instrument, and some of the issues might not even have occurred to the researcher until highlighted by the interviewees. Of course, this method does not permit quantitative statements about the frequency of particular practices or beliefs, but when several people with decades of experience assert that a practice or attitude is widespread, that seems like convincing evidence.
The use of this method yields a number of valuable insights that are amply documented in the article, insights that are quite different, in content and tenor, from the largely doctrinal or ideological academic literature on guidance that has been available thus far. To begin with, it turns out that the difference between a legislative rule and a generally stated guidance document is often invisible to regulated parties. The distinction is codified in the Administrative Procedure Act (APA), where it determines whether the agency is required to use the notice and comment process and provide a statement of basis and purpose that is subject to judicial review. The distinction is widely discussed by scholars as determining whether the stated provisions are binding on regulated parties. But regulated parties don’t pay much attention to the distinction in cases when the agency has licensing or other pre-approval powers, where even the threat of an enforcement action can have serious consequences, or when the party values its ongoing relationship with the agency. Regulated firms are usually much less concerned with the possibility of challenging a guidance document in federal court than they are with finding out what the agency will do and what it won’t do. If they arrange a meeting with the agency for this purpose, one of the informants noted, “ ‘the last thing you want to do’ is to bring a lawyer to such a meeting.” That, another informant stated, is “like bringing a gun to a knife fight.”
Other insights in this article speak directly to two leading shibboleths of the current anti-regulatory mood in the courts and among scholars. One is the tendency to personify both agencies and regulated firms. The agency is envisioned as a strategic, often conspiratorial actor, plotting ways to impose increasing severe restrictions on American business. (This view appears in Justice Gorsuch’s dissent in Kisor v. Wilkie, which dealt with a closely related issue.) But the interviews reveal that regulated parties often deal with different levels of the agency, that agency enforcement officials want to adopt defensible or resource-conserving approaches rather than retaliating against firms that have antagonized some other unit of the agency, and that inflexibility about guidance requirements is often driven by the subordinate’s desire to avoid criticism from a superior or a superior’s desire not to alienate a subordinate. Similarly, regulated firms are not emotionally sensitive victims of agency oppression, but complex bureaucratic entities whose different components display varying behaviors. Both the firm’s regulatory affairs unit and its widely dispersed compliance officers often welcome guidance as providing useful information for their tasks, and they urge the firm to follow it as a way of increasing their own importance in the firm hierarchy.
A second shibboleth is that agencies and firms are locked in an adversarial struggle, contestants in the arena where the conflict between social engineering and free enterprise is being enacted. The mood conveyed by the interviews in this article is quite different, and this is something that would be particularly difficult to capture in a survey. For the most part, agency officials simply want to fulfill their assigned responsibilities, and they evince no particular hostility toward regulated parties. When they refuse to make exceptions to guidance documents, despite the supposed flexibility that distinguishes these documents from legislative rules, they do so out of the desire to conserve resources or a concern for fairness to competitors. As for the firms, the general sense from the interviews is that they accept, or even more basically that they have evolved into their present form in, a regulated environment. Their main concern is to avoid disruptive conflict so that they can carry out their business within the ambit of the legal requirements that the agency has established. What they want most—and what guidance often provides—is clarity. “Tell [me] what I can do and what I can’t do,” one informant said, “and I’ll devise a business model within that.”
This article’s purpose, which is achieves extremely well, is to provide a vivid portrait of an area that is an important component of administrative practice, but is also informal, recondite, highly technical and thinly documented. In doing so, however, the article challenges us to rethink basic assumptions and beliefs about the rule of law, the nature of regulation and the institutional structure of both agencies and private firms.
Feb 2, 2022 Richard Pierce
Aram A. Gavoor & Steven A. Platt,
In Search of the Presumption of Regularity, __
Fla. L. Rev. __ (forthcoming 2022), available at
SSRN.
The Supreme Court has often invoked the presumption of regularity and its first cousin, the presumption of good faith. Taken together the two presumptions instruct courts to assume that the government has used the proper procedures to take an action that is properly motivated. Neither the Court nor scholars have engaged in any systematic effort to define the two presumptions, justify their existence, describe their scope and uses, or describe the evidence that is required to rebut the presumptions. Aram Gavoor and Steven Platt’s new article In Search of the Presumption of Regularity undertakes that task at a time when it is particularly important to understand the presumptions.
The Supreme Court often says that a court should apply the presumption of regularity and the presumption of good faith “except in the rare case” in which there is powerful extrinsic evidence of wrongdoing by the government. It is fair to question the Court’s characterization of the circumstances in which there is reason to doubt the applicability of the presumptions as “rare” today. Over the last few years, both the public and the courts have had many occasions to doubt the rarity of government actions that were taken without using proper procedures and for undisclosed inappropriate reasons. As I have detailed elsewhere, the Supreme Court has responded to this troubling trend by increasing the scope and intensity of the duty to engage in reasoned decision making, but it has not engaged in any systematic attempt to describe the presumptions, their justifications, their scope, or their effects.
Gavoor and Platt do an excellent job of excavating the two presumptions and describing their many uses in U.S. courts. They trace the roots of the presumptions to opinions issued by the British high court in the eighteenth century. They track the path of the presumptions across the Atlantic and identify a 1926 Supreme Court opinion as the most important and influential invocation of the presumptions in the United States. They then rely on their study of the hundreds of opinions in which U.S. courts have invoked the presumptions to identify and discuss the fourteen ways in which courts have applied the presumptions.
The authors conclude by engaging in a normative evaluation of the presumptions and their many uses. They conclude that some version of each presumption is defensible for use in some circumstances, but that other versions and uses are inconsistent with the basic principles of separation of powers or the Administrative Procedure Act. They urge either the Supreme Court or Congress to articulate “a lawful, historically supported and sensible doctrinal standard” for the presumptions.
Whether you agree or disagree with the normative part of this article, it is a must-read for anyone who wants to understand the history of the presumptions of regularity and good faith. Gavoor and Platt have provided an excellent beginning for an important discussion as well as a valuable source of data that all participants in the discussion will find to be of great value.
Editor’s note: Prof. Pierce wrote this jot and sent it in before learning that Aram Gavoor would become Associate Dean for Academic Affairs at GW Law.
Jan 5, 2022 Margaret Kwoka
Brian D. Feinstein,
Identity-Conscious Administrative Law: Lessons from Financial Regulators, __
George Washington L. Rev. __ (forthcoming), available at
SSRN.
Literature exploring mechanisms for democratic accountability of the administrative state is so rich that it sometimes feels like there is no novel take left. But Professor Brian Feinstein, in his forthcoming article Identity-Conscious Administrative Law, shines a spotlight on an unexamined angle: how and when agency procedures use identity requirements to ensure otherwise-marginalized perspectives are heard.
The sets of administrative structures Professor Feinstein considers may seem specific and narrow, but as he compellingly demonstrates, the possible implications of expanding these approaches are vast and important. Indeed, what makes this article so convincing is its identification of extant and accepted tools to address deep and structural problems of inequality and injustice in administrative decisionmaking. If taken to a larger scale, these tools could be a central part of reclaiming democratic accountability over the administrative state.
Professor Feinstein first identifies our default mechanisms for democratic input into agency actions, highlighting how each of them espouses an identity-neutral set of participation rights. Notice-and-comment rulemaking is perhaps the most obvious example, allowing any person to comment on proposed agency actions and thereby channeling public participation into the agency process and democratizing the administrative state. Transparency laws are a second group of laws Feinstein categorizes as identity-neutral, providing equal access to government records, meetings, and information for any member of the public. But ordinary citizens hardly ever use any of these processes, and, as I’ve documented as to FOIA in a recent book, nothing approximating a representative sample of the public avails itself of these participation opportunities. Rather, well-funded interests are overrepresented, including most notably the business sector.
The alternative to direct citizen participation, seemingly, is presidential control over agencies, a theory of administrative accountability that has gained huge traction in efforts to empower the President to be directly involved in agency decisionmaking. The thinking goes that the President, as the most visible elected official, will be held democratically accountable for agency activities, and her oversight therefore legitimizes the administrative state. Yet, as Feinstein documents, this theory too leaves much to be desired as it relies on an assumption that each vote matters equally to a president, something that is plainly incorrect in our current electoral system of a winner-take all Electoral College and influence of money in politics.
The heart of this article then details a wide-ranging and impressive account of identity-based inputs into administrative law decisionmaking. This research represents the first such survey across federal agencies of statutory requirements for agency composition or consultation based on identity or interests represented, and as such marks a significant contribution in documenting agency accountability mechanisms not based on formal equality rules.
One set of such requirements mandate that agency leaders have certain qualifications, experience, or identities to hold that particular office. For example, the boards of Fannie Mae and Freddie Mac must each have one “advocate for consumer, community, or low-income households,” and the Women’s Bureau of the Department of Labor must be headed by a woman. In the same vein, some entities have a “fair balance” requirement for the composition of a multi-member body, something that Feinstein demonstrates empirically makes a meaningful difference in the backgrounds of appointed officials.
The second group of identity-based democratic inputs come from what Feinstein calls consultative requirements. These laws include requirements to have advisory committees or to consult with particular outside interest groups. As to advisory committees, the most identity-based of them eschews even the basic Federal Advisory Committee Act mandate of “balance” on the committee, and instead requires the committee’s membership to be drawn from an underrepresented group. For example, the Office of Comptroller of the Currency’s Minority Depository Institutions Advisory Committee is required to be made up of “officers and directors of minority depository institutions” and those supporting the institutions. Other requirements simply mandate than an agency consult with particular interest before taking action in a given area.
I found it fascinating that Feinstein discovered more of these identity-based input requirements at financial regulatory agencies than at other types of agencies. After all, one could imagine underrepresented identity groups, interests, or communities at nearly any agency. While Feinstein does not exactly theorize why this is the case, he uses two financial agencies as case studies to excellent effect, demonstrating how these kinds of requirements actually affect agency decisionmaking to the benefit of previously-overlooked or marginalized interests.
But the payoff of this piece is in the promise these mechanisms hold, and in the last part Feinstein whets our appetites with possibilities of what he calls “identity-conscious administration.” To begin, he argues that these tools may have the effect of making public participation requirements more effective at actually achieving democratic accountability. Moreover, in a moment of racial justice reckoning, Feinstein’s suggestion that “transitioning from identity-conscious administrative structures based on region to those emphasizing race and other factors is overdue” is particularly salient. And generally, Feinstein masterfully invokes the literature on group decisionmaking to explain why greater diversity of perspectives will lead to better agency decisionmaking as a whole. It has been a while since I have read an article that made me think we already have the power we need to radically improve the administrative state. Now let’s use it.
Nov 29, 2021 Mila Sohoni
Shalini Bhargava Ray,
Immigration Law’s Arbitrariness Problem, 121
Colum. L. Rev. 2049 (2021), available at
SSRN.
The “law in books” is often not the same thing as the “law in action.” And in administrative law, the reason for that disjoint is often because some agency has decided to interpret, apply, or enforce the written law in a way that changes its on-the-ground meaning. In immigration law, the “law in books”—the Immigration and Nationality Act—takes a hard line on violators: it “specifies deportation as the sanction for nearly all transgressions of immigration law, no matter how minor, and regardless of the personal circumstances of the immigrant” (P. 3.) But when we look at how that law is applied, a different picture comes into view—“a system of shadow sanctions” (P. 4) that takes the place of deportation for vast numbers of noncitizens.
Shalini Bhargava Ray maps and critiques this “shadow” world of immigration law in an absorbing recent article, Immigration Law’s Arbitrariness Problem. In the article, Professor Ray sets out how the immigration bureaucracy stops, or indefinitely postpones, the issuance and execution of huge numbers of removal orders through the use of various administrative devices, including deferred action, administrative closure, and orders of supervision (P. 4.) She then explains the problematic feature of these discretionary tools as a rule-of-law matter: though these shadow sanctions mitigate the harshness of deportation, they are still doled out in an entirely opaque and often arbitrary way.
Ray’s article begins by describing a much-critiqued aspect of immigration law: that the punishment (deportation) often does not fit the crime. The INA imposes deportation as a blanket sanction for a slew of offenses that bear little in common—everything from overstaying a visa to engaging in terrorism (P. 6.) Immigration law’s formal lack of proportionality has elicited myriad calls for reform, but these have mostly fallen on deaf ears. Congress has not enacted statutory revisions to the INA that meaningfully distinguish between various types of deportable immigrants, and courts have rejected arguments that the Constitution requires removal orders to be proportional.
Given these dead ends, Ray turns instead to the executive branch and its extensive immigration bureaucracy as a “potential locus of proportionality” (P. 18.) The immigration bureaucracy, she explains, does more than simply deport. It also necessarily prioritizes some noncitizens for deportation, while using “discretionary tools of lenience” (P. 24) to defer or halt deportation against others. One of these tools (the DACA program) has drawn an overwhelming share of public attention and litigation in recent years. Yet other discretionary tools, though far more obscure, are nonetheless both ubiquitous and significant—among them, deferred enforced departure, extended voluntary departure, and a suite of reprieves that are granted in the course of removal proceedings, including administrative closure, stays of removal, and orders of supervision. Frequently, such reprieves are accompanied with “benefits such as work authorization” or, at times, “the ability to obtain a driver’s license” (P. 25.) Ray estimates that, taken collectively, these “shadow sanctions” mean that millions of deportable noncitizens have “received a punishment other than deportation”—a number that makes up a “sizeable share of the deportable population” (P. 35) presently in the United States.
Ray then turns to critique this regime on rule-of-law grounds. This system of shadow sanctions appropriately leavens the harshness of the INA’s scheme, she contends, but it does so in an arbitrary fashion. Noncitizens often lack lawyers, and therefore frequently do not know to ask for deferred action, orders of supervision, or other discretionary reprieves. Moreover, agency policy for granting some of these shadow sanctions “remains internal” to the agency and is not publicly available (P. 37.) Ray urges the immigration bureaucracy to become more transparent and consistent in its use of shadow sanctions, as well as to “create opportunities for reason-giving, to promote line-officers’ and adjudicators’ ability to draw meaningful distinctions among removable immigrants” (P. 48.) Once that foundation for public reason-giving is built, she contends, public scrutiny will follow (P. 51.) Drawing lessons from European law, she concludes that “even in the absence of a legal right to lenience, deportable noncitizens are entitled, under proportionality, to a fair procedure, more than a cursory analysis of their interests, and more than a conclusory decision” (Pp. 53-54.)
In this era of whiplash and litigation concerning immigration law’s enforcement priorities, the vast, uneven, and ill-understood system of sanctions and lenience examined by Ray will continue to play a major role, whether the public knows about it or not. Immigration law’s system of shadow sanctions, she shows, is both inevitable and imperfect—but the tools of administrative law may fruitfully be harnessed to improve it. In seeking to narrow the gap between immigration law and ordinary administrative law, Ray’s exploration and critique of these discretionary tools of immigration enforcement places a much-needed spotlight on the immigration bureaucracy’s own “shadow dockets.”
