What is administrative power and where does it fit within the federal government’s tripartite structure? These questions are difficult because the Constitution seems to contemplate only three sovereign powers—legislative, executive, and judicial—each vested in a separate branch of the federal government. As Jerry Mashaw memorably put it, “there is a hole in the Constitution where administration might have been.” Administrative law deals with the many questions raised by this deficit, and it usually examines the work of executive branch agencies and the boards and commissions that execute the law with greater independence from the White House. In short, a major premise of administrative law is that “administrative power” is at home in Article II.
In The Judicial Administrative Power, which is forthcoming in the George Washington Law Review, Jonathan Petkun and Joseph Schottenfeld find administrative power in a different place: Article III. This is not an article about judicial review of agency action—it’s about administrative institutions and activities wholly internal to the judicial branch. It’s a terrific contribution to a growing literature that recognizes the reality that bureaucracy and administrative power are often found outside of Article II’s core territory. For example, Anne Joseph O’Connell has examined Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841 (2014), between government and the private sector, while Jesse M. Cross & Abbe R. Gluck, have uncovered The Congressional Bureaucracy, 168 U. Pa. L. Rev. 1541 (2020).
Petkun and Schottenfeld begin by providing an historical account of the emergence and proliferation of the institutions that make up the judicial bureaucracy. These institutions assist with “judicial administration,” which the authors define as the “activities performed by judges or judicial employees that do not arise from within a case, but that nonetheless relate to the primary Article III function of … decid[ing] cases.” (P. 8.) The most prominent of these are the Judicial Conference (established by Congress in 1922); the Administrative Office of the U.S. Courts (AO) and judicial councils (1939); the Federal Judicial Center and the Judicial Panel on Multidistrict Litigation (1960s); and the Sentencing Commission and pretrial service agencies (1980s). (Pp. 10-15.) As its bureaucracy grew, the judicial branch became more hierarchical. The Chief Justice of the U.S. Supreme Court acquired new responsibilities “at the helm” of the judicial bureaucracy. (P. 21.) And the judicial payroll expanded to include the many non-judge employees needed to undertake Article III’s new administrative activities.
The authors provide a “broadly descriptive account” of the forms of action that make up judicial administration, which they group into three categories: “rulemaking,” “managing,” and “communicating.” (P. 16.) The first category most prominently includes what the authors call “Big R rulemaking,” which consists of the quasi-legislative development of federal procedural rules (such as the Federal Rules of Civil Procedure) and of the now-nonbinding Sentencing Guidelines. (Pp. 16-19.) But the authors shine a light on many other types of “quasi-legislative rulemaking or policy-setting” that take place within the judicial bureaucracy. (P. 19.) The authors define the second category of “managing” expansively to include the selection and supervision of personnel; research, training, and the implementing of new reforms; controlling judicial infrastructure, both physical (e.g., courthouses) and digital (e.g., PACER); and providing pretrial supervision and probation services to criminal defendants. (Pp. 22-27.) Finally, “communicating” includes judicial lobbying of Congress and executive officials, as well as various other forms of collective messaging on behalf of the judicial branch, both internally and externally. (Pp. 27-32.)
For administrative lawyers accustomed to thinking of administrative action as either rulemaking or adjudication, the absence of the latter category will be conspicuous. Since Article III’s core work is adjudication, the authors (as noted above) define it out of the judicial “administrative power.” The very clear conception the authors have of the scope of the judicial power thus has critical consequences for how they define administrative power. At the same time, the authors’ last two categories of judicial administration include activities that, in the Article II context, might be swept into administrative law’s catch-all category of “adjudication.” For example, Petkun and Schottenfeld define the sanctioning of judicial employees and persons subject to judicial supervision in connection with criminal proceedings as “managing” activities. But these seem like “adjudicatory” actions in the usual parlance of administrative law because they involve the imposition of sanctions based on the application of established law or policy to particular individuals. See 5 U.S.C. § 551(5)-(7) & (10). It’s fascinating to see how administration must be redefined when the core concept of “adjudication” is simply off the table.
There is much else in the story of The Judicial Administrative Power that will be familiar to the administrative lawyer. First, there is the taking over of responsibilities from other branches of government, which results in a combination of functions within Article III. For example, when it created the AO, Congress shifted the work of managing the courts from the executive branch to the judicial branch. (P. 12.) Similarly with Pretrial Services Act, Congress gave direct enforcement authority to the courts that might otherwise be vested in executive officers. Second, there is the shift away from formal adjudication (a category of activity that is easier to define when one is examining the Article III courts and not Article II administrative agencies). The authors explain that much of the judicial bureaucracy’s expansion was motivated by “efforts to problem-solve around adjudication and, in particular, the judiciary’s role in federal criminal matters.” (P. 14.) Third (and often overlapping with the first two phenomena), there is the ongoing project of establishing hierarchical control of discretionary decisions. Big-R rulemaking constrains the discretion of individual judges through the development of procedural rules and sentencing guidelines that apply across all courts. Over time, more important decisions are shifted up, out of the hands of individual judges, and into the hands of judicial agencies. At the top of this modern, formalized branch sits the Chief Justice. Looking at the whole of what Article III has become over the past century, it seems unsurprising that the most prominent actor present at its creation was Chief Justice Taft, a former U.S. President. (P. 10.)
The authors’ normative concerns will also feel familiar to administrative lawyers, but The Judicial Administrative Poweroffers an opportunity to examine those concerns unencumbered by the usual fights over federal regulation. One set of concerns is internal to the judicial branch. (Pp. 34-43.) The authors argue that judicial administration affects—even warps—the judiciary’s ability to do its core Article III work. A second set of concerns involves broader separation-of-powers considerations. (Pp. 43-53.) Here, the authors argue that judicial administration changes interbranch dynamics by authorizing the judiciary to perform functions historically allocated to the political branches and by making the judiciary a more powerful and proactive component of the federal government. Although the authors do not argue that judicial administration is broadly unconstitutional, they do offer a handful of reforms that involve “treating administration as administration.” (P. 53.)
Petkun and Schottenfeld have provided a crucial part of the foundation necessary for scholars to develop a cross-branch conception of administrative power. Clearly, bureaucracy is not confined to Article II—it is alive and well in all three branches of government. Like Cross and Gluck’s work on the congressional bureaucracy, Petkun and Schottenfeld’s work clarifies the need to conceptualize “administrative power” in cross-branch perspective and to attend to how it affects the core work of each branch of the federal government. By revealing this imperative, the authors implicitly cast doubt on administrative law’s tendency to treat administration as synonymous with executive power. This in turn suggests that conceptualizing “administrative” power may require a more robust understanding of “executive” power. The possibilities for deepening our understanding of administration and its place within our broader constitutional order are tantalizing.
