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Abstract: This essay responds to claims that the "new" nondelegation doctrine, applied by D.C. Circuit Judge Stephen Williams in American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), advances the rule of law. The Supreme Court has generally favored ex post over ex ante mechanisms for control of administrative action. Currently, for instance, courts apply arbitrary and capricious review, as a way to control agency decision making ex post. But the rule of law benefits of the "new" nondelegation doctrine are no greater than those delivered by the current means of ex post controls. The rule of law serves three primary functions: it reduces uncertainty; it minimizes the likelihood of government tyranny; and it helps to assure political accountability. Judicially enforced ex ante constraints, however, are not necessary to perform any of these functions, and may even undermine some of them. In addition, the rule of law is not the be-all and end-all of regulatory systems. There are countervailing benefits to a system that allows for regulatory flexibility. Although there may be some role for ex ante constraints in controlling agency discretion, the factors that determine the means of limiting agency discretion are political rather than legal in nature. Thus, imposition of ex ante limitations is best left to the political process--not to courts.
Abstract: This essay responds to Jody Freeman's Article, "The Contracting State," which will soon appear in the symposium on Regulatory Theory and Administrative Law in the Florida State University Law Review. I agree with Freeman's assessment that regulation by agreement between the state and a contractor or regulated entity adds a significant arrow to the quill of regulatory weapons. Like her, I too have concerns about how the courts will address such contracts. I, however, do not see contract mechanisms as a means of providing regulatory accountability, but rather as a means of avoiding the overbreadth of traditional regulation and of assigning roles required by the regulatory state to those best able to perform them. Moreover, I fear that emphasis on contract as a means of providing accountability will lead to incorporation of contract law principles that will seriously undermine the flexibility of current administrative processes. Unlike Freeman, I am not certain that administrative law's lack of explicit reference to contractual processes reflects ignorance. Rather, I believe that current understandings of administrative law recognize that over the past several decades much of regulation has been implemented through contract like processes, and seek to place such processes within a framework that allows administrative agencies leeway to structure and implement regulatory programs as they think best. So viewed, too a great extent administrative law already accommodates contractual bargaining processes, and with merely a little tweaking provides sufficient accountability for most of the types of bilateral regulatory contracts that Freeman discusses. This essay begins by reviewing the potential benefits of regulatory contracts, stressing in particular that those benefits flow from attributes of contractual relationships other than the desire to hold the government accountable for regulatory policy. It goes on to describe what I consider basic understandings of the current adminstrative state - that the principal checks on agency policymaking are procedure and politics. Finally, the essay considers what these understandings imply about how courts should treat the four types of regulatory contracts that Freeman identifies in her principal paper: (i) procurement contracts, (ii) contracts under which private entities perform government services, (iii) agreements between administrative agencies and regulated entities regarding implementation or enforcement of regulations, and (iv) contracts between an agency and private entity that specify the requirements that govern the regulated conduct of the entity. In particular, the essay analyzes how these understandings inform when and how government contracts should be enforceable by the nongovernment party or by the public beneficiaries of these contracts.
Abstract: This paper responds to calls for regulatory reform that propose increasing agency discretion as a means of permitting officials to use common sense when implementing regulatory programs. The article begins by discussing the need for ex-ante constraints on agency decisionmaking in order to ensure that regulation is predictable and democratically accountable. It first looks at the role of legally binding rules to guide agency discretion, and the ability of regulators to deviate from such rules to avoid perverse outcomes. It describes the tension between efficacy and officials' discretion to deviate from politically prescribed rules and suggests that agencies already have significant leeway to deviate. The article next discusses the role that institutional norms play in discouraging agencies from using this leeway to regulate reasonably. My analysis of how agencies use decisionmaking norms identifies some unique problems such use imposes for permitting constrained flexibility. In particular, I conclude that ex-ante specification of decisionmaking norms are not a feasible means for ensuring that such norms do not lead to inflexible or unreasonable decisionmaking. The article next addresses the need for ex-post review to ensure against several pathologies of agency decisionmaking. It evaluates the potential for bottom-line outcome review of agency decisions, as opposed to review of the process by which agencies reach decisions, to provide workable constraints on agency discretion without forfeiting agency flexibility. This evaluation suggests that such bottom-line review plays a role in preventing agency decisions that are at the extremes of what the polity will accept and that such review is best implemented by the political branches. Finally the article considers the potential for ex-post review of agency reasoning to provide constraints on agency decisionmaking without unduly hampering agency discretion to react to the particulars of the situation facing it. In this final section, I conclude that such ex-post review can channel agency discretion without inflexibly binding the agency by forcing the agency to restructure its decisionmaking process to take into account the concerns of potential reviewing bodies. I further conclude that the courts are better suited to such reasons-review than are the political branches.
Abstract: Those who have recently written about the impact of judicial review on agency decisionmaking have not treated the practice kindly. Many express concern about the burdens that review places on agencies, and some even conclude that judicial review hurts the quality of the decisions the agency makes when adopting a new rule. These critics, however, treat the agency and the particular decisionmakers within it as if they react as rational maximizers of utility towards the incentives created by judicial review. At most they give some passing reference to psychological constructs of how individuals and groups make decisions. This paper takes as a major premise that psychology has much to tell us about the ways in which decisions deviate from the assumptions that public choice theorists and others who rely on economic rationality use in evaluating the workings of our governmental institutions. Individuals do not tend to optimize every decision, but instead rely on personal decision rules whose use becomes habit as well as more generally shared rules of thumb as shortcuts to making decisions. In certain situations, these shortcuts can lead to avoidable bad decisions. One mechanism for avoiding careless or improper reliance on such shortcuts is to hold the decisionmaker accountable for her choice. If structured properly, accountability can attenuate many of the systematic biases that flow from improper use of decisionmaking shortcuts. The structure of beneficial accountability corresponds closely to the nature of judicial review of agency rulemaking under current standards of arbitrary and capricious review. There is also reason to believe that agency staff members react to judicial review of a rule as they do to direct accountability for an individual decision. In addition, arbitrary and capricious review is likely to reduce any magnification of individual biases that result from the group nature of agency decisionmaking. Hence, arbitrary and capricious review provides incentives for agency staff to take appropriate care and to avoid many systematic biases when formulating rules and ushering them through the rulemaking process. This does not mean that judicial review will eliminate all decisionmaking biases. There is at least one bias ? the propensity of individuals to avoid extreme choices even when logic dictate otherwise ? that judicial review might even exacerbate. In addition, review will never prevent all biased decisionmaking; it can only encourage decisionmaking processes that reduce the probability of bias. Finally, the psychological results which I discuss come predominately from laboratory experiments, some of which involve different individuals performing different tasks than those involved in writing agency rules. Hence, the suggestion that judicial review improves the quality of agency rulemaking must be seen as just that ? a suggestion. Nonetheless, I believe there is enough evidence to warrant further consideration of the likely impact of review on the performance on agency staff, and more particularly to refute critics who, without considering this evidence, conclude that judicial review has a deleterious impact on the quality of rulemaking.
Abstract: This Article critiques existing and nascent rules limiting federal agency authority in the name of federalism. Those rules presently bind agencies even more tightly than Congress. For instance, while Congress can regulate to the limits of its commerce power with a sufficiently clear statement of its intent to do so, absent clear congressional authorization an agency cannot, no matter how clear the language of the agency's regulation. Similarly, where Congress can preempt state law, albeit only where its intent to do so is clear, some commentators have read recent decisions to hold that agencies cannot, except upon Congress's clear authorization. A number of leading commentators have hailed this combination of rules on the grounds that congressional control over questions of federalism is to be preferred to agency decision making. Congress, they claim, is more deliberative than the Executive, more transparent to the public, and more accountable. Additionally, given the relative ease of enacting regulations rather than statutes, those who favor Congress fear that lower barriers to federal expansion in the Executive would lead to run-away federal power. Our argument here is that both these sets of claims are, at best, accurate only occasionally. We attempt to show that in many instances agencies are, or with wise doctrines of judicial review can be made to be, more democratic and deliberative than Congress. While regulating will almost always be easier than legislating, in many instances the need for additional speed bumps under the wheels of the Executive is negligible, or downright counter-productive. Thus, we argue for a more nuanced set of rules that would permit agencies in many instances to preempt or regulate without the need for express congressional approval.
federalism, preemption, non-delegation doctrine, constitutional avoidance, SWANCC, departmentalism
Abstract: In many instances, an agency has to decide whether to devote its resources to address a problem that is within its statutory authority to regulate. Many scholars of "hard look" judicial review of agency regulation have asserted that such review raises the costs to agencies of regulating and thereby discourages agencies from regulating when they should. This article takes a closer look at that assertion by providing an overview of the rational incentives and non-rational influences on those within agencies to prefer taking action versus doing nothing. In reviewing these influences the article notes that the costs and benefits of regulation to society differ greatly from the costs and benefits that the agency experiences when it regulates. In particular, it points out that evaluating the effect of judicial review on decisions whether to regulate must take into account all the influences on this decision. The article suggests that whether judicial review's discouragement of agency action is appropriate depends on the precise context of the environment in which the decision whether to regulate arises. The article concludes by analyzing two notorious agency decisions to forego or abandon regulation, for which judicial review has been blamed for inappropriately discouraging agency action. Using the influence on agency propensities to act that the article identifies, it shows that the both the importance of judicial review and the propriety of its impact on the agency decisions not to regulate are much more complex than the simple picture of blame that critics of judicial review have attempted to draw.
agency, regulation, ossification, action, inaction, judicial review
Abstract: This article is a short essay that uses an economic analysis of the need for and potential abuses of eminent domain used to transfer property from one private entity to another. It adds to the current literature by suggesting that states can establish mechanisms for evaluating and compensating current landowners for the idiosyncratic value they place on their property, and can establish administrative procedures and judicial review essentially to require local governments to auction the opportunity to obtain the property to the private entity that will provide the greatest benefit to the jurisdiction.
Takings, Eminent Domain, Just Compensation, Kelo
Abstract: There is a tension between citizen participation in environmental enforcement and an agency's discretion to choose the optimal balance between deterrence and cooperative approaches to enforcement. Citizen participation can reduce the costs of monitoring violations and their impacts and can pick up some of the burden of prosecuting violators. Cooperative enforcement can also reduce monitoring costs by encouraging regulated entities to provide information on their regulatory performance and can decrease those entities costs of compliance, as well focusing compliance on violations that cause net harm to the society. Cooperative enforcement, however, itself must be monitored to make sure that the agency does not abuse the discretion granted to it under this approach. At some level, however, citizen participation threatens effective use of cooperative enforcement. Although citizen participation provides a mechanism for controlling agency abuse under the cooperative enforcement model, such participation also scares regulated entities by empowering them to take unreasonable stands, and hence discourages companies from self reporting violations and acting candidly about what it will take to bring their plants into regulatory compliance. This article suggests three approaches to alleviate this tension and thereby capture the benefits of both citizen participation and a balanced model of enforcement. The article shows that although each of these three approaches - tripartism, corporatism and deliberative participation - holds some promise, each also raises significant concerns that prevent it from becoming the principal means of implementing participation in regulatory enforcement.
Abstract: How can a court justify deferring to an administrative agency interpretation of a statute under the Chevron doctrine given the accepted understanding that Article III of the Constitution makes the judiciary the ultimate decider of the meaning of law in any case or controversy that is properly before a court? That is the question this article addresses. It further considers the ramifications of the answer to that question on the potential forms that any doctrine of interpretative deference may assume.
This article first rejects congressional intent to delegate interpretative primacy to agencies as the basis for Chevron. It argues that such intent is an unsupportable fiction that distracts attention from judicial responsibility for the Chevron doctrine. Instead, it posits that Chevron is better viewed as a doctrine of judicial self-restraint under the courts’ Article III responsibilities. It then analyzes how this view of Chevron might influence when and how the doctrine should operate.
Chevron, Statutory Interpretation, Judicial Review, Deference
Abstract: In their forthcoming article, "The Penalty Default Canon," Scott Baker and Kim Krawiec have proposed a provocative new formulation of the nondelegation doctrine that would have courts strike down statutory delegations motivated by Congress's desire to avoid responsibility for resolving policy disputes. Baker and Krawiec, skeptical of any method for evaluating the desirability of a policy outcome, posit that the outcome of the legislative process when Congress is not motivated by a desire to hide political responsibility is presumptively good. This response questions that presumption. Because of the insulation of courts and agencies from direct political pressure, and the deliberative capacity of those institutions, I conclude that they will reach outcomes preferable to those likely to come out of the legislature in those situations where Congress delegates to avoid political responsibility.
Abstract: This is a condensed version of the authors' longer work, "Administrative Law's Federalism: Preemption, Non delegation, and Agencies at the Edge of Federal Power," Duke Law Journal, Vol. 57, p. 1933, 2008. It offers a short, accessible overview of our argument that (contra the apparent recent holding in Wyeth v. Levine) Congress should not be obliged clearly to delegate the power to preempt before an agency can exercise that power.
preemption, presumption against preemption, federalism, clear statement rule, Gregory, Wyeth, Chevron, SWANCC
Abstract: Scholars have debated the legitimacy of the modern administrative state since its rise in the early twentieth century. This article argues that the political theory of civic republicanism, with its emphasis on citizen participation in government and deliberative decisionmaking, provides the best justification for the American bureaucracy. Beginning with an analysis of civic republican theory, the article notes that it promises greater citizen involvement in political decisionmaking, yet at the same time threatens to increase government power. The article finds that the current regime of administrative law neither allows for the full realization of civic republicanism's potential, nor guards against its dangers. It therefore suggests political and legal reforms applicable to the three branches of government and the bureaucracy itself.
Abstract: This paper begins by addressing whether preemption of tort law by federal regulatory schemes is preferable to allowing tort actions. In many contexts, there are benefits that derive from maintaining state tort suits as a back-up to federal regulation of nationally marketed goods or services. In other contexts, however, there are benefits to prohibiting such tort actions. Thus, the paper first concludes that the more meaningful question is who should decide whether federal regulation preempts tort suits - Congress, courts or agencies.
Addressing that question, the paper compares the institutional advantages of each of these bodies and concludes that agencies are best suited to exercise primary responsibility to answer the question of whether tort suits should be preempted in specific contexts. The paper makes clear, however, that in order to reap the rewards of agencies’ institutional advantages, courts should require that agencies use notice and comment rulemaking subject to hard look judicial review when making preemption determinations. Finally, the paper describes the proper role for Congress and the courts when agencies are given primary authority to determine preemption, and concludes that courts retain a crucial role in encouraging wise use of this authority and providing an avenue for continued deliberation about agency preemption decisions .
Preemption, Regulation, Torts, Federalism
Abstract: This article uses literature on the psychology accountability to evaluate the likely impact of the various forms of political review on the quality of agency decisionmaking. It begins by briefly reviewing the basic findings of psychological research regarding the impact of accountability on decisionmaking. It next applies those findings to three mechanisms of political review: OMB scrutiny of cost-benefit analyses that accompany rules, congressional committee oversight of rulemaking, and congressional fast-track review. Finally, it discusses the implications of those findings, in particular addressing the contention of some scholars that judicial review is unnecessary in light of political review, and opining on the desirability of each political review mechanism. The analysis of the accountability provided by these mechanisms for political review suggests that each mechanism is likely to have some unique impact on the behavior of agency staff members who formulate agency rules. Of the three mechanisms, OMB review holds the greatest promise for improving the quality of staff decisionmaking. OMB, review, however, also can induce the agency to formulate economically conservative rules rather than rules that promise uncertain but potentially large benefits at a certain and significant cost, or to accede to direct White House pressure for a particular outcome. Traditional congressional oversight is unlikely to improve the care of agency staff analyses or the propensity of the staff to use inappropriate decision rules and to succumb to heuristic biases because Congress cares almost exclusively about outcomes rather than the process that the agency uses to formulate rules. For this same reason, traditional congressional review might induce the agency staff to become defensive about its initial rule preference or it might cause the staff to formulate a rule more in line with the preferences of influential congresspersons - for example chairs of oversight committees. Fast track review is the least likely of the mechanisms canvassed in this article to encourage significant change in agency decisionmaking because the agency does not know in advance which rules will actually be subject to fast track scrutiny after they are promulgated. The article concludes that, overall, none of the mechanisms for political review are capable of replacing judicial review as a means of improving the quality of agency rulemaking.
Abstract: This article is part of the ongoing debate about the proper extent of presidential influence on agency policy-making. Rather than take sides, however, about whether the President should have more or less influence, it posits that the influence should be exercised by defining and holding administrative agencies to the President's overarching policy objectives for the nation. The article begins by analyzing the need for presidential influence and concludes that there is such a need. It proceeds to argue that micromanagement of agency policy decisions by the White House is problematic because the regulatory analysis arm of the President, the Office of Information and Regulatory Affairs in the OMB, does not have the resources to review adequately, the details of agency policy decisions and because the President does not have the resources to monitor closely the work of OIRA analysts to ensure that they reflect the President's desired outcomes on policy details. It also notes the potential for special interests to have disproportionate influence on OMB oversight of regulation. The article proposes instead that the President set out a big picture of his regulatory objectives and to require that agencies explain how their decisions take into account these objectives. The big picture approach, the article contends, will both reduce the President's monitoring costs to ensure that agencies act consistently with his priorities and will increase accountability to the general public and thereby reduce the influence of special interest groups on regulation. Finally, the article gives some suggestions for how a President might go about establishing and implementing this big picture approach to influence.
Abstract: This article responds to critics of "hard look" judicial review of agency action, who contend that such review has ossified agency rulemaking by exposing agencies to uncertainty about whether their analyses in support of a rule will pass judicial muster. The article identifies three types of uncertainty to which hard look review exposes agency action: uncertainty about agency expertise, uncertainty about the significance of issues raised in agency proceedings, and uncertainty about the adequacy of analysis of such issues. The article explains why simply adopting a friendlier standard of review, which some critics of hard look review propose will not relieve this uncertainty unless it also forfeits the beneficial incentives that such review provides for agencies to take care before making policy. The article suggests instead some specific methodological changes to the way courts engage in hard look review as a more promising solution to ease ossification without forfeiting such benefits.
Abstract: Although traditionally courts have had primary and ultimate authority for interpreting statutes, the Supreme Court established a two-step review process that is much more deferential to a government agency's interpretation. Under the "Chevron two-step," a court determines whether the statute is silent or ambiguous with respect to the issue decided by the agency; if so, the court defers to the agency's interpretation unless it is unreasonable. The first step, which looks to whether the statute is silent or ambiguous, proves determinative in most cases; courts infrequently conclude at step two that agencies' interpretations are unreasonable.
This article argues that the current application of Chevron fails to accord with public policy. It contends that the pluralistic democracy model, which implicitly undergirds Chevron, is flawed, and he offers deliberative democracy as a more satisfactory conception of bureaucratic government. The article asserts that deliberative democracy suggests a modification of Chevron which would place the emphasis on the second rather than the first Chevron step, thereby forcing agencies to explain why their interpretations are good policy in light of the purposes and concerns underlying the statutory scheme. Thus, the article advocates a "syncopated Chevron" as an improved approach to reviewing agencies' interpretations of the statutes they administer.
Abstract: This article critically assesses the claims of regulatory reformers that collaborative processes hold the potential to reinvent government - making it more flexible and responsive to the needs of those affected by regulation. These reformers advocate empowering stakeholders by allowing self-selected delegates of affected interest groups to participate in a process aimed at reaching consensus about how to solve controversial regulatory problems. This article uses the political science and sociological neo-institutional literature on interest groups to evaluate the potential of collaborative governance to solve the United States' regulatory ills. The article identifies pathologies of interest group structures and dynamics and shows how these pathologies have prevented various attempts at empowering stakeholders from achieving truly collaborative regulatory processes. In particular, it demonstrates how interest group dynamics have limited the scope and effectiveness of negotiated rulemaking, citizen suits and the EPA's Project XL program. The article proceeds to analyze mechanisms for overcoming the impact of interest group pathologies on collaborative regulatory endeavors, and concludes that the circumstances in which such impacts can be averted are narrow. As a result, the article suggests that collaborative governance does not hold great promise for broad-based regulatory reform capable of alleviating problems that currently plague the regulatory state.
Abstract: In this reply to Professor McGarity's response to my article "Demystifying Deossification," I defend hard look review on the grounds that it provides beneficial incentives to agencies when they adopt rules. In this short essay, I explain that "techno-bureaucratic rationality," while an appropriate mode of agency decisiomaking, allows an agency to abuse the discretion granted it under broadly worded authorizing statutes. I explain how hard look review can provide benefits by encouraging an agency to recognize that its decisions reflect value choices, and to empower staff members with different professional backgrounds, and therefore different values, to compel serious consideration of their concerns with an agency proposed rule. This essay concludes with an explanation of why my proposed modified hard look review is more appropriate as a means of judges constraining agency policy-making than is Professor McGarity's proposed pass-fail standard of review.
Abstract: This essay comments on the impact of Richard Stewart's seminal article, "The Reformation of American Administrative Law." It posits that the most long-lasting contribution of that article was not its primary thesis that the interest group model of the administrative state is flawed, but rather its expression of doubt that any single unifying theory could adequately explain or justify administrative law. This essay surveys attempts that scholars have made subsequent to the publication of Stewart's article to provide an overarching theory of the administrative state and describes flaws with each of these attempts. The essay evaluates whether, in light of Stewart's contribution doubting the adequacy of any such model, looking for such models makes sense. It concludes that despite the inevitability that such models will be flawed, they will provide those who develop administrative law with insights and ideas that at the margins will be able to improve the operation of the administrative state.
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