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Abstract:
From the birth of the administrative state, we have struggled to describe our regulatory government as the legitimate child of a constitutional democracy. We have sought to reconcile the administrative state with a constitutional structure that reserves important policy decisions for elected officials and not for appointed bureaucrats. Lately, we have become so fixated on the concern for political accountability that we have overlooked an important obstacle to agency legitimacy: the concern for arbitrary administrative decisionmaking. Perhaps more accurately, we have relegated this concern to "ordinary" administrative law - such as the Administrative Procedure Act (APA) - rather than "constitutional" administrative law - such as the nondelegation doctrine.

This dichotomous thinking colors the prevailing model of the adminisitrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation - the President. In this Article, I argue that the "presidential control" model cannot legitimate agencies. It rests on a mistaken assumption about the appropriate role of accountability - an assumption that tracks closely the preoccupation with majoritarianism as a first premise of legitimate government, pioneered by Alexander Bickel and now subject to debate among constitutional theorists. The presidential control model misleads us into thinking that accountability is all we need to assure ourselves that agency action is constitutionally valid. It is time for us to recognize that preventing arbitariness remains at the core of administrative legitimacy. One we do, we finally can begin to resolve some of the conventional puzzles of both "constitutional" and "ordinary" administrative law, as well as sketch the outlines of furture developments in this area.

Abstract:
Legal scholars view administrative law as alternately shaped by concerns for procedural integrity and issues of political control, and therefore as consisting of largely conflicting rules. But they have overlooked that the Court may be elaborating administrative law, and more particularly, administrative procedures, for a political purpose - to ensure that agency action roughly tracks legislative preferences. Thus, rather than vacillating between procedures and politics, the Court may be striving to negotiate two sorts of politics: congressional control, exercised through administrative procedures, and presidential control, vindicated by presumptive judicial deference. Positive political theorists, meanwhile, have appreciated that administrative procedures can assist Congress in monitoring agencies. But they have not applied their theory to actual administrative law, and their assumptions about judicial behavior cannot predict such law. This Article combines the insights of legal scholars and positive political theorists to offer a better descriptive account and normative defense of the seminal administrative law cases. It shows that the Court has recognized a political use for administrative procedures, as positive political theorists might expect. It contends, however, that to truly understand administrative law, we must see the Court in a way more familiar to legal academics, as sincerely interested in producing acceptable rules for agency decisionmaking. The Court has claimed a role in mediating the strategic needs of both political branches for control of agency action. In so doing, the Court has matched the practical way that agencies operate with a normative theory about how they should operate in the democratic structure.

administrative agency, APA procedures, politics, PPT, democracy, constitutional legitimacy, separation of powers, Mead, Chevron, judicial review, accountability, rule-of-law, normative, Congress, President, legislative oversight monitoring, political science

Abstract:
This Article further develops a novel theory of agency legitimacy by applying it to the law governing judicial review of agency inaction. The Article demonstrates that the Supreme Court's reluctance to allow judicial review of agency inaction is consistent with the prevailing theory of agency legitimacy, which posits that agency decisionmaking should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this theory reject the Court's treatment of agency inaction. Yet these scholars have failed to appreciate the source of the problem.

The source of the problem, this Article contends, is that the current law governing judicial review of agency inaction is inconsistent with the founding principles of the administrative state. Those principles are dedicated not only to promoting political accountability, but to preventing administrative arbitrariness - and reserve a role for judicial review toward that end. This Article shows that agency inaction raises a concern for administrative arbitrariness because it is susceptible to the same narrow influences that derail agency action from public purposes. Agency inaction that reflects such influences, though often rational from a political standpoint, nonetheless is arbitrary and objectionable from a democratic perspective.

To address these influences, the Article proposes changes to the two doctrines that most frequently block judicial review of agency inaction: non-reviewability and standing. Non-reviewability doctrine prevents courts from hearing claims challenging an agency's refusal to enforce legal prohibitions or requirements against violators. Standing doctrine bars certain plaintiffs from pressing such claims. This Article suggests that courts eschew any special prohibitions on judicial review of agency inaction, and, instead, subject agency inaction to the same principles of judicial review that apply to agency action. For example, courts should ask agencies to offer explanations for their non-enforcement decisions and supply standards for their enforcement discretion.

The Article also recommends that courts carve any exceptions to judicial review for agency inaction from established constitutional law principles. Thus, non-reviewability should be understood as an analogue to political question, precluding courts from policing conduct committed to the unfettered discretion of administrative officials. Similarly, standing should be understood as an analogue to nondelegation, precluding Congress through citizen-suit provisions from effectively delegating policymaking power to private parties. More broadly, both non-reviewability and standing should be viewed as links to separation of powers, barring courts from hearing challenges to the generalized manner in which agencies perform their jobs. In offering these analogies, this Article credits the Court's intuition that important constitutional values place some enforcement discretion beyond the reach of judicial review - even if Congress disagrees. But the Article recommends using established separation of powers principles to constrain the intuition from producing doctrines that subvert the prevention of arbitrary agency decisionmaking.

agency, judicial review, inaction, arbitrary, non-reviewability, standing, separation of powers, administrative, nondelegation, APA, Utah Wilderness, SUWA

Abstract:
The Supreme Court's recent reversal of the D.C. Circuit's decision in Whitman v. American Trucking Ass'ns brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that Ashwander v. TVA provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional law to require agency-generated standards because administrative law provides an adequate non-constitutional law ground for this purpose. Deferring to administrative law avoids the need to revive the constitutional nondelegation doctrine or impugn the constitutionality of a statutory delegation. Moreover, administrative law offers a theoretical foundation and a practical framework for imposing an administrative standards requirement.

Professor Bressman also argues that the Ashwander principle begins to explain and justify the Supreme Court's opinion in American Trucking. The Supreme Court in American Trucking rebuked the D.C. Circuit for applying constitutional doctrine to require an agency to supply limiting standards where Congress had not. It also denied the D.C. Circuit the power to decide that agencies rather than courts (indeed, the Court) could supply narrowing constructions of statutory delegations when constitutionally required. This reading brings American Trucking in line with other recent cases in which the Court has corrected other governmental actors for exceeding the limits of their assigned roles.

But, Professor Bressman contends, American Trucking did not foreclose the possibility of requiring administrative standards under administrative law. The Court did not pretend that the nondelegation doctrine actually forces Congress to provide standards that meaningfully guide and limit administrative discretion. Moreover, the Court hinted to Judge Williams that the proper way to require supplemental administrative standards was under administrative law rather than constitutional law. Viewed this way, the Court accepted the learning of Ashwander, guided by the additional impulse of wanting the last word on matters of constitutional interpretation.

Abstract:
In United States v. Mead Corp., the Supreme Court held that an agency is entitled to Chevron deference for interpretations of ambiguous statutory provisions only if Congress delegates, and the agency exercises, authority to issue such interpretations with "the force of law." The Court did not define "force of law," and thus did not determine what type of agency procedures fit within Mead. Four years have passed since the Court decided Mead, and despite numerous Court of Appeals decisions, we still do not know when an agency is entitled to Chevron deference for interpretations issued through procedures less formal than notice-and-comment rulemaking or formal adjudication. Lower courts agree that, after Mead, agencies must issue interpretations in formats that reflect some indicia of lawmaking authority. But they lose focus thereafter. First, lower courts employ different analytical frameworks to determine the relevant indicia of lawmaking authority, making Chevron deference turn more on the decisional preference of a particular court than on the procedural choice of a particular agency. Second, lower courts cite uncertainty about Mead as reason to avoid extending Chevron deference exclusively or at all, taking easier routes that may restrict agency interpretive flexibility. Finally, lower courts read Mead to address a question more general than intended - namely, whether agencies possess delegated authority to issue interpretations governing the scope of their own authority, even through notice-and-comment rulemaking. In the process, they ignore what little guidance Mead provides on the significance of notice-and-comment rulemaking for Chevron eligibility. If justified in so doing, they nonetheless turn the decision somewhat on its head, reading it as relevant to determining when an explicit delegation of interpretive authority is necessary rather than when an implicit one is present. The consequences of Mead have not been good, as Justice Scalia predicted in his dissent.

After surveying the chaos in the lower courts, this Article calls for clarification of Chevron analysis by accommodating procedural innovation within defined bounds. Thus, it neither advocates Justice Scalia's solution of abandoning the focus on procedural formality nor endorses the Court's current position, which recognizes the significance of procedural formality but permits Congress or agencies unbounded room to create procedures that are more efficient than the relatively formal ones we have come to accept for administrative lawmaking. While the Article could defend a formalistic approach that restricts Mead to notice-and-comment rulemaking or formal adjudication, it ultimately argues for more nuanced approach that allows Congress to design and agencies to invoke informal procedures without sacrificing Chevron eligibility so long as those procedures generate interpretations that are transparent, rational, and binding. It further contends that this approach is consistent with the best reading of Mead and its erstwhile partner, Barnhart v. Walton.

Abstract:
From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the presidential control model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the President, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions - for example, that the President represents public preferences and resists parochial pressures - that do not hold up as a factual matter. Although recent empirical analyses purport to validate the model, they fall short because they examine how the White House exercises control without considering how agencies experience control. This Article is the first to study the practice of presidential control from inside the administrative state. We interviewed the top political officials at the Environmental Protection Agency from the George H. W. Bush and Clinton Administrations during 1989-2001. Our data, which do not vary substantially between respondents of different presidential administrations, suggest that White House involvement is more complex and less positive than previous accounts acknowledge. But we do not conclude that the presidential control model lacks merit. Indeed, our respondents recognize that the President has a role to play in controlling agency decision-making. We therefore conclude that the presidential control model requires reworking to remain valid in practice as well as in theory. We identify next steps in that direction.

agency, EPA, White House, presidential control, OIRA, accountability, empirical, regulation, rulemaking

Abstract:
In Chevron, U.S.A. v. Natural Resources Defense Council, Inc., the Supreme Court famously held that judicial deference to agency interpretations of ambiguous statutes is appropriate largely because the executive branch is politically accountable for those policy choices. In recent cases, the Court has not displayed unwavering commitment to this decision or its principle of political accountability. This Article explores Gonzales v. Oregon as well as an earlier case, FDA v. Brown & Williamson Tobacco Corp., in which the administrations possessed strong claims of accountability yet the Court did not defer to the agency determinations. In both, the Court justified its refusal of deference by contending that the questions were too extraordinary for Congress implicitly to have delegated. This Article argues that these cases might be better understood to reflect a judgment not about whether Congress had delegated interpretive authority, but about how each administration had exercised its authority. Both administrations, while accountable in a general sense, acted undemocratically when viewed in the particular context. They used broad delegations in ways insensitive to likely congressional or popular interests on controversial issues, and inconsistent with the obligations of the executive branch within government. The Court determined that the conditions for judicial deference were not met. Thus, these cases reflect an approach that, while inconsistent with conventional notions of political accountability, is nevertheless principled and defensible. The Article shows that this approach is reflected in other cases, although not many. The infrequency does not diminish the importance of the message that the cases send to the executive branch. But it does illuminate important limits: Ordinarily, administrations do not raise alarms, and political accountability is sufficient for judicial deference. An examination of the cases demonstrates that the Court is aware of the danger that it might invalidate agency interpretations based simply on the Justices' own ideology or politics, and that it has taken steps to curb such judicial overreaching.

Gonzales, Chevron, Brown & Williamson, judicial deference, judicial review, democracy, presidential control, statutory interpretation, administrative law

Abstract:
Chevron U.S.A. Inc. v. Natural Resources Defense Council asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation - whether intentionalism, purposivism, or textualism - and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as if Congress intended that text to have a relatively specific meaning. The presumption of a specific meaning does not match the reality of how Congress designs regulatory statutes. Congress is more likely to eschew specificity in favor of agency delegation under certain circumstances - for example, if an issue is complex and if legislators can monitor subsequent agency interpretations through administrative procedures. Although Chevron recognizes such delegating factors, it fails to sufficiently credit them. Even United States v. Mead Corp., which makes delegation the key question, falls short. This Article imagines what interpretive theory would look like for regulatory statutes if it actually incorporated realistic assumptions about legislative behavior. The theory would engage factors such as the complexity of the issue and the existence of administrative procedures as indications of interpretive delegation more satisfactorily than existing law does. In the process, it would produce a better role for courts in overseeing the delegation of authority to agencies.

Chevron, Mead, Zuni, statutory interpretation, textualism, intentionalism, purposivism, positive political theory, accountability, expertise, arbitrary, preemption, canons of construction, nondelegation, delegation

Abstract:
Professors Bressman and Vandenbergh respond to the comments of Sally Katzen on their article presenting and analyzing results from an empirical study of the top political appointees at the Enviromental Protection Agency (EPA) during the William Clinton and George H.W. Bush administrations. In their previous article, Professors Bressman and Vandenbergh examined White House involvement in EPA rulemaking during the relevant periods, concluding that it may be a more complex and less positive phenomenon than previous studies have acknowledged. In this reply, the authors reinforce why the EPA is an important agency to study for information about White House involvement in agency rulemaking, and why it matters that multiple offices and individuals within the White House are involved in agency rulemaking.

agency, administrative, environment, president, OMB, OIRA, accountability, regulation, regulatory, rulemaking, empirical, executive, efficiency, efficacy, cost-benefit analysis

Abstract:
Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, and Treasury Department involvement in, the policy of the Securities and Exchange Commission. We argue that these mechanisms undermine the conventional distinction between independent agencies and executive-branch agencies. Additionally, we argue that these mechanisms, though producing presidential involvement short of plenary control, are consistent with the strategic political interests of the President. We further contend that they promote political accountability, particularly because greater presidential control is unnecessary to align agency preferences with presidential preferences and instead might be counterproductive. In making this argument, we present a nuanced vision of accountability and update the standard justifications for independence. We also consider the constitutional implications of the new independence-accountability hybrids that we see, as well as possible applications in areas where executive-branch agencies traditionally have dominated. Our claim is not that these hybrids are part of law in any of these contexts; rather, we seek to highlight institutional relationships that outstrip conventional categories but fit with the development of the administrative state. In the future, agency independence will occur not at odds with political accountability but engaged with it along a spectrum of institutional structures.

agency, executive branch, President, presidential control, accountability, expertise, independence, financial reform, positive political theory, political science, health care, climate change, OIRA, SEC, Fed, PCAOB, Treasury, securities, market stability, monetary policy, interest rates