Classical Administrative Law in the Era of Presidential Administration

Abstract

As Dan Farber and Anne Joseph O’Connell explain in their excellent article, The Lost World of Administrative Law, “[t]he actual workings of the administrative state have increasingly diverged from the assumptions animating the [Administrative Procedure Act] and classic judicial decisions that followed.” Whereas, they observe, classical administrative law assumes a discrete, judicially reviewable agency decision made by a Senate-confirmed presidential appointee based on statutorily mandated procedures and criteria as applied to the evidence before her, the contemporary operation of the administrative state frequently involves unreviewable agency decisions made by unconfirmed acting agency heads or unconfirmed presidential aides, based on procedures and criteria enunciated in presidential executive orders rather than statutes.

The aspect of contemporary practice that figures most prominently in their analysis is the White House’s expansive control over agency, overseen by the Office of Information and Regulatory Affairs (OIRA). Regulatory review by OIRA alters the classical vision of administrative law by giving pride of place to presidential executive orders, non-statutory decision-making processes and criteria, and personnel outside the action agency. The large cast of characters involved in OIRA review means that the agency charged by statute with making a particular decision may not actually be the decision maker and that factors outside statutory bounds will likely be brought to bear on the decision. In addition, the secrecy and coziness of this process stand in sharp contrast to the transparency and inclusiveness of classical administrative law.

Yet administrative law itself is also split from within. Indeed, White House control over agency decisions takes full advantage of a cross-current in contemporary administrative law doctrine: the D.C. Circuit’s endorsement, over thirty years ago, of politically motivated rulemaking. The court’s decision in Sierra Club v. Costle creates a large fissure within administrative law doctrine itself. Agencies must, in order to survive judicial review, apply statutory criteria to the evidence before them, but their decisions need not be motivated by those criteria and that evidence. I believe this is a tension that must be resolved, not accommodated, and that either classical administrative law or Sierra Club v. Costle has to go.

Keywords: OIRA, presidential administration, Sierra Club v. Costle