Operationalizing Internal Administrative Law

Abstract

As part of the Hastings Law Journal’s Administrative Law in the Age of Trump Symposium, this Essay argues that administrative law should stop fixating on federal courts. While court-centric external administrative law serves an important role in administrative practice, it is far from sufficient to safeguard against agency overreach. After all, the vast majority of agency actions never make it to court. Instead, this Essay builds on recent suggestions that federal agencies can leverage internal administrative law to self-discipline against abuses of power. By surveying internal administrative law in various regulatory contexts and drawing substantially from the important work of the Administrative Conference of the United States, this Essay seeks to operationalize the concept of internal administrative law to demonstrate its critical and attainable safeguarding role for agency actions that often escape judicial review.

Keywords: internal administrative law, administrative law, judicial review, agency guidance, enforcement, rulemaking, agency adjudication, Chevron deference