Depoliticizing Administrative Law

36 Pages Posted: 24 Jun 2008 Last revised: 18 Aug 2008

Thomas J. Miles

University of Chicago - Law School

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: June 26, 2008

Abstract

A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for "arbitrariness" on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to "rank" justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: What might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of "debiasing" that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.

Keywords: Chevron, group polarization, legal realizm, politicized judicial voting

Suggested Citation

Miles, Thomas J. and Sunstein, Cass R., Depoliticizing Administrative Law (June 26, 2008). U of Chicago, Public Law Working Paper No. 223; U of Chicago Law & Economics, Olin Working Paper No. 413; Harvard Public Law Working Paper No. 08-16. Available at SSRN: https://ssrn.com/abstract=1150404 or http://dx.doi.org/10.2139/ssrn.1150404

Thomas J. Miles

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

Paper statistics

Downloads
552
Rank
38,945
Abstract Views
3,471