Lawmaking Within Federal Agencies and Without Judicial Review

Abstract

As part of the Florida State University College of Law’s Environmental Law Without Courts Conference, this Essay examines two ways administrative law operates with little, if any, judicial oversight: Federal agencies play a substantial role in drafting the legislation that empowers them to regulate, and agencies then typically have broad discretion within that congressionally delegated authority to choose how to regulate. The former legislative-drafting activity fully escapes judicial review, and the agency choices made in the latter rulemaking activity are usually only reviewed by courts for reasonableness. In other words, a vast amount of agency lawmaking escapes judicial review, which suggests that it is all the more important to understand the key players within the agency that engage in these legislative and regulatory activities.

Part I of this Essay briefly outlines these two types of agency lawmaking activity and how they are insulated from judicial review. Part II explores how agency design may matter in both lawmaking activities — with a particular emphasis on the agency general counsel office — by discussing the various agency organizational models identified in the author’s prior study for the Administrative Conference of the United States. In particular, the combined legislation and regulation legal office has the virtue of ensuring that those agency lawyers who help draft the legislation can fully leverage the agency’s experience and expertise in implementing the legislation, and vice versa. This Part also flags a number of best practices for agency general counsel offices to consider short of consolidating legislative and regulatory counsel in one office. This Essay is by no means a comprehensive take on how agency design choices can affect agency lawmaking. Instead, the objective here is to call attention to the topic and sketch out potential avenues for further research and discussion. Such further exploration is particularly important with respect to agency lawmaking that is insulated from judicial review.

Keywords: administrative law, internal administrative law, judicial review