Eight Things Americans Can’t Figure Out About Controlling Administrative Power Sidney A. Shapiro *
Richard W. Murphy **
INTRODUCTION Administrative law is hard. We make this assertion with perfect confidence as it relates to American administrative law, which, in American law schools, is regarded as a notoriously difficult subject to teach and learn. 1 We cannot speak with the same certainty about administrative law in other polities, but many of them certainly look hard to the newcomer. The task of mastering the European Union’s administrative law seems particularly daunting, given that full understanding of that law must require mastery not only of its own internal intricacies but also of the law and politics of the nations that compose the EU. Administrative law is difficult because it reflects a tension between two fundamental impulses that pull in opposite directions. Effective government requires the allocation of discretionary power to agency officials. 2 For agency governance to be legitimate, however, administrative law must find ways to mediate this power, but not too much, robbing agencies of their effectiveness. In the United States, administrative law serves this mediating function by: making agencies accountable to elected officials; fostering public participation in agency decision‐
making; and subjecting a vast array of agency actions to judicial review for legality and rationality. Implementing these approaches to legitimizing agency governance has not been easy, 3 and the results are not pretty. Important aspects of American administrative law are vague, ambiguous, and more or less permanently contestable, as we will develop. We assume that other polities face similar difficulties and that the project of comparative administrative law therefore may suggest how to clarify and reform * University Distinguished Chair in Law, Wake Forest University.
** Professor of Law, William Mitchell College of Law.
1 See Sidney A. Shapiro, Top Ten Reasons That Law Students Dislike Administrative Law and What Can
(or Should) Be Done About Them?, 38 BRANDEIS L.J. 351 (2000). 2 In Mistretta v. United States, 488 U.S. 361, 372 (1988), Justice Blackman noted the Supreme Court’s implementation of the non‐delegation doctrine has been driven by a practical understanding that in our increasingly complex society, replete with ever‐changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. 3 See JAMES O. FREEDMAN, CRISIS AND LEGITIMACY: THE ADMINISTRATIVE PROCESS AND AMERICAN GOVERNMENT 9 (1978) (noting that the history of the modern administrative process is marked by an “extended sense of crisis” about its legitimacy). 1 American administrative law. At the same time, we are aware that efforts to legitimize and control official power reflect a polity’s particular political and legal traditions, 4 which may pose a significant constraint on the project of comparative administrative law. In the United States, for example, we cannot escape the “difficulty of fitting the ‘round peg’ of administrative government into the ‘square hole’ of the nation’s constitutional culture.” 5 Other polities have other problems. Aware of this yin and yang of the comparative administrative law project, this Essay tries to advance cross‐understanding by asking for help. To that end, it will air some of American administrative law’s dirty laundry—identifying various aspects of this body of law that have been especially troublesome and contentious. We offer this list for two reasons. First, we hope to learn something: the very notion of comparative administrative law seems to presuppose that students of very different political/legal systems can learn valuable lessons from each other. If this premise is true, then it should follow that non‐Americans can offer welcome insights for furthering discussion of American administrative law problems (and vice versa). On the other hand, if American administrative law problems make little sense to students of other traditions (or vice versa), then we have a sign that comparative administrative law may not be—at least from an instrumentalist point of view—an especially promising project. The second reason is rooted in a concern for truth‐in‐advertising and a wish to be good guests. The difficulty of administrative law in particular and comparative projects in general suggests that students of a particular system should exercise caution when suggesting that one system should be remade in the image of another. This point has not, however, stopped some observers from suggesting that the EU should adopt various elements of the Americans’ more (ahem) “advanced” model. 6 In light of such suggestions, it seems only fair to highlight some of the problems that Americans have encountered in implementing their own administrative law. We will structure our laundry list around the three approaches to controlling administrative power noted above: electoral accountability, public participation, and judicial review. With regard to electoral accountability, one perennial problem has been to determine how to allocate power to control agencies between the 4 See STEVEN KELMAN, REGULATING AMERICA, REGULATING SWEDEN: A COMPARATIVE STUDY OF OCCUPATIONAL SAFETY AND HEALTH POLICY (1981) (documenting how different political cultures shape the assumptions, operating styles, and organizational climate of agencies differently). 5 Sidney Shapiro, Pragmatic Administrative Law, ISSUES IN LEGAL SCHOLARSHIP, Article 1, at 3 (2005) (symposium on “The Reformation of American Administrative Law”), available at http://www.bepress.com/ils/iss6/art1). 6 See, e.g., Giandomenico Majone, Europe's ‘Democracy Deficit’: The Question of Standards, 4 EUR. L.J. 5 (1998) (arguing that independent agencies in the EC may be held politically accountable through U.S.‐style control mechanisms); Giandomenico Majone, Regulatory Legitimacy, in REGULATING EUROPE 284 (1996) (arguing for wholesale adoption of the American Administrative Procedure Act because it would contribute to procedural legitimacy of Community regulation); Martin Shapiro, Andreas Bücker et al., Social Regulation through European Committees: An Interdisciplinary Agenda and Two Fields of Research, in SHAPING EUROPEAN LAW AND POLICY: THE ROLE OF COMMITTEES AND COMITOLOGY IN THE POLITICAL PROCESS 39, 55 (Robin H. Pedler & Guenther F. Schaefer eds., 1996) (claiming that U.S. administrative law would shed light on legitimizing comitology). 2 legislative and executive branches against the backdrop of extreme constitutional ambiguity. Issues relating to this conundrum include: •
Remarkably, after more than two centuries, we are still not sure if the President, to borrow Professor Strauss’s dichotomy, 7 plays the role of “overseer” or “decider” in our administrative state; •
More broadly, our Constitution seems on its face to require “separation of powers” whereas the needs of the modern administrative state would seem to warrant “balance of powers.” Like electoral accountability, the requirement of public participation helps legitimize bureaucratic governance by leavening it with a form of democracy. The prime example of a process that promotes such public participation is notice‐and‐
comment rulemaking, which ostensibly allows all comers to participate in the formation of agency policy. This process, however, confronts a variation of the problem that squeezing a balloon in one place causes it to expand in another: •
Judicial efforts to make notice‐and‐comment meaningful have made this process very burdensome, leading, many critics have claimed to the notorious “ossification” of agency rulemaking; •
In part to avoid the burdens of notice‐and‐comment, agencies frequently regulate by imposing “soft law” without any formal public participation at all. Judicial review does its part in mediating discretionary power by promoting the rule of law. Because law and policy are so tightly intertwined, however, it is easy for the judicial task of ensuring that agencies obey the law to morph into judicial theft of agency policymaking power. This abiding problem manifests itself in many ways in American administrative law, including: •
An embarrassingly incoherent doctrine of constitutional standing; •
An inability to figure out when courts or agencies should exercise primary control over statutory interpretation; •
Judicial review of the rationality of agency policies that has a regrettably strong political component of dubious legitimacy; •
Judicial review of the legality of agency inaction that is deeply problematic. In the remainder of this Essay, we elaborate briefly on these dirty socks of American administrative law (there are many others, of course, but we do not wish to overload the machine). Any help cleaning them would be deeply appreciated. I. TWO CENTURIES ON, WE ARE STILL FIGHTING ABOUT WHO IS IN CHARGE. Administrative agencies in the United States are commonly referred to as the “fourth branch” of government—although newspapers have also claimed this 7 Peter Strauss, Overseer or “The Decider” – The President in Administrative Law, 75 GEO. WASH. L. REV. 696 (2007). 3 title, 8 as administrative law professors, we regard them as interlopers. As applied to administrative agencies, the phase is meant by some to be purely descriptive. This is a way of connoting that the line‐drawing suggested by the Constitution among the legislative, executive and judicial functions is blurred in agency government because agencies typically perform all three of these functions. But it is meant by others to signal the dubious constitutionality of agency government. 9
It is common ground that administrative agencies are subject to both presidential and legislative oversight, adding a degree of electoral accountability to administrative governance. Not anticipating a “fourth branch,” however, the framers did not clearly delineate the precise boundary between presidential and congressional power to control administrative agencies. This has led, as one might expect, to unending turf battles between the elected branches. For a nice, recent illustration of this point, consider the President’s response to Congress’s effort to establish minimum job qualifications for the Administrator of the Federal Emergency Management Agency (FEMA). Several days into the Hurricane Katrina disaster, President Bush showered praise on his FEMA Administrator, Michael Brown, telling him, “Brownie, you're doing a heck of a job” 10 —thus making the phrase “heck of a job” a joke in American vernacular. In fairness to Brown, he was a friend of President Bush’s campaign manager and did have vast experience with international Arabian horses. 11 But it should also be said that, at the time he joined FEMA, he had no prior experience in disaster management. Disturbed by this fact, Congress passed legislation requiring the President to nominate a candidate to head FEMA who has “a demonstrated ability in and knowledge of emergency management" and “not less than five years of executive leadership.’" 12 Although President Bush signed the legislation, he contemporaneously issued a “signing statement” claiming this provision unconstitutionally limited his executive authority to nominate whomever he wished regardless of congressional views on minimum qualifications. 13
A. Who’s in Charge of the Government? The President’s assertion of constitutional authority to appoint an officer who does not meet the minimum qualifications established by Congress reflects a long‐
8 DOUGLASS CATER, THE FOURTH BRANCH OF GOVERNMENT 13 (1959) (referring to the media as the fourth branch of government). 9 See, e.g. Federal Trade Commission v. Ruberoid Co, 343 U.S. 470, 487 (1952) (‘[Administrative agencies] have become a veritable fourth branch of the Government, which has deranged our three‐
branch legal theories much as the concept of a fourth dimension unsettles our three‐dimensional thinking.”) (Jackson, J., dissenting); President’s Committee on Administrative Management, Report with Special Studies 39‐43 (1937) (criticizing agencies as a “headless fourth branch” of government). 10 Press Release, President Arrives in Alabama, Briefed on Hurricane Katrina, Sept. 2, 2005, available at http://www.whitehouse.gov/news/releases/2005/09/20050902‐2.html. 11 For twelve years he served as Judges and Stewards Commissioner for the International Arabian Horse Association. See http://en.wikipedia.org/wiki/Michael_D._Brown. 12 Charlie Savage, Signing statement is employed again, BOSTON GLOBE, Oct. 6, 2006, available at http://www.boston.com/news/nation/washington/articles/2006/10/06/bush_cites_authority_to_b
ypass_fema_law/. 13 Id. 4 standing debate in American administrative and constitutional law. Strong adherents to the “unitary executive” theory believe that the Constitution, by vesting the “executive Power” in the President, 14 makes the President a type of corporate‐
style CEO with inherent authority to control all discretionary decisions within the Executive Branch. 15 By comparison, other scholars understand the President’s domestic, civilian role as a sort of “overseer” of regulatory government, much like the Congress and the Courts. 16
Proponents of the President as “decider” believe that choosing among discretionary actions to implement the law requires the exercise of “executive” power that the Constitution vests in the President, who therefore must have legal control over all such decisions. For example, even if, as is often the case, a statute vests the power to promulgate rules in the head of some agency, this person does not really possess this power, because the Constitution insists it belongs to the President. 17 One might therefore say that an agency head who insists on exercising discretion in a manner contrary to the President’s wishes is violating the law. Proponents of the President as “overseer,” by contrast, accept that discretionary authority may be vested in officials lower down the organizational chart. On this view, an agency head may have legal authority to exercise her discretion differently than the President would like. 18 Of course, the President might conclude that it would be a good idea to fire an agency head who insists on promulgating policies that the President finds politically distasteful. In some instances, Congress has blocked this maneuver by granting agencies “independent” status—which is just shorthand for imposing a “good cause” requirement for firing an agency’s head. The “unitarians” have never accepted that these independent agencies are constitutional. They argue that Congress cannot limit the removal power because it is a necessary incident of the “executive” power that the Constitution vests in the 14 U.S. Constitution, Art. II, § 1. 15 See, e.g., Elana Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001); Steven G. Calabresi & Srikrishna Prakash, The President’s Power to Execute the Laws, 104 YALE L.J. 541 (1994); Steven Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 104 HARV. L. REV. 1153 (1992). 16 See, e.g., Strauss, supra n. 7 at 704‐05 (“[I]n ordinary administrative law contexts, where Congress has assigned a function to a named agency subject to its oversight and the discipline of judicial review, the President’s role—like that of the Congress and the courts‐‐is that of overseer and not decider.”); Robert V. Percival, Presidential Management of the Administrative State, 51 DUKE L.J. 963 (2001); Cynthia R. Farina, The New Presidentialism, Undoing the New Deal Through the New Presidentialism, 22 HARV. J.L. PUB. POL’Y. 227 (1998). 17 See, e.g., Calabresi & Prakash, supra note 15, at 595‐96 (“For example, if Congress establishes by statute a Treasury Secretary with the power and responsibility to expend appropriations and also provides a degree of discretion in an appropriations act, it is a mistake to view that statute as creating any duty or authority that belongs to the Secretary, even if the statute is written that way. Rather, it is the President, under our Constitution, who must always be the ultimate empowered and responsible actor.”). 18 See, e.g., Strauss, supra note 7, at 703‐05 (taking the view that the President should respect the “independent exercise” of duties that Congress by law vests in others). 5 President. 19 The Supreme Court rejected this view more than seventy years ago, and, in point of brute fact, independent agencies are a fixture of the American administrative state. 20 This judicial view has not, however, stopped President Bush from asserting his power as “Unitary Executive” to control implementation of the law in scores of signing statements. 21 It seems fair to hazard that this constant reiteration creates an atmosphere where agency heads, notwithstanding the wish of Congress, must regard Presidential “suggestions” as “orders.” Perhaps this is a uniquely American problem given our constitutional structure. 22 But, as one of us learned from his mother, it never hurts to ask. Therefore, can the European experience throw light on the constitutional or policy wisdom of a unitary executive? B. Separation or Balance of Powers? As long as we are airing the dirty constitutional laundry, we have another admission to make. Not only have we failed to resolve the degree of inherent power that the President can exercise over the administrative state, we have another testy issue about the structural Constitution that remains unresolved: We cannot agree how to “read” it. The Supreme Court vacillates between a formalist and functionalist approach when it comes to deciding issues of encroachment by one branch on another. The formalist approach decides on the nature of the power being exercised by the branch in question, and then requires that no branch can exercise an inappropriate power. 23 If a power is “executive,” for example, it is unconstitutional for Congress to encroach on that power. The functionalist approach asks whether the encroachment of one branch on the power of another is minor or fundamental. As long as the branch that is being encroached upon retains its fundamental powers, 19 See, e.g., Calabresi & Prakash, supra note 15 at 598 (“[T]he President may remove executive officers using his Vesting Clause grant of ‘executive Power’ that allows him to superintend the execution of federal law.”). 20 See, e.g., Humphrey’s Ex’r v. United States, 295 U.S. 602, 629‐30 (1935) (upholding the constitutionality of a good‐cause restriction on presidential power to remove FTC commissioners); Morrison v. Olson, 487 U.S. 654, 692‐93 (1988) (upholding the constitutionality of good‐cause restriction on presidential power to remove independent counsels). 21 Jerry Mashaw, Soft Law Reform or Executive Branch Hardball: The Ambiguous Message of Executive Order 13,422, 25 YALE J. REG. 97, 98 (2008) (observing that the Bush administration has “issued hundreds of presidential ‘signing statements’ implicitly declining to enforce the provisions of congressional statutes that conflict with his understanding of the President's powers as the ‘unitary executive’”). 22 But, for an intimation that “unitarian” thinking exists among executive actors on both sides of the Atlantic, see PAUL CRAIG, EU ADMINISTRATIVE LAW 162‐63 (2006) (discussing the Commission’s reluctance to tolerate “real regulatory agencies exercising discretionary power through adjudication and rulemaking, since if such power could be readily delegated then the Commission’s sense of the unity and integrity of the executive function vested in it would be undermined.”). 23 See, e.g. INS v. Chadha, 462 U.S. 919 (1983) (declaring unconstitutional the legislative veto); Buckley v. Valeo, 424 U.S. 1 (1976) (declaring unconstitutional congressional appointment of executive officials). 6 the interference is normally acceptable. 24 Peter Strauss usefully describes this as the “core function” test. 25 The Court’s vacillation appears to be driven by, on the one hand, the desire to retain and enforce the basic separation‐of‐powers scheme built into our Constitution, and by, on the other hand, recognition of the reality that the demands of modern government often make combination of powers terrifically useful and tempting. Again, the inability to choose between these approaches may be a unique artifact of our particular constitutional system. We do perceive, however, that European countries and the EU successfully address the threat of monopolization of power by requiring a balance of powers among institutions. 26 We are unsure whether this approach offers guidance for the American situation, but it may provide a useful perspective on when formal separation of powers is necessary. II. THE DIFFICULTIES OF “DEMOCRATIZING” ADMINISTRATION VIA NOTICE‐AND‐
COMMENT. A reader of the federal APA might innocently conclude that notice‐and‐comment rulemaking—the default mode in the federal government for making “binding” legislative rules with the “force of law”—is a simple enough affair. The APA seems to require just four simple‐sounding things for this process: (a) notice of a proposed rule must be given—typically by publication in the Federal Register; (b) interested persons must be given the opportunity to submit comments on the proposal; (c) agencies must include a “concise general statement of … basis and purpose” in the final version of a rule; and (d) the final rule must be published in the Federal Register. 27 The basic purposes underlying this regime also seem straightforward. In a democracy, it makes sense to look for ways for affected parties to participate in the creation of governing norms both because: (a) democracy presupposes that transparency and participation are good things in themselves; and (b) one might reasonably hope that exposing agency proposals to informed comment would, generally speaking, improve agency rulemaking. One might therefore think that notice‐and‐comment rulemaking provides a relatively cost‐free, simple mechanism for democratizing and improving agency governance. 24 See, e.g., Mistretta v. United States, 488 U.S. 361 (1989) (upholding the constitutionality of restrictions on the President’s authority to dismiss members of the U.S. Sentencing Commission); Morrison v. Olsen, 487 U.S. 654 (1988) (upholding the constitutionality of restrictions on the President’s authority to dismiss independent counsels). Cf. Ronald J. Krotoszyinski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 W. & M. L. Rev. 417, 417‐18 (1997) (observing that “[m]ore than any other separation of powers/delegation doctrine decisions, Mistretta v. United States and Morrison v. Olson broadly endorsed the functionalist vision of the modern administrative state”; contending that this functionalist approach, insofar as it permits federal courts to exercise political power, poses a threat to their legitimacy). 25 Peter Strauss, The Place of Agencies in the Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573 (1984). 26 See Paul Craig, Democracy and Rulemaking Within the EC: An Empirical and Normative Assessment, in LAWMAKING IN THE EUROPEAN UNION 43‐50 (Paul Craig & Carol Harlow eds. 1998) (discussing Republicanism and balanced government). 27 5 U.S.C. §§ 553(b)‐(d), 552(a)(1). 7 As it has evolved, however, notice‐and‐comment rulemaking is neither simple nor cheap. A large literature explores how it has “ossified” into a burdensome, sclerotic process. We will now touch on one important explanation for this ossification and one important consequence. A. Have courts made notice­and­comment too tough? According to critics of the current judicial review regime, undue ossification of rulemaking flows largely from the analytical demands that courts have placed on agencies in an effort to make the APA’s skeletal requirements on notice‐and‐
comment meaningful. 28 This judicial effort has both procedural and substantive aspects. Regarding procedure, in part to ensure that agencies take comments seriously rather than dump them upon receipt, courts have read the APA’s requirement of a “concise general statement” as imposing on agencies a duty to respond to “significant” comments. 29 Unfortunately, at least from an agency’s point of view, it cannot know in advance precisely which comments a court—staffed by generalist judges of varying technical competence and ideological proclivities—will 28 See, e.g., American Radio Relay League, Inc. v. F.C.C., 524 F.3d 227, 248 (D.C. Cir. 2008) (Kavanaugh, J., concurring and dissenting) (“Over time, those [judicial] decisions have gradually transformed rulemaking‐whether regulatory or deregulatory rulemaking‐from the simple and speedy practice contemplated by the APA into a laborious, seemingly never‐ending process.”); Frank Cross, Pragmatic Pathologies of Judicial Review of Administrative Rulemaking, 78 N.C. L. REV. 1013, 1020‐27 (2000) (blaming judicial analytical demands for slowing rulemaking to a crawl); Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 Texas L. Rev. 525 (1997) (contending that “hard look” review has played a “prominent role” in the demise of notice‐
and‐comment rulemaking); Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 65 (1995) (“Through interpretation and application of sections 553 and 706 of the APA, courts have transformed the simple, efficient notice and comment process into an extraordinarily lengthy, complicated, and expensive process that produces results acceptable to a reviewing court in less than half of all cases in which agencies use the process.”). But see, e.g., William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 NW. U. L. REV. 393 (2000) (concluding that D.C. Circuit applications of the hard look did not significantly impede agency action); Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 TEX. L. REV. 483, 490 (1997) (surveying “deossfication” proposals; concluding that “calls for relaxing judicial review may be premature”). Cf. also William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L. J. 1083, 1179 (2008) (“tak[ing] no position on this [ossification] debate, except to note that reasonable minds have reached different conclusions, and that the ossification concern is genuine even if indeterminate”). Looking back on this string of citations, it seems that students of American administrative law cannot even agree on whether judicial ossification of agency rulemaking is a big problem or not. As we (Shapiro and Murphy) find ourselves sympathizing with the ossification critique, this brief Essay will assume that it is. 29 See, e.g., American Civil Liberties Union v. F.C.C., 823 F.2d 1554, 1581 (D.C. 1987) (an agency must respond to all “significant coments” for “the opportunity to comment is meaningless unless the agency responds to significant points raised by the public”). 8 deem significant. The safe, risk‐averse strategy for the agency, therefore, is to respond to everything. 30
Compounding administrative difficulties, judicial review of the rationality of agency policies has, by and large, intensified considerably since the time of the APA’s adoption in 1946. 31 Technically, the APA requires courts to review these types of questions for “arbitrariness.” 32 According to the seminal case Overton Park, this standard of review is deferential and “narrow,” but also requires “a thorough, probing in‐depth review” that is “searching and careful.” 33 Lower courts understood the latter half of this formula to authorize what came to be known as “hard look” review, which, as originally conceived, required courts to check whether an agency had closely examined the evidence and arguments presented to it. 34 After expressing some misgivings, 35 the Supreme Court approved this form of review in State Farm. 36 It explained that, to survive arbitrariness review, an “agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” 37 The majority then proceeded to engage in a painstaking, one might say picky, review of the evidence, finding fault with the agency’s lack of explanation for some inconsistencies in some scientific evidence. 38 In keeping with this approach, the meaning of “hard look review” has evolved somewhat—it is now commonly understood to require courts to take a “hard look” at agency rationality rather than to require courts to check whether the agency took a “hard look” at a problem. 39
Thus, agencies must respond to any comment that they think a court might, during post hoc review, find “significant,” and their responses must be sufficiently detailed and persuasive to survive open‐ended substantive review by a set of generalist judges who may have no particularly relevant technical expertise. This combination 30 See, e.g., Pierce, supra note 28, at 65 (“To have any realistic chance of upholding a major rule on judicial review, an agency's statement of basis and purpose now must discuss in detail each of scores of policy disputes, data disputes, and alternatives to the rule adopted by the agency.”). 31 See William Funk, Rationality Review of State Administrative Rulemaking, 43 ADMIN. L. REV. 147, 149 (1991) (discussing the lax nature of arbitrary‐and‐capricious review as of 1946 and its tightening thereafter). 32 5 U.S.C. §706(2)(A). 33 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415‐16 (1971). 34 See Harold Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. PA. L. REV. 509, 511 (1974) (endorsing “hard look” review); see also Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 851 (D.C. Cir. 1970) (explaining “hard look” review). 35 Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103 (1983). 36 Motor Vehicles Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 37 Id. 38 See id. at 56 (rejecting the agency’s interpretation of scientific studies because other inferences might be drawn from the same studies and the agency had not discussed these other inferences sufficiently). By comparison, the dissent argued that more deference was owed to the agency's conclusions about the studies. Id. at 58 (Rehnquist, J., concurring in part, dissenting in part). 39 National Lime Ass’n v. EPA, 627 F.2d 416, 451 n.126 (D.C. 1980)(discussing how the “hard look” evolved into a judicial rather than administrative duty). For a recent declaration of the original orthodoxy, see Bering Strait Citizen v. U.S. Army Corps. of Engineers, 511 F.3d 1011, 1020 (9th Cir. 2008) (“Judicial review of agency decision‐making under NEPA is limited to the question of whether the agency took a ‘hard look’ at the proposed action....”.) 9 creates a minefield given that administrative records, at least for controversial or difficult rules, are chock full of contestable arguments and evidence. Threading this minefield requires agencies to offer justifications for their rules that are, often enough, interminable and detailed rather than “concise” and “general” as the APA contemplated. As a result, it can take many years for an agency to create a significant, controversial rule via notice‐and‐comment. 40
B. Dodging notice­and­comment via soft law. It stands to reason that if notice‐and‐comment is too burdensome, agencies will avoid it if they can—and, indeed, they can and do. Where the “binding” law authorizing agency action is vague or ambiguous, regulated parties will naturally have a strong interest in learning how the agency itself interprets it. Likewise, where “binding” law leaves an agency with considerable policy discretion over how to enforce it, regulated parties will naturally have a strong interest in learning how the agency intends to exercise this discretion. It would make little sense to make such information extraordinarily expensive for the public to obtain by insisting that an agency use notice‐and‐comment before declaring what it thinks a law means or how the agency intends to implement it. Therefore, to keep such information cheap and flowing, the APA excuses from the rigors of notice‐and‐comment “interpretative rules [and] general statements of policy.” 41
According to D.C. Circuit Court of Appeals, agency exploitation of these exemptions has led to the following state of affairs: The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open‐ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations. With the advent of the Internet, the agency does not need these official publications to ensure widespread circulation; it can inform those affected simply by posting its new guidance or memoranda or policy statement on its web site. An agency operating in this way gains a large advantage. “It can issue or amend its real rules, i.e., its interpretative 40 Richard J. Pierce, Jr., Judicial Review of Agency Actions in a Period of Diminishing Agency Resources, 49 ADMIN. L. REV. 61, 71 (1997) (“As a result [of hard look review] an agency usually must commit tens of thousands of person‐hours over a five‐year period to the process of issuing, amending, or rescinding a single major rule.”). 41 5 U.S.C. § 553(b)(A). The APA also provides that agencies need not use notice‐and‐comment where “good cause” exists not to do so or when creating “rules of agency organization, procedure, or practice.” Id. at § 553(b)(A)‐(B). 10 rules and policy statements, quickly and inexpensively without following any statutorily prescribed procedures.” 42
Courts are not in a good position to block agencies from abusing the APA’s exemptions from notice‐and‐comment for two reasons. First, interested parties often do not have sufficient incentive to spend the resources needed to challenge the procedural deficiency of a rule—especially because, generally speaking, there will be a substantial risk of losing to the agency. The second difficulty relates to the nature of the inquiries required to police these exemptions for interpretative rules and policy statements. With regard to “interpretative rules,” the obvious problem is that the line between “interpreting” a law and “creating” one simply is not any clearer in administrative law than in any other context in which it festers. As for exempting “general statement[s] of policy,” here the basic problem is that legislative rules, which create general norms to which regulated parties are expected to conform, are themselves policy statements! The APA thus forces us to discriminate between policy statements that are legislative rules (and thus require notice‐and‐comment as a default) and policy statements that are “general statement[s] of policy” within the meaning of the APA’s exemption. To draw this distinction, courts distinguish rules that are “binding” in the sense that they limit agency discretion from rules that merely express how the agency contemplates it might exercise its discretion in the future. Thus, to help immunize itself from notice‐
and‐comment, an agency should never declare how it will exercise its discretion—
for that creates a legislative rule; rather, it should declare how it might, after taking some time to think about it later, exercise its discretion. 43
The upshot of these definitional games is that “[t]he distinction between those agency pronouncements subject to APA notice‐and‐comment requirements and those that are exempt [is] … enshrouded in considerable smog.” 44 This smog leaves agencies with more room to manipulate the relevant distinctions, which they have 42 Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1020 (D.C. 2000) (quoting Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 85 (1995)). The annoyed D.C. Circuit added, “[h]ow much more efficient than, for instance, the sixty [!] rounds of notice and comment rulemaking preceding the final rule in Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 34 (1983)”). 43 This technique does not, however, always work for the agency. In U.S. Telephone Ass’n v. F.C.C., the agency, “mindful of … precedent,” had “reiterated 12 times that it retained discretion to depart” from a schedule of sanctions. 28 F.3d 1232, 1234 (D.C. Cir. 1994). Notwithstanding this boilerplate, the D.C. Circuit held that the schedule did not fall within the policy statement exemption because the agency had treated them as binding. The Court observed in this regard that the agency had departed from the schedule in, at most, “only one out of over 300 cases.” Id. Still, it cannot hurt for an agency to use the word “discretion” a lot when trying to avoid notice‐and‐comment. 44 American Mining Congress v. Mine Safety & Health Administration, 995 F.2d, 1106, 1108 (D.C. 1993) (quotation marks and citations omitted). See also Commuity Nutrition Institute v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (citing authority for the proposition that the “distinction between legislative rules and interpretative rules or policy statements” is “tenuous,” “”fuzzy,” “blurred,” and “baffling”). 11 every incentive to do thanks to the onerous nature of the notice‐and‐comment regime that has developed since the APA was enacted back in 1946. We gather “soft law” is something of a specialty in Europe. 45 So maybe you’re in a good position to help us out. Is it inevitable that, where it is too hard to make “hard” law, an agency with a great deal of practical power over regulated parties will turn to “soft” law to enforce its will? Should we be concerned about the practice of “soft law” as a “substitute,” or at least an addendum, for “hard law”? III. THE PROBLEM OF THE (JUDICIAL) FOX IN THE (AGENCY) CHICKEN COOP. The United States relies heavily on judicial review to ensure that agencies use their delegated discretion in a legal, rational manner. 46 Implementing this solution is not easy. Agency mandates are vague and ambiguous, making it difficult to verify whether agency decisions are consistent with their mandates. Moreover, as noted above, it is difficult to empower life‐tenured, unelected judges to police the legality of agency action without also enabling them to usurp agency policymaking power. These tensions have raised a number of issues that we have had difficulty resolving—here are four of them. A. Our horrible doctrine of constitutional standing. Any system of judicial review of agency action must, of course, specify which agency actions are reviewable and at whose behest. In American administrative law, a welter of common‐law, statutory, and constitutional doctrines performs these tasks. Among the most problematic of them is constitutional standing, which claims that the Constitution’s limitation of the judicial power to resolution of “cases” and “controversies” requires a plaintiff to show that she has suffered “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” 47 A plaintiff who does not satisfy these requirements lacks constitutional standing to sue—even if Congress has expressly granted her a cause of action to do so. 48
These simple‐sounding requirements of injury‐causation‐redressability may sound innocuous, but they have been a source of unending trouble in American courts. In particular, the central problem with the “injury” requirement flows from the fact that it is reasonable to think that anyone who is upset enough by something to sue 45 See, e.g. LINDA SENDEN, SOFT LAW IN THE EUROPEAN COMMUNITY LAW (2004); David M. Trubek & Louise G. Trubek, Hard and Soft Law in the Construction of Social Europe : the Role of the Open Method of Coordination, 11 EUR. L.J. 343 (2005); K. Jacobsson, Soft Regulation and the Subtle Transformation of States: The Case of EU Employment Policy, 14 J. EUR. SOC. POL'Y 357 (2004); Francis Snyder, Soft Law and Institutional Practice in the European Community, in THE CONSTRUCTION OF EUROPE 198 (Samuel Martin ed. 1994). 46 Richard Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669 (1975). 47 See, e.g., DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1860‐61(2006) (stating the canonical requirements for constitutional standing and rooting them in Article III’s case‐or‐controversy limitation). 48 Lujan v. Defenders of Wildlife, 504 U.S. 555, 571‐73 (1992) (dismissing case brought by plaintiffs who had legislative authorization to sue because they had not satisfied constitutional standing requirements). 12 over it has been “injured.” Therefore, to be meaningful, the “injury” requirement must exclude some types of seemingly genuine harm on normative grounds that the courts, lacking clear guidance from the Constitution, must make up. 49 In this vein, the federal courts have at various times advised that injuries do not suffice for constitutional standing if they are “ideological,” “generalized,” “abstract,” or “speculative.” Many years of lawyer and court time have been wasted determining whether a plaintiff’s injury falls into one of these vague categories. One major reason constitutional standing remains such a mess is that the justices of the Supreme Court are sharply divided over whether its core function is to block judicial usurpation of political power. The Supreme Court’s recent blockbuster opinion in Massachusetts v. EPA provides a good illustration of this point. 50 In this case, a 5‐4 majority of the Court ruled that EPA had arbitrarily rejected a rulemaking petition requesting that it use its Clean Air Act authority to regulate greenhouse gas emissions of motor vehicles. Before resolving the merits, however, the Court first had to resolve the threshold issue of standing, on which it also split 5‐4. Justice Stevens’ majority opinion concluded that petitioner Massachusetts had satisfied the “injury” requirement by showing that emissions of greenhouse gases threatened to cause rising sea levels that would engulf coastal property owned by the state. 51 This characterization of the injury, however, posed dangers for Massachusetts’s story on causation and redressability. The problem was, regardless of how sound the science on global warming may be, it is difficult to attribute future loss of any particular bit of Massachusetts to an increment of greenhouse gases that might be released due to EPA’s failure to regulate, to some as yet unspecified degree, emissions by new American motor vehicles. The majority disposed of this problem by adopting a kind of every‐little‐bit‐helps approach. All carbon dioxide emissions contribute to the global warming threat, therefore, EPA’s failure to take action to reduce these emissions may be regarded as a cause of part of this problem, and forcing EPA to begin rulemaking would help redress global warming—at least a little. 52
Illustrating that standing doctrine has a strong political valence, the four reliably conservative justices joined in a dissent authored by Chief Justice Roberts. In it, he explained that Massachusetts’ claimed injury had to fail on any plausibly strong understanding of causation and redressability. 53 The real harm at issue is “catastrophic global warming.” 54 This injury, however, is not “particularized” enough to support constitutional standing—because it hurts everybody, it gives nobody the right to go to federal court. 55 This proposition accords with what is, 49 Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MICH. L. REV. 163, 188‐91 (1992) (explaining that judicial efforts to determine which “injuries” can support constitutional standing are inevitably freighted with normative and legal judgments). 50 127 S. Ct. 1438 (2007). 51
Id. at 1456.
52
See id. at 1457-58 (“The risk of catastrophic harm, though remote, is nevertheless real. That risk
would be reduced to some extent if petitioners received the relief they seek.”).
53 See id. at 1468‐71 (Roberts, C.J., dissenting). 54 Id. at 1470 (Roberts, C.J., dissenting). 55 Id. at 1467 (Roberts, C.J., dissenting) (“The very concept of global warming seems inconsistent with this particularization requirement. Global warming is a phenomenon harmful to humanity at large, 13 from the conservative point of view, the central point of standing doctrine: To ensure that the political branches, not the judicial branch, make the policy decisions needed to resolve generalized grievances. 56
Strictly speaking, because the majority had concluded that Massachusetts had identified a “particularized” rather than “generalized” injury, its opinion did not need to respond to the Chief Justice’s claims about limits on the judicial power to resolve generalized grievances. Nonetheless, the majority pointedly insisted that a plaintiff can base standing on “widely shared” harms so long as they are “concrete.” 57 Underlying this vague contention is the premise that the point of standing doctrine is not to block judicial usurpation of political power but rather to ensure that plaintiffs bring a strong enough “personal stake” to litigation to ensure “that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” 58 A petitioner can bring such a “personal stake” to court regardless of how many people share her injury. In sum, our constitutional standing doctrine is vague, politicized, easy to manipulate, and, to top it all off, we are not even sure what it is for. We know that that the EU, too, has struggled over issues of standing. Of particular relevance here, the CFI and ECJ have sparred over Art. 230(4)’s “individual concern” requirement in a manner that is it at least a little reminiscent of Justice Stevens’ and Chief Justice Roberts’ debate over standing for “generalized grievances.” 59 Perhaps this, then, is an issue that some comparativism might illuminate. and the redress petitioners seek is focused no more on them than on the public generally—it is literally to change the atmosphere around the world.”) (internal quotation marks and citation omitted). 56 Id. at 1464 (Roberts, C.J., dissenting) (“This Court's standing jurisprudence simply recognizes that redress of grievances of the sort at issue here is the function of Congress and the Chief Executive, not the federal courts.”) (internal quotation marks omitted). 57
Id. at 1456 (citing Federal Election Comm’n v. Akins, 524 U.S. 11, 24 (1998)).
58
Id. (quoting Baker v. Carr, 369 U.S. 186, 204 (1962))
59 Article 230(4) of the TECB provides that “[a]ny natural or legal person may … institute proceedings against a decision addressed to that person or against a decision which, although in the form of la regulation or decision addressed to another person, if of direct and individual concern to the former.” The longstanding, leading precedent interpreting this provision is Plaumann & Co. v. Commission (Case 25/62) [1963] ECR 95, which held that a person is “individually concerned” within the meaning of Art. 230(4) by a decision only if it affects him “by reason of certain attributes peculiar to him, or by reason of a factual situation which differentiates him from all other persons…” In effect, Plaumann blocks plaintiffs with what Americans might call “generalized grievances” from bringing direct actions pursuant to Article 230. The Court of First Instance attempted to remove this blockage on judicial review in Jego‐Quere et Cie SA v. Commission, (Case T‐177/01) [2002] ECR II‐2365. In this case, the CFI held that a litigant could satisfy the “individual concern” test by showing that a decision “affects his legal position, in a manner which is both definite and immediate … by restricting his rights or imposing obligations on him”. On review, the European Court of Justice rejected the CFI’s attempt to relax the “individual concern” requirement and reaffirmed Plaumann’s restrictive test. Commission v. Jego‐Quere et Cie SA, (Case C‐263/02P) (2004) ECR I‐3425 . For discussion of recent strains between the CFI and ECJ over Plaumann, see PAUL CRAIG, EU ADMINISTRATIVE LAW 331‐40 (2006); Ronald M. Levin, Frank Emmert & Christoph Feddersen, Judicial Review in REPORT OF THE EUROPEAN UNION LAW PROJECT OF THE AMERICAN BAR ASS’N ADMINISTRATIVE LAW AND REGULATORY POLICY SECTION (current draft available at http://www.abanet.org/adminlaw/eu/home.html). 14 B. We have a lot of trouble figuring out who is in charge of the law. One of the more embarrassing parts of teaching American administrative law arrives when it is time to discuss scope of review—i.e., how closely courts should scrutinize agency decisions when deciding whether to affirm or reject them. It is hard to escape the feeling that doctrine in this area is far more complex than could possibly be justified. Much of this complexity revolves around the problem of determining whether courts or agencies are in primary control of determining the meaning of the agency organic statutes. To frame this discussion, at the risk of oversimplification, let us stipulate that the human mind can, in reality, accommodate two basic standards of review—de novo review and rationality review. 60 A court applying de novo review decides an issue as it sees best. This form of review accords with the Marbury v. Madison idea that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 61 In American administrative law parlance of today, this form of review is also roughly consistent with what is called Skidmore deference, which instructs a reviewing court to uphold an agency’s interpretation of its organic statute so long as, after “respect[ful]” consideration, the court finds the agency’s construction “persuasive.” 62
In the context of judicial review of an agency’s construction of its organic statute, rationality review finds expression in the Chevron doctrine, which instructs federal courts to follow a two‐step inquiry. 63 At step 1, a court should, using “traditional tools of statutory construction,” determine whether Congress has directly spoken to the precise question at issue. 64 If Congress has made its views clear, then the court should give effect to them. If Congress has not addressed the precise question, then, at step 2, the court should affirm the agency’s construction so long as it is “permissible” or “reasonable.” 65 Because the Chevron doctrine seems on its face to give agencies remarkable authority to determine the scope of their own powers, it has been characterized as the “counter‐Marbury” of the modern administrative state. 66
Chevron’s key insight is to recognize that resolution of genuine statutory ambiguity, virtually by hypothesis, requires policymaking. To support the proposition that agencies, rather than federal courts, should exercise primary control over the policy decisions needed to resolve legal ambiguity, the Supreme Court turned to a mix of rationales. First, it turned to faux legislative intent, indulging the fiction that 60 See, e.g., United States v. Hill, 196 F.3d 806, 808 (7th Cir. 1999) (Posner, J.) (“We don't put much stock in the precise verbal formulations of standards of appellate review. Basically there is deferential [rationality] review and non‐deferential … [de novo] review…”). 61 5 U.S. (1 Cranch) 137 177 (1803). 62 323 U.S. 134, 139 (1944). 63 Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842‐43 (1984). 64 Id. 65 Id. 66 See, e.g. Cass R. Sunstein, Law and Administration after Chevron, 90 COLUM L. REV. 2071, 2075 (1990). 15 Congress wants agencies, not courts, to perform this task. 67 Second, the Court made the functional points that agencies should make the needed policy choices because they enjoy greater expertise and political accountability than unelected federal judges. 68
In recent years, however, much of the academic and judicial effort on Chevron has been devoted, we sheepishly report, to Chevron’s “step 0.” 69 (We eagerly await the arrival of steps with negative numbers.) The evolving case‐law on step 0 is devoted to determining whether a court reviewing an agency’s statutory interpretation should apply Skidmore’s de novo(ish) standard of review or Chevron’s form of rationality review. 70
After bubbling in the case law for some time, this step‐0 issue came to a head when the Supreme Court made a grand, self‐conscious effort to resolve it in 2001’s United States v. Mead Corp. 71 In this case, the Court held that Chevron deference applies to an agency’s construction of its own statute provided: (a) Congress—implicitly or explicitly—delegated to the agency the power to imbue its interpretations with the “force of law,” and (b) the agency invoked this power. 72 The opinion is quite unclear with regard to what it means by “force of law,” which is one of the more pernicious phrases in American administrative law. That said, the down‐and‐dirty way to read Mead is that courts should generally apply Chevron deference to interpretations that agencies develop via notice‐and‐comment rulemaking or relatively formal adjudication. 73 Determining whether to apply Chevron outside the simple cases, however, remains problematic. 74
The Supreme Court—depending upon one’s point of view—either clarified step 0 or made it worse in Barnhart v. Walton, which did not disavow Mead but made its framework seem notably fuzzier. 75 According to Barnhart, factors militating in favor of the application of Chevron deference to an agency’s resolution of interstitial ambiguity in its organic statute include: (a) that the agency possesses relevant expertise; (b) that administration of the statue is complex; (c) that the question is important; (d) that the agency had carefully considered it; and (e) that the agency’s 67 Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843‐44 (1984).
68 Id. at 864‐66.
69 See, e.g., Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187 (2006); Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 836 (2001) (christening “step zero”). 70 See generally United States v. Mead Corp., 533 U.S. 218 (2001) (creating a framework for determining whether Skidmore or Chevron deference applies to an agency statutory construction). 71 Id. 72 Id. at 226‐27. 73 See id. at 230 (observing that, in an “overwhelming” majority of cases, the Supreme Court’s applications of Chevron had reviewed “the fruits of notice‐and‐comment rulemaking or formal adjudication”). 74 See, e.g., Lisa Schulz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443, 1458‐61 (2005) (reviewing lower court efforts to apply Mead); Adrian Vermeule, Introduction: Mead in the Trenches, 71 GEO. WASH. L. REV. 347, 349 (2003) (“In the trenches of the D.C. Circuit … Mead’s ambitious recasting of deference law has gone badly awry.”). 75 535 U.S. 212 (2002). 16 construction has been consistent over time. 76 Barnhart’s underlying message thus seems to be: Apply Chevron where, on the basis of any circumstance that seems plausibly relevant, it seems like a good idea to do so. It is not easy to square this fuzzy, totality‐of‐the‐circumstances approach with Mead’s seemingly more formalistic framework. American legal scholars have poured rivers of ink into debating how to apply the Chevron doctrine, whether it is a good or bad idea, and whether, in point of fact, it matters at all. As a crude measure of this point, a May 3, 2008 search of Westlaw’s Journals and Law Reviews database found 180 articles written since 1984 with “Chevron” in the title and the term “deference” in the body of the text. Tossing “Mead” into the mix would add to this total. You will be shocked, shocked, to learn that this effort has not sorted things out. 77
The upshot of all of this is that, in many cases, courts and litigants must spend far more effort than they should trying to figure out whether the court or the agency is in charge of the policy determinations needed to assign legal meaning within the space where reasonable minds can disagree. We understand that the EU, in accord with the usual approach in civil law systems, takes the Marbury view (if you will forgive the parochialism) that courts, not the Commission, should be in charge of determining legal meaning and rejects Chevron­style deference. 78 Someday, an American administrative lawyer may sidle up to you and suggest you try a little Chevron two‐step. You now know to respond—“Yes, but what about step 0?” C. Administrative rationality, alas, lies in the political eye of the judicial beholder. Judicial review is thought to be an essential element in promoting administrative accountability, but recent empirical studies suggest it can carry a strong political component of dubious legitimacy. The studies correlate the outcome of a case with whether a judge has been appointed by a Republican or Democratic president, which is used as a proxy for ideology. The results demonstrate that a judge’s ideology is a reliable predictor of the outcome of a case. For example, Professor Revesz has found that challengers seeking more stringent health‐and‐safety regulations prevailed in 50.3 percent of cases involving at least two judges appointed by Democratic presidents, but in only 27.8 percent of cases before panels in which at least two of the judges were appointed by Republican presidents. 79 Other studies have reached similar results. 80
76 Id. at 221‐22. 77 Cf. CASABLANCA (1943) (Captain Renault: I'm shocked, shocked to find that gambling is going on in here!...), available at http://www.imdb.com/title/tt0034583/quote. CRAIG, supra note 59 at 436 (“On this view [adopted by EU courts], it is simply regarded as axiomatic that courts decide issues of law, in the sense of substituting judgment on the meaning of the contested term for that of the primary decision‐maker, and it would be seen as constitutional heresy to suggest otherwise.”). 79 Richard L. Revesz, Congressional Influence on Judicial Behavior? An Empirical Examination of Challenges to Agency Action in the D.C. Circuit, 76 N.Y.U. L. REV. 1100 (2001). 80 See, e.g., Cass R. Sunstein, David Schkade & Lisa Michelle Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301, 317, 322‐23 (2004) (finding that 78 17 The door is open for judges to follow their ideological impulses because judicial review doctrines in administrative law are indeterminate, consisting of open‐ended standards of deference or multiple balancing tests where the judge can manipulate the weight assigned to various factors. 81 Consider, for example, the “arbitrary” and “capricious” standard, 82 used to review informal adjudication and rulemaking. Although this phrase seems to contemplate that courts are to be deferential, it has evolved over time, as discussed above, into a relatively tight form of “hard look review” which has been much blamed for the ossification of rulemaking. More to the present point, however, the open‐ended nature of determining what constitutes “a rational connection” between “the facts found and the choice made” 83 leaves ample space for ideological motives to leak into judicial review. Aided by the briefs of those seeking to stop the implementation of a rule, judges who are so inclined can probably find problems with the agency’s explanation of the evidence and arguments before it. At the same time, because of the ambiguity of the review standard, judges who are inclined to support the rule can uphold the new regulation. The empirical evidence supporting this prediction is not perfect, but it is convincing enough to suggest that politics finds its way into judicial review of agency decisions to an eyebrow‐raising degree. 84 Yet, judicial review is an important mechanism of accountability. To paraphrase Erasmus, “Judges, can’t live with them; can’t live without them.” Perhaps politicization of “hard look” review was inevitable given the manner in which judges are appointed in the United States and given the likelihood that judges appointed by Republican presidents voted against industry challenges to EPA rules in forty‐
six percent of cases, and judges appointed by Democratic presidents voted against such challenges in sixty‐four percent of cases); Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. Rev. 1741 (1999) (finding that courts denied standing to environmental plaintiffs in 29 percent of cases, but judges appointed by Republican presidents denied standing in 43.5 percent of cases, while judges appointed by Democratic presidents did so in only 11.1 percent of the cases, and finding that judges on the D.C. Circuit appointed by Republican presidents denied standing in 79.2 percent of the cases, while judges appointed by Democratic presidents did so in only 18.2 percent of the cases); Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeal, 107 YALE L.J. 2155, 2169 (1998) (finding panels in the D.C. Circuit controlled by judges appointed by Republican presidents issued conservative decisions in fifty‐four percent of cases in which the Chevron doctrine was applied, whereas panels controlled by judges appointed by Democratic presidents judges rendered liberal decisions in sixty‐eight percent of cases); Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1763 (1997) (finding that panels in the D.C. Circuit dominated by judges appointed by Republican presidents found fatal flaws in the reasoning EPA used to support rules in up to eighty‐nine percent of cases, while panels dominated by judges appointed by Democractic presidents found such flaws in no more than thirteen percent of cases). 81 See Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Agency Decisions, 44 DUKE L.J. 1051 (1995) (arguing that judges are more likely to introduce ideology into their decisions when judicial review doctrines are indeterminate because they cannot be as easily criticized for applying the law in a neutral manner). 82 5 U.S.C. §706(2)(A). 83 Motor Vehicles Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 84 See supra note 80 (collecting studies). , 18 judicial review doctrines will remain indeterminate. 85 We understand that the EU courts’ review of administrative discretion for “manifest error” has been drifting toward something more akin to the “hard look” in recent years. 86 Has judicial review in the EU’s judiciary become more “political” as a result? D. Taking action against inaction. For those who prefer an activist regulatory state, perhaps the most significant limitation of judicial review as a mechanism of accountability is judicial reluctance to police the failure of an agency to act. The Supreme Court recently attributed much of this reluctance to a need “to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.” 87 This concern is certainly laudable and warrants consideration, but agencies’ failure to pursue their statutory mandates with sufficient vigor is also a serious concern. An agency’s failure to address pressing health, safety, environmental or other problems might be caused by a number of factors. 88 In the United States, one such factor is “hollow” government or the problem that agencies cannot possibly achieve many of the mandates for which they are responsible with the resources provided by the White House and Congress. 89 In addition, regulatory capture figures into the picture. One only has to think of the Bush Administration’s stubborn refusal to acknowledge, let alone address, global warming to suspect this intransigence is related to the administration’s close contacts with the energy industry. A substantial literature predicts such capture based on the strong incentives of regulated entities to organize politically to stymie regulatory initiatives they disfavor (or to use government for their benefit) and the weak incentives of individuals to organize to oppose such industry efforts. 90
The Administrative Procedure Act (APA) provides a potential remedy for inaction by authorizing any interested person to file a petition asking an agency to commence a rulemaking. 91 Further, the APA authorizes judicial review if an agency 85 Michael Abramowicz, En Bank Revisited, 100 COLUM. L. REV. 1600, 1605 (2000) (“Even if judges are not consciously seeking to advance their political agendas, law is indeterminate, and a judge who is liberal or conservative cannot always escape her personal philosophy in balancing competing arguments.”) 86 See CRAIG, supra note 59 at 477‐81; Levin Emmert, & Feddersen, supra note 59, at 136‐39. 87 See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 66 (2004) (explaining that the principal purpose of the APA’s limitations on remedies for agency inaction is to preserve lawful agency discretion from judicial usurpation). 88 See Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 Texas L. Rev. 525, 529 (1997) (positing explanations for the phenomenon of agency inaction). 89 Sidney A. Shapiro & Rena Steinzor, Capture, Accountability, and Regulatory Metrics, 58 TEX. L. REV. __ (forthcoming 2008). 90 See id. at __ (describing and citing the capture literature). 91 5 U.S.C. §553(e) (“Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.”). 19 declines to respond to the petition, 92 or if it rejects it. 93 When agencies simply do not respond to the petition, judges have been reluctant to second‐guess the lack of a response, instead deferring to agency agenda‐setting. 94 An agency’s assertion that it has not had time to respond becomes less persuasive after a number of years have passed. Nevertheless, the courts normally do not force a response before the expiration of at least several years. 95 Even when a court decides that the delay is excessive, it typically will ask the agency for a timetable concerning when it can respond, thereby adding additional delay. 96 In the case of a denial, the courts use a highly deferential standard of review. 97 Such deference is probably inevitable because judges usually lack a rulemaking record to scrutinize in this context, which deprives the proponent of the petition of the opportunity to build an evidentiary case for regulatory action. In such a situation, it is difficult for the proponent of the petition to persuade a court that the rejection of the petition by the agency was unreasonable—that is, “arbitrary and capricious.” We understand the reluctance of courts to police agency inaction, and yet this reluctance is a significant problem when in comes to holding agencies accountable for the implementation of their statutory mandates. Addressing the problem falls back on the political system, which may or may not act. The combination of a Republican president and Congress in the Bush administration, for example, resulted in no meaningful oversight of the White House. Our point is not partisan; while we largely do not believe that the inaction of the Bush Administration was justified, we fully recognize that the election of Republicans will lead to different regulatory policies than the election of Democrats. But the election of Republicans does not justify inaction—ignoring statutory mandates—instead of seeking their repeal or amendment. When this happens, both the judicial and electoral accountability mechanisms fail. 92 5 U.S.C. §706(a) (“The reviewing court shall—…(1) compel agency action unlawfully withheld or unreasonably delayed….”). 93 5 U.S.C. §706(2)(a) (“The reviewing court shall—…(2) hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law….”). 94 See RICHARD J. PIERCE, SIDNEY A. SHAPIRO, & PAUL R. VERKUIL, ADMINISTRATIVE LAW AND PROCESS 218 (4th ed. 2004) (“A court can know only a small fraction of elements that must enter into an agency’s process of setting its agenda and allocating its resources among competing tasks.”). 95 See, e.g., Pub. Citizen Health Research Group v. Chao, 314 F.3d 143, 151–59 (3d Cir. 2002) (finding OSHA’s nine‐year delay in responding to a rulemaking request to be excessive). 96 See Sidney A. Shapiro & Robert L. Glicksman, Congress, The Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819, 834–35 (discussing and providing examples of timetable solicitation and deadline enforcement by courts). 97 See, e.g., Massachusetts v. EPA, 127 S. Ct. 1438, 1459 (2007) (“Refusals to promulgate rules are thus susceptible to judicial review, though such review is ‘extremely limited’ and ‘highly deferential.’”); Nat’l Customs Brokers & Forwarders Ass’n of America, Inc. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989) (noting that while failure by an agency to promulgate a rule is subject to judicial review, such review should be extremely limited and highly deferential); WWHT, Inc. v. FCC, 656 F.2d 807, 818 (D.C. Cir. 1981) (contrasting the broad discretionary power that agencies possess when deciding whether to promulgate rules with the narrow scope of judicial review of such decisions).
20 Is this an inherent flaw of all administrative law regimes or is there true accountability for administrative inaction in Europe? CONCLUSION So, American administrative law: (a) is not clear which elected branch is in charge; (b) has found efforts to democratize policy formation deeply problematic; and (c) is conflicted with regard to the scope of judicial power to tell agencies what to do. Can you help us out, Europe? 21