No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
Relative Checks: Towards Optimal Control of Administrative Power
Abstract
Administrative agencies wield a necessary but dangerous power. Some control of that power is constitutionally required and normatively justified. Yet widely discordant views persist concerning the appropriate means of control. Scholars have proposed competing administrative control models that variably place the judiciary, the President, and Congress at the helm. Although these models offer critical insights into the institutional competencies of the respective branches, they tend to understate the limitations of those branches to check administrative power and ultimately marginalize the public interest costs occasioned by second-guessing administrative choice. The “relative checks” paradigm introduced here seeks to improve upon existing models in at least two critical respects. First, it posits the existence of an optimal control point within the shared values of two sometimes competing missions in administrative law: that of promoting the public interest and that of legitimizing administrative power within our constitutional scheme. Next, the paradigm argues that the optimal control ideal can be best realized by tailoring both the source and degree of administrative control to particular types of administrative actions with sensitivity to the institutional competencies of the respective checking bodies. Prescriptively, this framework seeks to apportion control among the respective branches in a way that capitalizes on each branch’s competencies while democratically promoting the public interest. Descriptively, looking through a relative checks lens may also enhance our under-standing of existing administrative practices and the academic critiques thereof.
... Given persistent partisanism, political polarization, and gridlock (Pildes, 2015), it cannot do much to threaten agencies with overturns, for instance (Croston, 2010). The policy preferences of oversight committees also do not always reflect the complexion of Congress as a whole and may be tilted toward special interests instead of reflecting the concerns of constituents at large (Rubenstein, 2010). Congress's incapacity to exert 'more than occasional oversight of independent agencies proceedings' (McGowan, 1986: 224) has increased demand for 'fire-extinguisher' (Shepsle, 2010: 432) litigation in the federal courts to impose liability on agencies vicariously (Strauss, 2012). ...
... The American legislative process incorporates at least nine 'vetogates', ranging from the relevant House Committee through Senate filibuster to Presentment to the President (Eskridge, 2015). Congress's capacity to legislate with precision has since the 1970s waned in step with the progress of divided government and partisan polarization (Rubenstein, 2010). Legislative regulatory proposals are often the subjects of bitter struggles between parties, regions, and special interests. ...
Behavioral economics has revolutionized American legal scholarship in many areas of law, but not in administrative law, the law that regulates the regulators. This article theorizes that the administrative law doctrines developed by the Supreme Court of the United States strikingly resemble a system of ‘debiasing’ devices developed to counteract bureaucratic and judicial behavioral failures in just the areas that they matter most. A strong, alternative, justification may thus exist for the enduring paradox of American administrative law that administrators should be prepared to have their substantive decisions scrutinized by ‘hard look’ reviewing courts, while judges should be ready to defer to agencies on questions of statutory interpretation.
... According to William Eskridge, proportion to the number of vetogates. 139 The many economic, political and social problems of the United States could hardly be resolved in the teeth of so many effective vetogates without substantial authority being delegated to agencies to fill in the unresolved details 140 and adapt general terms to new circumstances. 141 Ultimately, broad delegation to the executive, as Justice Scalia reckons, is the "hallmark" of the modern administrative state. ...
English administrative law guards judicial supremacy over all matters of statutory interpretation, while instructing judges to refrain from scrutinizing administrators' factual findings. By contrast, American federal courts are obliged to respect agencies' statutory-interpretive autonomy, but take a rigorous " hard look " at substantial agency factual determinations. This Article argues that the antithetical approaches to judicial review of administrative action adopted by the apex courts of the United Kingdom and the United States can be adequately explained by the polarization of these two polities along a spectrum of effective vetogates.
... 214 The competence of courts to control agencies' proceedings wanes in proportion as these become more technical or more politicized. 215 ...
In contemporary Hong Kong, China’s first special administrative region, administrative law has become ever more influential over government decision-making, notwithstanding the semi-authoritarian political framework of the territory. Contrary to existing scholarship, this Article argues that neither rule-of-law concerns nor misguided judicial adventures satisfactorily explain the evolution of administrative law in this former British colony. Administrative law doctrines are better understood as decisional devices developed to promote “administrative efficiency,” achieved through the reduction of agency costs inflicted by administrative
agencies due to imperfect compliance with statutory goals on their
political principal—the Hong Kong Legislative Council—to the optimal
point where further reduction would yield no benefit to the latter, and the de facto imposition of minimal Kaldor-Hicks efficiency requirements on agency policy outcomes when substantive statutory goals are ambiguous. This Article conjectures that, given the absence of any enabling administrative procedure act, judges’ desire for popular legitimacy and reputation, fear of legislative reversals, and practical needs to conserve their scarce resources explain the underlying design of these doctrines.
Anahtar Kelimeler: Vergi kaçakçılığı, etkin pişmanlık, pişmanlık ve ıslah, adil yargılanma hakkı, mahkemeye erişim hakkı, hak arama hürriyeti, hukuk devleti. Vergi kaçakçılığı suçunda, suçun vergi idaresi tarafından öğrenilmesinden önce pişmanlık ve ıslah hükümleri ile ceza almaktan kurtulmak mümkün iken; suçun vergi idaresince öğrenilmesinden sonra bu hükümlerden yararlanılamamaktaydı. Sanıkların vergi kaçakçılığı suçundan aldıkları cezaların yüksekliği noktasında yoğun eleştiriler mevcuttu. Bu eleştirilerin de etkisiyle 7394 sayılı Kanunla Vergi Usul Kanunu(VUK)'nun vergi kaçakçılığını düzenleyen 359'uncu maddesine etkin pişmanlığa ilişkin hükümler eklenmiştir. Bu yolla hem eleştirilere maruz kalan ağır cezaların bir nebze önüne geçilmiş hem de vergi kaçakçılığına konu fiil nedeniyle ziyaa uğrayan vergi ile bağlantılı cezalar ve diğer feri borçların kanuni düzenlemede belirlenen kısmının ödenmesi öngörülerek vergi gelirlerinin kamu hazinesine geçişine katkı sağlanmış olunacaktır. Düzenleme bu yönü itibariyle olumlu izlenim vermektedir. Ancak, etkin pişmanlıktan yararlanmak için vergi kaçakçılığı fiiliyle ziyaına sebep olunan vergi ile bağlantılı cezalar ve diğer feri alacakların ödenmesi yeterli gelmemekte aynı zamanda ödenen söz konusu alacaklara ilişkin "vergi mahkemesinde dava açılmaması, açılmışsa feragat edilmesi, kanun yollarına başvurulmaması veya başvurulmuşsa vazgeçilmesi" gerekmektedir. Etkin pişmanlığın böyle bir şarta bağlanması, Avrupa İnsan Hakları Mahkemesi (AİHS)'nin adil yargılanmaya ilişkin 6'ncı maddesinin temel gereklerinden biri kabul edilen mahkemeye erişim hakkına, Türkiye Cumhuriyeti Anayasası'nın hak arama hürriyeti başlıklı 36'ncı maddesine ve idarenin her türlü işlemine karşı yargı yolunun açık olduğuna ilişkin 125'inci maddesine aykırılık teşkil etmektedir. Açıklanan sebeplerle çalışmamızda öncelikle etkin pişmanlığın tanımına ilişkin görüşlere yer verilmiş, hukuki niteliğine değinilmiş ve etkin pişmanlık müessesesi benzer mahiyetteki diğer müesseselerle mukayese edilmiştir. Daha sonra 7394 sayılı Kanunla Vergi Usul Kanunu'nun 359'uncu maddesine eklenen etkin pişmanlık hükümleri açıklanmıştır. Son olarak etkin pişmanlık müessesesinden yararlanabilmek için öngörülen vergi mahkemelerinde dava açamama şartının, AİHS'nin adil yargılanmaya ilişkin 6'ıncı maddesine, Anayasanın hak arama hürriyetine ilişkin 36'ncı maddesine ve idarenin her türlü işlemine karşı yargı yolunun açık olduğuna dair 125'inci maddesine uygun olup olmadığı çeşitli mahkeme kararları ve doktrin görüşleriyle birlikte değerlendirilmiştir.
Vergi kaçakçılığı suçunda, suçun vergi idaresi tarafından öğrenilmesinden önce pişmanlık ve ıslah
hükümleri ile ceza almaktan kurtulmak mümkün iken; suçun vergi idaresince öğrenilmesinden sonra
bu hükümlerden yararlanılamamaktaydı. Sanıkların vergi kaçakçılığı suçundan aldıkları cezaların
yüksekliği noktasında yoğun eleştiriler mevcuttu. Bu eleştirilerin de etkisiyle 7394 sayılı Kanunla
Vergi Usul Kanunu(VUK)’nun vergi kaçakçılığını düzenleyen 359’uncu maddesine etkin pişmanlığa
ilişkin hükümler eklenmiştir. Bu yolla hem eleştirilere maruz kalan ağır cezaların bir nebze önüne
geçilmiş hem de vergi kaçakçılığına konu fiil nedeniyle ziyaa uğrayan vergi ile bağlantılı cezalar ve
diğer feri borçların kanuni düzenlemede belirlenen kısmının ödenmesi öngörülerek vergi gelirlerinin
kamu hazinesine geçişine katkı sağlanmış olunacaktır. Düzenleme bu yönü itibariyle olumlu izlenim
vermektedir. Ancak, etkin pişmanlıktan yararlanmak için vergi kaçakçılığı fiiliyle ziyaına sebep
olunan vergi ile bağlantılı cezalar ve diğer feri alacakların ödenmesi yeterli gelmemekte aynı
zamanda ödenen söz konusu alacaklara ilişkin “vergi mahkemesinde dava açılmaması, açılmışsa
feragat edilmesi, kanun yollarına başvurulmaması veya başvurulmuşsa vazgeçilmesi”
gerekmektedir. Etkin pişmanlığın böyle bir şarta bağlanması, Avrupa İnsan Hakları Mahkemesi
(AİHS)’nin adil yargılanmaya ilişkin 6’ncı maddesinin temel gereklerinden biri kabul edilen
mahkemeye erişim hakkına, Türkiye Cumhuriyeti Anayasası’nın hak arama hürriyeti başlıklı 36’ncı
maddesine ve idarenin her türlü işlemine karşı yargı yolunun açık olduğuna ilişkin 125’inci
maddesine aykırılık teşkil etmektedir.
Açıklanan sebeplerle çalışmamızda öncelikle etkin pişmanlığın tanımına ilişkin görüşlere yer
verilmiş, hukuki niteliğine değinilmiş ve etkin pişmanlık müessesesi benzer mahiyetteki diğer
müesseselerle mukayese edilmiştir. Daha sonra 7394 sayılı Kanunla Vergi Usul Kanunu’nun
359’uncu maddesine eklenen etkin pişmanlık hükümleri açıklanmıştır. Son olarak etkin pişmanlık
müessesesinden yararlanabilmek için öngörülen vergi mahkemelerinde dava açamama şartının,
AİHS’nin adil yargılanmaya ilişkin 6’ıncı maddesine, Anayasanın hak arama hürriyetine ilişkin
36’ncı maddesine ve idarenin her türlü işlemine karşı yargı yolunun açık olduğuna dair 125’inci
maddesine uygun olup olmadığı çeşitli mahkeme kararları ve doktrin görüşleriyle birlikte
değerlendirilmiştir.
This special issue provides several perspectives on the potential and limits of judicial risk regulation as a mechanism to redress actual and perceived regulatory failures. Central to this inquiry is the legitimacy of the court system to act as a risk regulator, specifically as compared to governmental actors. This article focuses on the question of institutional competency of juridical risk regulators from a law and economics (“L&E”) perspective. L&E scholarship will be used to help to understand the relative strengths and weaknesses of courts as risk regulators and helps us decide when courts may act as substitute risk regulators and when they are better positioned as complements.
The creation of the European Securities and Markets Authority (ESMA) has marked a major step towards more integrated rulemaking and supervision in the European financial market sector. ESMA's organisation and operations are strongly influenced by the position of this new Authority within the EU institutional framework. The European Court of Justice (in Case C-270/12) confirmed the legitimacy of the legal basis of ESMA itself and of its powers. While ESMA's governance still displays some features of a network among national supervisors, its quasi-regulatory functions and supervisory tasks are constrained by limitations directly or indirectly dictated by the Treaties. This paper highlights how the traditional concepts of independence and accountability towards EU institutions and stakeholders apply to ESMA. ESMA's relationships with national competent authorities, which retain direct supervisory powers with limited exceptions, and the EU institutions, which are competent for the adoption of legislative and non-legislative regulatory measures, are also considered. The analysis shows that tasks conferred on ESMA fall short to match its relatively high accountability, which is aligned with international best practices. The European Commission announced a possible revision of the European Supervisory Authorities (including ESMA) framework for 2014; we therefore suggest some reform proposals that could help streamline regulatory and supervisory functions at EU level, thus allowing ESMA to better exploit its potential while avoiding the risk of excessive centralisation of supervisory powers.
From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the presidential control model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the President, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions - for example, that the President represents public preferences and resists parochial pressures - that do not hold up as a factual matter. Although recent empirical analyses purport to validate the model, they fall short because they examine how the White House exercises control without considering how agencies experience control. This Article is the first to study the practice of presidential control from inside the administrative state. We interviewed the top political officials at the Environmental Protection Agency from the George H. W. Bush and Clinton Administrations during 1989-2001. Our data, which do not vary substantially between respondents of different presidential administrations, suggest that White House involvement is more complex and less positive than previous accounts acknowledge. But we do not conclude that the presidential control model lacks merit. Indeed, our respondents recognize that the President has a role to play in controlling agency decision-making. We therefore conclude that the presidential control model requires reworking to remain valid in practice as well as in theory. We identify next steps in that direction.
All will agree that the Constitution creates a unitary chief executive officer, the President, at the head of the government Congress defines to do the work its statutes detail. Disagreement arises over what his function entails. Once Congress has defined some element of government and specified its responsibilities, we know that the constitutional roles of both Congress and the courts are those of oversight of the agency and its assigned work, not the actual performance of that work. But is it the same for the President? When Congress confers authority on the Environmental Protection Agency to regulate various forms of pollution, on the Occupational Safety and Health Administration to regulate workplace safety, on the Food & Drug Administration to regulate the safety of food, drugs and medical devices, etc., etc., is it in legal contemplation giving the President the authority to decide these matters, or only to oversee them? One might think this a fairly elementary question, yet it is one that has divided Attorneys General from the beginning of the Republic and that divides scholars still. Does it deny the unitary characteristic of the American presidency to suggest that in relation to the general concerns of administrative law, and absent actual congressional delegation of decisional authority to the President, his role is limited to executive oversight of the agency on whom that authority is statutorily conferred? Our Constitution explicitly gives us a unitary head of state, but it leaves the framework of government almost completely to congressional design. If its text makes any choice between President as overseer of the resulting assemblage, and President as necessarily entitled "decider," the implicit message is that of oversight, not decision. Congress's arrangements of government are a part of the law that the President is to assure will "be faithfully executed," and the text anticipates that those arrangements will place "duties" elsewhere in the executive branch it defines. The size and ambition of contemporary government, in a country dedicated to the rule of law and resolute to defend itself against unchecked individual power, point the same direction. Congress can, to be sure, give the President decisional authority, and it has sometimes done so. In limited contexts - foreign relations, military affairs, coordination of arguably conflicting mandates - the argument for inherent presidential decisional authority is stronger. But in the ordinary world of domestic administration responsibilities that Congress has delegated to a particular governmental actor it has created, that delegation is a part of the law whose faithful execution the President is to assure. Oversight, and not decision.
Born out of a Reagan-era desire to minimize regulatory costs, and not fundamentally reconsidered since its inception, the centralized review of agency rulemakings has arguably become the most important institutional feature of the regulatory state. Yet it is a puzzling feature: although centralized review is sometimes justified on the ground it could harmonize the uncoordinated sprawl of the federal bureaucracy, the agency tasked with regulatory review, the Office of Management and Budget (OMB), has never embraced that role. It has instead doggedly clung to its original cost-reduction mission, justifying its function as a check on the federal bureaucracy with reference to the pervasive belief that agencies will systematically over-regulate.This article shows why this belief is wrong. The claim that agencies are systematically biased in favor of regulation finds little support in public choice theory, the political science literature, or elsewhere. In any event, theories predicting rampant over-regulation are no more plausible than alternative theories suggesting that agencies will routinely under regulate. Even if zealous agencies captured by powerful interest groups did characterize the regulatory state, OMB review is a curious and poorly designed counterweight. There is no reason to believe that OMB's location in the Executive Office of the President will inoculate OMB from the pathologies that afflict other agencies, and some reason to think that it will exacerbate them. As a response to these problems, we urge a reconsideration of the foundational role that centralized review should play in our regulatory state, and a revival and re-conceptualization of the neglected principles of harmonization that once ostensibly animated it.
This article marries the positive literature regarding judicial behavior to the normative literature regarding judicial review. Though scholars in the legal and political science academies both study judicial review, their approaches are dramatically different. Legal scholars tend to the normative, studying how judges should behave. Political scientists and political economists ask positive questions: how do judges behave, and why? The central thesis of the article is the normative literature about judicial review will remain impoverished until it takes account of the positive scholarship. Ought implies can; much of the positive literature suggests judges cannot or will not behave as normative scholars demand.The article proceeds in four parts. After an Introduction, there is a brief historical discussion to explain why normative and positive scholarship parted company in the early 1940s. The heart of the article follows. This part is a comprehensive examination of the political influences on the constitutional judges. Beginning with the politics of the judge herself, the article then moves out in concentric circles to examine (a) the politics of judging on a collegial court; (b) the difficulties the Supreme Court faces in managing a large judicial hierarchy; (c) the influences of the other branches on Supreme Court decisionmaking; and (d) the relationship between public opinion and judicial review. In each section the goal is to show how confronting normative aspiration with political reality refocuses the questions that ought to be asked about judicial review. A subsidiary goal is to introduce normative scholars who are unaware to the vast positive literature about judicial behavior. The final part examines how the political influences described here ought to bear upon normative scholarship on judicial review.
The Supreme Court's 1984 decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. contains a revolutionary analysis of the role of agencies and courts in interpreting statutes. Professor Merrill's Article surveys the actual practice of the Supreme Court since Chevron and shows that the Court does not in fact follow the framework of that case on any consistent basis. He argues that the divergence between theory and practice reflects unease with Chevron's implications for the balance of power between the branches of government and suggests the need for a new model. The last two sections of the Article set forth an alternative to Chevron-the executive precedent model. Under this conception, executive interpretations would be viewed as a form of precedent and would be treated by courts the same way as precedents of courts of concurrent jurisdiction: not legally binding, but entitled to a presumption of correctness, and given more or less deference depending on a variety of contextual factors. Professor Merrill argues that the executive precedent model would avoid Chevron's failings, provide an explanation for the multiple "deference" factors developed in the pre-Chevron era, and offer better incentives for all institutional actors.
The law governing judicial deference to agency statutory constructions is a complex brew of improbable fictions and proceduralism. One reason this state of affairs persists is that courts have failed to resolve a contradiction between two competing, sensible impulses in deference doctrine. Oceans of precedent over the last 150 years have stressed that courts should defer to longstanding, reasonable constructions by agencies of statutes they administer. Then along came Chevron, which extolled agency flexibility and instructed courts to extend strong deference even to interpretive flip-flops. Competition between the virtues of interpretive consistency and flexibility has bubbled through and confused judicial deference analysis ever since. The Supreme Court's recent efforts to limit the scope of Chevron's strong deference to agency constructions that carry the force of law has worsened such confusion, in part because the Court's discussion and application of this concept were incoherent. This Article proposes a commitment approach to this force-of-law limitation that has deep roots in the concept of the rule of law and considerable power to clarify deference doctrine by resolving the clash between the competing values of interpretive consistency and flexibility. For the rule of law to be genuine, the default position must be that laws have general applicability - i.e., the law for X should be the law for Y as well. This truism suggests that an agency's statutory construction properly can enjoy the force of law only where the agency has committed to applying its construction consistently across time and parties. Where an agency's construction is longstanding, the agency's commitment to consistent application is self-evident. The puzzle, of course, is to reconcile this commitment approach with Chevron's praise of interpretive flexibility. One solution is to recognize that an agency can genuinely commit to a new interpretation by adopting it in a manner that makes it costly to change course later. Where agencies commit to consistency in this way, there is less need for courts to engage in independent statutory construction to protect rule-of-law values, which should leave courts freer to accept the premise of strong deference that the best way to determine the meaning of an agency's statute is to trust the agency's own (rational) construction.
The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study. Concurring opinions by Justices Thomas and Stevens in the American Trucking case raise anew the question whether the nondelegation doctrine has any grounding in the Constitution's text and structure. The answer is "yes." The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers. The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall in 1825, and no one has improved on his formulation in nearly two centuries.
In recent years, at least since President Reagan's precedent-setting Executive Order 12291, the phenomenon of direct presidential supervision of agencies has received significant attention in legal scholarship. Congress's involvement has been much less thoroughly examined, and, although most people are familiar with congressional hearings and oversight, the dominant image as a legal matter is that once Congress legislates, it loses control over how its laws are administered unless it chooses to legislate again. In the political science/public policy literature, the understanding of Congress's role in monitoring agencies has evolved from despair that Congress is not sufficiently engaged to a recognition that Congress gets involved when it is worth it in terms of gaining political support from oversight activities. The police patrol/fire alarm model of oversight predicts that Members of Congress have the strongest incentive to get involved when a constituent pulls an alarm. However, the high volume of oversight that is not responsive to particular alarms contradicts this prediction. Congress routinely engages in a very high volume of oversight, both formal and informal. Formal oversight includes more precise legislation, appropriations riders, earmarked funding, certification requirements and Senate advice and consent on appointments. Informal oversight includes hearings, direct communication with agencies, influence over appointments, investigations, and casework. This paper sets out and analyzes the various forms of formal and informal oversight and then examines key doctrines of administrative law, namely the nondelegation doctrine, Chevron and Vermont Yankee, and asks whether our understanding of those doctrines is affected by the fact of constant and consistent congressional involvement in and oversight of the administrative process.
The Administrative Procedure Act (APA) has been out of date from the day it was written because it fails to address the administrative character of the modern state. The APA imposes procedural requirements on agency rulemaking and adjudication, two activities that are singled out because they resemble legislation and judicial decision making in the premodern state. The requirements for adjudication are based on the procedural rules that govern courts; the requirements for rulemaking would be based on the procedural rules that govern legislatures, but because very few such rules exist, they are also based on the rules that govern courts. Courts then enforce these requirements according to vague, nearly incomprehensible standards, further judicializing the APA's requirements. This Article recommends that a new, administratively oriented APA be drafted. The statute should reflect the premise that the modem administrative state is a distinctively new mode of governance, founded on the principle of instrumental rationality. Procedural requirements should be based on this principle and should apply to all administrative action-not only rulemaking and adjudication, but also the policy making and implementation functions that comprise the bulk of administrative action. These requirements would ensure that agency action be reasonably designed to achieve the goals stated by the legislature or by the agency itself. They would be enforced by Congress and the administrative hierarchy as well as by courts, and the standards for court enforcement would be clarified to avoid judicialization.
This paper seeks to investigate White House oversight of agency rulemaking. Specifically, the paper analyses White House review of agency rulemaking accomplished through the White House's Office of Information and Regulatory Affairs (OIRA) as required by executive order. It examines White House review of rulemaking from the first Reagan Administration through the second Clinton Administration, focusing especially on the Clinton era. The paper examines such factors as the number of rules the OIRA reviews, the number of rules reviewed from different agencies, the amount of resources OIRA commits to rulemaking review, the frequency with which the White House approves submitted rules without requiring changes, and the frequency with which the White House requires a change in submitted rules. The analysis also examines the types of interests that meet with OIRA concerning rules under review and tests for correlations between, for example, the types of interests that meeting with OIRA, on the one hand, and the fate of rules the subject of such meetings, on the other. In addition to several specific findings, this paper concludes generally that, from the early 1980s through the mid 1990s, the White House used the review process to have a greater influence over agency rulemaking, focusing on fewer rules over the years while requiring a change in a greater percentage, though in an apparently evenhanded way that did not work to the advantage of certain types of interests and the disadvantage of others.
The term "midnight regulations" describes the dramatic spike of new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party. As commentators have pointed out, this phenomenon is problematic because it is the result of a lack of presidential accountability during the midnight period -- the time after the November election and before Inauguration Day. Midnight regulations, however, present another problem that receives little attention. It is the prospect that an increase in the number of regulations promulgated in a given time-period could overwhelm the institutional review process that serves to ensure that new regulations have been carefully considered, are based on sound evidence, and can justify their cost. The regulatory review process that every president since Richard Nixon has used to check his own administration's regulations is now operated by the Office of Information and Regulatory Affairs (OIRA), which is charged with reviewing all proposed new significant regulations. The problem is that while the number of regulations proposed spikes during the midnight period, the resources available to OIRA remain constant. Although the problem is perennially highlighted in the press, few satisfactory solutions to the phenomenon have been proposed. One possible solution to address the effects of midnight regulation on regulatory review might be to cap the number of regulations agencies may submit to OIRA for review during a given time-period.
Many students of administrative law have pointed to the contemporary ossification of the administrative state, exemplified by the lengthy and contentious rule-making/litigation process and the lack of recent congressional initiative in the area of environmental, health, and safety regulation. Some scholars look to the administrative and rulemaking processes as the cause of ossification while others argue that new regulatory tools which avoid rulemaking are needed to counteract ossification. This Article proposes an alternative. I argue that regulatory ossification is primarily the result of stable political equilibriums that form around regulatory regimes. These equilibriums prevent regulatory regimes from being revised because politically accountable officials have incentives to defer to the status quo and the political coalitions necessary for reform are hard to form. Outdated regulatory techniques and rulemaking processes are thus a symptom, rather than a cause, of ossification. In order to revive environmental protection, ossification must be overcome. Toward that end, I propose breaking up those stable equilibriums by encouraging preference-directed regulation. Preference-directed regulations are those that achieve regulatory goals by influencing consumer preferences - as opposed to regulations which either explicitly require certain conduct or change economic incentives. Because preference-directed regulations influence consumer preferences, we can expect those regulations to have impacts on the political process as well. The ever racketing-up of the political coalition in favor of a regulatory goal will tend to destabilize the political equilibriums surrounding particular regulatory regimes, allowing for more frequent revision and learning.
Legal scholars view administrative law as alternately shaped by concerns for procedural integrity and issues of political control, and therefore as consisting of largely conflicting rules. But they have overlooked that the Court may be elaborating administrative law, and more particularly, administrative procedures, for a political purpose - to ensure that agency action roughly tracks legislative preferences. Thus, rather than vacillating between procedures and politics, the Court may be striving to negotiate two sorts of politics: congressional control, exercised through administrative procedures, and presidential control, vindicated by presumptive judicial deference. Positive political theorists, meanwhile, have appreciated that administrative procedures can assist Congress in monitoring agencies. But they have not applied their theory to actual administrative law, and their assumptions about judicial behavior cannot predict such law. This Article combines the insights of legal scholars and positive political theorists to offer a better descriptive account and normative defense of the seminal administrative law cases. It shows that the Court has recognized a political use for administrative procedures, as positive political theorists might expect. It contends, however, that to truly understand administrative law, we must see the Court in a way more familiar to legal academics, as sincerely interested in producing acceptable rules for agency decisionmaking. The Court has claimed a role in mediating the strategic needs of both political branches for control of agency action. In so doing, the Court has matched the practical way that agencies operate with a normative theory about how they should operate in the democratic structure.
What understanding of the "judicial Power" would the Founders and their immediate successors possess in regard to statutory interpretation? In this Article, Professor Eskridge explores the background understanding of the judiciary's role in the interpretation of legislative texts, and answers earlier work by scholars like Professor John Manning who have suggested that the separation of powers adopted in the U.S. Constitution mandate an interpretive methodology similar to today's textualism. Reviewing sources such as English precedents, early state court practices, ratifying debates, and the Marshall Court's practices, Eskridge demonstrates that while early statutory interpretation began with the words of the text, it by no means confined its search for meaning to the plain text. He concludes that the early practices, especially the methodology of John Marshall, provide a powerful model, not of an anticipatory textualism, but rather of a sophisticated methodology that knit together text, context, purpose, and democratic and constitutional norms in the service of carrying out the judiciary's constitutional role.
Most accounts of regulation view administrative agencies as suppliers of regulatory favoritism to powerful political interest groups. Species of the "interest group" theory of regulation see agencies as the willing or perhaps unwitting servants of a legislature that uses agencies to deliver regulatory benefits to interest groups in exchange for such groups' political support. This article seeks to qualify that conventional wisdom by exploring several reasons why, notwithstanding legislative pressures, administrative agencies may at times be well situated to advance broad-based interests even over interest-group opposition. In particular, this article focuses on administrator idealogy, agencies' institutional relationships to the President and the courts, and especially administrative procedure as sources of agency autonomy, arguing that these features of administrative decisionmaking attenuate any simple claims about legislative dominance. The article advances that argument in part by relying on three case studies of agency decisionmaking, including the EPA's ozone and particulate matter rules, the FDA's tobacco rule, and the OCC's deregulation of national banks, all of which illustrate to greater or lesser degrees the relevance of agency autonomy, the potential for broad-based regulation, and the limits of legislative control.
This article responds to critics of "hard look" judicial review of agency action, who contend that such review has ossified agency rulemaking by exposing agencies to uncertainty about whether their analyses in support of a rule will pass judicial muster. The article identifies three types of uncertainty to which hard look review exposes agency action: uncertainty about agency expertise, uncertainty about the significance of issues raised in agency proceedings, and uncertainty about the adequacy of analysis of such issues. The article explains why simply adopting a friendlier standard of review, which some critics of hard look review propose will not relieve this uncertainty unless it also forfeits the beneficial incentives that such review provides for agencies to take care before making policy. The article suggests instead some specific methodological changes to the way courts engage in hard look review as a more promising solution to ease ossification without forfeiting such benefits.
In the last quarter-century, the Supreme Court has legitimated agency authority to interpret regulatory legislation, above all in Chevron U.S.A., Inc v Natural Resources Defense Council, Inc, the most-cited case in modern public law. Chevron recognizes that the resolution of statutory ambiguities often requires judgments of policy; its call for judicial deference to reasonable interpretations was widely expected to have eliminated the role of policy judgments in judicial review of agency interpretations of law. But this expectation has not been realized. On the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices. Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern.Similar patterns can be found on federal appellate courts. In lower court decisions involving the EPA and the NLRB from 1990 to 2004, Republican appointees demonstrated a greater willingness to invalidate liberal agency decisions and those of Democratic administrations. These differences are greatly amplified when Republican appointees sit with two Republican appointees and when Democratic appointees sit with two Democratic appointees.
The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are 'arbitrary' or 'capricious.' In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a 'hard look' at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges' policy preferences affect judicial decisions about whether agency decisions are 'arbitrary.' This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on all-Democratic panels; Republican appointees show especially conservative voting patterns on all-Republican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review.
How much influence should elected politicians wield over bureaucratic policy? Many distinguished scholars and practitioners assert that the answer is "a great deal." The primary justification for this conclusion is that most bureaucratic policy choices involve fundamentally political value trade-offs, and in a democracy there is a strong presumption that such choices should reflect the interests of electoral majorities. Furthermore, if an elected politician--let us say the President--tends to respond to majoritarian interests, while an administrative agency, if left to its own devices, does not, then it may seem self-evident that giving the politician greater influence over the agency, all else equal, will always increase the degree to which agency decisions reflect voter preferences. This Article argues that this seemingly obvious conclusion is false. Even if we stack the deck in favor of maximum political control by assuming that elected politicians are more responsive to voters than are agencies, and that agencies do not have any special expertise or other advantages, a majority of the electorate is still better off with some degree of bureaucratic insulation from political control.
noting that many regulatory statutes confer agencies “open-ended grants of power,” which may include “major questions of public policy”) The Role of Constitutional and Political Theory in Administrative Law, 64 TEX
- Elena See
- Kagan
- Harv L Rev Administration
- J Richard
- Pierce
- Jr
See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2255 (2001) (noting that many regulatory statutes confer agencies “open-ended grants of power,” which may include “major questions of public policy”); Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in Administrative Law, 64 TEX. L. REV. 469, 472-81 (1985) [hereinafter Pierce, Constitutional and Political Theory] (concluding that agency discretion in formulating social policy is virtually unbounded).
The availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid See generally Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State
- Louis L See
- Judicial Jaffe
See LOUIS L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 320 (1965) (“The availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid.”). See generally Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452 (1989) [hereinafter Farina, Statutory Interpretation and the Balance of Power] (arguing for independent judicial review of administrative interpretations of law).