Category Archives: Administrative Law
May 21, 2012 William FunkAdministrative LawJotwell
The Social Security Administration’s administrative appeals system is touted as one of largest administrative judicial systems in the world. No one claims it is one of the best. Professor Richard Pierce, writing in the Cato Institute’s Regulation magazine, proclaims that it is seriously broken, and he has suggestions for how to fix it. One might say radical suggestions. Dubin and Rains, writing an Issue Brief for the American Constitution Society, take issue with Pierce, rebutting his assertions and defending the basic system as it is, warts and all. One might believe that publications of the Cato Institute and the American Constitution Society would be hopelessly biased, and of course they do represent different views of the American polity, but to read these two pieces, whatever your political inclinations, will inform you about one of the most important issues in administrative law – how to deal with a mass administrative justice system that seems to be running amok.
To establish that the system is broken, Pierce provides statistics on the increase in disability determinations, the total cost involved in paying for disabled workers, and the role that pain and other non-objective causes of disability play in the increase in disability findings. Pierce’s theme is that the use of administrative law judges and formal adjudication to re-decide what professionals determined on the basis of paper records is responsible for the breakdown, because their use is needlessly inefficient, results in non-uniform determinations, is skewed in favor of granting benefits, and is unconstitutional to boot. Why use formal hearing adjudication for what is basically a medical determination? Pierce suggests that the justification is to allow ALJs to assess the credibility of the claimants on the basis of their demeanor, but he then cites to an important law review article, Olin Wellborn, Demeanor, 76 Cornell L. Rev. 1075 (1991), that concludes that empirical evidence suggests that one cannot determine truthfulness (or falsity) on the basis of demeanor. Ipso Facto: we don’t need formal adjudications for disability determinations. The fact that there are wide disparities between ALJs in the outcomes of cases suggests that the hearings are not accurate determinations of the truth. Moreover, under the current system, the claimant, usually represented by counsel, appears before an ALJ who, according to judicial decisions, is supposed to aid the claimant in making his case, but there is no one to represent the “other side.” This hopelessly skews the system. Finally, Pierce argues from the recent case of Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S.Ct. 3138 (2010) that having ALJs decide these cases is unconstitutional because they can only be removed for cause by persons who also can only be removed for cause, violating the prohibition announced in that case on limiting the President’s ability to remove an officer by creating a double for-cause removal system. Although he provides several possible responses to the problem, his apparently preferred suggestion is simply to eliminate the ALJ review altogether, using the funds saved to review the continued eligibility of current beneficiaries. Continue reading "Dueling Visions of the Social Security Disability Adjudicatory System"
Apr 11, 2012 Cary CoglianeseAdministrative LawJotwell
Administrative law scholars widely consider it to be a fact that the rulemaking process has become substantially burdened with analytical requirements, a burden that either has caused agencies to retreat from rulemaking or has significantly delayed agencies’ ability to adopt new rules. Lamentation about this ossification of rulemaking pervades much scholarship in administrative law and underpins many scholars’ prescriptions about procedural reform.
In a recent article in a leading, peer-reviewed public administration journal, Jason Yackee and Susan Yackee try to measure the ossification of rulemaking, statistically analyzing the time needed to complete all non-routine rules initiated by every federal agency over nearly a two-decade period. What they find stands in stark contrast with the prevailing view among administrative law scholars and draws into doubt whether the ossification effect is real. Continue reading "The Search for Slowness"
Mar 21, 2012 Mark SeidenfeldAdministrative LawJotwell
Francesca Bignami, From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law, 59 Am. J. Comp. L. 859 (2011).
Administrative law scholars in the United States who seek to borrow ideas from approaches tried by other liberal democracies face a substantial problem: each country’s government is structured differently. There is no recognized metric for evaluating how administrative law will play out in a state with a different structure of government. The lack of such a metric is especially troubling as governments seek to take advantage of flexible regulatory approaches that harness the knowledge and incentives of stakeholders in the regulatory process. A fascinating article, “From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law,” by Professor Francesca Bignami, provides a first stab at providing such a metric.
Professor Bignami criticizes the traditional characterization of administrative law, as “organization of public administration” and “judicial review of administrative action,” for its inability to “engage with contemporary debates on the desirability and future possibilities of administrative law.” To surmount this inability, Bignami begins to “develop . . . a comparative framework by recasting administrative law as an accountability network of rules and procedures through which civil servants are embedded in their liberal democratic societies.”Bignami breaks down the concepts of accountability network into four sets of relations: those between civil servants and elected officials, organized interests, the courts and the general public, respectively. The accountability network description is “well equipped to capture such phenomena in administrative governance as: the political objectives of the bureaucracy; the role of organized interests in providing new mechanisms of regulatory control, and the ability of the public to hold the bureaucracy accountable. Continue reading "In Praise of a Comparativist Rubric for Administrative Law"
Mar 2, 2012 Anne Joseph O'ConnellAdministrative LawJotwell
Oral arguments on the constitutionality of the Patient Protection and Affordable Care Act will consume three days of the Supreme Court’s schedule, an unusual assignment of the Court’s time. But the constitutional challenge, assuming it fails, will be just the first act in a long performance. Abbe Gluck’s tremendous essay recently published in the Yale Law Journal takes up some of the fascinating potential statutory interpretation questions waiting in the wings.
These questions arise from the mix of institutional design choices involving the states in the Act (and in other legislation). The choices include provisions implemented only by the federal government, provisions implemented only by the states, and, of particular interest, provisions involving both sets of actors. Gluck trains on this last category, noting that the Act “appears to deploy the [state-federal] relationship strategically – as a way to expand the federal presence into several key areas of traditional state control – and somewhat paradoxically, also expressively, as a way to acknowledge the states’ traditional authority over health insurance.” (pp. 584-5) Continue reading "State Interpreters"
Feb 10, 2012 Richard MurphyAdministrative Law
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Comments on H.R. 3010, The Regulatory Accountability Act of 2011, submitted by the ABA Section of Administrative Law and Regulatory Practice to the House Judiciary Committee (Oct. 24, 2011).
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Testimony of Sidney A. Shapiro (University Distinguished Chair in Law, Wake Forest School of Law; Vice President, Center for Progressive Reform), Hearing on H.R. 3010, Regulatory Accountability Act of 2011, House Judiciary Committee (Oct. 25, 2011).
In early December 2011, the House passed two alarming bills that, if ever enacted, would wreak havoc on the rulemaking process. On December 7, it passed the REINS Act—the acronym stands for “Regulations from the Executive In Need of Scrutiny.” This bill is simple in its design, requiring congressional approval for regulations that have an economic impact in excess of $100 million. Considered as a reform of the rulemaking process, it has the honest virtues of a clean kill—a bullet to the head. Less than a week before, on December 2, the House passed the Regulatory Accountability Act (“RAA”). The RAA would cripple rulemaking by adding dozens of new procedural and analytic requirements to the process. These requirements include, among many other things, extensive cost-benefit analysis at multiple stages of the process and even formal rulemaking for “high impact” rules. Yes—that’s right, formal rulemaking could come back from the (almost) dead. Rather than a clean kill, the RAA promises to haul rulemaking into a back alley and beat on it until maybe it dies.
If you are the sort of person who frequents JOTWELL’s administrative law page, then you probably already know something about both these bills. Regarding the REINS Act, it may be fair to say that there isn’t all that much to know—it is easy to describe what it does and its anti-regulatory intent is as plain as the summer sun. The RAA is a far more complex beast, which makes it very difficult to summarize and concisely assess. Such work is important because proponents of the RAA might find themselves in control of the Senate and the Presidency someday not too long from now. If this eventuality occurs, one must hope that the powers-that-may-be can be persuaded that they didn’t really want to cripple administrative rulemaking. They just said they did when they didn’t have the power to make it happen.
It is with this context in mind that I want to draw your attention to two excellent pieces of administrative law scholarship that were submitted to the House Judiciary Committee as it considered the RAA. (Links to both are at the top of this short essay.) Continue reading "Superfriends of the APA"
Jan 23, 2012 Michael E HerzAdministrative Law
Administrative agencies are often said to possess (a) expertise and (b) accountability. These are the attributes that Justice Stevens relied on in Chevron, for example, to justify judicial deference to agency “interpretation” that is really policymaking. Both of these admirable characteristics are exaggerated, but neither is mythical. What is to be done, however, when they conflict?
This is a recurrent question. Whether and when agencies should be set up as independent commissions, the disagreement between the majority and the dissent in State Farm, much of the battle over regulatory review – all involved at least in part the question whether the president’s preferences, or “political” considerations, should trump the agency’s (expert) judgment. One doctrinal locus of this dispute is the arbitrary and capricious test. Is it “reasoned decisionmaking” if an agency does something simply because the White House told it to? State Farm and Massachusetts v. EPA suggest the answer is no. Four, and arguably five, Justices in FCC v. Fox Televisions Stations imply the answer may be yes, and a number of commentators – most recently, Kathryn Watts – have argued for judicial acceptance of political justifications for agency action. Continue reading "Political Oversight of Agency Decisionmaking"
Jan 13, 2012 Edward RubinAdministrative Law
Rachel Barkow,
Insulating Agencies: Avoiding Capture Through Institutional Design, available at
SSRN.One of the most interesting areas of current administrative law and political science scholarship is the attention being devoted to the design of administrative agencies. Some of this work is empirical, and much of it is interdisciplinary, the two buzz words for contemporary cutting edge scholarship in this area, and so many other areas as well. But the real source of this work’s value and promise –and an underlying source of both its empirical and interdisciplinary character– is that it takes law seriously without viewing it from the judicial perspective. The political science scholarship, such as David Epstein & Sharyn O’Halloran, Delegating Powers (1999) and David Lewis, Presidents and the Politics of Agency Design (2003), has begun to free itself from the idea that only politics matters, and looks at the way that legal structures, having been generated by politics, affect the governmental process. The legal scholarship, such as Lisa Schultz Bressman & Robert Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599 (2010) and Jacob Gersen, Designing Agencies: Public Choice and Public Law, in Daniel Farber & Joseph O’Connell, eds., Research Handbook on Public Choice and Public Law (2010), has begun to free itself from the idea that law is to be defined, or at least perceived, through judicial decisions, and looks at the way that it shapes, and is shaped by, executive and legislative actors.
Rachel Barkow’s Insulating Agencies: Avoiding Capture Through Institutional Design, exemplifies this approach. Barkow’s topic is agency independence, but she does not address the tired question of whether such independence offends the Constitution, either in its entirety or in its details. Not only does she ignore the old chestnuts of judicial doctrine in this area, such as Myers v. U.S., 272 U.S. 52 (1926) and Humphrey’s Executor v. U.S., 295 U.S. 602 (1935) but she resolutely resists having anything to say about the recently decided bit of Roberts Court weirdness, Free Enterprise Fund v. PCAOB, 561 U.S. ____(2010) (the aptly nicknamed Peekaboo case). Instead of the children’s game of discussing constitutional limits on the administrative apparatus, her concern is the basic, and extremely serious question of why we want agencies to be independent of political control and how we achieve that goal. Continue reading "New Ideas for Agency Design"
Dec 14, 2011 Linda JellumAdministrative Law
In our field, there are a few articles that every academic, even practitioners, should read for an understanding of modern administrative law: the so-called seminal works. In my opinion, Professor Thomas Merrill’s latest article—Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law—should be added to this list. In his article, Professor Merrill examines the historical development of the appellate review model as applied to administrative adjudication, and while this choice for judicial review was not inevitable, it has had wide-ranging consequences. Professor Merrill’s article explores both the origins and consequences of this model to explain, in part, why the Supreme Court “never seriously grappled with” the constitutionality of administrative adjudication. With this Article, Professor Merrell aims to explain and, perhaps, reignite the age-old question: “How … do we square adjudication on a mass scale by administrative agencies with text of Article III?”
In the first half of the Article, Professor Merrill details the adoption of the appellate review model in the administrative context and concludes that the adoption of this model explains why the Supreme Court so readily accepted agency adjudication. Prior to the twentieth century, courts either reviewed administrators’ actions pursuant to the prerogative writs (e.g., mandamus and habeas corpus) or did not review these actions at all. Yet, around the turn of the century, the courts adopted the appellate review model, which allowed agencies and courts to share decisional authority. Specifically, the appellate review model of judicial review, which mirrors the relationship between appellate and trial courts in civil litigation, has three salient features. First, a reviewing court decides appeals using only the evidentiary record generated below; if more evidence is needed, the court remands the case. Second, the appropriate standard of review varies according to whether the issue falls within the area of expertise of the reviewing court (law) or the lower tribunal (facts). Lastly, the law-fact distinction is the key variable for dividing judicial competence. Continue reading "The Appellate Review Model of Agency Adjudications"
Nov 11, 2011 Jack BeermannAdministrative Law
Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.” The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth. John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers. In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding of separation of powers in the United States requires a more nuanced view of the subject than either extreme is willing to undertake. In my view, Manning’s article is the best published American law review article about separation of powers. It states a coherent theory of separation of powers clearly and elegantly, and it explains, just as clearly and elegantly, exactly why separation of powers extremists on both sides are wrong. The only problem I have with the article is that at the time I first read it in draft, I was working on my own separation of powers article, and Manning stole, improved and expanded upon much of my thunder.
There is too much of value in this article to capture in a brief review, so I focus on two aspects, namely Manning’s disagreement with the extremes in separation of powers and the middle way that Manning charts, based on his view that separation of powers in the United States embodies a constitutional compromise. Along the way, I explain what Manning means by “ordinary interpretation” and how that differs from the interpretive methods employed by separation of powers extremists on both sides. Continue reading "Separation of Powers and the Middle Way"
Oct 7, 2011 Kathryn WattsAdministrative Law
Jody Freeman & Jim Rossi,
Agency Coordination in Shared Regulatory Space, 125
Harv. L. Rev. ____ (Forthcoming 2012), available at
SSRN.
Areas of fragmented and overlapping delegations of power to administrative agencies are common today. For example, fifteen federal agencies play roles in the American food safety arena. Similarly, twelve different agencies deal with exports, and numerous agencies regulate the financial sector, including the SEC, CFTC, OCC, FHA, FDIC, OTS and the Federal Reserve. In addition, as President Obama recently quipped during a State of the Union Address, we have one agency (the Department of the Interior) that is in charge of salmon while they are in fresh water, but a different one (the Department of Commerce) that handles them when they are in saltwater.
Despite the prevalence of these sorts of overlapping delegations in the regulatory arena, legal scholars generally have approached administrative law through a single-agency lens. In a forthcoming Harvard Law Review article titled Agency Coordination in Shared Regulatory Space, Professors Jody Freeman and Jim Rossi seek to change this picture. Specifically, Professors Freeman and Rossi depart from what they call the “single-agency focus that is so foundational to administrative law” by offering the “first comprehensive discussion in the legal literature of the problem of fragmented and overlapping delegations of power by Congress to administrative agencies.” Continue reading "Coordinating Agencies"
