Support and opposition to the administrative state

Administrative State
Five Pillars of the Administrative State
• Nondelegation • Judicial deference • Executive control • Procedural rights • Agency dynamics
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Scholars and observers of the administrative state have presented a number of arguments regarding the perceived merits and shortcomings of federal administrative agencies. On this page, Ballotpedia provides general summaries of the key claims put forth by both supporters and opponents of the administrative state. We then take a closer look at the arguments surrounding specific elements of the debate, including the constitutional principles in question and the core functions of administrative agencies.

Support overview: Supporters of the administrative state generally argue that federal agencies perform valuable government functions, such as administering federal social services programs and enacting health and safety regulations. In the process, proponents claim that agency staff acquire subject-matter expertise that enables them to develop and implement specialized regulations beyond the broad directives that legislators, often with only cursory subject-matter knowledge, instruct agencies to administer. Supporters contend that federal judges, therefore, appropriately exercise deference agencies' expert interpretations of statutes and regulations. Thus, proponents argue that federal agencies support the federal government by developing and overseeing complex regulations that implement broader policy goals.

Opposition overview: Opponents of the administrative state generally center their arguments on what they consider to be the constitutional violations of administrative agencies. They argue that the combination of executive, legislative, and judicial functions within administrative agencies violates the separation of powers principle and that congressional delegations of authority to agencies for the development of regulations violate the nondelegation doctrine. Judges, opponents claim, regularly subvert their judicial responsibility to interpret the law by deferring to agency interpretations of statutes and regulations. Moreover, opponents question the impartiality of federal administrative adjudicators and claim that the administrative adjudication process violates citizens' procedural rights.

The following is a curated list of support and opposition arguments with respect to specific constitutional principles and functions of the administrative state. Ballotpedia will continue to update these arguments as a feature of Ballotpedia's administrative state coverage.

Adjudication[edit]

See also: Adjudication

Adjudication, in the context of administrative law, is defined by the Administrative Procedure Act (APA) as an "agency process for the formulation of an order." Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.^[1][2]

Support: Adjudication shapes agency policy[edit]

The United States Supreme Court permitted federal agencies to set policy through adjudication in its 1947 ruling for SEC v. Chenery Corporation. Law professor William Araiza cited the following statement from the Chenery ruling in a 2000 article for the Washingon and Lee Law Review:

“ Nevertheless, fifty years ago in SEC v. Chenery Corporation, the Supreme Court refused to scrutinize closely an agency's decision to impose a new policy-based rule through the vehicle of an adjudicatory proceeding. The Court's statement was clear: 'the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.' Chenery's statement remains definitive today."[3][4] ”

Law professor and administrative law scholar Adrian Vermeule further noted in an article for the Harvard Law Review that adjudication serves as one of many tools for federal agencies to set policy:

“ After all, adjudication is just one more instrument that agencies use to make law and policy, along with rulemaking, guidances, licenses, funding decisions, and on and on. All of these instruments, when used by agencies acting within the boundaries of their statutory delegations, are exercises of “executive power” within the meaning of Article II of the Constitution, as Justice Scalia emphasized for the Court in 2013.[5][4] ”

Opposition: Distinction between adjudication and rulemaking[edit]

According to the Administrative Conference of the United States (ACUS), some agencies set policy through adjudication more often than rulemaking. In his article for Washingon and Lee Law Review, Araiza questioned whether setting policy through adjudication was appropriate when agencies have the explicit authority to establish policy through rulemaking:^[6][3]

“ Clearly, when a court interprets tort law, or the Clean Air Act, or the Due Process Clause of the Constitution, it does not engage in a mechanical process of plugging a pre-existing meaning into a given set of facts, with no consideration of policy implications. But the judicial process still is constrained by the pre-existing law: prior precedent in the common-law context, the text and other interpretive clues in the statutory context, and a combination of those sources (and other limiting factors) in the constitutional context! By contrast, when agencies adjudicate they enjoy more or less free rein to adopt what they consider to be the best rule (as long, of course, as that rule is consistent with the statute?). The existence of this policy-making power under the rubric of 'adjudication' has caused concern among courts. In particular, courts have wondered whether policy-making is an appropriate function for an agency adjudicator, given the traditional conception of adjudication as the application of existing law to a dispute between two parties. Judicial concern increases when courts realize that most agencies also have the power to promulgate rules, which, given their resemblance to legislation, intuitively seem the more appropriate vehicle for policy-making. If it is questionable whether explicit and sole reliance on policy concerns can justify adjudication, and if another agency procedure can effectively set policy, then why allow agencies to base adjudicative results solely on policy concerns?[3][4] ”

Law professor William Mayton put forth a similar argument in a 1980 article for the Duke Law Journal:^[7]

“ In addition to prescribing procedures for agency formulation of law and policy, Congress also imposed codification and publication requirements in order to make the substance of agency-developed law and policy more accessible and to create a greater consistency in agency application of this law and policy. The ad hoc development of standards by adjudication is inconsistent with these purposes. Thus, on this additional basis, adjudication is an improper substitute for rulemaking."[7][4] ”

Support: Adjudication is constrained by due process[edit]

Administrative state scholars have expressed conflicting views regarding due process within the administrative adjudication process. Vermeule described the function of due process within administrative adjudication in a 2013 essay for the Harvard Law Review:

“ As to adjudicative action by agencies, the basic requirement of due process is 'some kind of hearing.' The elements of the required hearing vary with circumstances and are highly contextual. In some cases, a formal judicial-type hearing on the record, in the traditional mold, will be required; in others, an informal paper hearing, without argument or testimony, may well be sufficient. The timing of hearings also varies; due process does not necessarily require a predeprivation hearing, although often it does. Finally, due process requires an impartial decisionmaker, but the Court takes a narrow view of what counts as impartiality; pecuniary interest in the decision at hand is disqualifying, but there is no general due process prohibition on institutions that combine legislative, executive, and adjudicative functions and thus 'judge in their own cause.'[8][4] ”

Vermeule expressed further support for the structure of administrative adjudication and argued that due process functions as a tool for federal courts to review conflicts within the adjudication process, according to his 2014 review of fellow law professor and administrative law scholar Philip Hamburger's book Is Administrative Law Unlawful?:

“ The scheme of the Administrative Procedure Act is complex and reticulated. Very roughly, it requires strict separation of adjudicative functions from prosecutorial and investigative ones, in formal on-the-record adjudication before an administrative law judge—but not in rulemaking, and not at the top level of the agency. There are separate rules against ex parte contacts in formal adjudication; those rules do apply at the top level of the agency. And at any level, due process remains a fallback constraint that allows courts to police prejudgment of adjudicative facts, conflicts of interest, or other forms of bias. The overall scheme, as Justice Jackson observed in Wong Yang Sung v. McGrath, represents a hard-fought compromise.[9][4] ”

Paul Verkuil, former chairman of the Administrative Conference of the United States (ACUS), argued in a 1992 presentation at a University of California, Los Angeles, Law School symposium that the role of due process in administrative adjudication proceedings has evolved over time:

“ It is fair to say that by the 1990s the Court has moved towards greater decisional freedom under the Due Process Clause. From its earlier position in Wong Yang Sung of equating due process to formal APA hearings, the Court has evolved from the Goldberg requirement of specifying procedures for due process to a world that can readily accept an informal process of infinite variety. In this environment the decider need not be APA-qualified, nor must the APA formal hearing process serve as a baseline. This informal process, which is not defined by the APA, remains an amorphous competing model.[10][4] ”

Opposition: Adjudication violates due process[edit]

Opponents of the administrative state have argued that administrative adjudication violates citizens' rights to due process under the Fifth Amendment. Hamburger put forth the following claim in a 2017 article for City Journal:

“ The dilution of due process is part of a sweeping evasion of procedural rights that rewards violations of the Constitution. The government’s circumvention of the courts is rewarded with the opportunity to avoid procedural rights, and the government’s escape from procedural rights is rewarded with the assurance that this is all the process that is due. This evasion, which once tempted kings, has thus returned on a greater scale than ever before—this time as a temptation for legislatures. Though the due process of law developed as a constitutional right to bar administrative adjudication, it now is rephrased as “the process that is due” in order to excuse such adjudication. Far from preventing the evasion, due process now legitimizes it.[11][4] ”

Evan Bernick, a fellow at the Georgetown Center for the Constitution, put forth a similar argument in a 2017 review of Vermeule's book Law's Abnegation: From Law’s Empire to the Administrative State:

“ [D]ue process of law entails—among other things—impartial adjudication, free from bias towards either party. Both Chevron and Auer deference require judges in cases involving assertions of administrative power to favor the legal position held by the most powerful of parties—the government. That the bias is systematic and the product of adherence to a perceived legal principle rather than dependent upon the proclivities of individual judges only makes it more troubling because it makes it more certain to influence judges’ deliberations. According Chevron and Auer deference thus entails violating the Fifth Amendment.[12][4] ”

Deference[edit]

See also: Deference

Deference is a principle of judicial review. In the context of administrative law, deference applies when a federal court yields to an agency's interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency. The U.S. Supreme Court has developed several forms of deference in reviewing agency actions, including Chevron deference, Skidmore deference, and Auer deference.^[13][14]

Support: Deference is legally valid[edit]

In his 2014 review of Hamburger's book, Vermeule argued that judicial deference to administrative agencies is a valid legal practice:

“ But what if validly-enacted statutes themselves instruct the courts to defer? ... If the law itself includes a valid delegation of law-interpreting authority to the agencies, then faithful judges, independently applying all relevant law in the case at hand, would conclude that the agency’s interpretive authority is not extra-legal, but securely intralegal. This is of course the delegation theory of Chevron, now reigning as the official theory after its adoption by the Supreme Court more than a decade ago.[9][4] ”

Support: Judges should defer to agency expertise[edit]

Supporters of deference argue that federal judges should defer to administrative agencies because agency staff have acquired the necessary knowledge and expertise to develop, implement, and interpret specialized regulations. Law professor Franita Tolson put forth the following argument in an April 2018 opinion piece for The Hill:

“ The idea that fairness demands the appointment of judges who reject the administrative state that is so central to the lives of Americans completely misconstrues the role of judges in our legal system. Rather than adopting a narrow-minded conception of the Founders’ Constitution, impervious to the demands and complications of a modern society, judges should defer to agencies because they have the expertise and knowledge to best implement the thousands of rules necessary to implement their statutory mandates. Fundamental fairness ... requires the appointment of fair-minded constitutionalists who recognize that an attack on the administrative state illustrates clear disdain for how government affects and improves the lives of regular Americans every day.[15][4] ”

Opposition: Deference violates the separation of powers[edit]

The Administrative Procedure Act's (APA) judicial review provisions aim to provide a mechanism for the review of agency decisions that resulted in adverse effects or legal wrongs. However, some scholars have observed that deference doctrines, such as Chevron deference, that compel the judiciary to defer to agency interpretations of statutes and regulations present concerns for the separation of powers. Ohio State University law professor Christopher Walker described the implications of deference doctrines for the judicial review of agency actions in a 2017 article for the Administrative Law Review:^[7]

“ Unlike the intra-branch relationship between appellate and trial courts, the relationship between courts and agencies implicates separation-of-powers concerns. For instance, 'The presumption that the reviewing court has superior competence to answer questions of law is rebutted by the fact that Congress often delegates law-elaboration authority first and foremost to the agency.' Administrative law’s appellate review model has thus evolved beyond the most natural reading of the APA’s text to incorporate a number of agency deference doctrines that reflect these separation-of-powers values.'[7][4] ”

Walker further contended that certain common law practices, including the deference doctrines, have subverted the judicial review procedures put forth in the APA:^[7]

“ Administrative common law in judicial review has not been limited to judicial deference to agency legal interpretations. As John Duffy noted, exhaustion of administrative remedies and ripeness are two other areas historically rich in administrative common law.40 Nicholas Bagley has identified the presumption of reviewability as another. We also see it at play with respect to 'hard look' review and judicial remedies in administrative law, such as the Chenery principle and remand without vacatur. Similarly, Kathryn Kovacs has identified a number of other administrative common law doctrines that arguably contravene the APA’s plain text.[7][4] ”

Competing views: Deference and hard-look review[edit]

In his 2017 review, Bernick argued that judicial deference to agencies has resulted in the circumvention of hard-look review, the standard used by the judiciary to determine agency actions that are considered to be "arbitrary, capricious, or not in accordance with law." However, he quoted administrative law scholar and former OIRA head Cass Sunstein to argue that hard-look review, though expensive, continues to serve an important purpose in ensuring agency accountability under the APA:^[16]

“ And yet there is ample reason to believe that the benefits of hard-look review outweigh the costs. As Sunstein observed several decades ago, '[t]he requirement of detailed explanation has been a powerful impediment to arbitrary or improperly motivated agency decisions,' it and addresses lingering concerns about the 'uneasy constitutional position of the administrative agency” by ensuring that agencies will be held accountable for their decisions. It provides a framework for ensuring that agency officials comply with the same fiduciary duties that the Constitution imposes on all government actors. It thereby promotes the actual and perceived legitimacy of administrative power, as the APA was designed to do.'Cite error: Invalid <ref> tag; invalid names, e.g. too many[4] ”

Chevron deference[edit]

See also: Chevron deference

Chevron deference, or Chevron doctrine, is an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The principle derives its name from the 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.^[17]

Support: Efficiency[edit]

In a March 2017 SCOTUSblog post, contributor Eric Citron summarized arguments for and against the application of Chevron deference. According to Citron, supporters assert that the principle allows federal agencies to operate most efficiently. Under Chevron, agencies are able to interpret the statutes that Congress has instructed them to administer and issue the necessary administrative rules, rather than first seeking judicial approval on each statutory interpretation. Citron observed that if an agency were required to seek judicial approval for each regulation, supporters claim that the regulatory process would move at a snail's pace. Similarly, Citron noted a view among Chevron supporters that it would be inefficient for agencies to wait for Congress to legislate each technical detail of a policy. According to Citron, since legislators often struggle to reach compromises on broad policy objectives, Chevron supporters claim that Congress would not be able to quickly agree upon complex, technical regulatory details, such as the definition of "air pollutants" in the Clean Air Act, and pass the necessary legislation for implementation. Chevron deference, supporters contend, allows agencies to efficiently fill in the technical gaps and administer Congress' broad legislative goals.^[18][19]

In his 2013 essay for the Harvard Law Review, Vermeule observed that "for many of the same reasons that agencies are better positioned than courts to interpret the procedural provisions contained in their organic statutes, agencies are also better positioned than courts to assess the marginal costs and benefits of additional increments of procedure for program beneficiaries and regulated actors," contributing to administrative efficiency.^[8]

Support: Agency expertise[edit]

In his opinion for Chevron U.S.A. v. Natural Resources Defense Council, Justice John Paul Stevens noted that federal judges are not experts in the field. According to Citron, Chevron proponents claim that agency officials have honed subject matter expertise in their specific area of regulation. Therefore, federal judges should defer to the expertise of agency officials to interpret statutes that Congress has required the agency to administer, given that the interpretation is deemed reasonable. As former Harvard administrative law professor Louis Jaffee observed in Judicial Control of Administrative Action, "Since procedural decisions should be made to serve the substantive task, it follows that expertness in matters of substance [is] relevant to the exercise of procedural discretion."^[18][20][8]

In Chevron U.S.A. v. Natural Resources Defense Council, Justice Stevens remarked:

“ Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices - resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.[21][4] ”

Opposition: Violation of the separation of powers[edit]

In a 2018 opinion piece published by The Hill, attorney Mark Holden of Koch Industries and Freedom Partners Chamber of Commerce argued that Chevron deference violates the separation of powers, weakens the judiciary, and biases court proceedings in favor of the government:^[22]

“ You could say that when it comes to administrative-law jurisprudence, lady justice is not blind; her blindfold is off and she’s winking at the lawyers, who work for the most powerful litigant in the country—the federal government. ... This is not about rejecting the administrative state—it’s about ensuring the judicial branch plays the role it was meant to play under Article III of the Constitution and fully formed in Marbury v. Madison. Federal judges are obliged to decide the law. They should 'defer' to the decisions of unaccountable bureaucrats only when the law and the Constitution are in sync with the bureaucrats’ interpretation.[4] ”

Opposition: Subversion of judicial authority[edit]

In The Administrative Threat, Hamburger argued that judicial deference to administrative agencies subverts judicial authority:

“ When judges defer to agency interpretations, they depart from their judicial office or duty, under Article III of the Constitution, to exercise their own independent judgement." Thus, according to Hamburger, deference to federal agency interpretations of statute undermines the authority of the judiciary to determine and interpret the law. In City of Arlington v. Federal Communications Commission, Chief Justice John Roberts argued that "we do not defer to an agency’s interpretation of an ambiguous provision unless Congress wants us to, and whether Congress wants us to is a question that courts, not agencies, must decide.”[23][24][4] ”

Supreme Court Justice Neil Gorsuch put forth an analogous argument in his opinion for Gutierrez-Brizuela v. Lynch while serving on the United States Court of Appeals for the 10th Circuit:

“ Yet, rather than completing the task expressly assigned to us, rather than 'interpret[ing] . . . statutory provisions,' declaring what the law is, and overturning inconsistent agency action, Chevron step two tells us we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty. Of course, some role remains for judges even under Chevron. At Chevron step one, judges decide whether the statute is 'ambiguous,' and at step two they decide whether the agency’s view is 'reasonable.' But where in all this does a court interpret the law and say what it is? When does a court independently decide what the statute means and whether it has or has not vested a legal right in a person? Where Chevron applies that job seems to have gone extinct.[25][4] ”

Supreme Court Justice Clarence Thomas made similar observations in his concurrence for Michigan v. EPA:

“ Chevron deference precludes judges from exercising that judgment, forcing them to abandon what they believe is 'the best reading of an ambiguous statute' in favor of an agency’s construction. Brand X, supra, at 983. It thus wrests from Courts the ultimate interpretative authority to 'say what the law is,' Marbury v. Madison, 1 Cranch 137, 177 (1803), and hands it over to the Executive. See Brand X, supra, at 983 (noting that the judicial construction of an ambiguous statute is 'not authoritative'). Such a transfer is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies. U. S. Const., Art. III, §1."[26][4] ”

Opposition: Inconsistency of agency interpretations[edit]

Since a federal agency's statutory interpretations can vary according to the policy priorities of the president, Gorsuch noted in his opinion for Gutierrez-Brizuela v. Lynch that administrative practices allow federal agencies to change regulatory interpretations at the whim of the executive, causing regulatory instability for affected individuals and industries:

“ Perhaps allowing agencies rather than courts to declare the law’s meaning bears some advantages, but it also bears its costs. And the founders were wary of those costs, knowing that, when unchecked by independent courts exercising the job of declaring the law’s meaning, executives throughout history had sought to exploit ambiguous laws as license for their own prerogative.[25][4] ”

Federal administrative adjudicators[edit]

See also: Federal administrative adjudicators

An administrative law judge (ALJ), in the context of federal administrative law, refers to an official who presides over federal administrative hearings. An administrative law judge serves as both the judge and the jury in an administrative hearing. The Administrative Procedure Act requires that administrative law judges preside over hearings during formal adjudication proceedings, but they may also preside over hearings during informal adjudication. Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties.^{[27][28][29][30]}

By comparison, federal agency employees known as administrative judges (AJ) are hired directly by federal agencies to conduct informal adjudication, which makes up nearly 90 percent of all adjudication proceedings and is often applied to benefits-related decisions as well as cases concerning immigration, equal employment, government contracts, or security clearance issues.^{[27][2][31][1][28][29]}

Support: Administrative law judges serve as impartial adjudicators[edit]

Defenders of federal administrative adjudicators argue that the APA established ALJs to serve as impartial decision-makers capable of shielding citizens from the bias of political actors or members of the bureaucracy. Randall Frye, president of the Association of Administrative Law Judges, presented the following defense of ALJs before a 2012 congressional hearing:

“ The APA was enacted to ensure that the American people were protected from arbitrary decision making by government bureaucrats. The grant of decisional independence to federal administrative law judges is fundamental to the ability of the ALJ to bring justice to the American people. When federal agencies overreach and encroach on our decisional independence, the promise of Constitutional due process to the American people is broken.[32][4] ”

Opposition: Creation of an administrative judiciary[edit]

The APA established hearing officers, known as administrative law judges (ALJ), to hear evidence and issue decisions in agency disputes. Scholars, including Bernard Schwartz, have criticized the APA for effectively establishing a separate judiciary within administrative agencies. Schwartz described the decisional conflicts presented by ALJs in his 1996 paper:^[3]

“ The APA turns around 'the one who decides must hear' principle by vesting the one who hears with the power to decide. The ALJs - the administrative judiciary set up under the APA - have not only been given the judicial title; they have also been vested with most of the decision-making power of trial judges. The APA empowers the ALJ to issue an initial decision that becomes the decision of the agency unless appealed. It is true that the APA gives the agency authority to require (in specific cases or by general rule) that the record be certified directly to it for decision. In such a case, the agency retains all decisionmaking power, with the ALJ relegated to authority only to recommend a decision. In virtually all federal agencies, however, the power to make an initial decision has been delegated to the ALL The result, in the vast majority of federal agency cases, is to have an initial decision by the judge who presided at the hearing.[3][4] ”

Opposition: Due process violations[edit]

In a 2016 article for the Missouri Law Review, law professor Kent Barnett argued that the status of administrative judges as agency employees, as opposed to the independent status of administrative law judges, leads to partiality in adjudication proceedings that violates due process. Barnett observed:

“ The two most relevant decisions concerning state judges – Tumey v. Ohio and Ward v. Village of Monroeville – are important because they reveal that pecuniary incentives (whether flowing directly to the adjudicator or a budget that the adjudicator oversees) create an unconstitutional appearance of partiality. Due process takes offense when a 'judge . . . has a direct, personal, substantial pecuniary interest in reaching a conclusion against [a party] in his case.'[16][4] ”

Guidance[edit]

See also: Guidance

Guidance is a term in administrative law used to describe a variety of documents created by administrative agencies to explain, interpret, or advise interested parties about rules, laws, and procedures. Guidance documents affect how agencies administer the regulations and programs that they are responsible for. However, they are not supposed to be legally binding in the same way as rules issued through the rulemaking processes of the Administrative Procedure Act.^[33][34][35]

Types of guidance include interpretive rules, policy statements, and contemporaneous guidance. Guidance comes in many forms, including memoranda, notices, bulletins, directives, news releases, letters, and blog posts.^[34][36]

Support: Efficient and informative[edit]

Quoted in March 2018 by the Government Executive news site, law professor Nicholas Parrillo argued that the use of guidance documents benefits both agencies and regulated parties:^[37]

“ Nicholas Parrillo, a Yale University Law professor, who conducted 135 interviews with regulatory experts for the Administrative Conference of the United States, said, 'It was clear from these interviews that guidance increases an agency program’s integrity and efficiency and shields regulated parties against unequal treatment, unnecessary work, and unnecessary risk.'[37][4] ”

The Regulatory Group, a federal regulatory consulting firm, has argued that agencies tend to use guidance documents because they are easier to issue than regulations and allow agencies to respond more quickly than the rulemaking process typically allows:^[33]

“ There are several reasons for the wide use of guidance. In most situations, it is much easier to issue guidance than a regulation. Guidance does not have to be published for public comment ... and in most agencies it does not have to be approved at as high a level as regulations. Thus, when questions arise about the meaning of a regulation or about acceptable methods of complying with a regulation—and such questions arise constantly—the easiest way for an agency to respond is by issuing guidance. Guidance is frequently issued as a result of pressure from the regulated public who insist on more specific direction than the regulation contains.[33][4] ”

Opposition: Consequences to affected parties[edit]

According to the Administrative Conference of the United States (ACUS), agency officials sometimes use guidance documents in ways that give those documents the same effects as legally binding rules. In a 1992 reccommendation, the ACUS explained how it believed this practice could affect the rights of regulated parties:^[35]

“ Where the policy statement is treated by the agency as binding, it operates effectively as a legislative rule but without the notice-and-comment protection of section 553 [of the Administrative Procedure Act]. It may be difficult or impossible for affected persons to challenge the policy statement within the agency's own decisional process; they may be foreclosed from an opportunity to contend the policy statement is unlawful or unwise, or that an alternative policy should be adopted. Of course, affected persons could undergo the application of the policy to them, exhaust administrative remedies and then seek judicial review of agency denials or enforcement actions, at which time they may find the policy is given deference by the courts. The practical consequence is this process may be costly and protracted, and affected parties have neither the opportunity to participate in the process of policy development nor a realistic opportunity to challenge the policy when applied within the agency or on judicial review.[4] ” —Administrative Conference of the United States[35]

Opposition: Regulatory dark matter[edit]

Regulatory dark matter is a term coined by policy analyst Clyde Wayne Crews Jr. to describe, in his words, "executive branch and federal agency proclamations and issuances such as memoranda, guidance documents, bulletins, circulars, announcements and the like with practical if not always technically legally binding regulatory effect."^[38][39] Crews is critical of what he calls regulatory dark matter because he believes agencies sometimes use these proclamations and issuances to impose practical requirements, set policy- and decision-making priorities, and take other actions that exceed the intent of Congress or avoid federal rulemaking procedures.^[40]

Competing views: Agency abuse of guidance[edit]

William Funk, a law professor and the author of several books on administrative and environmental law, claimed in a 2011 book review that he and a group of ten other legal scholars agreed that agencies should be able to issue guidance documents but sometimes abuse that ability. Funk wrote:^[41]

“ [We all agree] that agencies must be able to issue certain interpretations and policy statements, generically guidances, without having to follow the notice-and-comment process applicable to legislative rules. On the other hand, everyone also agrees that agencies can abuse the ability to avoid notice and comment rulemaking through invocation of the exceptions for 'interpretative rules' and 'general statements of policy.' How to police the line between those rules requiring notice and comment and those that do not is what has stymied courts and commentators.[4] ” —William Funk (2011)[41]

Nondelegation doctrine[edit]

See also: Nondelegation doctrine

The nondelegation doctrine is a principle in constitutional and administrative law that holds that Congress cannot delegate its legislative powers to executive agencies or private entities. It is derived from an interpretation of Article I of the United States Constitution and the separation of powers principle. Although congressional delegation to the executive branch has been an issue in federal court cases since at least the early 19th century, the legal test used by the Supreme Court to apply the nondelegation doctrine was established in its 1928 decision in J.W. Hampton Jr. & Company v. United States.^{[42][19][43][29]}

Support: Congressional delegations of authority to agencies violate the separation of powers[edit]

Supreme Court Justice Clarence Thomas, in an opinion in Whitman v. American Trucking Associations (2001), argued that congressional delegations of authority to federal agencies, including those that satisfy the intelligible principle standard, could still violate the nondelegation doctrine:^[43]

“ Although this Court since 1928 has treated the 'intelligible principle' requirement as the only constitutional limit on congressional grants of power to administrative agencies, ... the Constitution does not speak of 'intelligible principles.' Rather, it speaks in much simpler terms: 'All legislative Powers herein granted shall be vested in a Congress.' I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than 'legislative.[43][4] ”

Opposition: Congressional delegations of authority to agencies are lawful[edit]

In a speech at Duke University School of Law, Justice Antonin Scalia argued that in a case where Congress has expressly delegated the administration of a particular statue to a federal agency, the responsibility to interpret the statute rests with the agency. Thus, where Congress clearly intended to grant authority to an agency, Scalia stated that the courts should defer to the agency's interpretation:^[20]

“ In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: 'The extent to which courts should defer to agency interpretations of law is ultimately "a function of Congress" intent on the subject as revealed in the particular statutory scheme at issue.' An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires: (1) Congress intended a particular result, but was not clear about it; or (2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency. When the former is the case, what we have is genuinely a question of law, properly to be resolved by the courts. When the latter is the case, what we have is the conferral of discretion upon the agency, and the only question of law presented to the courts is whether the agency has acted within the scope of its discretion-i.e., whether its resolution of the ambiguity is reasonable.[44][4] ”

Opposition: Nondelegation doctrine is nonexistent[edit]

Law professors Eric A. Posner and Adrian Vermeule argued in a 2002 law journal article that the nondelegation doctrine is a legal fiction:^[45]

“ A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine: A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power. Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. Our argument is based on an analysis of the text and history of the Constitution, the case law, and a critique of functional defenses of the nondelegation doctrine that have been proposed by academics.[45][4] ”

In her 2015 law journal article "Rulemaking as Legislating," law professor Kathryn A. Watts argued that the Supreme Court should discard the nondelegation doctrine in favor of the notion that executive agencies act as delegates of Congress, in part because the doctrine is inconsistent with other principles of administrative law, including Chevron and Auer deference and the arbitrary-or-capricious test:^[46]

“ Ultimately, this Article concludes that some key administrative law doctrines operate under the assumption that agency rules flow from delegations of legislative power, putting those doctrines in direct tension with the current nondelegation doctrine. In contrast, other key administrative law doctrines—consistent with the nondelegation doctrine—refuse to view agency rulemaking through a legislative lens. Thus, if the Court held that Congress constitutionally can and routinely does delegate legislative power, some central administrative law doctrines would need to be modified. Although these doctrinal changes would have their costs, this Article ultimately asserts that the changes would be normatively desirable. Many of administrative law’s disparate doctrines would gain a more unified, coherent lens centered around legislative supremacy and congressional delegation, forcing courts to take more seriously the notion that agencies act as Congress’s delegate. In addition, the Court would free itself of the longstanding doctrinal fiction that legislative rules constitute the exercise of executive power.[46][4] ”

Competing views: Challenges to the nondelegation doctrine[edit]

A.J. Kritikos, a private attorney, described his view of the history of the nondelegation doctrine in a 2017 law journal article, arguing that the Supreme Court weakened the power of the nondelegation doctrine as the administrative state expanded during the 20th century:^[47]

“ At the end of the nineteenth century, the U.S. Supreme Court declared: 'That [C]ongress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.' But then came the birth of the administrative state amidst the Great Depression – ushering in a new understanding of the separation of powers that emphasized functionalism over formalism. Accordingly, it has been over eight decades since the U.S. Supreme Court found a violation of the non-delegation doctrine, despite countless challenges to statutes that have included almost limitless delegations. ... An autopsy of federal non-delegation jurisprudence reveals an interesting insight: the Supreme Court has never repudiated the theoretical underpinnings of the non-delegation doctrine or questioned its importance in maintaining the separation of powers. Instead, the Court has whittled the non-delegation doctrine down to a nub because of practical concerns with implementing it.[47][4] ”

Regulatory review[edit]

See also: Regulatory review

In federal administrative law, regulatory review refers to processes used by Congress, the president, and the courts to oversee the rules, regulations, and other policies issued by federal agencies. Regulatory review may involve an examination of the content or effect of a rule, its estimated economic costs and benefits, or the adherence of the rule and the rulemaking agency to procedural requirements. Retrospective regulatory review, a type of regulatory review, is used to determine if existing regulations should be retained, modified, or repealed.

Competing views: Limited regulatory review[edit]

In a 1993 recommendation, the Administrative Conference of the United States ACUS expressed support for the review process while simultaneously expressing concerns over the implemenation:

“

We continue to support presidential coordination of agency policymaking as beneficial and necessary.3 We are concerned, however, that, unless properly focused, this additional review may impose unnecessary costs. All recent presidents have undertaken some level of review and coordination of agency rulemaking. Presidential review of rules, as undertaken under various executive orders applied by the Office of Management and Budget and other White House entities, has often required agencies to submit nearly all proposed and final rules to a review process in which the rules are screened and analyzed for consistency with presidential objectives. Some of these objectives have been incorporated into analytical requirements found in separate executive orders.4 This screening process can unduly slow the entire system of rulemaking; it can inhibit the growth of the promising consensus-based alternative of negotiated rulemaking;5 and it can create undesirable tensions between the reviewing entities and agency policymakers. While these analytical emphases can be rationalized individually, in the aggregate, they can result in redundant requirements, boilerplate-laden documents, circumvention, delays, and clutter in the Federal Register.[48][4]

”

Competing views: Absence of provisions in the Administrative Procedure Act[edit]

The APA does not include procedures for the executive review of agency regulations, a process known as regulatory review. The absence of explicit regulatory review provisions has led nearly every presidential administration since Jimmy Carter to issue an executive order aimed at implementing procedures for regulatory review and retrospective regulatory review. Christopher Walker shed light on the APA's silence on regulatory review in his 2017 article:^[7]

“ There has been a growing call in recent years—with bipartisan support—to encourage federal agencies to systematically review existing rules and revise or withdraw old rules when appropriate. For instance, in 2011 President Obama’s 'regulatory czar' Cass Sunstein issued a memorandum that encouraged agencies to engage in such retrospective review. Similarly, the Trump Administration’s Executive Order on Reducing Regulation and Controlling Regulatory Costs reinforces the importance of retrospective review by instructing agencies that 'for every one new regulation issued, at least two prior regulations be identified for elimination.' ACUS, moreover, recently conducted an extensive study of retrospective review and issued recommendations 'intended to provide a framework for cultivating a "culture of retrospective review" within regulatory agencies.' Despite broad consensus on the importance of retrospective review, the APA does not address it.[7][4] ”

Rulemaking[edit]

See also: Rulemaking

Rulemaking, in the context of administrative law, is a process that enables federal agencies to amend, repeal, or create an administrative regulation. The most common rulemaking process is informal rulemaking, which solicits written public feedback on proposed rules during a comment period. When required by statute, certain agencies must follow the formal rulemaking process, which incorporates a trial-like hearing in place of the informal comment period, or hybrid rulemaking, which blends specified elements of formal rulemaking into the informal rulemaking process.^[49]

Support: Formal rulemaking as a safeguard against agency actions[edit]

Law professor Aaron Neilson argued that formal rulemaking, as opposed to informal rulemaking, functions as a safeguard against arbitrary agency actions in a 2014 article for the Ohio State Law Journal:

“ One important proposal during the run-up to the APA had required formal rulemaking for all rules, no matter the type, with no exceptions.31 Undoubtedly, some of this desire for formal processes reflected 'the deep yearning of the traditional lawyer "for the comparatively simple life of yesteryear."' But there also were real concerns about checks and balances and due process. Felix Frankfurter, for instance, observed that as the administrative state took hold, the public worried whether 'safeguards' could control 'the danger of arbitrary conduct.' Formal rulemaking, with public hearings and a closed record, was just such a safeguard.[50][4] ”

Support: Rulemaking as an alternative to legislating[edit]

Justice Mariano-Florentino Cuéllar of the California Supreme Court cited New Deal architect James Landis' support for rulemaking as an alternative to legislating in a 2015 article for the George Washington Law Review:

“ Landis believed agencies to be a healthy development in the evolution of American government. He believed that administrative lawmaking provided a viable alternative to the uncertainty of the legislative process. Agencies could also, in Landis’s view, avoid some of the limitations of courts by deploying a combination of specialized expertise and synergies between adjudication, rulemaking, and enforcement functions.[51][4] ”

Opposition: Ineffective comment periods[edit]

The APA established rulemaking procedures for administrative agencies to craft and promulgate regulations. The informal rulemaking process incorporates a comment period for members of the public and affected parties to submit feedback on proposed regulations. Some scholars have criticized the APA for failing to establish a minimum length of time for comment periods, though executive orders have established general minimum standards. In his 2017 review, Bernick argued that "The APA sets no minimum (or maximum) time for the public comment period, yet it is crucial that interested individuals have sufficient time to respond to a proposed rule, especially for a “major” rule."^[7] Moreover, as George Washington University law professor David Fontana observed in a 2005 article, interest groups have generally made up the bulk of participation in comment periods while individual citizen engagement remains low:^[7][10]

“ All of these procedural requirements on agencies have led many to agree with Kenneth Culp Davis’s statement that rulemaking is 'one of the greatest inventions of modern government.' Davis is at least partly right, but all of the empirical research on public participation in agency rulemaking demonstrates that participation is minimal, of low quality, and dominated by powerful interests. Cornelius Kerwin, for instance, studied all rules published in the Federal Register between December 1990 and June 1991, leading to a total of 1985 rules examined. Kerwin found that a bare majority of these rules triggered any sort of participation at all. When there was participation, the majority of participation was by a series of repeat player interest groups."[10][4] ”

Opposition: Midnight rulemaking[edit]

The Administrative Conference of the United States (ACUS), an independent federal agency tasked with developing recommendations to improve federal administrative processes, and administrative law scholars have observed that the APA is silent on the question of "midnight rulemaking"—the issuance of a large number of agency regulations during the final days of a presidential administration. ACUS proposed that incoming presidential administrations should be able to delay the effective date of midnight regulations promulgated by the previous administration, according to Walker:^[7]

“ Increased regulatory activity near the end of a presidential administration poses unique problems to the modern administrative state. This problem has been coined 'midnight regulation,' alluding 'to the Cinderella story in which the magic wears off at the stroke of midnight.' The APA presently does not address this newer phenomenon. ACUS recently studied the issue at length and recommended that an incoming presidential administration should have statutory authority to delay the effective date of such midnight rules.[7][4] ”

Opposition: Transparency[edit]

In his 2014 article, Neilson argued that the informal rulemaking process lacks transparency:

“ [I]nformal rulemaking, while useful and necessary, is far from perfect. Although the public receives some procedural protections during this informal process, those protections are limited. Citizens cannot know whether the agency will pay close attention to the written comments they file, nor whether the rationale given by the agency reflects the real reasons for the agency’s decision. With informal rulemaking, moreover, agencies can disguise policy determination as “technical” judgments.4 Informal rulemaking, in other words, is often a black box.[50][4] ”

Competing views: Rulemaking in tension with legislating[edit]

Law professor Richard J. Pierce described the tension between the legislative process and the rulemaking process in a 1996 article for Tulsa Law Review:

“ [T]he history of rules and rulemaking in the U.S. legal system is characterized by powerful ambivalence rooted in two conflicting characteristics of our political and social culture.2 We place a high value on efficiency, fairness, and accountability. Rules and rulemaking further those values? Yet, we harbor a deep distrust of government and government officials. That distrust induced the Framers to create a government that consists of three independent branches, each with enough power to serve as an effective check on the exercise of the powers conferred on the other two branches. Our distrust is particularly apparent in the procedures required to enact a statute. A bill can become law only by navigating a tortuous course through both Houses of Congress and the President. It should come as no great surprise that our distrust of government also manifests itself in the context of agency rules and rulemaking. The most important category of agency rules, legislative rules, have effects that are functionally indistinguishable from those of statutes.[52][4] ”

Separation of powers[edit]

See also: Separation of powers

Separation of powers refers to a system of government that distributes the powers and functions of government among separate and independent entities. In the United States, the federal government is divided into three branches: executive, legislative and judicial. The United States Constitution assigns each of these branches distinct powers and responsibilities. The separation of powers is sometimes referred to as a system of checks and balances because the Constitution provides each branch with certain powers over the other two branches.^{[42][53][54][55][56]}

Opposition: Combined agency functions violate the separation of powers[edit]

The APA codified rulemaking and adjudication procedures within executive agencies. Thus, agencies have the authority to both issue binding regulations and settle any disputes that arise from affected parties regarding agency rules. While some scholars have supported the procedures outlined in the APA, others have questioned the consolidation of both rulemaking and adjudicatory functions within a single agency on the grounds that the structure violates the separation of powers outlined in the U.S. Constitution. Supreme Court at the time of the APA's passage claimed that the legislation established safeguards to ensure that the investigative, prosecutorial, and judicial functions carried out through agency adjudication remained separate and allowed for independent rulings by administrative law judges. Administrative law scholar Bernard Schwartz summarized the views of the Supreme Court at the time in a 1996 article for the Tulsa Law Review:^[3]

“ According to the Supreme Court, a 'fundamental... purpose [of the APA was] to curtail and change the practice of embodying in one person or agency the duties of prosecutor and judge .... [T]he safeguards it did set up were intended to ameliorate the evils from the commingling of functions.' The APA provisions on the matter 'did not go so far as to require a complete separation of investigating and prosecuting functions from adjudicating functions.' Instead, as Justice Brennan points out, 'That statute embodies the theory of internal separation, leaving the functions with the agency but providing safeguards to assure their insulation from one another and to further the independence of personnel engaged in judging.'[3][4] ”

Evan Bernick questioned the constitutionality of the combination of functions within a single agency under the APA's framework. He described what he considers to be the conflicting combination of agency functions in his 2017 review of Adrian Vermeule's Law's Abnegation for The Federalist Society:^[16]

“ The APA provides for some separation of rulemaking, prosecution, and adjudication, some means through which regulated industries can challenge administrative decisions, and some judicial review. But it accepts what Vermeule’s frequent co-author Cass Sunstein has described as the 'enduring legacy of the [New Deal] period': '[the] insulated administrator, immersed in a particular area of expertise, equipped with broad discretion, and expected to carry out a set of traditionally separated functions.'[16][4] ”

In his opinion for Gutierrez-Brizuela v. Lynch while serving on the United States Court of Appeals for the 10th Circuit, Justice Neil Gorsuch argued that federal agencies exercise an unconstitutional combination of executive, legislative, and judicial functions. According to Gorsuch, the resulting concentration of power in federal agencies increases the power of the executive branch and infringes on the separation of powers between the three branches of government. Gorsuch's argument harkens back to James Madison's declaration in Federalist 47 that "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."^[57][25]

Justice Gorsuch made the following observations in his opinion for Gutierrez-Brizuela v. Lynch:

“ There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.[25][4] ”

Competing views: Administrative agencies support the separation of powers[edit]

In his 1938 book The Administrative Process, administrative scholar and New Deal architect James Landis argued that administrative agencies function to preserve the separation of powers:

“ The administrative process is, in essence, our generation’s answer to the inadequacy of the judicial and the legislative processes. It represents our effort to find an answer to those inadequacies by some other method than merely increasing executive power. If the doctrine of the separation of power implies division, it also implies balance, and balance calls for equality. The creation of administrative power may be the means for the preservation of that balance, so that paradoxically enough, though it may seem in theoretic violation of the doctrine of the separation of power, it may in matter of fact be the means for the preservation of the content of that doctrine.[5][4] ”

See also[edit]

• Administrative state
• Administrative Procedure Act
• Rulemaking
• Deference
• Guidance

External links[edit]

• Search Google News for this topic

Footnotes[edit]