Administrative Law
Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861
117 Yale L.J. 1568 (2008). Jacksonian America was a country in rapid transition. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political reform. For Jacksonian Democrats the answer to this popular yearning was the reconstruction of American democracy—including a broadened electorate, offices open to all, and the elimination of monopoly and other special privileges. Government at the national level was to be kept small and returned to the people. But as is often the case, the institutionalization of democracy demanded a corresponding increase in governmental capacities. Destroying the power of the “Monster Bank” gave new powers and capacities to the Treasury for the management of monetary policy and fiscal transfers. Offices open to all through the new system of “rotation in office” created the need for bureaucratic systems of control that replaced status-based restraints and personal loyalties. And the side effects of technological development, in particular the human carnage that accompanied the rapid expansion of steamboat travel, generated public demand for protection that prompted the creation of a recognizably modern system of health and safety regulation. “The Democracy” established by the Jacksonians both furthered the building of an American administrative state and solidified an emerging nineteenth-century model of American administration law. In that model administrative accountability was preeminently a matter of (1) political oversight and direction and (2) internal hierarchical control. Judicial control of administration featured a cramped vision of mandamus review combined with almost unlimited personal liability of officials for erroneous action. Although administrative law structured in this fashion seems peculiar, indeed almost invisible, to the twenty-first-century legal imagination, it fit comfortably within Jacksonian democratic ideology.
Justifications, Power, and Authority
117 Yale L.J. 1070 (2008). Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structure and function of justification defenses. The reason for this failure, I suggest, is a widely shared misconception about their place within the criminal law’s institutional structure. Contrary to what is generally believed, it is not up to trial courts to decide ex post facto what conduct is justified and what is not. This determination is made ex ante by other institutional actors such as private fiduciaries, public officials, and sometimes, ordinary citizens caught in extraordinary circumstances. The court’s role is simply to review the validity of that prior exercise of decision-making discretion. More broadly, my study is intended to serve as a reminder of the importance of institutional structure in criminal law. It is almost always misleading to address issues in criminal law by way of abstract moral theorizing, as is often done, because this leaves out the crucial question of institutional division of labor. Before addressing the substantive aspect of particular questions—what conduct should be prohibited, justified, or excused—we must first address ourselves to the institutional questions that I have called the problems of authority, discretion, and legality. These institutional questions receive their most thorough treatment in two other areas of law: the private law of fiduciaries and public administrative law. If we wish to make progress in understanding justification defenses—and the institutional structure of criminal law more generally—I argue that it is to these areas of law that we should attend.
Sheltering Deprivations: FEMA, Section 408 Housing, and Procedural Redesign
116 Yale L.J. 1883 (2007).
Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829
In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nation confounded their ambitions. While reclaiming democracy they also built administrative capacity. This Article examines administrative structure and accountability in the Republican era in an attempt to understand the “administrative law” of the early nineteenth century. That inquiry proceeds through two extended case studies: the Jeffersonian embargo of 1807-1809 and the multi-decade federal effort to survey and sell the ever-expanding “public domain.” The first was the most dramatic regulation of commerce attempted by an American national government either before or since. The second began a land office business that dominated the political and legal consciousness of the nation for nearly a century. The embargo tested the limits of administrative coercion and revealed an escalating conflict between the necessities of regulatory administration and judicial review in common law forms. The sale of the public domain required the creation of the first mass administrative adjudication system in the United States and revealed both the ambitions and the limits of congressional control of administration in a polity ideologically devoted to assembly government. Together these cases describe the early-nineteenth-century approach to a host of familiar topics in contemporary administrative law: presidential versus congressional control of administration, the propriety and forms of administrative adjudication, policy implementation via general rules, and the appropriate role of judicial review. Perhaps most significantly, both the embargo episode and the efforts to privatize the public domain demonstrate the singular importance of internal administrative control and accountability in maintaining neutrality and consistency in the application of federal law. This “internal law of administration” remains both a crucial and an understudied aspect of American administrative governance. 116 Yale L.J. 1636 (2007).
Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher
The Constitutional Foundations of Chenery
116 Yale L.J. 952 (2007) The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court’s opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency’s action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of agency action depend on the validity of the agency’s justification, Chenery’s settled rule enforces an aspect of the nondelegation doctrine that has been obscured by more recent decisions that understand nondelegation as involving only a demand for legislative standards, or “intelligible principles.” The neglected arm of the nondelegation doctrine, which Chenery enforces, holds that a delegation is constitutionally valid only if it requires the agency exercising the delegated authority to state the grounds for its invocation of power under the statute. Chenery’s enforcement of this norm polices the political accountability of agency action by ensuring that accountable decision-makers, not merely agency lawyers, have embraced the grounds for the agency’s actions, and it promotes the regularity and rationality of agency decision-making by enforcing a practice of reason-giving. This nondelegation account of Chenery explains why agencies must engage in reasoned decision-making to obtain deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Chenery insists that, to receive Chevron deference, accountable agency actors must explain the bases for their decisions that bind with the force of law. By grounding Chenery in the enforcement of the nondelegation doctrine, this account also suggests that the President’s own exercise of statutory power is not immune from Chenery’s demands.
Chevron Should Not Be Converted into a Voting Rule: A Response to Gersen and Vermeule's Proposal
Chevron as a Voting Rule
116 Yale L.J. 676 (2007) In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from a set of votes, rather than an internal component of the decision rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time, and holding the level of deference constant, a voting rule would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections. Read responses to Chevron as a Voting Rule in The Yale Law Journal Pocket Part: Richard J. Pierce, Jr., Chevron Should Not Be Converted into a Voting Rule: A Response to Gersen and Vermeule’s Proposal, 116 Yale L.J. Pocket Part 248 (2007), http://thepocketpart.org/2007/01/25/pierce.html. Matthew C. Stephenson, The Costs of Voting Rule Chevron: A Comment on Gersen and Vermeule’s Proposal, 116 Yale L.J. Pocket Part 238 (2007), http://thepocketpart.org/2007/01/25/stephenson.html.
Can Process Cure Substance? A Response to Neal Katyals Internal Separation of Powers
Political Checks on a Politicized Presidency: A Response to Neal Katyals Internal Separation of Powers
Executive Branch Usurpation of Power: Corporations and Capital Markets
115 Yale L.J. 2416 (2006) Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branches because it can respond faster to perceived emergencies. Congress is hampered more than the executive by gridlock caused by special-interest group pressures when it tries to act quickly. The legislative process is also inherently slower than the executive process because the executive can launch into unilateral action, as by filing a lawsuit. The executive's structural advantage over the judiciary is even more complete than its advantage over Congress because the judiciary has no power to initiate action. Executive action, particularly that of agencies, determines the course of law. This Essay argues that the ascendancy of the executive branch in policymaking is an unintended consequence of the modern administrative state. The emergence of the executive as the fulcrum of power within the administrative state upsets the traditional balance of powers among the three branches of government. This imbalance can be counteracted only by a concerted effort by the federal judiciary to rein in executive power that improperly usurps Congress's authority to make law.
Quasipublic Executives
115 Yale L.J. 2254 (2006) In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is, public executives who have assumed private characteristics such as insulation from electoral control mechanisms. We proceed to argue that control mechanisms for quasipublic executives should be drawn from both constitutional law and corporate law, broadly interpreted. Constitutional law and corporate law both face the problem of controlling executives but use radically different control mechanisms to do so. This difference, we argue, can be justified only by differences in the institutional settings of the executives governed by each body of law or in the functions with which they are charged. But because quasipublic executives, whether nominally public or nominally private, operate in private institutional settings and perform public functions, this justification for the use of different control mechanisms cannot apply to them. Further, we argue that the law's failure to draw control mechanisms from both fields is symptomatic of a larger doctrinal distortion. Under this distortion, the solutions that the law offers to social problems are often driven more by the doctrinal field to which those problems are assigned than by functional considerations.
Good Governance at the Supranational Scale: Globalizing Administrative Law
115 Yale L.J. 1490 (2006) This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administrative law, which have been used to legitimate regulatory decisionmaking in the domestic context, should be deployed more systematically when policymaking is undertaken at the international level. While acknowledging the inevitable lack of democratic underpinnings for supranational governance, this Article highlights a series of other bases for legitimacy: expertise and the ability to promote social welfare; the order and stability provided by the rule of law; checks and balances; structured deliberation; and, most notably, the institutional design of the policymaking process as structured by principles and practices of administrative law. In developing the logic for procedural legitimacy as a foundation for good governance at the supranational scale, this Article advances a taxonomy of possible global administrative law tools. It then evaluates against this template of good governance procedures some existing decisionmaking procedures in the international trade, public health, and environmental policy regimes. The core conclusion is this: Even if supranational governance is limited and hampered by divergent traditions, cultures, and political preferences, developing a baseline set of administrative law tools and practices will strengthen whatever supranational policymaking is undertaken.