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Volume 73, Issue 8 (May 2024)

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Democratizing Administrative Law

Joshua D. Blank & Leigh Osofsky | PDF

When agencies make statements about the law, people listen. This insight yields a fundamental tension. According to one set of views, such agency statements, and their ability to influence public behavior, are critical not only for a well-functioning bureaucracy but also for our entire system of government. According to another set of views, this agency power, if left unchecked, could border on tyranny.

Administrative law responds to this tension through an extensive, purportedly comprehensive, framework that attempts to police agency statements. The framework places different types of agency statements into different legal categories. On the one hand, legislative rules make new binding law. On the other hand, less formal guidance (including interpretive rules and policy statements) offers an agency’s interpretive or policy positions about the law. Scholars and courts have long debated the categorization effort as well as what legal consequences flow from it.

This Article identifies a striking gap in this categorization framework. As a critical part of their service to the general public, agencies often simply explain the law. Although such explanations are central to agency interactions with the public, the intricate administrative law framework that applies to agency statements fails to capture such explanations. Agency explanations of the law could be seen as a subset of existing categories of agency statements (such as “legislative rules,” “interpretive rules,” or “policy statements”), but agency explanations do not fit comfortably into any of these categories. All of these regimes assume that agencies are communicating what the law is or what agencies believe it to be. But when agencies provide such explanations to the public, they often present the law as simpler than it is or what agencies believe it to be.

We argue that administrative law’s failure to address communications between agencies and the general public reflects a broader “democracy deficit.” Administrative law fails to ensure that agency communications with the general public occur in ways that are consistent with essential features of democratic governance, such as transparency, public scrutiny, and debate. In contrast, when sophisticated parties and industry insiders engage with agencies regarding formal guidance, there are ample protections to engender agency transparency and provide affected parties with opportunities to contribute to the guidance.

After identifying the democracy deficit in administrative law, we propose a framework for infusing agency communications with the general public with the same administrative law and democratic values as those that apply in interactions between agencies and sophisticated parties. These reforms would encourage public participation in drafting and issuing agency explanations of the law, provide opportunities to challenge published agency explanations, and allow members of the public to rely on certain agency explanations and to bind the agencies to follow these statements in enforcing the law. We also identify the types of agency communications with the public that most urgently need reform.

Regulatory Body Shops

Bridget C.E. Dooling & Rachel Augustine Potter | PDF

Agencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. Despite perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, capacity, and more, stemming from the fact that contractors are in privity with the government, not the public. This scholarship does not take up the implications of service contracting for rulemaking, the primary mode of executive branch lawmaking, nor does it delineate between types of contracting arrangements, which vary dramatically.

This Article takes variation in rulemaking contracting arrangements seriously. We define three types: ministerial contractors, who perform administrative work; expertise contractors, who provide discrete scientific and technical inputs; and regulatory body shops, which are embedded into agencies and function like staff. We argue that while the former two arrangements pose minimal risks to an agency, regulatory body shops are a different story. Not only do they open the door to conflicts of interest that are not adequately addressed under current law, they also threaten the quality of agency reasoning and have the potential to hollow out an agency’s rulemaking apparatus over the long run. Reliance on regulatory body shops has the potential to put an agency’s rules in legal jeopardy by violating the Administrative Procedure Act and diminishing an agency’s claim to Chevron deference. These various risks, which pose challenges for the quality of public decision-making, sit in tension with the reality that some agencies lack adequate resources to staff their rulemakings and turn to regulatory body shops as a pragmatic matter. The Article concludes with reforms to help agencies responsibly manage the risks posed by regulatory body shops.

Administrative Reliance

Haiyun Damon-Feng | PDF

Presidential regime change and the federal policy shifts that accompany it raise significant questions concerning continuity, stability, and governance in the administrative state. Presidential policymaking through the administrative state may generate serious reliance interests recognized under administrative law (what this Article calls “administrative reliance”), which agencies must consider prior to enacting policy change. Administrative reliance has developed into a robust form of judicial review over agency action. Administrative reliance has been invoked in highly politicized contexts, such as immigration law, to challenge a sitting administration’s termination of a prior administration’s policies. Despite its powerful and consequential effects, the doctrine of administrative reliance has been underdeveloped by the courts and underexplored in legal scholarship. The resulting confusion allows partisan litigants—including States—to effectively veto federal policy change and allows the judiciary to subsume policymaking power traditionally wielded by the executive branch.

This Article fills an important gap in the literature and begins to present a coherent understanding of administrative reliance. It provides the first in-depth account of the doctrine’s development and evolution, and it looks to the doctrine’s history to identify what values administrative reliance seeks to protect. This Article argues that courts should adopt a threshold inquiry to focus administrative reliance–based review in a way that adheres to these values, and that privileges reliance-based claims asserting concrete expectations arising from rights, statuses, or benefits previously granted through agency action.