Administrative Law Prof Blog

Franklin on legislative v. nonlegislative rules

New on SSRN: "Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut" by David L. Franklin (DePaul). Abstract:    

Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exempted from notice and comment. The distinction has been called “tenuous,” “baffling,” and “enshrouded in considerable smog.”

What is just as baffling is that prominent commentators such as John Manning, William Funk and Donald Elliot have proposed a simple solution to the problem - and courts have failed to take them up on it. Rather than inquiring into a rule’s nature or effects to decide whether it must undergo notice and comment, these commentators urge, courts should turn the question inside-out and ask whether the rule has undergone notice and comment in order to determine whether it can be made legally binding. This proposal, which I call the “short cut,” would economize on judicial decision costs. Moreover, its proponents say, it would not reduce oversight of the administrative process, because agencies would often opt to submit their rules to notice and comment ex ante in order to ensure that they are treated as legally binding ex post. Lately, proponents of the short cut such as Manning and Jacob Gersen have argued that their position is strengthened by the Supreme Court’s 2001 Mead decision, which presumptively disqualifies nonlegislative rules from Chevron deference.

This article explains - for the first time - not only why judges have resisted the short cut, but why they have been wise to do so. It argues that caution is warranted for three reasons: the short cut inadequately protects the interests of those persons, particularly regulatory beneficiaries, whose interests are affected by deregulatory or permissive agency pronouncements; it stands in tension with the longstanding principle that agencies may choose to announce new policy either through adjudication or rulemaking; and it ignores important differences between public scrutiny at the promulgation stage and heightened judicial scrutiny at the enforcement stage. Nor, I argue, does the Mead decision lend decisive force to the arguments in favor of the short cut, because nonlegislative rules are often accorded substantial deference in practice. These, in short, are the perils of the short cut.

EMM

More on interpretation

From a few weeks ago, "Formal Logic in Law School?" by Sarah Lawsky (George Washington) on The Conglomerate blog:

... Imagine, for example, teaching the Tax Court case of O'Donnabhain v. Commissioner, 134 T.C. No. 4 (2010), which includes a debate about how formal logic should apply to the law. The case holds that medical expenses incurred for a sex-change operation are deductible. ... One issue is whether a sex-change operation is cosmetic surgery: Section 213 of the Tax Code permits taxpayers to deduct medical expenses above a certain amount, but explicitly forbids deductions for cosmetic surgery, which it defines as "any procedure which is directed at improving the patient's appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease."

Judge Foley, dissenting and concurring, argues that a sex-change operation is cosmetic surgery even if it treats disease, because it does not also meaningfully promote the proper function of the body. That is, he argues that a procedure that is directed at improving a patient's appearance is cosmetic surgery unless it meaningfully promotes the proper function of the body and prevents or treats illness or disease.

In a concurring opinion, Judge Halpern explicitly invokes formal logic to explain why Judge Foley's interpretation "conflict[s]" with "the rules of logic and grammar." ...

See Prof. Lawsky's post for more. EMM

Good case on interpretation of an ordinance

From Patty Salkin (Albany), "Owner Violated Township’s “Tree Protection” Ordinance By Cutting Trees on Undeveloped Parcel" on her Law of the Land blog:

... [The Township] received complaints from nearby residents [that] defendant was cutting down trees [in violation of a Township ordinance requiring a permit]. ... Defendant argued the trial court’s interpretation of the ordinance was contrary to the plain language of the ordinance. The [Michigan Court of Appeals] held ... [that d]efendant was correct in reading the plain language of [the specific subsection of the ordinance] as requiring a tree removal permit only when a site plan was filed. “A mere intent or mental plan to develop property does not trigger the requirement of applying for a tree removal permit.” However, plaintiff was also correct the ordinance should be read as a whole. Nothing in [the particular subsection] identified it as being the only description of parcels to which the permit requirement applied. Reading it this way, as defendant would like, would render nugatory not only the words “ten acres in size or greater” but also several of the exceptions identified in [the ordinance]. ... The only reasonable reading of the ordinance as a whole was it applied to all parcels of 10 or more acres unless an exception applied, and to all parcels, regardless of size, for which a site plan or plat has been filed. Because there was no dispute defendant’s property was over 10 acres, the ordinance applied and he was required to seek a permit before cutting the trees.

EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Fisher, Kelly D. Comment. (Tuck-It-Away Associates, L.P. v. Empire State Development Corp., 861 N.Y.S.2d 51, 2008.) 54 N.Y.L. Sch. L. Rev. 371-381 (2009/10). [H]|[L]|[W]

• Wilson, Martin M. and Jennifer A. Blackburn. Administrative law. 61 Mercer L. Rev. 1-29 (2009). [H]|[L]|[W]

• Wright, R. George. Arbitrariness: why the most important idea in administrative law can't be defined, and what this means for the law in general. 44 U. Rich. L. Rev. 839- 865 (2010). [H]|[L]|[W]

EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• George, Beth. Note. An administrative law approach to reforming the state secrets privilege. 84 N.Y.U. L. Rev. 1691-1724 (2009). [H]|[L]|[W]

• Krenick, Vale. Comment. "No one can serve two masters": a separation of powers solution for conflicts of interest within the Department of Health and Human Services. 12 Tex. Wesleyan L. Rev. 585-630 (2006). [H]|[L]|[W]

EMM

Shenanigans

Jim Beck (Dechert, Philadelphia) has a short comment on his Drug and Device Law blog, "Might The First Amendment Become Moot?" 

We see it on the web today that the FDA has just approved Allergan's Botox for several forms of spasticity.  ... Having been interested observers a decade or so ago during the long-running Washington Legal Foundation litigation involving the First Amendment and off-label use, we remember how the FDA succeeded in mooting that suit when things got too hot for the Agency. ... We can't help but wonder if the FDA is going to try the same thing in Allergan's first amendment suit ....  The "chilled speech" at issue is Allergan's ability to convey off-label safety information to physicians about, you guessed it, use of Botox to treat spasticity. ... The FDA ... promised not to enforce certain of its regulations in an unconstitutional fashion to moot WLF.  We are just jaded enough to suspect that, in light of the approval, FDA will similarly try to moot the Allergan suit by conceding that the speech in question is now permissible.

“[T]hese considerations ought not to be, as they might be, defeated, by shortterms [sic] orders, capable of repetition, yet evading review, and at one time the government, and at another time the carriers, have their rights determined by the Commission without a chance of redress.” Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498 at 515 (1911) (emphasis added). Cited in Roe v. Wade. EMM

Reconstructing old laws

While not strictly speaking an administrative law issue, the problem of resurrecting the language of a lost law, regulation, or ordinance can easily arise in an administrative context. Different jurisdictions have different rules, but as a practical matter there needs to be some procedure for figuring out what the effective law was at some point in the past. Here the Supreme Court of Georgia upholds the use of the state Lost Public Records Act by a superior court to reconstruct a lost zoning ordinance. "Lost Original Zoning Ordinance May Be Replaced with Copy Under State Lost Public Records Act" by Patty Salkin (Albany) in her Law of the Land blog.

In 1985, the Newton County Board of Commissioners adopted a “new zoning ordinance” and in 1997 East Georgia Land and Development Company LLC (EGL) requested a letter verifying that its proposed landfill complied with the local zoning ordinance.  The County refused EGL’s request though holding the landfill was not a permitted use under the 1985 ordinance and as a result, EGL sought to compel the County to issue the letter.  During the mandamus proceedings, the 1985 ordinance was neither clearly identified in nor attached to the Board’s minutes, and the Court held that the County could not rely on parole evidence to prove the contents of the ordinance.

Following the county attorney’s request, the probate court judge filed a petition to establish a copy of the 1985 ordinance since the original had been lost. The superior court permitted EGL to intervene.   The court held the 1985 ordinance to be a public record as required by statute to establish a copy and ordered a copy be established holding that as a “correct duplicate was found in the zoning office in 1999 . . .  then attached to the minutes” and “currently maintained in the office of the Clerk of the Board of Commissioners.” The court in doing so rejected EGL’s claims that to order a copy “would violate the doctrine of separation of powers” and would thus “constitute a taking.”  EGL appealed the order establishing a copy of the ordinance.  

The court first considered EGL’s claim that the “superior court erred by holding that the Act allows superior courts to establish copies of ordinances . . . and by admitting parole evidence of the contents of [the] alleged legislation.”  EGL relying on the preamble of the Act which referred to allowing copies of “public records in any courts of the state,” argued that public records, includes “court records such as case filings and real estate records, but not ordinances.”  The court rejected this argument holding that the preamble could not control the meaning of the Act and thus the preamble could not limit the copying of the ordinance.  It further held that “[f]or many years, [it] ha[d] described ordinances and documents incorporated by reference therein as public records.” In addition the court recognized that the “need for . . . a remedy for the loss or destruction of an ordinance” has been recognized in the past by the court.   The court determined that as an “ordinance affects all citizens of a county, the need for a remedy . . . is no less important than when a particular case or real estate record is missing.”  

The court goes on to discuss the appropriate use of parole evidence in such cases, dismisses the argument that this action violates "the constitutional doctrine of separation of powers", and makes it clear that this is the reconstruction of a law already in force so it could not constitute a taking under the Fifth and Fourteenth Amendments. As an aside, I have never seen a successful argument for applying "the constitutional doctrine of separation of powers" except in states that have explicit constitutional statements of such a doctrine (e.g., my present home state of Arizona). The Federal Constitution grants particular powers to particular branches of the government, and certain other powers have accreted to particular branches over the years (e.g., Marbury v. Madison establishing the authority of the courts to interpret and construe laws including the Constitution). But there is no general "doctrine" with legal effect. You have to look at each "power" individually. EMM

Creatures of statute

Another interesting case from Harvey Randall at the New York Public Personnel Law blog: "New York’s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested".

Matter of Humane Society of United States, Inc. v. Brennan, 63 AD3d 1419

The genesis of this lawsuit was the New York State’s Department of Agriculture and Markets' declining to issue a declaration that foie gras* is an adulterated food product within the meaning of Agriculture and Markets Law §200. The Humane Society of the United States** and various other organizations and individuals generally opposed to the production of foie gras then initiated an CPLR Article 78 action seeking a court order compelling the Commissioner to issue the requested declaration or, in the alternative, a review of his determination not to issue such declaration.

§204 of the State Administrative Procedure Act provides that, when petitioned to issue a declaratory ruling, an agency must either issue the ruling or issue a statement declining to issue such ruling. However, said the Appellate Division, “There is no requirement that the agency issue a declaratory ruling when requested and a petitioner has no rights under the statute other than a timely response by the agency.”***

* Foie gras is a food product derived from the intentionally enlarged livers of ducks and geese. The livers are typically enlarged by force-feeding the birds for approximately two weeks before their slaughter.

** There was a procedural matter involved as well – did the petitioners have standing to maintain this action? The Appellate Division held that “Supreme Court properly granted [the [Commissioner’s] motion to dismiss the petition based on petitioners' lack of standing.”

*** The Appellate Division noted that the Department's regulations provide that "[t]he issuance of a declaratory ruling shall be wholly within the discretion of the commissioner." (see 1 NYCRR 368.1 [c]).

The right to a declaratory ruling from an executive agency is always a creature of statute and regulation. EMM

Respect ma authoritay!

From the New York Public Personnel Law blog, with permission: "Authority of the New York City’s Department of Investigation to compel an individual to comply with an 'investigative subpoena'".

Matter of Parkhouse v Stringer, 12 NY3d 660

Virginia Parkhouse's testimony at a public hearing before a New York City agency prompted a complaint by a public official, followed by a subpoena to Parkhouse from the New York City Department of Investigation (DOI). Parkhouse petitioned the court to quash the subpoena, claiming that it exceeds DOI's investigative authority and interferes with her First Amendment rights.

The Court of Appeals said that it “recognize the importance of protecting citizens who speak publicly to their government from intrusion and harassment that may result from official displeasure with what they say.” Noting that applying the special scrutiny test “an investigative subpoena will be upheld only where sufficient facts are shown to justify the inquiry,” the court ruled that in this instance “DOI has made such a sufficient showing and, accordingly, its subpoena was valid.”

The facts underlying DOI’s issuing its subpoena are set out in the decision.*

Significantly, one of the arguments advanced by Parkhouse was that because she is neither a city employee nor a person doing business with the city and thus she was not subject to the jurisdiction of DOI, as New York City Charter §803(d) provides that "the jurisdiction of the commissioner shall extend to any agency, officer, or employee of the city, or any person or entity doing business with the city, or any person or entity who is paid or receives money from or through the city or any agency of the city."

The Court of Appeals said that §803(d) has not been read as a limitation on the witnesses DOI may subpoena, citing Matter of Weintraub v Fraiman, 30 AD2d 784, aff’d 24 NY2d 918.

The Weintraub decision holds that DOI’s inquisitorial power "reaches any person, even though unconnected with city employment, when there are grounds present to sustain a belief such person has information relative to the subject matter of the investigation."

* The decision indicates that DOI was investigating the content of Parkhouse's statement at the hearing, alleged to constitute an “inaccurate reading of the Borough President's letter,” and quoting from Herbert v Lando, 441 US 153, states that the “spreading false information in and of itself carries no First Amendment credentials … as there is no constitutional value in false statements of fact….”

Questions of agency authority - ultra vires arguments - are important to watch. Here, the subpoena has all the appearance of an attempt to harass somebody who was speaking out against the government. But it is not surprising that the City would want to investigate Ms. Parkhouse's allegations, especially if they are true. Balancing the authority of the City to investigate wrongdoing in its ranks and the First Amendment rights of Ms. Parkhouse comes later in the process. This case dramatizes the difference between authority over respondents and authority to collect information. EMM

Theory: Zaring on a single test for deference

On SSRN and soon to appear in the VIRGINIA LAW REVIEW at 96 VA. L. REV. 2317 (2010): "Reasonable Agencies" by David Zaring (Pennsylvania-Wharton). Abstract:

This article argues that the complex doctrine of judicial review of administrative action - containing no less than six separate tests depending on the sort of agency action to be reviewed - both descriptively is and normatively should be simplified into a “reasonable agency” standard. Courts, following step two of the Chevron doctrine, have started to sneak a reasonableness standard into their review in lieu of making the difficult distinctions required by current doctrine. Scholars evaluating the difference among the various doctrinal tests have started to note the increasing similarity among the tests, at least as applied by the courts. Empirical research, to which this Article contributes an additional study, suggests that regardless of the standard of review, courts affirm agencies’ actions slightly more than two thirds of the time; the variance of the validation rates of agency action, regardless of the standard of review, is small. A reasonable agency standard would simplify and clarify administrative law, better describe what courts actually do when confronted with agency action, and better explain the judicial role in the administrative state.

I can agree with his recommendation but for a different reason. In my experience, a "reasonableness" standard creates a need for subsequent common law decision making and a whole new set of rules. I am not convinced that a reasonable agency standard would simplify, clarify, better describe reality, or better explain judicial review. However, the current rules provide little real guidance, so it might be good to start over. I'll have to think on it. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Raso, Connor N. Note. Strategic or sincere? Analyzing agency use of guidance documents. 119 Yale L.J. 782-824 (2010). [H]|[L]|[W]

• Symposium: Administrative Statutory Interpretation. Introduction by Glen Staszewski; articles by Jerry L. Mashaw, Avi Perry, Noga Morag-Levine, Richard J. Pierce, Jr., Michael Herz, Jonathan R. Siegel, Glen Staszewski, Margaret H. Lemos, Kevin M. Stack and Kristin E. Hickman. 2009 Mich. St. L. Rev. 1-272. [H]|[L]|[W]
  • Staszewski, Glen. Introduction to symposium on administrative statutory interpretation. 2009 Mich. St. L. Rev. 1-6. [H]|[L]|[W]

  • Mashaw, Jerry L. and Avi Perry. Administrative statutory interpretation in the antebellum Republic. 2009 Mich. St. L. Rev. 7-49. [H]|[L]|[W]

  • Morag-Levine, Noga. Agency statutory interpretation and the rule of common law. 2009 Mich. St. L. Rev. 51-66. [H]|[L]|[W]

  • Pierce, Richard J., Jr. What factors can an agency consider in making a decision? 2009 Mich. St. L. Rev. 67-88. [H]|[L]|[W]

  • Herz, Michael. Purposivism and institutional competence in statutory interpretation. 2009 Mich. St. L. Rev. 89-121. [H]|[L]|[W]

  • Siegel, Jonathan R. Guardians of the background principles. 2009 Mich. St. L. Rev. 123-141. [H]|[L]|[W]

  • Staszewski, Glen. Textualism and the executive branch. 2009 Mich. St. L. Rev. 143- 183. [H]|[L]|[W]

  • Lemos, Margaret H. The Solicitor General as mediator between court and agency. 2009 Mich. St. L. Rev. 185-223. [H]|[L]|[W]

  • Stack, Kevin M. Agency statutory interpretation and policymaking form. 2009 Mich. St. L. Rev. 225-238. [H]|[L]|[W]

  • Hickman, Kristin E. IRB guidance: the no man's land of tax code interpretation. 2009 Mich. St. L. Rev. 239-272. [H]|[L]|[W]

EMM

Exhaustion of administrative remedies

With permission from the New York Public Personnel Law blog: "The doctrine of the exhaustion of administrative remedy".

Matter of Mirenberg v Lynbrook Union Free School Dist. Bd. of Educ., 63 AD3d 943

In this decision the Appellate Division set out a synopsis of the doctrine of the exhaustion of administrative remedy, noting that:

1. "One who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law."

2. "The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when [a] an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or [b] when resort to an administrative remedy would be futile or [c] when its pursuit would cause irreparable injury."

3. "A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established.”

4. “The mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief."

The court then explored the impact of these elements with respect to Ethan Mirenberg's appealing the Superintendent Lynbrook Union Free School District's adopting the findings of a hearing officer that Mirenberg guilty of disciplinary charges filed against him.

Although Mirenberg had filed an appeal with the Commissioner of Education challenging the Superintendent’s action, he subsequently filed an Article 78 petition with Supreme Court seeking to overturn the Superintendent’s determination. Lynbrook asked Supreme Court to dismiss Mirenberg's petition on the grounds that his appeal to the Commissioner was then still pending.

Supreme Court agreed with the school district's argument and dismissed Mirenberg's petition "without prejudice," because Mirenberg had failed to exhaust his administrative remedies.

The Appellate Division, in turn, agreed with the Supreme Court’s ruling, again noting that the appeal before the Commissioner was still pending at the time Mirenberg had filed his petition in Supreme Court.*

The court said that Mirenberg had not only failed to exhaust an available administrative remedy, he did not establish that an exception to the exhaustion of administrative remedies doctrine was applicable in his case.

Thus, said the Appellate Division, Supreme Court’s dismissal of the proceeding without prejudice on the ground that Mirenberg had failed to exhaust his administrative remedies was appropriate under the circumstances.

* The Commissioner of Education’s determination regarding Mirenberg’s appeal has not been published as of March 8, 2010.

Looks like a good, straightforward discussion case. EMM

Off-topic but important: An employer cannot refuse to permit an individual to resign from his or her position

With permission from the New York Public Personnel Law blog: "Except under 'exceptional circumstances,' an employer cannot refuse to permit an individual to resign from his or her position".

Matter of Vinluan v Doyle, 60 AD3d 237

Felix Vinluan, an attorney, represented a number of nurses at a Long Island nursing home, Avalon Gardens. The nurses had simultaneous resigned from positions at the nursing home.

Subjected to criminal prosecution as a result of their action, the Appellate Division held that "these criminal prosecutions constitute an impermissible infringement upon the constitutional rights of these nurses and their attorney and that "the issuance of a writ of prohibition [an order issued by a higher court commanding a lower court to cease from proceeding in some matter] to halt these prosecutions is the appropriate remedy in this matter."

The nurses, believing that their complaints concerning their working conditions were not being properly addressed by Avalon Gardens, met with Vinluan and told him that they wanted to resign because they could not tolerate the working conditions they were experiencing much longer.

Vinluan, among other things, advised the nurses that they could not resign in the middle of their shift.

On April 7, 2006, the nurses resigned from their employment either at the end of their shift, or in advance of their next shift, using an identical form letter that they had mutually agreed upon.

The amount of notice provided before the next scheduled shift for each nurse ranged from 8 to 72 hours. As a result Avalon Gardens' Director of Nursing sent a complaint to the New York State Education Department charging that the nurses had abandoned their patients by simultaneously resigning without adequate notice. Following an investigation, on September 28, 2006, the Education Department closed the nurses' cases, concluding that they had not committed professional misconduct because none of them had resigned in mid-shift, and no patients were deprived of nursing care since the facility was able to obtain appropriate coverage.

The following March a Suffolk County Grand Jury handed down a 13-count indictment against the nurses including charges of conspiracy in the sixth degree predicated upon their alleged intent to engage in conduct constituting the crimes of endangering the welfare of a child and endangering the welfare of a physically disabled person. Vinluan alone was charged with criminal solicitation in the fifth degree, asserting that he, with the intent that the nurses engage in conduct constituting the crimes of endangering the welfare of a child and endangering the welfare of a physically-disabled person, requested and otherwise attempted to cause the nurses to resign immediately from Avalon Gardens."

Supreme Court denied the motions to dismiss the criminal action, concluding that there was ample evidence before the grand jury to support all of the counts against the nurses and Vinluan. The Appellate Division reversed the lower court's holding.

The nurses contended that prosecuting them was not a proper proceeding because it contravened the Thirteenth Amendment barring involuntary servitude by seeking to impose criminal sanctions upon them for resigning from their respective positions. Vinluan argued that he was being prosecuted for exercising his First Amendment right of free speech in providing the nurses with legal advice.

As to the nurses' involuntary servitude argument, the Appellate Division said that "The Thirteenth Amendment declares that "[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States" and that "[b]y forbidding not only slavery but also factual situations that resemble slavery, the Framers expressed a view of personal liberty that extends beyond freedom from legal ownership by another person."

Further, said the Appellate Division, the U.S. Supreme Court makes it clear that absent "exceptional circumstances," the Thirteenth Amendment bars compulsory labor “enforced by the use or threatened use of physical or legal coercion," citing United States v Kozminski 487 US 931 and a number of other cases. Here, said the court, the prosecution of the nurses has the practical effect of exposing the nurses to criminal penalty for exercising their right to leave their employment at will.

In addition, the Appellate Division held that the prosecution of Vinluan impermissibly violated his constitutionally protected rights of expression and association in violation of the First and Fourteenth Amendments as "an attorney has a constitutional right to provide legal advice to his clients within the bounds of the law." Further, said the court, an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, does not lose the protection of the First Amendment if his or her advice is later determined to be incorrect.

The Appellate Division granted the appeal, prohibiting the Suffolk County District Attorney, Thomas J. Spota, from prosecuting the nurses and Vinluan in Supreme Court, Suffolk County.

NYPPL Comments: Although it is sometimes reported that "a resignation has been accepted" by the appointing authority, all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74).]
By Harvey Randall, Esq.

I'm posting this because it arose in an administrative context. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• McAllister, Lesley K. Dimensions of enforcement style: factoring in regulatory autonomy and capacity. 32 Law & Pol'y 61-78 (2010). [H]|[L]|[W]

• Michaels, Andrew. Note. International technology transfer and TRIPS Article 66.2: can global administrative law help least-developed countries get what they bargained for? 41 Geo. J. Int'l L. 223-261 (2009). [H]|[L]|[W]

EMM

Theory: Admin law in emergencies

New on SSRN: "Mending Holes in the Rule of (Administrative) Law" by Evan Criddle (Syracuse). Abstract:    

The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends before the demands of state necessity during national emergencies. In an article published recently in the Harvard Law Review, Adrian Vermeule argues that American administrative law is fundamentally “Schmittian” in the sense that it permits federal agencies to operate outside the constraints of administrative procedure and meaningful judicial review during emergencies. Vermeule contends that the federal Administrative Procedure Act (APA) is replete with procedural exceptions, which generate “black holes” — zones where federal agencies are free to act outside the constraints of legal order. In addition, he suggests that federal courts manipulate the APA’s flexible legal standards to accord heightened deference to federal agencies during national crises, transforming standards such as “reasonableness” and “good cause” into “grey holes” — legal devices which preserve the façade, but not the reality, of the rule of law. Far from criticizing these gaps in federal administrative law, Vermeule accepts black holes and grey holes as institutional inevitabilities and dismisses proposals to extend the rule of law to all administrative action as a “hopeless fantasy.”

Vermeule makes a compelling case that statutory loopholes and anemic judicial review have diminished administrative law’s salience during national emergencies. But his broader argument that black holes and grey holes cannot be eradicated is unpersuasive and deeply troubling. In reality, Congress could eliminate the APA’s procedural loopholes without compromising agencies’ capacity to address emergencies if it would simply discard the APA’s rule-based categorical exceptions in favor of a more nuanced, standard-based derogation regime. Likewise, federal courts could easily eliminate grey holes by treating legal standards in administrative law as vehicles for promoting robust public justification of administrative action. The primary obstacle to these reforms is not “institutional,” as Vermeule asserts, but rather cultural: too many legislators and judges view administrative law in static positivist terms as a means for allocating decision making authority among public institutions, rather than in dynamic relational terms as establishing a regime in which public officials must justify all exercises of administrative powers according to public-regarding principles.

To show how our administrative law might be reformed to promote a “culture of justification” during national emergencies, this essay outlines a relational theory of the rule of law based on the principle that public officials and agencies serve as fiduciaries for the public. Whereas Vermeule’s article explores the current limits of our administrative law, the relational theory suggests practical steps for refining our legal system to ground emergency administration more firmly in the rule of law.

EMM