Wednesday, September 22, 2021
David L. Noll (Rutgers Law School), Administrative Sabotage, Mich. L. Rev. (forthcoming July 6, 2021):
Government can sabotage itself. From the president’s choice of agency heads to agency budgets, regulations, and litigating positions, presidents and their appointees have undermined the very programs they administer. But why would an agency try to put itself out of business? And how can agencies that are subject to an array of political and legal checks sabotage statutory programs?
This Article offers an account of the “what, why, and how” of administrative sabotage that answers those questions. It contends that sabotage reflects a distinct mode of agency action that is more permanent, more destructive, and more democratically illegitimate than other more-studied forms of maladministration. In contrast to an agency that shirks its statutory duties or drifts away from Congress’s policy goals, one engaged in sabotage aims deliberately to kill or nullify a program it administers. Agencies sabotage because presidents ask them to. Facing pressure to dismantle statutory programs in an environment where securing legislation from Congress is difficult and politically costly, presidents pursue retrenchment through the administrative state.
Building on this positive theory of administrative sabotage, the Article considers legal responses. The best response, the Article contends, is not reforms to the cross-cutting body of administrative law that structures most agency action. Rather, the risk of sabotage is better addressed through changes to the design of statutory programs themselves. Congress’s choices about agency leadership, the concentration or division of implementation authority, the breadth of statutory delegations, and other matters influence the likelihood that sabotage will succeed or fail. As lawmakers consider a range of new federal programs, they should be attentive to the likelihood that those programs will be attacked by the very agencies that administer them.