Procedures as politics in administrative law

Columbia Law Review

Volumn 107, Issue 8, 2007, Pages 1749-1821

  Bressman, Lisa Schultz ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 38049169581     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (473)

1. For the classic account, see Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669 (1975).
2. See United States v. Mead Corp., 533 U.S. 218, 221 (2001).
3. See SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 203 (1947).
4. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42 (1983).
5. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
6. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 186 (2000).
7. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 (1992).
8. See Richard J. Pierce, Jr., Democratizing the Administrative State, 48 Wm. & Mary L. Rev. 559, 562 (2006) (noting that "[s]cholars have long questioned the political and constitutional legitimacy of the administrative state" and discussing Court's role in addressing this concern).
9. I do not claim that legal scholars have entirely ignored the strategic political function of administrative procedures. Many, including myself, have cited the political science literature concerning the strategic use of administrative procedures to evaluate the legitimacy of agency action. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 491 n.146 (2003) [hereinafter Bressman, Beyond Accountability]. My claim is that legal scholars have not examined how their understanding of administrative law might change if administrative procedures are viewed as some political scientists have viewed them.
10. See infra Part III.
11. See infra Part IV.
12. See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243, 254 (1987) [hereinafter McNollgast, Administrative Procedures];
13. Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431, 468-81 (1989) [hereinafter McNollgast, Administrative Arrangements] ;
14. Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 Am. J. Pol. Sci. 165, 166 (1984). Positive political theorists generally do not view the bureaucracy as arising out of concerns for accountability or efficiency. Rather, they view the bureaucracy as "aris[ing] out of politics, and its design reflect[ing] the interests, strategies, and compromises of those who exercise political power."
15. Terry M. Moe, The Politics of Bureaucratic Structure, in Can the Government Govern? 267, 267 (John E. Chubb & Paul E. Peterson eds., 1989).
16. See McNollgast, Administrative Procedures, supra note 12, at 246.
17. See, e.g., McNollgast, Conditions for Judicial Independence, 15 J. Contemp. Legal Issues 105, 124 (2006) [hereinafter McNollgast, Judicial Independence] (arguing that courts seek to make determinations that cannot be overturned by legislation or undermined through noncompliance);
18. McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. Cal. L. Rev. 1631, 1633 (1995) [hereinafter McNollgast, Politics and the Courts] (same).
19. See infra Part I.
20. See infra Part II.
21. I am one such scholar. See Bressman, Beyond Accountability, supra note 9, at 527-52 (arguing that administrative law promotes rule-of-law values).
22. See Jerry L. Mashaw, Explaining Administrative Process: Normative, Positive, and Critical Stories of Legal Development, 6 J.L. Econ. & Org. (Special Issue) 267, 270 (1990) [hereinafter Mashaw, Explaining Administrative Process] (arguing that political purpose of administrative procedures is "obscured, if not misrepresented, by lawyers' talk").
23. For examples of authors who make this accountability argument, see Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 58-70 (1995);
24. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331-37 (2001);
25. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 102-03 (1994);
26. Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. Econ. & Org. 81, 95-96 (1985) [hereinafter Mashaw, Prodelegation];
27. Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 N.Y.U. L. Rev. 1239, 1280-85 (1989) [hereinafter Pierce, Role of the Judiciary].
28. For examples of authors who view congressional control as less desirable or important than presidential control of agency action, see Calabresi, supra note 19, at 50 (arguing that President is normatively preferable to either congressional committees or courts as "logical candidate for the role of executor of the laws"); Kagan, supra note 19, at 2346-63 (arguing that President has proper role in influencing regulatory policy, even when that role largely displaces comparable roles of Congress, agency officials, and interest groups).
29. See infra Part IV.
30. In 1908, for example, the Court famously held that due process required a local agency to afford particular landowners an individualized, trial-type hearing when applying a tax assessment for the costs of paving a street fronting their property. See Londoner v. Denver, 210 U.S. 373, 385-86 (1908). But, shortly thereafter, the Court made clear that this principle did not extend to landowners contesting the increase in the valuation of all taxable property in a city. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 444-46 (1915). Such landowners had no right to be heard other than in the political process. See id. at 445.
31. See 4 I.L. Sharfman, The Interstate Commerce Commission: A Study in Administrative Law and Procedure 151-52 (1937) (describing purposes and processes of Interstate Commerce Commission).
32. See id. at 154-60 (detailing statutory notice and hearing procedures).
33. See id. at 150-51.
34. 5 U.S.C. §§ 551-559, 701-706 (2000).
35. See 5 U.S.C. § 553 (rulemaking); id. §§ 554, 556-557 (adjudication).
36. See Peter L. Strauss, Changing Times: The APA at Fifty, 63 U. Chi. L. Rev. 1389, 1405 (1996) (describing notice-and-comment process as "little more than a consultative process for public presentation of information and views, loosely comparable to what might be employed by a congressional committee").
37. See Martin Shapiro, APA: Past, Present, and Future, 72 Va. L. Rev. 447, 453 (1986) [hereinafter Shapiro, APA] ("For matters requiring adjudication, in which government action was directly detrimental to the specific legal interests of particular parties, the compromise was heavily weighted in favor of the conservatives.").
38. For excellent accounts of the politics surrounding the enactment of the APA, see McNollgast, The Political Origins of the Administrative Procedure Act, 15 J.L. Econ. & Org. 180, 189-213 (1999);
39. Alan Schwartz, Comment on "The Political Origins of the Administrative Procedure Act," by McNollgast, 15 J.L. Econ. & Org. 218, 219-21 (1999);
40. George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557 (1996).
41. See Shapiro, APA, supra note 29, at 453.
42. See id. ("The second part, rulemaking, constituted an almost total victory for the liberal New Deal forces.").
43. See id. at 454 ("On this point, the liberal New Dealers won almost complete victory, labeling agency action in this area as 'committed to agency discretion.'").
44. Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified as amended at 5 U.S.C. § 552 (2000)). Although enacted in 1966, FOIA was strengthened in 1974. See Pub. L. No. 93-502, 88 Stat. 1561 (1974) (codified as amended at 5 U.S.C. § 552).
45. 5 U.S.C. § 552(a)(3)(A).
46. Pub. L. No. 94-409, § 3(a), 90 Stat. 1241, 1241-46 (1976) (codified as amended at 5 U.S.C. § 552b).
47. See § 552b(c) (listing exceptions to open meeting requirement).
48. 42 U.S.C. § 4321-4347 (2000).
49. 5 U.S.C. §§ 601-612.
50. Pub. L. No. 104-121, 110 Stat. 857 (1996) (codified in scattered sections of 5, 15, 28 U.S.C.).
51. See, e.g., Clean Air Act Amendments of 1970, 42 U.S.C. § 7409 (containing specific deadlines and other procedures for setting air quality standards).
52. For example, Judges David Bazelon and Harold Leventhal of the D.C. Circuit might be seen as the principal architects of the reasoned decisionmaking requirement in the notice-and-comment rulemaking context. See Ethyl Corp. v. EPA, 541 F.2d 1, 33-37 (D.C. Cir. 1976) (en banc); id. at 68-69 (Leventhal, J., concurring); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 394 (D.C. Cir. 1973) (Leventhal, J.). But the Supreme Court eventually adopted that requirement. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983).
53. See, e.g., State Farm, 463 U.S. at 41 (requiring reasoned explanation for notice-and-comment rulemaking); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17 (1971) (requiring reasoned explanation for informal adjudication).
54. Stewart, supra note 1.
55. See, e.g., Bressman, Beyond Accountability, supra note 9, at 469-91 (describing various models of the administrative state);
56. Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189, 1191 (1986) (examining waves of federal regulatory reform and judicial response to each successive wave);
57. Martin Shapiro, Administrative Discretion: The Next Stage, 92 Yale L.J. 1487, 1488 (1983) [hereinafter Shapiro, Discretion] (reviewing discretionary action and judicial response to it);
58. Peter L. Strauss, From Expertise to Politics: The Transformation of American Rulemaking, 31 Wake Forest L. Rev. 745, 755-60 (1996) (examining agency rulemaking from 1961-1977);
59. see also Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale L.J. 969, 978-79 (1992) (noting that political accountability has replaced judicial review of administrative decisions);
60. Robert B. Reich, Public Administration and Public Deliberation: An Interpretive Essay, 94 Yale L.J. 1617, 1618-19 (1985) (describing administrative law as initially protecting due process interests and later promoting deliberation).
61. See, e.g., Bressman, Beyond Accountability, supra note 9, at 529 (noting that reasoned decisionmaking requirement, by promoting transparency of agency decisionmaking, facilitates political oversight); Kagan, supra note 19, at 2382-83 (same).
62. See Stewart, supra note 1, at 1675-76.
63. See id.
64. See id. at 1673.
65. Id. at 1676-77.
66. Id. at 1678.
67. See id.
68. Id.
69. Id.
70. See id.
71. See id.
72. See Rabin, supra note 44, at 1268-71 (collecting cases).
73. See SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 202-03 (1947) (describing how unique role of agencies necessitates choice of procedures).
74. See NLRB v. Hearst Publ'ns, Inc., 322 U.S. 111, 130-31 (1944), overruled in part by Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) (deferring to agency interpretive judgments); Switchmen's Union v. Nat'l Mediation Bd., 320 U.S. 297, 300-01 (1943) (holding that agency action was not reviewable by judiciary); Ala. Power Co. v. Ickes, 302 U.S. 464, 475 (1938) (holding that petitioner lacked standing to challenge agency action because action did not violate recognized legal rights); see also Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 Yale L.J. 425, 480 (1974) (noting development of standing to insulate administrative expertise from judicial interference);
75. Louis L. Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv. L. Rev. 255, 261-88 (1961) (recounting development of federal standing law through 1950s);
76. Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371, 1452-57 (1988) (identifying five factors that contributed to emergence of modern constitutional standing doctrine).
77. But see Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1379-80 (1973) (arguing that doctrines like standing, mootness, and ripeness had been "recast in recent decades" and barred judical review "only infrequently and erratically").
78. See, e.g., SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 94-95 (1943) (refusing to supply grounds for upholding agency action); FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 476-77 (1940) (granting standing to nontraditional plaintiff harmed indirectly as result of agency action benefiting its competition).
79. See Rabin, supra note 44, at 1264 (describing criticisms of Roscoe Pound, chairman of special committee of ABA on administrative law, who argued that agencies often decided issues in way that raised concerns for due process and fundamental fairness).
80. See id. at 1265 (describing origins of APA).
81. See id. at 1286 (noting criticism concerning "oppressive tendencies of the regulatory system"); Charles A. Reich, The New Property, 73 Yale L.J. 733, 751-56 (1964) (discussing procedural shortcomings of administrative tribunals).
82. See, e.g., Kenneth Culp Davis, Discretionary Justice 55-57 (1969) (arguing that agencies should develop standards through rulemaking to confine their own discretion as soon as feasible and as often as possible); Henry J. Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards 5-6 (1962) (same).
83. See Stewart, supra note 1, at 1679 (arguing that courts began using alternative techniques to control administrative discretion).
84. Id.
85. Id. at 1679-80.
86. Id.; see also Greater Boston Television Corp. v. FCC, 444 F.2d 841, 850-51 (D.C. Cir. 1970) (Leventhal, J.) (coining phrase "reasoned decision-making").
87. See Stewart, supra note 1, at 1680.
88. See id. at 1683.
89. For example, in 1970, Congress enacted the Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (codified at 42 U.S.C. § 7401-7671q (2000)), which directs the Environmental Protection Agency to set air quality standards. At this time, Congress also enacted the National Environmental Policy Act, Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified at 42 U.S.C. § 4331), which requires federal agencies to "give focused consideration to the impact of their decisions on the environment." Rabin, supra note 44, at 1287.
90. See Stewart, supra note 1, at 1760-61.
91. Id. at 1712.
92. See Harold Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. Pa. L. Rev. 509, 514 (1974) (arguing that courts must ensure that agencies have taken "'hard look' at all relevant factors").
93. See Ethyl Corp. v. EPA, 541 F.2d 1, 33-37 (D.C. Cir. 1976) (en banc); Pordand Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 394 (D.C. Cir. 1973) (Leventhal, J.); Leventhal, supra note 73, at 511. Judge Leventhal proposed a stronger version that the Court refused to adopt. Under that version, courts also would assess whether the agency's policy decision is substantively irrational. See Ethyl Corp., 541 F.2d at 68-69 (Leventhal, J., concurring) (arguing that it is better to have "no judicial review at all than a charade that gives the imprimatur without the substance of judicial confirmation that the agency is not acting unreasonably").
94. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983) (requiring reasoned decisionmaking for notice-and-comment rulemaking under arbitrary and capricious test of APA); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971) (requiring reasoned decisionmaking for informal adjudication under arbitrary and capricious test of APA).
95. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (holding that Due Process Clause requires hearings before termination of welfare benefits).
96. See, e.g., Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153-55 (1970) (standing); McKart v. United States, 395 U.S. 185, 197-99 (1969) (exhaustion); Abbott Labs. v. Gardner, 387 U.S. 136, 148-51 (1967) (ripeness).
97. See Sierra Club v. Morton, 405 U.S. 727, 738 (1972); Data Processing, 397 U.S. at 153-55.
98. Sidney A. Shapiro, A Delegation Theory of the APA, 10 Admin. L.J. Am. U. 89, 101 (1996) [hereinafter Shapiro, Delegation Theory].
99. See, e.g., Appalachian Power Co. v. EPA, 477 F.2d 495, 503-04 (4th Cir. 1973) (requiring limited trial-type hearing in notice-and-comment rulemaking); Int'l Harvester Co. v. Ruckelshaus, 478 F.2d 615, 630 (D.C. Cir. 1973) (requiring public hearing in notice-and-comment rulemaking).
100. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 523-25 (1978).
101. See Shapiro, Discretion, supra note 44, at 1498.
102. See Cass R. Sunstein, Factions, Self-interest, and the APA: Four Lessons Since 1946, 72 Va. L. Rev. 271, 283-84 (1986) (describing reasons why interest group model failed).
103. For a description of this model, see Bressman, Beyond Accountability, supra note 9, at 485-91;
104. Michael A. Fitts, The Paradox of Power in the Modern State: Why a Unitary, Centralized Presidency May Not Exhibit Effective or Legitimate Leadership, 144 U. Pa. L. Rev. 827, 841-57 (1996); Kagan, supra note 19, at 2277-2319.
105. See Kagan, supra note 19, at 2285-90 (discussing role of centralized White House review in implementing vision of "presidential administration").
106. Exec. Order No. 12,291, 3 C.F.R. 127 (1982), reprinted in 5 U.S.C. § 601 (1988), revoked by Exec. Order No. 12,866, 3 C.F.R. 638 (1993), reprinted as amended in 5 U.S.C. § 601 (2000).
107. 3 C.F.R. 128 (1982).
108. 3 C.F.R. 128-30 (1982).
109. See Exec. Order No. 12,866, 3 C.F.R. 638 (1993), reprinted as amended in 5 U.S.C. § 601 (2000).
110. See 3 C.F.R. 127 (1982) (listing purposes of Executive Order 12,291, including reducing "the burdens of existing and future regulations," providing "for presidential oversight of the regulatory process," and minimizing "duplication and conflict of regulations").
111. 3 C.F.R. 638, 640, 645 (1993), reprinted as amended in 5 U.S.C. § 601 (2000).
112. Initially, President Bush made only minor changes to Executive Order 12,866 with Executive Order 13,258. See Exec. Order No. 13,258, 3 C.F.R. 204 (2002).
113. See Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 23, 2007).
114. See id. at § 5 (amending Exec. Order No. 12,866 § 6(b)).
115. See Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 570-99 (1994).
116. See Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law 152 (1997) [hereinafter Mashaw, Greed] (arguing that President is particularly responsive to public preferences because he deals with national issues and has no particular constituency demanding benefits in exchange for votes); Kagan, supra note 19, at 2331-37 (arguing that presidential control of administration serves two goals of accountability and effectiveness); Lessig & Sunstein, supra note 19, at 105-06 (arguing that President, in part because of his "national constituency," should ultimately control administrative decisionmaking); cf. Pierce, Role of the Judiciary, supra note 19, at 1251-54 (arguing that Constitution is premised on belief that government should act as agent of people, and that President is second best to Congress as agent of people for controlling administrative policymaking).
117. See Kagan, supra note 19, at 2331-37 (arguing that visibility of President's office subjects him to increased public attention); Lessig & Sunstein, supra note 19, at 105-06 ("[B]ecause the President has a national constituency - unlike relevant members of Congress, who oversee independent agencies with often parochial agendas - [he] appears to operate as an important counterweight to factional influence over administration.").
118. See Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 Harv. L. Rev. 1075, 1076-82 (1986) (arguing that centralized cost-benefit review "encourages policy coordination, greater political accountability, and more balanced regulatory decisions"); Mashaw, Prodelegation, supra note 19, at 93 (noting that "executive branch . . . cost-benefit analyses of agency regulations . . . press agencies in the direction of . . . welfare-enhancing action").
119. 467 U.S. 837 (1984).
120. Id. at 865-66.
121. Other cases mirror that sentiment. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) (refusing to grant standing to plaintiffs challenging nonenforcement decision because to do so would interfere with presidential prerogatives); Heckler v. Chaney, 470 U.S. 821, 831-35, 837-38 (1985) (denying review of claim challenging nonenforcement decision because Congress had not indicated that such decision would be reviewable).
122. Scholars also have criticized the model. See, e.g., Bressman, Beyond Accountability, supra note 9, at 492-515 (arguing that the model does not adequately prevent arbitrary agency action);
123. Cynthia R. Farina, Undoing the New Deal Through New Presidentialism, 22 Harv. J.L. & Pub. Pol'y 227, 227 (1998) [hereinafter Farina, Undoing the New Deal] (arguing that "new presidentialism" is "a profoundly anti-regulatory phenomenon"); Fitts, supra note 84, at 841-57 (arguing that singularity and visibility of presidency may exaggerate its flaws);
124. Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1755-1810 (1996) (arguing that unitary executive is incorrect as matter of original understanding);
125. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123, 187-95 (1994) (arguing that unitary executive is incorrect as matter of constitutional interpretation);
126. Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 Am. U. L. Rev. 443, 462-63 (1987) (arguing that presidential control interferes with agency independence);
127. Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 Ark. L. Rev. 161, 212-14 (1995) (arguing that residential review of rulemaking disrupts "dialogue, openness, and responsiveness" important to system of checks and balances);
128. Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 Admin. L. Rev. 1, 24 (1994) (arguing that presidential control interferes with agency expertise);
129. Peter L. Strauss, Presidential Rulemaking, 72 Chi.-Kent L. Rev. 965, 968 (1997) [hereinafter Strauss, Presidential Rulemaking] (arguing that presidential involvement in rulemaking "insufficiently respects the tension inherent in the Constitution between Congress's power to create the instruments of government and allocate authority among them and the fact of a single chief executive at the head of the agencies thus created, with intended and inevitable political relationships with all").
130. 463 U.S. 29, 51-52 (1983).
131. 533 U.S. 218 (2001).
132. Id. at 226-27. The Court has departed from strict presidential control in other cases. See Gonzales v. Oregon, 546 U.S. 243, 268-69 (2006) (invalidating regulation of physician-assisted suicide despite support of George W. Bush administration); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (invalidating regulation of tobacco products despite support of Clinton administration).
133. Compare David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 Sup. Ct. Rev. 201, 234 ("The Court's approach, when measured against the values of accountability and discipline, denies deference to actions that have earned it and gives deference to actions that do not deserve it."),
134. and Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 Yale L.J. 2580, 2588 (2006) [hereinafter Sunstein, Beyond Marbury] (arguing that executive branch should be permitted broad discretion to choose either technocratic policy or political policy, and that either is consistent with Chevron),
135. with Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443, 1486-91 (2005) [hereinafter Bressman, Mead] (defending Mead and its emphasis on procedural regularity as condition for Chevron deference). Many scholars view administrative procedures as serving important normative values, such as fairness, rationality, participation, and accountability.
136. For a sampling, see generally articles in Symposium on the 50th Anniversary of the APA, 10 Admin. L.J. Am. U. 1 (1996) (discussing values, interpretations, and future of APA);
137. Administrative Law Symposium, 72 Va. L. Rev. 215 (1986) (discussing development and future of APA). For those scholars who generally favor political accountability, particularly through the President, see, e.g., Mashaw, Greed, supra note 96, at 152 (suggesting that delegation and accountability in executive administration "improv[es] the responsiveness of government to the desires of the general electorate"); Calabresi, supra note 19, at 58-70 (arguing unitary President is most accountable and best situated to make fair decisions); Kagan, supra note 19, at 2331-37 (claiming that presidential administration encourages accountability by increasing transparency and making government more responsive to general public); Lessig & Sunstein, supra note 19, at 102-03 (suggesting that strong unitary President is necessary to achieve goals of country's founders);
138. Pierce, Role of the Judiciary, supra note 19, at 1280-85 (arguing that politically accountable President prevents factions).
139. See Barron & Kagan, supra note 106, at 244-45 (restricting Chevron deference to interpretation rendered by high level officials in part because such interpretations promote rule-of-law values, including "disciplined consideration of policy throughout the agency, even (or especially) at the lower levels" and "coherence of administrative action, both by preventing deviations from agency policy and establishing a mechanism to implement that policy in a coordinated manner"); Bressman, Beyond Accountability, supra note 9, at 514 (acknowledging need for political accountability in agency decisionmaking).
140. See John D. Huber & Charles R. Shipan, Deliberate Discretion? The Institutional Foundations of Bureaucratic Autonomy 26 (2002) (noting mat "principal-agent framework from economics has played an extremely prominent and powerful role in [the] institutional approach to relations between politicians and bureaucrats").
141. For the classic political science accounts describing why Congress creates agencies, see generally Morris P. Fiorina, Congress: Keystone of the Washington Establishment (1977);
142. William A. Niskansen, Jr., Bureaucracy and Representative Government (1971).
143. See McNollgast, Administrative Procedures, supra note 12, at 246-48.
144. See Kenneth A. Shepsle, Bureaucratic Drift, Coalitional Drift, and Time Consistency: A Comment on Macey, 8 J.L. Econ. & Org. 111, 113-15 (1992) (developing notions of political "drift");
145. see also Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs, 75 Va. L. Rev. 499, 501-04 (1989) (discussing problem of bureaucratic drift and its underlying tradeoffs).
146. See McNollgast, Administrative Procedures, supra note 12, at 249-51 (analyzing two forms of policy monitoring: evaluation by congressional committees and "fire-alarm monitoring");
147. McNollgast, Administrative Arrangements, supra note 12, at 440-44 (discussing structural and procedural solutions to issue of agency deviation).
148. See McNollgast, Administrative Arrangements, supra note 12, at 443 (noting that, although costly, structural and procedural solutions prevent agency deviations).
149. See McNollgast, Administrative Procedures, supra note 12, at 247 ("A consequence of delegating authority . . . is that [the agency] may become more expert about their policy responsibilities than [Congress].").
150. Terry M. Moe, Political Control and the Power of the Agent, 22 J.L. Econ. & Org. 1, 3 (2006).
151. McNollgast, Administrative Procedures, supra note 12, at 244. Professor McCubbins and Thomas Schwartz identified the possibility of fire-alarm oversight in 1984. See McCubbins & Schwartz, supra note 12, at 168.
152. McNollgast, Administrative Procedures, supra note 12, at 244.
153. Id.
154. Huber & Shipan, supra note 108, at 27.
155. See McNollgast, Administrative Procedures, supra note 12, at 257-58;
156. McNollgast, Administrative Arrangements, supra note 12, at 442.
157. See McNollgast, Administrative Procedures, supra note 12, at 254. Rui J.P. de Figueiredo, Jr., Pablo Spiller, and Santiago Urbiztondo have modeled the informational function of administrative procedures, concluding that political principals will prefer information from multiple monitors.
158. Rui J.P. de Figueiredo, Jr., Pablo T. Spiller & Santiago Urbiztondo, An Informational Perspective on Administrative Procedures, 15 J.L. Econ. & Org. 283, 301 (1999).
159. McNollgast, Administrative Procedures, supra note 12, at 254.
160. See William N. Eskridge, Jr. & Philip P. Frickey, Law as Equilibrium, 108 Harv. L. Rev. 26, 30-33 (1994) (noting sequential nature of decisionmaking among legislature, President, agencies, and courts);
161. McNollgast, Administrative Procedures, supra note 12, at 258; McNollgast, Administrative Arrangements, supra note 12, at 442;
162. cf. John Ferejohn & Charles Shipan, Congressional Influence on Bureaucracy, 6 J.L. Econ. & Org. (Special Issue) 1, 3-5 (1990) (noting sequential structure that allows Congress to influence policy before it is final, but claiming that these efforts are often futile and lead to little substantive impact on agency action).
163. Congress also must be able to learn from agency action and detect false alarms. See Arthur Lupia & Mathew D. McCubbins, Learning from Oversight: Fire Alarms and Police Patrols Reconstructed, 10 J.L. Econ. & Org. 96, 106-07 (1994).
164. See McNollgast, Administrative Arrangements, supra note 12, at 444.
165. Id.
166. Id.
167. Political scientists have found little empirical evidence to support the deck-stacking hypothesis. See, e.g., Steven J. Balla, Administrative Procedures and Political Control of the Bureaucracy, 92 Am. Pol. Sci. Rev. 663, 669-71 (1998) (finding that operation of notice-and-comment process in Medicare physician payment reform did not support deck-stacking hypothesis); de Figueiredo et. al., supra note 120, at 286 (arguing that administrative procedures are not properly viewed as form of deck-stacking because informational gains induce political actors to prefer multiple interest groups, even when one or more groups is in opposition to politician);
168. David B. Spence, Managing Delegation Ex Ante: Using Law to Steer Administrative Agencies, 28 J. Legal Stud. 413, 415 (1999) (analyzing two sets of decisions made by Federal Energy Regulatory Commission and finding only "limited, qualified support" for view that political actors can influence agency decisionmaking through design of administrative procedures);
169. cf. Matthew Potoski & Neal D. Woods, Designing State Clean Air Agencies: Administrative Procedures and Bureaucratic Autonomy, 11 J. Pub. Admin. Res. & Theory 203, 218 (2001) (finding support in empirical study of state clean air policies for thesis that administrative procedures can hardwire agency decisions to reflect preferences of enacting legislative coalition). Political scientists and legal scholars have also raised theoretical questions about fire-alarm oversight.
170. See, e.g., Michael Asimow, On Pressing McNollgast to the Limits: The Problem of Regulatory Costs, 57 Law & Contemp. Probs., 127, 131 (1994)
171. Glen O. Robinson, Commentary on "Administrative Arrangements and the Political Control of Agencies": Political Uses of Structure and Process, 75 Va. L. Rev. 483, 484 (1989) ("[McNollgast's] model is too general in its description of processes and structure to permit useful generalizations about how they can be used to 'stack the deck' in favor of specific political interests.");
172. Shapiro, Delegation Theory, supra note 79, at 96 ("The idea that Congress will 'hot-wire' its substantive preference by its choice of procedures ignores the political difficulty of accomplishing that result").
173. But cf. Huber & Shipan, supra note 108, at 36 (noting that critics have argued that the McNollgast theory "is too general and, as a result, too hard to test or refute," and that the theory suffers from "the need for clearer distinctions between structures and procedures," as well as the need "to specify the conditions under which the structure and process hypothesis will operate" (citations omitted)); Mashaw, Explaining Administrative Process, supra note 18, at 281-84 (questioning whether simply yielding information is sufficient to make administrative procedures useful in way that McNollgast claims).
174. See Mathew D. McCubbins & Daniel B. Rodriguez, The Judiciary and the Role of Law: A Positive Political Theory Perspective, in The Oxford Handbook of Political Economy 273, 280 n.7 (Barry R. Weingast & Donald A. Wittman eds., 2006) (noting that McNollgast have focused on role of "procedural rules and structures" rather than role of courts).
175. 5 U.S.C. § 553 (2000).
176. A question for the McNollgast theory, as well as the argument here, is why Congress, if interested in the monitoring function of the APA, left so much to judicial elaboration. Although it is beyond the scope of this Article to explore the exact legislative motivations behind the APA, the answer, we might speculate, is at least twofold. First, as mentioned previously, the APA was the product of intense political negotiation and compromise. See supra text accompanying notes 29-32. Thus, the political climate was not conducive to consensus on more precise concepts. Second, as explained below, many of the concepts are not susceptible to more precise codification even under the best political conditions. See infra text accompanying notes 138-139. Judicial elaboration, at some level, was unavoidable.
177. See McNollgast, Administrative Procedures, supra note 12, at 257-59.
178. See id.
179. Id at 258.
180. Id.
181. Id. at 258-59.
182. See McNollgast, Judicial Independence, supra note 14, at 114-15 (observing that Court formulates doctrine so as to minimize possibility of legislative reversal);
183. McNollgast, Politics and the Courts, supra note 14, at 1649-50 (same). For an excellent summary of the McNollgast theory, as well as other views from the political science literature about judicial behavior, see McCubbins & Rodriguez, supra note 129, at 281-84.
184. See Lee Epstein, Jack Knight & Andrew D. Martin, The Supreme Court as a Strategic National Policymaker, 50 Emory L.J. 583, 594 (2001) (arguing that Court chooses doctrine effectuating its own preferences only to extent it can without prompting political branches to react);
185. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331, 372-89 (1991) (modeling "interaction between the Supreme Court, Congress, and the President as a sequential game, in which a Court interested in not being overridden can achieve that objective and usually still read its preferences into federal statutes").
186. See Jeffrey A. Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 Am. Pol. Sci. Rev. 28, 42 (1997) (finding little empirical evidence diat Court will defer to congressional preferences in order to protect its decisions).
187. The failed Bumpers Amendment tried. See S. 2408, 94th Cong. (1975).
188. For novel ideas on how Congress might take an active role in allocating interpretive authority between agencies and courts, see Elizabeth Garrett, Legislating Chevron, 101 Mich. L. Rev. 2637, 2660-70 (2003).
189. Marshall J. Breger, The APA: An Administrative Conference Perspective, 72 Va. L. Rev. 337, 355 (1986); see also Shapiro, APA, supra note 29, at 484 ("It is notoriously difficult for Congress to find statutory language to instruct courts on the precise level of review desired.").
190. 5 U.S.C. § 702 (2000).
191. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 571-74 (1992) (rejecting argument that citizen-suit provisions allow any person to bring suit).
192. Indeed, this is where legal scholars often err. Legal scholars seldom internalize the possibility that the Court might take seriously how Congress can use administrative procedures. See Barry Friedman, The Politics of Judicial Review, 84 Tex. L. Rev. 257, 259 (2005) (arguing that "normative constitutional theory about judicial review will remain impoverished until it fully embraces the positive project"); McCubbins & Rodriguez, supra note 129, at 281 (noting traditional depiction of courts "as using constitutional and administrative law to rescue apolitical agencies from the baleful influence of Congress and the President"). Instead, they see the Court as pursuing other values, like rule of law or accountability (often defined as presidential control). Or they concentrate on the instances in which the Court has invalidated congressional control mechanisms.
193. See, e.g., William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523, 540-43 (1992) [hereinafter Eskridge & Ferejohn, Article I, Section 7 Game] (arguing that legislative veto, by facilitating congressional control, restores constitutional balance of powers, and therefore Court improperly invalidated it). In INS v. Chadha, it was the legislative veto. 462 U.S. 919, 959 (1983). In Bowsher v. Synar, it was the congressional removal of executive officials. 478 U.S. 714, 733-34 (1986). But these cases do not show that the Court has disregarded congressional preferences across the board. Rather, they suggest that it is unwilling to accommodate Congress's every wish, for reasons explored in detail below. See infra text accompanying notes 359-362.
194. For an excellent summary of the various theories of judicial behavior, including the attitudinal model, see Theodore W. Ruger et al., The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking, 104 Colum. L. Rev. 1150, 1155-60 & nn.20-36 (2004) (describing standard attitudinal model as view that Justices "decide cases based upon their fixed policy preferences . . . and are not meaningfully constrained from voting in accord with those views by doctrine, text, or institutional setting");
195. see also Lee Epstein & Jack Knight, The Choices Justices Make 10-18 (1998) (suggesting strategic account of judicial decisionmaking as involving attainment of goals, strategic interaction among justices, and institutional context);
196. Jeffry A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 86-97 (2002) (arguing that judges vote on basis of personal political preferences);
197. Andrew F. Daughety & Jennifer F. Reinganum, Speaking Up: A Model of Judicial Dissent and Discretionary Review, 14 Sup. Ct. Econ. Rev. 1, 2-7 (2006) (developing model in which judicial dissent at appellate level communicates to Supreme Court and using model to characterize how changes in judges' jurisprudential preferences affect such information transfer).
198. See, e.g., Friedman, supra note 144, at 263, 280-329 (arguing that Court is sensitive to "strategic interaction with other judges . . . , the pressures imposed by judges on the judicial hierarchy's lower rungs who have their own views of how things should be, interbranch struggles over legal outcomes with significant policy implications, and popular opinion regarding judicial outcomes and the practice of judicial review"); Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B.U. L. Rev. 1049, 1053 (2006) (stating that judges must decide cases expediently and that many factors, in addition to judge's political preferences, are relevant to task, including "feasibility of a particular judicial intervention . . . , the effect on the law's stability and the court's reputation if its attitude toward precedent and statutory text is seen as too cavalier, and the judge's desire for ideological consistency (which is different from, though often correlated with, political preference)"); Ruger et al, supra note 145, at 1163 (citing as influential "(1) circuit of origin; (2) issue area of the case; (3) type of petitioner (e.g., the United States, an employer, etc.); (4) type of respondent; (5) ideological direction (liberal or conservative) of the lower court ruling; and (6) whether the petitioner argued that a law or practice is unconstitutional").
199. For example, legal scholars have made this argument about United States v. Mead Corp., 533 U.S. 218 (2001), which enlarged judicial power by circumscribing Chevron deference. See, e.g., Barron & Kagan, supra note 106, at 225 ("Perhaps the [Mead] Court attributes its policy judgments to Congress . . . to cloak judicial aggrandizement; it may be no coincidence that when ceding power in Chevron, the Court spoke the language of policy, whereas when reclaiming power in Mead, the Court abandoned this language.");
200. Ronald J. Krotoszynski, Jr., Why Deference?: Implied Delegations, Agency Expertise, and the Misplaced Legacy of Skidmore, 54 Admin. L. Rev. 735, 751 (2002) ("The implied delegation prong of the Mead test represents a naked power grab by the federal courts.");
201. cf. Michael P. Healy, Spurious Interpretation Redux: Mead and the Shrinking Domain of Statutory Ambiguity, 54 Admin. L. Rev. 673, 677-81 (2002) (arguing that Mead exemplifies Rehnquist Court's tendency to judicially resolve instances of statutory ambiguity, thereby shifting interpretive power to courts, because of its general unwillingness to acknowledge such ambiguity);
202. Ronald M. Levin, Mead and the Prospective Exercise of Discretion, 54 Admin. L. Rev. 771, 793-94 (2002) [hereinafter Levin, Prospective Exercise] (concluding that Mead allocates interpretive authority to courts in too many instances).
203. The standard legal account is also less realistic about how politics pervade agency decisionmaking. See Mashaw, Explaining Administrative Process, supra note 18, at 269 (describing normative account as naïve because it "has failed to ask hard questions about whether its ideological pretensions are in any way connected to the realities of bureaucratic governance").
204. See supra Part II.B.
205. SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 196 (1947) (describing holding in Chenery I, 318 U.S. 80 (1943)).
206. Id. at 196 (discussing Chenery I).
207. See Chenery I, 318 U.S. at 81.
208. See id. at 95.
209. Id.
210. 401 U.S. 402, 408, 420 (1971).
211. Id. at 419 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962)).
212. Id. at 420.
213. Id.
214. Id. at 413-16.
215. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983).
216. Id. at 43.
217. Id. at 51.
218. See Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. 753, 761-63 (2006) (recounting arguments for reasoned decisionmaking requirement and collecting sources).
219. See Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 Admin. L. Rev. 59, 87-88 (1995) [hereinafter Pierce, Seven Ways] (connecting enforcement of reasoned decisionmaking requirement to agency consideration of beneficiary comments).
220. See Kenneth A. Bamberger, Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State, 56 Duke L.J. 377, 406-07 (2006) (noting that "transparent nature of administrative record building and agency decisionmaking . . . facilitates accountability in a host of ways," including facilitation of political oversight);
221. Kevin M. Stack, The Constitutional Foundation of Chenery, 116 Yale L.J. 952, 958-59 (2007) (arguing that reasoned decisionmaking requirement "provides assurance that accountable agency decision-makers, not merely courts and agency lawyers, have embraced the grounds for the agency's actions, and that the agency decision-makers have exercised their judgment on the issue in the first instance").
222. See Gary Lawson, Outcome, Procedure and Process: Agency Duties of Explanation for Legal Conclusions, 48 Rutgers L. Rev. 313, 318-19 (1996) (noting that reasoned decision requirement is related to procedure and process);
223. Mark Seidenfeld, Cognitive Loafing, Social Conformity, and Judicial Review of Agency Rulemaking, 87 Cornell L. Rev. 486, 518 (2002) ("On its face, arbitrary and capricious review, as currently implemented under the 'hard-look' or 'relevant factors' rubric, is almost entirely a process-based evaluation." (footnotes omitted)).
224. See, e.g., Jerry L. Mashaw & David L. Harfst, Regulation and Legal Culture: The Case of Motor Vehicle Safety, 4 Yale J. on Reg. 257, 294 (1987) (arguing that procedural focus of judicial review "invites courts to invalidate reasonable judgments that are badly explained or perhaps inexplicable in straightforward logical fashion");
225. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 Tex. L. Rev. 525, 549 (1997) (arguing that hard look review can be used as "license to destroy regulatory programs");
226. Pierce, Seven Ways, supra note 164, at 67-68 ("I am a skeptic with respect to the grand claims of social benefits made by many proponents of the judicially enforced duty to engage in reasoned decisionmaking."); see also Stephenson, supra note 163, at 763-65 (recounting arguments against reasoned decisionmaking requirement).
227. See Martin Shapiro, Who Guards the Guardians? Judicial Control of Administration 151-52 (1988) [hereinafter Shapiro, Guardians] ("[I]t is much easier to eventually win court approval by piling on more and more synopticism than by persisting in telling the truth."). The inverse criticism is that courts cannot understand the actual explanation for agency regulations. See Stephenson, supra note 163, at 763 (collecting sources).
228. Scholars also make related arguments about the informational function of the reasoned decisionmaking requirement. See de Figueiredo et al., supra note 120, at 287-300 (modeling informational function of administrative procedures); Stephenson, supra note 163, at 766-67, 772-75 (arguing that reasoned decisionmaking requirement mitigates informational asymmetries between agency and reviewing court and that agency may signal reviewing court concerning benefits of proposed policy by providing high quality explanation).
229. See Shapiro, Guardians, supra note 168, at 151-53.
230. Eric Posner has made a similar argument about the effect of cost-benefit analysis. See Eric A. Posner, Controlling Agencies with Cost-Benefit Analysis: A Positive Political Theory Perspective, 68 U. Chi. L. Rev. 1137, 1143 (2001) (arguing that cost-benefit analysis improves political monitoring by revealing information about agency action).
231. See McNollgast, Administrative Procedures, supra note 12, at 257-58.
232. Some might argue that agencies have just the opposite incentive. In particular, agencies will hide weaknesses to evade later judicial challenge. Although equally logical, this argument may not track reality. Major policy decisions of the sort subject to the reasoned decisionmaking requirement rarely evade judicial challenge in many areas. See Kay Lehman Schlozman & John T. Tierney, Organized Interests and American Democracy 367 (1986) (noting that "virtually every regulation issued by such agencies as the Environmental Protection Agency and the Occupational Safety and Health Administration is challenged in court either by environmental and consumer groups or by industry");
233. Frank B. Cross, Shattering the Fragile Case for Judicial Review of Rulemaking, 85 Va. L. Rev. 1243, 1254-55 (1999) (noting that "in several areas of law, virtually every significant regulation is challenged in court");
234. Richard J. Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 Law & Contemp. Probs. 311, 334 (1991) (reporting that "[b]oth environmental organizations and industry took advantage of the increased judicial access and together challenged between 80 and 85 percent of EPA's major decisions");
235. Mark Seidenfeld, Playing Games with the Timing of Judicial Review: An Evaluation of Proposals to Restrict Pre-Enforcement Review of Agency Rules, 58 Ohio St. L.J. 85, 95 (1997) [hereinafter Seidenfeld, Playing Games] (noting that agencies are "[f]aced with a prospect of almost certain judicial review" of rules). Thus, agencies may not expect to hide. At the same time, they may attempt to insulate themselves against particular claims by obtaining the information necessary to remedy particular deficiencies. In addition, they may use the information to produce the kind of explanation that is likely to persuade a court to uphold the underlying policy.
236. See Seidenfeld, Playing Games, supra, at 95 (noting that, in light of reasoned decisionmaking requirement, agency will refrain from issuing rule unless it has "collected data showing that every aspect of the rule is justified"); Stephenson, supra note 163, at 766-67, 772-75 (arguing that high quality, and therefore costly, explanations by agency signal courts that agency expects to receive substantial benefits from regulation). There is risk in this strategy. The information that contributes to a thorough explanation also may trigger a legislative fire-alarm. But that is precisely why and how the reasoned decisionmaking requirement works to signal Congress.
237. 5 U.S.C. § 553(d) (2000).
238. Cf. Ferejohn & Shipan, supra note 122, at 11-12 (arguing that ability of judiciary to review agency action grants Congress better chance to impact agency policies).
239. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
240. See id. at 59 (Rehnquist, J., concurring in part and dissenting in part).
241. Id. at 38 (majority opinion).
242. See Marianne Koral Smythe, Judicial Review of Rule Recissions, 84 Colum. L. Rev. 1928, 1933 n.32 (1984) ("One major tenet of President Reagan's 'regulatory relief' program was to ease regulatory 'burdens' on the domestic automobile industry.").
243. See State Farm, 463 U.S. at 59 (Rehnquist, J., concurring in part and dissenting in part).
244. See State Farm Mut. Auto. Ins. Co. v. Dep't of Transp., 680 F.2d 206, 228 (D.C. Cir. 1982) (noting that Congress had acted in response to early version of passive restraints standard by enacting prohibition on ignition interlock seatbelts, and had considered, on several occasions, but did not pass, modifications to passive restraints standard).
245. See State Farm, 463 U.S. at 57 ("[I]t is the agency's responsibility, not this Court's, to explain its decision.").
246. See Federal Motor Vehicle Safety Standard; Occupant Crash Protection, 49 Fed. Reg. 28,962 (July 17, 1984) (codified at 49 C.F.R pt. 571).
247. 435 U.S. 519, 548 (1978).
248. See id. at 544-45.
249. See id. at 545-48.
250. See id.
251. See Jack M. Beerman & Gary Lawson, Reprocessing Vermont Yankee, 75 Geo. Wash. L. Rev. 856, 881-82 (2007) (noting tension between Vermont Yankee and hard look doctrine and suggesting that courts refrain from using hard look doctrine to impose particular procedures).
252. United States v. Fla. E. Coast Ry. Co., 410 U.S. 224 (1973).
253. Id. at 236-38; 5 U.S.C. § 553(c) (2000).
254. But see Fla. E. Coast Ry. Co., 410 U.S. at 239-41 (referring to APA to define term in statute enacted after APA).
255. See 5 U.S.C. § 557(d) (providing that "no interested person outside the agency shall make . . . to . . . the agency, administrative law judge, or other employee who is . . . involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding," and providing remedy if such communication nonetheless occurs).
256. GITSA, which permits parties to request disclosure of certain ex parte communications, does not apply to notice-and-comment rulemaking or informal adjudication. See 5 U.S.C. § 552(b).
257. See, e.g., Home Box Office, Inc. v. FCC, 567 F.2d 9, 56 (D.C. Cir. 1977) ("Equally important is the inconsistency of secrecy with fundamental notions of fairness implicit in due process and with the ideal of reasoned decisionmaking on the merits which undergirds all of our administrative law.").
258. Id. at 53.
259. Id. at 54.
260. Id.
261. Id. at 57.
262. Id.
263. See Action for Children's Television v. FCC, 564 F.2d 458, 475 (D.C. Cir. 1977).
264. Id. at 473.
265. Id. at 477.
266. See Iowa State Commerce Comm'n v. Office of Fed. Inspector, 730 F.2d 1566, 1577 (D.C. Cir. 1984) (finding that relevant APA section only applies to "on the record" adjudications and rulemaking according to Florida East Coast).
267. See McNollgast, Administrative Procedures, supra note 12, at 262-63.
268. See Home Box Office, Inc. v. FCC, 567 F.2d 9, 54 (D.C. Cir. 1977).
269. See William D. Araiza, Judicial and Legislative Checks on Ex Parte OMB Influence over Rulemaking, 54 Admin. L. Rev. 611, 613-15 (2002) (noting that OMB review has raised concern about "the executive acting as a confidential partner of and conduit for regulated parties seeking to influence agency action");
270. Sidney A. Shapiro, Two Cheers for HBO: The Problem of the Nonpublic Record, 54 Admin. L. Rev. 853, 854 (2002) (emphasizing potential for secret White House contacts).
271. See Araiza, supra note 206, at 613 (noting that ex parte OMB contacts impair the "procedural regularity and fairness of the notice-and-comment process" and that banning or regulating such contacts would counteract this effect).
272. See Memorandum from John D. Graham, Adm'r, Office of Info. & Regulatory Affairs, to OIRA Staff (Oct. 18, 2001), available at http://www.whitehouse.gov/omb/ inforeg/oira_disclosure_memo-b.html (on file with the Columbia Law Review) (describing steps to make available draft regulations, agency analyses, other material submitted by agency, change pages, correspondence between OIRA and agency, and correspondence between OIRA and outside parties).
273. 533 U.S. 218 (2001).
274. See id. at 226-27.
275. Id. at 226.
276. Id. at 227. See Lisa Schultz Bressman, Disciplining Delegation After Whitman v. American Trucking Ass'ns, 87 Cornell L. Rev. 452, 457-58 (2002) (discussing relationship between APA and Chevron);
277. Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 Chi.-Kent L. Rev. 1253, 1263-66 (1997) (offering examples of lower courts' application of Chevron step two).
278. 533 U.S. at 226-27. See generally Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 191 (2006) (describing "initial inquiry into whether the Chevron framework applies at all" as "Step Zero").
279. Mead, 533 U.S. at 227, 230.
280. Id. at 229-31.
281. Id. at 231.
282. Id. at 233.
283. Id. at 230, 232.
284. See, e.g., Bressman, Mead, supra note 106, at 1486-91.
285. 533 U.S. at 241 (Scalia, J., dissenting) ("The Court has largely replaced Chevron . . . with that test most beloved by a court unwilling to be held to rules (and most feared by litigants who want to know what to expect) : th' of 'totality of the circumstances' test."). Scholars have also made this argument. See Barron & Kagan, supra note 106, at 226 ("Mead naturally lends itself to interpretation as a classic ad hoc balancing decision, and so a partial reversion to the doctrine of judicial review that prevailed before Chevron.").
286. 533 U.S. at 245 (Scalia, J., dissenting) (arguing that "utter flabbiness of the Court's criterion" would create confusion among lower courts).
287. See Bressman, Mead, supra note 106, at 1458-74 (examining efforts of lower courts to apply Mead);
288. Adrian Vermeule, Introduction: Mead in the Trenches, 71 Geo. Wash. L. Rev. 347, 349-55 (2003) (examining efforts of D.C. Circuit to apply Mead).
289. Barnhart v. Walton, 535 U.S. 212 (2002).
290. Mead, 533 U.S. at 230, 232.
291. Barnhart, 535 U.S. at 222.
292. See, e.g., Barron & Kagan, supra note 106, at 234 (arguing that Mead "makes the judiciary the principal decision maker when the agency should be, and vice versa"); Healy, supra note 147, at 677-81 (arguing that Mead shifts interpretive authority to courts); Krotoszynski, supra note 147, at 751 (arguing that Mead represents "naked power grab by the federal courts"); Levin, Prospective Exercise, supra note 147, at 793-94 (contending that Mead gives courts too large a role).
293. See Mead, 533 U.S. at 243-45 (Scalia, J., dissenting) ("There is no necessary connection between the formality of procedure and the power of the entity administering the procedure to resolve authoritatively questions of law."); Barron & Kagan, supra note 106, at 230 (arguing that Mead ignores "common need of agencies to interpret a statute without the delays involved in notice and comment, along with the strong interest of regulated parties in learning of these interpretations in advance of an enforcement action").
294. Barron & Kagan, supra note 106, at 234 ("The Court's approach, when measured against the values of accountability and discipline, denies deference to actions that have earned it and gives deference to actions that do not deserve it.").
295. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
296. See Mead, 533 U.S. at 257 (Scalia, J., dissenting) (arguing that judicial deference should turn on whether interpretation is " authoritative"); Barron & Kagan, supra note 106, at 242-43 (arguing that judicial deference should turn on whether sufficiently high-level agency official is responsible for interpretation at issue because "it is only the involvement of these officials in decision making that makes possible the kind of political accountability that Chevron viewed as compelling deference").
297. Cf. Mead, 533 U.S. at 258 (Scalia, J., dissenting) (approving of deference to litigating positions as long as they are authoritative).
298. SEC v. Chenery Corp. (Chenery II), 332 U.S. 194 (1947).
299. Id. at 202-03.
300. Of course, there is a long tradition of understanding Chenery II to stand for a broad proposition of agency choice. For an excellent discussion, see M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1383, 1402-43 (2004).
301. See Bressman, Beyond Accountability, supra note 9, at 542-43 (describing general attributes of formal adjudication).
302. See id. at 541-42 (describing general attributes of notice-and-comment rulemaking).
303. See, e.g., Bressman, Mead, supra note 106, at 1488-90 (reading both Mead and Barnhart to "require comparable, minimum lawmaking values").
304. United States v. Mead Corp., 533 U.S. 218, 221 (2001).
305. Id. at 224-25.
306. Id. at 225.
307. Id. at 233.
308. See id. at 260 (Scalia, J., dissenting).
309. Barnhart v. Walton, 535 U.S. 212, 217 (2002).
310. Id. at 219-20.
311. Id.
312. Id. at 222.
313. Id. at 218-220.
314. Id.
315. See, e.g., Krzalic v. Republic Title Co., 314 F.3d 875, 879 (7th Cir. 2002) (applying Barnhart analysis to Housing and Urban Development Statements of Policy); Schuetz v. Banc One Mortgage Corp., 292 F.3d 1004, 1012-14 (9th Cir. 2002) (same).
316. See, e.g., Warder v. Shalala, 149 F.3d 73, 80 (1st Cir. 1998); First Nat'l Bank v. Sanders, 946 F.2d 1185, 1188 (6th Cir. 1991); S. Cal. Edison Co. v. FERC, 770 F.2d 779, 783 (9th Cir. 1985).
317. 5 U.S.C. § 553(b)(3)(A) (2000).
318. Justices and commentators have expressed similar concern about interpretive rules that interpret prior regulations rather than statutory provisions. See Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (holding that regulations that merely parrot statutory language are not entided to deference under the lenient standard of Auer v. Robbins, 519 U.S. 452, 461-63 (1997)); Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 108-09 (1995) (O'Connor, J., dissenting) (arguing that agency's interpretation of its own regulations undermined regulatory and statutory scheme); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 (1994) (Thomas, J., dissenting) (stating that "Secretary has merely replaced statutory ambiguity with regulatory ambiguity");
319. Robert A. Anthony, The Supreme Court and the APA: Sometimes They Just Don't Get It, 10 Admin. L.J. Am. U. 1, 11-12 (1996) (discussing agency interpretations of vague regulations "that do not interpret but instead create new law");
320. John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 616 (1996) (discussing Thomas Jefferson and Guernsey Hospital).
321. 545 U.S. 967 (2005).
322. Id. at 984-85.
323. See Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201, 229 (noting that "[l]ike Chevron itself, Brand X is flexibility preserving");
324. Kafhryn A. Watts, Adapting to Administrative Law's Erie Doctrine, 101 Nw. U. L. Rev. 997, 1015 (2007) (stating that Brand X "rests on a desire to avoid the concerns Justice Scalia raised in Mead about 'the ossification of large parts of our statutory law'" (citation omitted)).
325. For a discussion, pre-Brand X, of the need for flexibility in the face of prior precedent, see generally Kenneth A. Bamberger, Provisional Precedent: Protecting Flexibility in Administrative Policymaking, 77 N.Y.U. L. Rev. 1272 (2002) [hereinafter Bamberger, Provisional Precedent].
326. See Brand X, 545 U.S. at 1017 (Scalia, J., dissenting) ("Article III courts do not sit to render decisions that . . . Executive officers" can reverse or ignore. "That is what today's decision effectively allows. Even when the agency itself is party to the case in which the Court construes a statute, the agency [can] disregard that construction and seek Chevron deference for its contrary construction the next time around.").
327. For a discussion, pre-Brand X, of the tension between Chevron deference and stare decisis, see Bamberger, Provisional Precedent, supra note 255, at 1294-1301.
328. For a discussion, pre-Brand X, of these circumstances, see Bamberger, Provisional Precedent, supra note 255, at 1300-01.
329. 504 U.S. 555, 562-64 (1992).
330. The citizen suit provision provided, in relevant part, that "any person may commence a civil suit on his own behalf . . . to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter." Id. at 571-72 (quoting 16 U.S.C. § 1540(g)). Citizen suit provisions, which confer standing on "any person," are broader than provisions, either in the APA or an organic statute, that confer standing on any "person aggrieved." Compare Fed. Election Comm'n v. Akins, 524 U.S. 11, 19 (1998) (noting that "[h]istory associates the word 'aggrieved' with a congressional intent to cast the standing net broadly - beyond the common-law interests and substantive statutory rights upon which 'prudential' standing traditionally rested"), with Lujan, 504 U.S. at 571-74 (holding that language "any person" reflects congressional intent to grant standing without qualification, and exceeds limits of Article III case and controversy requirement).
331. See Lujan, 504 U.S. at 571-72.
332. See id. at 573.
333. Id. at 577.
334. Id. (citations and internal quotation marks omitted).
335. See, e.g., Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife. Standing as a Judicially Imposed Limit on Legislative Power, 42 Duke L.J. 1170, 1170-71, 1198-1200 (1993) [hereinafter Pierce, Lujan] (arguing that Lujan denies Congress ability to enforce its policy decisions against agencies);
336. Peter L. Strauss, Revisiting Overton Park: Political and Judicial Controls over Administrative Actions Affecting the Community, 39 UCLA L. Rev. 1251, 1324-25 (1992) ("Congress may choose widely to distribute the right to challenge agency behavior in court both as a means of assuring agency fidelity to its aims and as a reliable device for signaling to it when administration is going astray - as a substitute . . . for its own political oversight");
337. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 Mich. L. Rev. 163, 211 (1992) [hereinafter Sunstein, What's Standing] (arguing that Congress should have plenary authority to control class of plaintiffs entided to bring suit).
338. See Pierce, Lujan, supra note 264, at 1170-71, 1194-95 (noting that Lujan may lead to reduction in participation in administrative process by groups other dian regulated firms); Sunstein, What's Standing, supra note 264, at 186-88, 195-97, 218-19 (describing trend toward decreased judicial role in enforcing beneficiary rights and inadequacy of political process to protect majority interests).
339. 524 U.S. 11, 19-26 (1998).
340. 2 U.S.C. § 434(b) (2000).
341. Akins, 524 U.S. at 16-18.
342. See 2 U.S.C. § 437g(a) (8) (A) (providing that "[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such party . . . may file a petition with the United States District Court for the District of Columbia").
343. Akins, 524 U.S. at 23-25.
344. Id. at 24-25.
345. Id. at 36-37 (Scalia, J., dissenting).
346. Another statute is the National Environmental Policy Act of 1969, which establishes an agency duty to release information to the public. 42 U.S.C. § 4332 (2000). For a discussion of informational statutes, see generally Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613 (1999) [hereinafter Sunstein, Informational Regulation].
347. 5 U.S.C. app. §§ 1-5 (2000).
348. See, e.g., Regulatory Flexibility Act, 5 U.S.C. § 604 (requiring that agency prepare a final regulatory flexibility analysis after it issues a final rule); Federal Employees' Compensation Act, 5 U.S.C. § 8193(d) (requiring agencies to cooperate with Secretary of Labor when Secretary requests information); Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C § 136w(a)(2) (2000) (requiring that EPA submit its proposed rules to Department of Agriculture for comment); National Trails System Act of 1968, 16 U.S.C. § 1246(a) (2000) (requiring consultation with all affected agencies); Endangered Species Act of 1973, 16 U.S.C. § 1536(a) (requiring consultation with other agencies); Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d-1 (c)(3) (requiring consultation with particular organizations before adopting standards).
349. See 42 U.S.C. § 4332(C) (i).
350. See Section of Admin. Law & Regulatory Practice of the Am. Bar Ass'n, A Blackletter Statement of Federal Administrative Law, 54 Admin. L. Rev. 1, 54-55 (2002) (discussing ambiguity surrounding standing to enforce procedural requirements of certain statutes).
351. See 520 U.S. 154, 166 (1997).
352. See id. at 168.
353. Id. at 157.
354. Id. at 168-71.
355. Id.
356. Id. at 169.
357. Id. at 171.
358. See, e.g., Am. Paper Inst., Inc. v. EPA, 882 F.2d 287, 289 (7th Cir. 1989) (holding that EPA policy statement did not represent "final agency action" and as such, was not reviewable (citations and internal quotation marks omitted)); Pa. Mun. Auths. Ass'n v. Horinko, 292 F. Supp. 2d 95, 105 (D.D.C. 2003) (finding that EPA guidance documents did not constitute "final agency action").
359. But see William W. Buzbee, Expanding the Zone, Tilting the Field: Zone of Interests and Article III Standing Analysis After Bennett v. Spear, 49 Admin. L. Rev. 763, 804-07 (1997) (arguing that procedure is "coercive" enough to convey standing under Bennett only if it results in affirmative agency action).
360. This raises a question whether the standing determination would influence an argument on the merits that a guidance document was a " legislative" rule, subject to full notice-and-comment procedures. For excellent discussions of the distinction between "legislative" and "nonlegislative" rules, see Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like - Should Federal Agencies Use Them to Bind the Public?, 41 Duke L.J. 1311, 1321-23 (1992) (listing identifying characteristics of legislative rules);
361. Robert A. Anthony, Three Settings in Which Nonlegislative Rules Should Not Bind, 53 Admin. L. Rev. 1313, 1313 (2001) (discussing situations in which nonlegislative guidances are practically binding);
362. Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 Admin. L. Rev. 803, 803-05 (2001) (reviewing "variety of written texts American government uses to communicate its powers and its citizens' rights and obligations").
363. See Exec. Order No. 13,422, 72 Fed. Reg. 2,763 (Jan. 23, 2007) (amending Exec. Order No. 12,866, 3 C.F.R 638 (1993)) (including guidance documents within coverage of Executive Order).
364. 528 U.S. 167, 180-88 (2000).
365. Id. at 178-79.
366. Id. at 185-87.
367. Some scholars have expressed uncertainty as to what Laidlaw accomplishes. See John D. Echeverria, Critiquing Laidlaw: Congressional Power to Confer Standing and the Irrelevance of Mootness Doctrine to Civil Penalties, 11 Duke Envd. L. & Pol'y F. 287, 296-301 (2001) (noting that Laidlaw "provides few definitive answers" about Court's standing doctrine);
368. Richard J. Pierce, Jr., Issues Raised by Friends of the Earth v. Laidlaw Environmental Services: Access to the Courts for Environmental Plaintiffs, 11 Duke Envd. L. & Pol'y F. 207, 243 (2001) (noting that "[t]he Court has failed to be consistent in this area of decision-making" and that "[i]t could retract, recharacterize, or amend significantly almost any of the important statements in the majority opinion in Laidlaw").
369. Lujan v. Defenders of Wildlife, 504 U.S. 555, 578 (1992).
370. 523 U.S. 83, 109-10 (1998).
371. See id. at 102-09.
372. See Laidlaw, 528 U.S. at 188 ("[O]ur decision in [Steel Co.] did not reach the issue of standing to seek penalties for violations that are ongoing at the time of the complaint and that could continue into the future if undeterred."); Echeverria, supra note 292, at 310 (arguing that Steel Co. may not survive Laidlaw or may be limited to cases in which compliance occurs prior to initiation of litigation);
373. Harold J. Krent, Laidlaw: Redressing the Law of Redressability, 12 Duke Envd. L. & Pol'y F. 85, 101-02 (arguing that Steel Co. was limited by facts showing weak statutory link between civil penalties and injury).
374. 127 S. Ct. 1438, 1446 (2007); see also 42 U.S.C. § 7521(a)(1) (2000) (requiring that EPA "by regulation prescribe . . . standards applicable to the emissions of any air pollutant from any class . . . of new motor vehicles . . . which [in the EPA Administrator's] judgment cause [s], or contribute [s] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare").
375. See 127 S. Ct. at 1451.
376. See id. at 1456.
377. Id. at 1454.
378. Id. at 1456, 1457-58.
379. Id. at 1457.
380. Id. at 1454 (quoting Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907)).
381. Id. at 1455-56.
382. Id. at 1457-58.
383. See id. at 1449 ("Before the close of the comment periods, the White House sought 'assistance in identifying the areas in the science of climate change where there are the greatest certainties and uncertainties' . . . ." (quoting Appendix at 213, Massachusetts, 127 S. Ct. at 1438 (No. 05-1120))).
384. Id. at 1462-63.
385. Id. at 1463.
386. Id. at 1460-61 ("[W]e have no difficulty reconciling Congress' various efforts to promote interagency collaboration and research to better understand climate change with the agency's pre-existing mandate to regulate 'any air pollutant' that may endanger the public welfare. Collaboration and research do not conflict with any thoughtful regulatory effort; they complement it." (footnote and citation omitted) (quoting 42 U.S.C. § 7601(a)(1) (2000))).
387. See Suzanna Sherry, Logic Without Experience: The Problem of Federal Appellate Courts, 82 Notre Dame L. Rev. 97, 122 (2006) (noting that substantive injuries in Lujan, Bennett, and Laidlaw are too similar to support meaningful doctrinal distinction);
388. Maxwell L. Stearns, From Lujan to Laidlaw. A Preliminary Model of Environmental Standing, 11 Duke Envd. L. & Pol'y F. 321, 327 (2001) (arguing that "Court appears to have issued a major retrenchment upon Lujan's logic, if not its holding"). What remains of Lujan is uncertain. One scholar has contended that the Court has converted the generalized grievance worry to a prudential concern rather than a constitutional one, increasing judicial flexibility to grant standing. Sunstein, Informational Regulation, supra note 273, at 645. The Administtative Law section of the American Bar Association has stated that Lujan precludes standing only when a plaintiff seeks compliance with procedures that relate to agency activities in which Congress has given no individual an enforceable personal stake - for example, the consultation requirement. See Section of Admin. Law & Regulatory Practice of the Am. Bar Ass'n, supra note 277, at 54-55 (describing Lujan this way); see also Sunstein, Informational Regulation, supra note 273, at 654 (noting that standing is less clear "when an individual or institution seeking information invokes no interest expressly related to the political process and when that individual or institution cannot show that the information would relate to relevant activities on his or its part").
389. See Sam Kalen, Standing on Its Last Legs: Bennett v. Spear and the Past and Future of Standing in Environmental Cases, 13 J. Land Use & Envd. L. 1, 2, 66 (1997) (suggesting that "Bennett decision . . . [might] mark[ ] a turning point in the treatment of standing in environmental cases"); Sherry, supra note 310, at 121 (noting shift in Court's attitude in environmental cases).
390. See William W. Buzbee, Standing and the Statutory Universe, 11 Duke Envtl L. & Pol'y F. 247, 249-50 (2001) (arguing that law reflects "competing strains" but that Laidlaw helps to reconcile them by placing emphasis on the statutory interests that Congress sought to protect); Echeverria, supra note 292, at 296-98 (arguing that Article III should not "stand as a legitimate barrier to Congress' authority"); Krent, supra note 296, at 88 ("The Supreme Court has recognized a wide ambit within which Congress can determine which interests can be vindicated in court.");
391. Gene R. Nichol, The Impossibility of Lujan's Project, 11 Duke Envd. L. & Pol'y F. 193, 197-98 (2001) (describing Akins and Laidlaw as vindication of congressionally-recognized interests); Sunstein, Informational Regulation, supra note 273, at 637 ("The unifying theme is that with respect to information, and perhaps more generally, the Court has rooted the standing question firmly in Congress's instructions.").
392. I am grateful to Cary Coglianese for suggesting that this characterization applies to administrative law.
393. See Humphrey's Ex'r v. United States, 295 U.S. 602, 625-26 (1935) (upholding independent agencies against constitutional challenge).
394. See, e.g., Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) (articulating test for judicial deference to all agency statutory interpretations, although emphasizing agency link to executive branch).
395. See David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy 1946-1967, at 3-4 (2003) ("Agencies like the independent regulatory commissions, for example, are insulated from political control by commission structures that dilute political accountability, party-balancing requirements that diminish the impact of changing administrations, and fixed terms for commissioners that limit the influence of any one administration on commission policy.").
396. See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 589-91 (1984) [hereinafter Strauss, Place of Agencies] (noting that independent agencies are less subject to presidential control but that "special ties" exist between President and chairs of "almost all of the independent regulatory commissions").
397. See David Epstein & Sharyn O'Halloran, Delegating Powers 131-38, 142-50 (1999); Lewis, supra note 316, at 121-36.
398. See 5 U.S.C. § 557(d) (2000) (prohibiting ex parte contacts in formal adjudication).
399. Indeed, independent agencies often regard themselves as responsible to Congress. See FCC, About the FCC, at http://www.fcc.gov/aboutus.html (last updated Apr. 12, 2007) (on file with the Columbia Law Review) (describing itself as "an independent United States government agency, directly responsible to Congress").
400. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
401. Cf. Kagan, supra note 19, at 2376-77 (arguing that Chevron should be "conditional deference" granted only when "presidential involvement rises to a certain level of substantiality," which would lead to more deference for executive agencies than for independent agencies); Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, 58 Admin. L. Rev. 429, 432 (2006) (arguing that independent agencies should not be entided to Chevron deference because not subject to presidential direction).
402. See Kagan, supra note 19, at 2376-77.
403. See Strauss, Place of Agencies, supra note 317, at 589-91 (discussing special relationship created by President's discretionary authority, in nearly all independent regulatory commissions, to remove chairman from his special post and revert him back to commissioner).
404. See generally Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 Cal. L. Rev. 255 (1994) (analyzing interactions between Solicitor General and independent agencies).
405. See Henry M. Paulson, U.S. Treasury Sec'y, Remarks on the Competitiveness of U.S. Capital Markets (Nov. 20, 2006), available at http://www.ustreas.gov/ press/releases/ hp174.htm (on file with the Columbia Law Review).
406. See Taylor Gandossy, Proposed Satellite Radio Merger: Boon for Consumers or Monopoly?, CNN.com, Sept. 4, 2007, at www.cnn.com/2007/TECH/09/03/ satellite.radio/ (on file with the Columbia Law Review) (noting that proposed merger of two satellite radio companies requires agencies to agree on how radio market is defined).
407. See, e.g., FCC Seals $86B AT&T-BellSouth Merger, CNNMoney.com, Dec. 29, 2006, available at http://money.cnn.com/2006/12/29/news/companies/ att_bellsouth/ index.htm?eref=rss_topstories (on file with the Columbia Law Review) (reporting that FCC, which initially voted to block merger between AT&T and BellSouth despite Department of Justice clearance, later cleared it with certain conditions).
408. See James P. Pfiffner, Can the President Manage the Government?, in The Managerial Presidency 3, 12-18 (James P. Pfiffner ed., 2d ed. 1999) (discussing ways in which Presidents have managed cabinet).
409. See supra text accompanying notes 86-94.
410. See Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 Mich. L. Rev. 47, 65-70 (2006) (describing involvement of other White House offices in rulemaking of Environmental Protection Agency).
411. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984); Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992).
412. See supra notes 258-272 and accompanying text.
413. See supra notes 258-272 and accompanying text.
414. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983).
415. See Fed. Election Comm'n v. Akins, 524 U.S. 11, 23-26 (1998); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185-88 (2000).
416. See 127 S. Ct. 1438, 1462-63 (2007).
417. This interaction is reminiscent of the interest group model of administrative law, which affords a wide range of interests the opportunity to compete for policy in the administrative process and to work toward consensus. See supra Part II.B. But it is more modern because it does not simply envision a horde of interest groups battling it out.
418. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 155-56 (2000) (invalidating notice-and-comment rule that did not comport with current congressional preferences).
419. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2312, 2356-64 (2006) (arguing that in modern government, division of parties has greater influence on regulatory policy than division of powers).
420. See Epstein & O'Halloran, supra note 318, at 131-38, 142-50; Lewis, supra note 316, at 121-36.
421. Epstein & O'Halloran, supra note 318, at 154-60.
422. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529-31, 541-42 (1935) (invalidating under nondelegation doctrine statutory provision that delegated to President authority to promulgate regulations stabilizing economy); Pan. Ref. Co. v. Ryan, 293 U.S. 388, 428-30 (1935) (same); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 401, 410-11 (1928) (articulating "intelligible principle" requirement).
423. See J.W. Hampton, 276 U.S. at 409-11 (providing original understanding).
424. See The Federalist No. 51, at 320 (James Madison) (Clinton Rossiter ed., 1961) (describing "interior structure of the government" as one in which "its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places"); see also Lisa Schultz Bressman, Deference and Democracy, 75 Geo. Wash. L. Rev. 761, 764-66 (2007) (arguing that President is not entitled to disregard congressional or broader popular preferences on regulatory issues, and contending that Supreme Court has recognized as much);
425. Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. Rev. 1217, 1263-64 (2006) (arguing that unitary executive thesis fails to recognize that "shared accountability" is necessary to legitimate democratic governance and reflects the empirical reality of the administrative state).
426. See U.S. Const, art. I, § 7 (requiring bicameralism and presentment for lawmaking).
427. See Mistretta v. United States, 488 U.S. 361, 415-16 (1989) (Scalia, J., dissenting) (noting that Court is unlikely to invalidate a delegating statute despite vague statutory standards).
428. See Nzelibe, supra note 345, at 1263 (noting that "American constitutional structure seems to encourage multiple claims of legitimacy and political accountability across a wide range of political actors").
429. See Eskridge & Ferejohn, Article I, Section 7 Game, supra note 144, at 528-33 (arguing that requirements of bicameralism and presentment reduce production of hasty or unwise laws); see also The Federalist No. 9 (Alexander Hamilton), supra note 345, at 72 (invoking notion of "balances and checks"); The Federalist No. 51 (James Madison), supra note 345, at 320 (describing "interior structure of the government" as one in which "its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places").
430. See INS v. Chadha, 462 U.S. 919 (1983) (legislative veto); Bowsher v. Synar, 478 U.S. 714 (1986) (congressional removal); Clinton v. City of New York, 524 U.S. 417 (1998) (line item veto).
431. See John A. Ferejohn & Barry R. Weingast, A Positive Theory of Statutory Interpretation, 12 Int'l Rev. L. & Econ. 263, 263 (1992) (observing that "capacity to react is a fundamental feature of the political process"); Segal, supra note 139, at 32 (noting that in ordinary politics, no one branch or political actor has the final say). But cf. Eskridge & Ferejohn, Article I, Section 7 Game, supra note 144, at 540-43, 562 (using PPT model to show that legislative veto may restore the legislative-executive balance, and that at least two-house vetoes are desirable);
432. William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Original Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. Econ. & Org. 165, 167, 177-79 (1992) (same).
433. See Bowsher, 478 U.S. at 767-68 (White, J., dissenting) (explaining that removal provision requires joint resolution, which in turn requires presidential signature or supermajority support, no different than ordinary legislation).
434. See Bressman, Beyond Accountability, supra note 9, at 522 (suggesting reasons why removal provision might have given Congress more power to influence Comptroller General than the threat of statutory amendment or budget cut).
435. See Nzelibe, supra note 345, at 1266 ("[W]hen there is no explicit indication from Congress as to its preferences, the next best available indicator of majoritarianism in the administrative state is likely to be presidential endorsement of agency behavior.").
436. See Jack M. Beerman, Congressional Administration, 43 San Diego L. Rev. 61, 140-44 (2006) (arguing that congressional control of agency decisionmaking is important counterweight to presidential control).
437. Kagan, supra note 19, at 2259; see Barry R. Weingast, The Congressional-Bureaucratic System: A Principal-Agent Perspective (with Applications to the SEC), 44 Pub. Choice 147, 150 (1984) (noting that congressional committees, not entire Congress, review agency action).
438. See Bressman & Vandenbergh, supra note 331, at 68 (reporting results of empirical study of political appointees at EPA, including that as many as nineteen different White House offices, in addition to OIRA, were involved in EPA rulemaking); Kagan, supra note 19, at 2307 (noting that President Clinton took interest only in selected issues).
439. See Bressman & Vandenbergh, supra note 331, at 64 n.107 (listing the offices involved in EPA rulemaking); Kagan, supra note 19, at 2338 (noting that White House officials are ones exercising presidential control).
440. The Administrator of OIRA, however, is subject to Senate confirmation.
441. See Kagan, supra note 19, at 2259-60 (discussing shortcoming of fire-alarm oversight); id. at 2336 (asserting that "members of congressional committees and subcommittees [are] almost guaranteed by their composition and associated incentive structure to be unrepresentative of national interests"); see also David Schoenbrod, Power Without Responsibility 9-12 (1993) (applying public choice theory to show that Congress delegates in broad strokes to shift blame for results that favor private interests); Peter Aranson et al., A Theory of Legislative Delegation, 68 Cornell L. Rev. 1, 43 (1982) ("It is now a [sic] commonplace among modern political analysts that members of Congress are the primary agents responsible for generating and perpetuating the collective production of private benefits.").
442. Nzelibe, supra note 345, at 1231-46; see also Araiza, supra note 206, at 613-15 (noting that OMB review has raised concern about "the executive acting as a confidential partner of and conduit for regulated parties seeking to influence agency action"); Farina, Undoing the New Deal, supra note 102, at 231-32 (expressing skepticism that, even under public choice theory, presidential involvement reduces faction); Shane, supra note 102, at 202-04 (voicing doubt that presidential control is proof against faction); Strauss, Presidential Rulemaking, supra note 102, at 971-73 (providing examples from Clinton administration that "political controls still embody the potential for corruption").
443. See Nzelibe, supra note 345, at 1249, 1260.
444. See id.
445. See Bressman & Vandenbergh, supra note 331, at 84-91 (finding, on basis of empirical study of political appointees at EPA during relevant period, that White House is more likely to favor business interests than is EPA). But cf. Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. Chi. L. Rev. 821, 874-85 (2003) (finding, based on review of OIRA rulemaking documents, that White House does not favor narrow interests).
446. See Kagan, supra note 19, at 2260 (arguing that congressional oversight is reactive because triggered by party complaints); Lessig & Sunstein, supra note 19, at 105-06 ("[B]ecause the President has a national constituency - unlike relevant members of Congress, who oversee independent agencies with often parochial agendas - [he] appears to operate as an important counterweight to factional influence over administration."); Edward L. Rubin, It's Time to Make the Administrative Procedure Act Administrative, 89 Cornell L. Rev. 95, 101-03 (2003) (arguing that party participation under APA is selective and reactive).
447. See Terry M. Moe, An Assessment of the Positive Theory of 'Congressional Dominance,' 12 Legis. Stud. Q. 475, 486-90, 513 (1987) (noting theoretical reasons to question efficacy of Congressional oversight).
448. See Bressman & Vandenbergh, supra note 331, at 70 (raising possibility, based on empirical data on White House involvement in EPA regulations during relevant period, that such involvement was selective in its focus); Kagan, supra note 19, at 2250 (acknowledging that "no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swadi of regulatory activity").
449. See Bressman & Vandenbergh, supra note 331, at 68, 78-84 (documenting number of officials involved in review of EPA rulemaking during relevant period and views of EPA political appointees that their actions were more visible to public than those of White House officials).
450. See Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 1002-07 (1997) (expressing skepticism that public understands what President is implementing through his agency vision and votes on that basis); Shane, supra note 102, at 197 (noting disconnect between President Reagan's strong electoral support and public's apparent rejection of his policy positions on key issues).
451. See Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U. L. Rev. 557, 617-19 (2003) (describing reasons why election does not ensure that President will reflect popular preferences on specific issues);
452. Edward L. Rubin, Getting Past Democracy, 149 U. Pa. L. Rev. 711, 758 (2001) (noting that "many observers tend to overestimate the significance of elections").
453. See Kagan, supra note 19, at 2260 (arguing that constituents will trigger alarms "more often when an agency changes than when it maintains existing policy" and "resulting congressional oversight thus will tend to have a conservative (in the sense of status quo-preserving) quality").
454. See id. at 2339 (arguing that President "can synchronize and apply general principles to agency action").
455. See, e.g., Nicholas Bagley & Richard L. Revesz, OMB and the Centralized Review of Regulation, 106 Colum. L. Rev. 1260, 1265 (2006) (arguing that OMB review is inherently deregulatory).
456. See supra Part IV.E.
457. See, e.g., McNollgast, Administrative Procedures, supra note 12, at 245 (noting that both Congress and President must control courts as well as agencies).
458. See Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L.J. 2155, 2159 (1998);
459. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. Chi. L. Rev. 823, 825-27 (2006);
460. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va. L. Rev. 1717, 1717-19 (1997).
461. See Sunstein, Beyond Marbury, supra note 106, at 2588.
462. This argument among administrative law scholars has a counterpart in constitutional scholarship. Many scholars argue that we must either abandon judicial review (and allow "popular constitutionalism") or sharply constrain it (through devices such as originalism or textualism). For a broader defense of judicial review as principled and largely nonpolitical, see generally Daniel A. Farber & Suzanna Sherry, A Call to Judgment: Separating Law from Politics in Constitutional Cases (forthcoming 2008) (manuscript on file with the Columbia Law Review).
463. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 521 ("One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists.").
464. See, e.g., Stephen Breyer, Breaking the Vicious Circle 49 (1993) (finding that even the "very threat of judicial review" has created "complex, time consuming" rulemaking procedures that are unable to keep pace with rapidly changing scientific advances);
465. Jerry L. Mashaw & David L. Harfst, The Struggle for Auto Safety 19, 199-200, 224-54 (1990) (arguing that legal review made achievement of National Highway Traffic Safety Administration rulemaking goals nearly "impossible") ;
466. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J. 1385, 1385-87, 1436-62 (1992) (noting problem and offering remedies); Pierce, Seven Ways, supra note 164, at 71 (noting problem).
467. See Gary Coglianese, Empirical Analysis and Administrative Law, 2002 U. III. L. Rev. 1111, 1125-31 (showing that "empirical evidence for a retreat from rulemaking in the face of stringent judicial review is not nearly as clear as has been generally supposed");
468. William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 Nw. U. L. Rev. 393, 403-07 (2000) (disputing on empirical grounds contention that judicial review ossifies administrative process).
469. See Anne Joseph O'Connell, The Regulation Clock and Political Transitions: An Empirical Portrait of the Modern Administrative State 29 (U.C. Berkeley Pub. L. Research Paper No. 999099, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=999099 (on file with the Columbia Law Review) (finding that "procedural costs to [agency] rulemaking are not so high as to prohibit significant regulatory activity by agencies" based on analysis of data from Unified Agenda of Federal Regulatory and Deregulatory Actions (1983-2003));
470. see also Jason Webb Yackee & Susan Webb Yackee, Is Federal Agencies Rulemaking "Ossified"? The Effect of Procedural Constraints on Agency Policymaking 3, 24 (April 9, 2007) (unpublished manuscript, on file with the Columbia Law Review) (finding little support for ossification thesis based on analysis of similar data).
471. See Eskridge & Ferejohn, Article I, Section 7 Game, supra note 144, at 528-33.
472. See Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 23, 2007).
473. See Stephen P. Croley, The Administrative Procedure Act and Regulatory Reform: A Reconciliation, 10 Admin. L.J. 35, 39 (1996).