Agencv Self-Regulation

George Washington Law Review

Volumn 77, Issue 4, 2009, Pages 859-903

  Magill, E ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 69249103857     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (176)

1. 859-903 Agencv Self-Regulation Elizabeth Magill University of Virginia School of Law
2. See, e.g., James M. Landis, The Administrative Process 23-24, 154-55 (1938).
3. Kenneth Culp Davis, Discretionary Justice 52-161 (1969)
4. John Hart Ely, Democracy and Distrust (1980); Theodore J. Lowi, The End of Liberalism 92-126 (2d ed. 1979)
5. See generally David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation 99-134 (1993) (arguing that the legislative and executive branches should not delegate their powers to agencies because broad agency discretion "weakens democracy," "endangers liberty," and "makes the laws less reasonable").
6. See generally Jon Elster, Ulysses Unbound: Studies in Rationality, Precommit-ment, and constraints 1-87 (2000).
7. Id. at 1.
8. The two observers most closely associated with that argument are Kenneth Davis and Henry Friendly. See Davis, supra note 2, at 55-57, 219
9. Henry J. Friendly, The Federal Administrative Agencies 142-47 (1962). Professor Bressman has advanced a version of this argument in the modern period. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 533 (2003) ("[AJgencies must supply the standards that discipline their discretion under delegating statutes, and it does not matter for legitimacy purposes whether they do so under 'ordinary' administrative law or 'constitutional' administrative law.")
10. Lisa Schultz Bressman, Disciplining Delegation after Whitman v. American Trucking Ass'n, 87 Cornell L. Rev. 452,460-66 (2002) (arguing that agencies must articulate standards limiting their discretion)
11. Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L.J. 1399,1415-31 (2002) (arguing in favor of agencies promulgating standards that limit their discretion). A version of the Davis/Friendly argument was embraced by Judge Leventhal in a well- known lower court decision that rejected the claim that the Economic Stabilization Act of 1970 constituted an unconstitutional delegation of legislative power.
12. See Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 758-59 (D.D.C. 1971) (upholding Nixon Administration price freeze in the face of claims that the action violated the nondelegation doctrine).
13. More recently, Judge Williams of the D.C. Circuit relied on this argument in American Trucking Ass'ns v. EPA. See Am. Trucking Ass'ns v. EPA, 175 F.3d 1027, 1038-40 (D.C. Cir. 1999) (per curiam). The Supreme Court, however, rejected the argument. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) ("We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute.").
14. See Annual Review of Administrative Law, 76 Geo. Wash. L. Rev. 1095 (2008)
15. Annual Review of Administrative Law, 75 Geo. Wash. L. Rev. 695 (2007) (inaugural edition; slightly revised focus from long-standing annual issue devoted to review of the D.C. Circuit).
16. Statutes, court orders, and Executive orders do not all bind the agency in exactly the same way. The most obvious difference relates to the mechanisms available to enforce the commands contained in these instruments. Speaking generally, judicial enforcement is available for enforcement of court orders and statutory commands, while judicial enforcement is generally not available for commands contained in Executive orders. See Note, Enforcing Executive Orders: Judicial Review of Agency Action Under the Administrative Procedure Act, 55 GEO. WASH. L. REV. 659, 661-62 (1987) (arguing that courts should change their practices and enforce Executive orders more readily)
17. Section of Administrative Law and Regulatory Practice, American Bar Association, A Guide to Judicial and Political Review of Federal Agencies § 6.024 (John F. Duffy &Michael Herz eds., 2005) (Executive orders not enforceable). Despite such differences, both court orders and Executive orders authoritatively bind the agency. That is the important point for present purposes, and identifying the differences among these various commands is beyond the scope of this Article.
18. See, e.g., Federal Trade Commission Act, 15 U.S.C. § 45 (2006). Many other regulatory statutes or parts of regulatory statutes have this structure.
19. See, e.g., Federal Food, Drug, &Cosmetic Act, 21 U.S.C. § 342 (2006) (adulterated food); National Labor Relations Act, 29 U.S.C. § 158 (2006) (unfair labor practices).
20. The literature contains no systematic discussion or analysis of enforcement guidelines adopted by agencies. Enforcement guidelines, when they are discussed, are mentioned as just one example of the broader categories of interpretive rules or policy statements. See, e.g., 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. 1311,1320 (1992)
21. Stephen M. Johnson, Good Guidance, Good Grief!, 72 Mo. L. Rev. 695,696 (2007)
22. Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 Cornell L. Rev. 397, 398 (2007). The few articles that discuss the development of enforcement guidelines in any depth focus on specific examples of agency enforcement guidelines.
23. See Hillary Greene, Guideline Institutionalization: The Role of Merger Guidelines in Antitrust Discourse, 48 Wm. &Mary L. Rev. 771, 776 (2006)
24. Erica Seiguer & John J. Smith, Perception and Process at the Food and Drug Administration: Obligations and Trade-Offs in Rules and Guidances, 60 Food &Drug L.J. 17,17 (2005). This lack of systematic treatment in the literature is not because agencies have few enforcement guidelines. The literature assumes that many agencies adopt enforcement guidelines on a wide variety of matters, and there are many disputes that revolve around enforcement guidelines in the courts.
25. See, e.g., Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 802-03 (D.C. Cir. 2006) (summarizing the National Highway Traffic Safety Administration policy indicating when regional recalls by auto manufacturers are permissible); Sec'y of Labor v. Twentymile Coal Co., 456 F.3d 151, 153 (D.C. Cir. 2006) (discussing the Secretary of Labor's enforcement guidelines about when to charge owner-operators and independent contractors with violations of mine safety laws); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 535-36 (D.C. Cir. 1986) (explaining the Secretary of Labor's enforcement guideline for independent contractors indicating usual conditions under which operator may be cited for violation); United States v. Fitch Oil Co., 676 F.2d 673, 675 (Temp. Emer. Ct. App. 1982) (Department of Energy policy on targeted auditing); United States v. Ewig Bros. Co., 502 F.2d 715, 724-25 (7th Cir. 1974) (discussing FDA interim guidelines indicating acceptable levels of DDT residues in fish).
26. Greene, supra note 9, at 778; Michael L. Katz &Howard A. Shelanski, Mergers and Innovation, 74 Antitrust L.J. 1, 7-8 (2007).
27. 1992 Horizontal Merger Guidelines, 57 Fed. Reg. 41,552 (Sep. 10,1992); Non-Horizontal Merger Guidelines, 49 Fed. Reg. 26,823 (June 29,1984) (see section 4 on Horizontal Effect of Non-Horizontal Mergers).
28. See Greene, supra note 9, at 781-802; William J. Kolasky &Andrew R. Dick, The Merger Guidelines and the Integration of Efficiencies into Antitrust Review of Horizontal Merg-ers, 71 Antitrust L.J. 207,209 (2003); William E. Kovacic, The Modern Evolution of U.S. Competition Policy Enforcement Norms, 71 Antitrust L.J. 377,399 &n.81 (2003); Thomas B. Leary, The Essential Stability of Merger Policy in the United States, 70 Antitrust L.J. 105, 114-21 (2002); Spencer Weber Waller, Prosecution by Regulation: The Changing Nature of Antitrust Enforcement, 77 Or. L. Rev. 1383, 1400-04 (1998).
29. Rachel E. Barkow &Peter W. Huber, A Tale of Two Agencies: A Comparative Analysis of FCC and DOJ Review of Telecommunications Mergers, 2000 U. Chi. Legal F. 29, 48-49 (2000).
30. See Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims 114-23 (1983). The Supreme Court upheld the "grid" regulations in Heckler v. Campbell, 461 U.S. 458, 468 (1983).
31. 25 C.F.R. § 83.7 (2008); see also Procedures for Establishing That an American Indian Group Exists as an Indian Tribe, 59 Fed. Reg. 9280 (Feb. 25,1994) (codified at 25 C.F.R. pt. 83). For a discussion of the tribal recognition rules, see Miami Nation of Indians v. U.S. Department of the Interior, 255 F.3d 342, 345-47 (7th Cir. 2001).
32. U.S. Dep't of Justice, U.S. Attorneys' Manual, available at www.usdoj.gov/usao/ eousa/foia-reading-room/usam.
33. Another example is the series of memos issued in recent years about corporate criminal prosecutions. The "Thompson Memo," issued in 2003, set forth nationwide standards for enforcement in the corporate crime area. Memorandum from Larry D. Thompson, Deputy Att'y Gen., to Heads of Dep't Components and U.S. Attorneys (Jan. 20,2003), available at http://www. usdoj.gov/dag/cftf/corporate-guidelines.htm. For a discussion of the Thompson Memo, see Christopher A. Wray &Robert K. Hur, Corporate Criminal Prosecution in a Post-Enron World: The Thompson Memo in Theory and Practice, 43 Am. Crim. L. Rev. 1095 (2006). The Thompson Memo was superseded by the "McNulty Memo" in December 2006. Memorandum from Paul J. McNulty, Deputy Att'y Gen., to Heads of Dep't Components and U.S. Attorneys (Dec. 12, 2006), available at http://www.usdoj.gov/dag/speeches/2006/mcnulty-memo. pdf.
34. U.S. Dep't of Justice, U.S. Attorneys' Manual, § 9-2.031 (otherwise known as the "Petite policy"), available at http://www.usdoj.gOv/usao/eousa/foia-reading-room/usam/title9/2 mcrm.htm#9-2.031; see also Rinaldi v. United States, 434 U.S. 22, 27 (1977) (discussing the "Petite policy").
35. See Rinaldi, 434 U.S. at 28 (noting that previous Supreme Court decisions expressly permit both state and federal prosecutions for the same act).
36. Administrative Procedure Act, 5 U.S.C. §§ 551-559 (2006).
37. U.S. Const, amend. V, § 3.
38. See Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976).
39. Lars Noah, The FDA's New Policy on Guidelines: Having Your Cake and Eating It Too, 47 Cath. U. L. Rev. 113, 137-38 (1997).
40. Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007).
41. President Barack Obama, Revocation of Certain Executive Orders Concerning Regulatory Planning and Review, Exec. Order No. 13,497,74 Fed. Reg. 6113 (Jan. 30,2009), available at http://www.whitehouse.gov/the-press-office/ Revocation-Of-Certain-Executive-Orders-Concern ing-Regulatory-Planning-And- Review.
42. See, e.g., Blassingame v. Sec'y of the Navy, 866 F.2d 556,557 (2d Cir. 1989) (describing a Marine Corps regulation that imposes a duty to investigate possible erroneous enlistment); Modern Plastics Corp. v. McCulloch, 400 F.2d 14,18 (6th Cir. 1968) (citing NLRB regulations regarding prehearing investigations).
43. See, e.g., Singh v. U.S. Dep't of Justice, 461 F.3d 290, 295 (2d Cir. 2006) (holding that INS regulations permit consideration of factors relevant to extreme hardship that statute does not make relevant); Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326, 1333 (Fed. Cir. 2005) (stating that a Merit Systems Protection Board regulation authorizes ALJs to file actions for constructive discharge); Chennareddy v. Bowsher, 935 F.2d 315, 316 (D.C. Cir. 1991) (concluding that an agency regulation excuses employees from exhausting remedies); Smith v. Resor, 406 F.2d 141, 145-46 (2d Cir. 1969) (holding that for what would otherwise be highly discretionary decisions, Army regulations set forth binding procedural requirements, such as making certain matters part of the official record).
44. Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 717-21 (8th Cir. 1979) (Bureau of Indian Affairs ("BIA") personnel decision reversed when agency failed to consult with tribe before transferring BIA agent from one area office to another in violation of agency commitment to engage in such consultation).
45. See Mary L. Schapiro, Chairman, Sec. &Exch. Comm'n, Address to Practising Law Institute's "SEC Speaks in 2009" Program (Feb. 6, 2009), available at http://www.sec.gov/news/ speech/2009/spch020609mls. htm; Floyd Norris, Unleashing Enforcement, http://norris.blogs.ny times.com/2009/02/06/unleashing-enforcement (Feb. 6, 2009 15:25 EST).
46. It could be that these acts of self-regulation are not intended to constrain at all. But if they are not intended to provide any constraint-even within the agency-then creating them in the first place is something akin to busy work. This Article puts aside that logically possible, but unlikely, option.
47. The further question of whether self-regulatory measures adopted by an agency could bind other actors in the executive branch, including the President, and, if so, how they could do so, is a complication beyond the scope of this Article and will not be examined here.
48. See Elster, supra note 3; Oliver Williamson, The Economic Institutions of Capitalism: Firms, Markets, Relational Contracting (1985); Finn E. Kydland &Edward C. Prescott, Rules Rather than Discretion: The Inconsistency of Optimal Plans, 85 J. Pol. Econ. 473 (1977); Douglass C. North &Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J. Econ. Hist. 803 (1989); Barry R. Weingast, Constitutions as Governance Structures: The Political Foundations of Secure Markets, 149 J. Instl. &Theoretical Econ. 286 (1993); Barry R. Weingast, The Eco-nomic Role of Political Institutions: Market-Preserving Federalism and Economic Development, 11 J.L. Econ. &Org. 1 (1995) [hereinafter Weingast, The Economic Role of Political Institutions]; Oliver E. Williamson, Credible Commitments: Using Hostages to Support Exchange, 73 Am. Econ. Rev. 519 (1983). This literature builds on insights from Thomas C. Schelling, An Essay on Bargaining, 46 Am. Econ. Rev. 281, 282-87 (1956), and R.H. Strotz, Myopia and Inconsistency in Dynamic Utility Maximization, 23 Rev. Econ. Studies 165, 173 (1955).
49. See Elster, supra note 3; North &Weingast, supra note 32; Weingast, The Economic Role of Political Institutions, supra note 32; see also Stephen Holmes, Precommitment and the Paradox of Democracy, in Constitutionalism and Democracy 195 (Jon Elster &Rune Slag- stad eds., 1988). In a recent work, Eric Posner and Adrian Vermeule have identified the mechanisms by which an executive can credibly signal benign motivations, including the self-binding mechanism explored here, in order to obtain more authority. See Eric A. Posner &Adrian Vermeule, The Credible Executive, 74 U. Chi. L. Rev. 865, 894-913 (2007).
50. See North &Weingast, supra note 32, at 806; Weingast, The Economic Role of Political Institutions, supra note 32, at 1-4.
51. See Elster, supra note 3, at 147-48.
52. U.S. Const, amend. V, cl. 4.
53. U.S. Const, art. I, § 8, cl. 3.
54. See John Ferejohn &Lawrence Sanger, Commitment and Constitutionalism, 81 Tex. L. Rev. 1929,1929 (2003); Tom Ginsburg, Locking in Democracy: Constitutions, Commitment, and International Law, 38 N.Y.U. J. Int'l L. &Pol. 707,721 (2006); Cass Sunstein, Constitutionalism and Secession, 58 U. Chi. L. Rev. 633, 639-41 (1991).
55. See e.g., North &Weingast, supra note 32, at 804.
56. There is some discussion of agencies and precommitment in the political science literature, but that set of arguments has a very different focus than the questions explored here. The primary argument is that the creation of and delegation to agencies is a way for a present coalition in Congress to make a credible commitment to a constituency about the stability of policy in the future. See Murray Horn, The Political Economy of Public Administration: Institutional Choice in the Public Sector 7-24 (1995). The argument that bureaucratic structure and process is a mechanism of political control is to similar effect. See Barry R. Weingast, Political Institutions: Rational Choice Perspectives, in A New Handbook of Political Science 167, 178-79 (Robert Goodin &Hans-Dieter Klingemann eds., 1996).
57. See Mathew D. McCubbins, Roger G. Noll &Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. &Org. 243,246-53 (1987); Eric A. Posner &Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 Yale L.J. 1665, 1701-02 (2002) (discussing entrenchment by agencies and the capacity of Congress to authorize or reverse that entrenchment).
58. Professor Jonathan Masur has explored an agency's capacity to make credible commitments through another mechanism than the one identified here. He argues that agencies (previously) had the ability to credibly commit to interpretations of ambiguous statutes when those interpretations were endorsed by courts, and he laments that the Supreme Court unwisely eliminated this mechanism of precommitment in the Brand X case. Jonathan Masur, Judicial Deference and the Credibility of Agency Commitments, 60 Vand. L. Rev. 1021, 1037-60 (2007).
59. See Regulations, Institutions, and Commitment (Brian Levy &Pablo Spiller eds., 1996) (comparative study of regulation of telecommunications industry focused on the relationship between political institutions and regulatory institutions and how effective regulation is at encouraging private investment).
60. What the principle is called may depend on which administrative law casebook one learned or teaches from. Here I have chosen to follow Professor Thomas Merrill, who in a recent work has given the doctrine this name. See Thomas W. Merrill, The Accardi Principle, 74 Geo. Wash. L. Rev. 569, 569 (2006). Professor Merrill gives the doctrine this name for what strikes me as a good reason. It comes from the case that the D.C. Circuit cites most often for the principle that an agency has an obligation to follow its own rules. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954) (holding that where self-regulatory measures vested authority over discretionary deportation determinations with the Board of Immigration Appeals, the Attorney General could not limit the Board's discretion or dictate its decision). Two follow- on Supreme Court cases were also important in creating the doctrine in the Supreme Court. See Vitarelli v. Seaton, 359 U.S. 535, 545 (1959) (concluding that the power of the Secretary of the Interior to discharge an employee was constrained by previously adopted self-regulatory measures); Service v. Dulles, 354 U.S. 363, 388 (1957) (holding that the Secretary of State must conform with self-regulatory measures constraining his ability to terminate an employee). Others may call this the Arizona Grocery principle, following an early case laying out the doctrine. Arizona Grocery Co. v. Atchison, Topeka &Santa Fe Ry. Co., 284 U.S. 370, 389 (1932). For further discussion, see generally Raoul Berger, Administrative Arbitrariness and Judicial Review, 65 Colum. L. Rev. 55 (1965); Harold J. Krent, Reviewing Agency Action for Inconsis-
61. tency with Prior Rules and Regulations, 72 Chi.-Kent L. Rev. 1187 (1997); Peter Raven-Hansen, Regulatory Estoppel: When Agencies Break Their Own "Laws," 64 Tex. L. Rev. 1 (1985); Joshua I. Schwartz, The Irresistible Force Meets the Immovable Object: Estoppel Remedies for an Agency's Violation of Its Own Regulations or Other Misconduct, 44 Admin. L. Rev. 653 (1992); Rodney A. Smolla, The Erosion of the Principle That the Government Must Follow Self-imposed Rules, 52 Fordham L. Rev. 472 (1984); Note, Violations by Agencies of Their Own Regulations, 87 Harv. L. Rev. 629 (1974).
62. Accardi, 347 U.S. at 266-67.
63. See id. at 268 (demonstrating the Court's willingness to enforce agency rules when the agency acts "contrary to existing valid regulations").
64. See supra notes 36-39 and sources cited therein.
65. See Elster, supra note 3, at 147-48 (describing the lack of credibility of the Chinese government's self-regulatory measures in the 1980s due to the absence of a third party enforcer).
66. See supra note 35 and accompanying text.
67. See generally Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.j. 1385 (1992) (discussing the general costliness of adopting revisions to existing rules). While Professor McGarity's piece comments on the mounting costs associated with the informal rulemaking process, this author could find no research focusing on the cost of adopting a self-regulatory measure. The cost is likely to vary wildly, but at least some self- regulatory measures will be very costly to review. For example, the budget for the Antitrust Modernization Commission, an advisory group formed to merely recommend changes to the antitrust enforcement guidelines, was set by Congress at $4 million. See Antitrust Modernization Commission, Frequently Asked Questions, at 3, http://govinfo.library.unt.edu/amc/pdf/news/faqs. pdf (last visited May 12, 2009).
68. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 42 (1983); see also Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 586-87 (D.C. Cir. 1997).
69. See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-91 (1955).
70. Slate Farm, 463 U.S. at 43 n.9.
71. Id. at 50.
72. See supra notes 42-46 and accompanying text.
73. See e.g., Ariz. Grocery Co. v. Atchison, Topeka &Santa Fe Ry. Co., 284 U.S. 370, 389-90 (1932); see also Merrill, supra note 44, at 571 n.7 (identifying United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155-56 (1923), as "the most prominent anticipation" of the Accardi principle).
74. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); see also Vitarelli v. Seaton, 359 U.S. 535 (1959); Service v. Dulles, 354 U.S. 363 (1957).
75. See Merrill, supra note 44, at 569.
76. See Schwartz, supra note 44, at 669-70, 674-78.
77. See Merrill, supra note 44, at 570, 603-12.
78. See Accardi, 347 U.S. 260 (obligating agency to follow procedural self-regulation); Miami Nation of Indians v. U.S. Dep't of the Interior, 255 F.3d 342 (7th Cir. 2001) (requiring agency to follow substantive self-regulation).
79. For a description of the wide variety of mechanisms by which an agency can announce its policy judgments, see M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1383, 1383-1403 (2004). See also Anthony, supra note 9, at 1312-13; William Funk, Legislating for Nonlegislative Rules, 56 Admin. L. Rev. 1023,1027 (2004); Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 Admin. L. Rev. 803, 804 (2001).
80. See, e.g., Vietnam Veterans of Am. v. Sec'y of the Navy, 843 F.2d 528, 536-37 (D.C. Cir. 1988); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 536-37 (D.C. Cir. 1986). In the most recent systematic work on the subject, Professor Merrill has argued that this statement best captures what the doctrine is and should be in the D.C. Circuit. See Merrill, supra note 44, at 592 ("Since the mid-1980s, however, the court has generally grounded the Accardi principle in the notion that regulations are legally binding."); id. at 596-603.
81. See, e.g., Singh v. U.S. Dep't of Justice, 461 F.3d 290, 296 (2d Cir. 2006); Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326,1344 (Fed. Cir. 2005); Chennareddy v. Bowsher, 935 F.2d 315,322 (D.C. Cir. 1991); see also Merrill, supra note 44, at 596-603.
82. See Section of Administrative Law and Reoulatory Practice, American Bar Association, A Guide to Judicial and Political Review of Federal Aoencies 8 6.022 (John F. Duffy &Michael Herz eds., 2005).
83. Id.
84. See Merrill, supra note 44, at 597-98.
85. See Morton v. Ruiz, 415 U.S. 199,235 (1974) (requiring agency to follow an internal rule of agency procedure that was a nonbinding guidance document).
86. See, e.g., Blassingame v. Sec'y of the Navy, 866 F.2d 556, 560 (2d Cir. 1989); Morris v. McCaddin, 553 F.2d 866,870 (4th Cir. 1977); United States v. Heffner, 420 F.2d 809, 812 (4th Cir. 1969); see also Merrill, supra note 44, at 593 (collecting cases on either side of the legislative/non- legislative rule line about what counts as "binding" in the D.C. Circuit).
87. See supra note 50 and sources cited therein.
88. Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532 (1970).
89. Id. at 538-39.
90. Id. at 539.
91. United States v. Caceres, 440 U.S. 741, 754-55 (1979). The decade of the 1970s was a confusing one for the Accardi principle, as the Court not only created this important exception, but it at the same time endorsed the rigid rule of Accardi in both United States v. Nixon, 418 U.S. 683 (1974), and Morton v. Ruiz, 415 U.S. 199 (1974). See Merrill, supra note 44, at 578-84.
92. See Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005); United States v. Calderon- Medina, 591 F.2d 529, 531-32 (9th Cir. 1979).
93. See 5 U.S.C. § 701(a) (2006).
94. See, e.g., 5 U.S.C. § 8347(c) (2006) (precluding judicial review of Office of Personnel Management decisions about disability and dependency); 38 U.S.C. § 511(a) (2006) (precluding review of certain benefit decisions by the Secretary of Veterans Affairs). See generally Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L. Rev. 689 (1990).
95. Heckler v. Chaney, 470 U.S. 821, 831 (1985).
96. Lincoln v. Vigil, 508 U.S. 182, 192 (1993).
97. See Vitarelli v. Seaton, 359 U.S. 535, 546-47 (1959) (Frankfurter, J., concurring in part and dissenting in part) (explaining that in the absence of the regulations, the government would have been free to fire the employee); Service v. Dulles, 354 U.S. 363, 388-89 (1957).
98. See, e.g., Miami Nation of Indians v. U.S. Dep't of the Interior, 255 F.3d 342, 349 (7th Cir. 2001) (holding that an agency decision not to recognize an Indian tribe, which in the absence of agency regulations would have been unreviewable, is reviewable because the Department of the Interior issued regulations identifying criteria it would consult as it decided whether to recognize applicant); Clifford v. Pena, 77 F.3d 1414,1417 (D.C. Cir. 1996) (concluding that an otherwise nonreviewable Maritime Administration decision to grant a waiver under the Merchant Marine Act to a domestic carrier to permit it to use foreign-built vessels in operations is reviewable because the agency had identified factors that guided its decisions with respect to such waiver applications); Diebold v. United States, 947 F.2d 787, 810 (6th Cir. 1991) (determining that the Army's decision whether to contract out food services, held unreviewable in other circumstances, is reviewable because OMB-supplied criteria adopted by Army regulations provided legal guidelines for making the determination); Cardoza v. Commodity Futures Trading Comm'n, 768 F.2d 1542 (7th Cir. 1985) (holding that the failure of the Commodity Futures Trading Commission ("CFTC") to review disciplinary action by the Chicago Board of Trade, which would otherwise not be reviewable, is subject to judicial review because CFTC regulations provide standards by which to assess its action); see Merrill, supra note 44, at 605-06 &nn.155-60. Professor Merrill, in his recent survey of this body of law, observes that there may be some retreat from this approach. See Merrill, supra note 44, at 591, 605. Several cases from the D.C. Circuit indicate this retreat. See Fornaro v. James, 416 F.3d 63, 66-67 (D.C. Cir. 2005) (holding that an applicable statutory regime provided the exclusive judicial review remedy which could not be supplemented by Vitarelli claims that the agency failed to follow its own rules); Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir. 2004) (same); Steenholdt v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003) (holding that federal agencies must follow their own rules, even "gratuitous" procedural rules that limit otherwise discretionary action, but FAA limitations on discretion here do not provide law to apply because the regulations give the administrator unfettered discretion to decide not to renew the license of an aircraft inspector); Lopez v. FAA, 318 F.3d 242, 248 (D.C. Cir. 2003) (determining that although the FAA failed to follow internal rules for renewing an aircraft inspector license, there was no prejudice); Fried v. Hinson, 78 F.3d 688, 690 (D.C. Cir. 1996) (declining to decide whether the court had jurisdiction to review the agency's decision not to renew a flight examiner designation). Professor Merrill argues that claims which are unreviewable as a result of statutory preclu sion should not be made reviewable through self-regulatory rules, but claims that are unreview able because they are "committed to agency discretion by law" can be transformed into reviewable claims by the presence of a self-regulatory rule. Merrill, supra note 44, at 605-06. Regardless, it is safe to say that an agency can, on some occasions, turn otherwise unreviewable actions into reviewable actions by adopting a self-limiting rule.
99. Miami Nation of Indians v. U.S. Dep't of the Interior, 255 F.3d 342 (7th Cir. 2001).
100. Id. at 347-48.
101. Id. at 348.
102. Id.
103. See, e.g., Craty. Nutrition Inst. v. Young, 818 F.2d 943, 945 (D.C. Cir. 1987) (discussing FDA "action levels," which advised producers that the agency would not prosecute shipments of corn having twenty parts per billion or fewer of contaminants such as aflatoxins). For a discussion of the controversy engendered by that case, see Richard M. Thomas, Prosecutorial Discretion and Agency Self-Regulation: CNI v. Young and the Aflatoxin Dance, 44 Admin. L. Rev. 131 (1992).
104. See, e.g., Heckler v. Chaney, 470 U.S. 821, 831 (1985).
105. For an overview of this theory, see Barry R. Weingast, Rational-Choice Institutionalism, in Political Science: State of the Discipline 660 (Ira Katznelson &Helen V. Milner eds., 2002), and Kenneth A. Shepsle &Barry R. Weingast, Positive Theories of Congressional Institutions, 19 Leois. Stud. Q. 149 (1994).
106. For an overview of the structure of the U.S. administrative state, see B. Guy Peters, The Politics of Bureaucracy 148-50 (5th ed. 2001) (showing that, compared to other countries, the U.S. public sector is characterized by high levels of decentralization and political involvement).
107. See Anthony Downs, Inside Bureaucracy 2 (1967) (identifying "power, income, prestige, security, convenience, loyalty.,.. pride in excellent work, and desire to serve the public interest" as agency policy goals); id. at 79-111 (classifying different types of officials who work in bureaucracies and describing how they behave); Gregory Huber, The Craft of Bureaucratic Neutrality: Interests and Influence in Governmental Regulation of Occupational Safety 1-6 (2007) (contrasting political and Weberian conceptions of bureaucracy); id. at 15-24 (identifying a variety of perspectives within political science on bureaucratic power).
108. The budget-maximizing claim is put forward in William A. Niskanen, Jr., Bureaucracy and Representative Government (1971). The latter view is found in McCubbins, Noll, and Weingast's well-known theory that, through design choices and procedural limitations, Congress is able to control agencies. McCubbins, Noll &Weingast, supra note 41. For criticism of this latter theory, see Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government 134-55 (2008) (contending that Congress participates in the administrative process in order to promote agency independence, not exercise control over agency action), and Terry M. Moe, An Assessment of the Positive Theory of 'Congressional Dominance,' 12 Legis. Stud. Q. 475 (1987) (arguing that the congressional dominance model overlooks the role of bureaucracies in shaping agency action).
109. See Croley, supra note 91, at 142.
110. Max Weber, Bureaucracy, in From Max Weber: Essays in Sociology 196, 214-16 (H.H. Gerth &C. Wright Mills trans., 1958).
111. Croley, supra note 91, at 14-52; George j. Stigler, The Theory of Economic Regulation, in The Citizen and the State: Essays on Regulation 114, 114 (1975).
112. See David Epstein &Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers 1-13 (1999); D. Roderick Kiewiet &Mathew D. McCubbins, The Logic of Delegation: Congressional Parties and the Appropriations Process 9-12 (1991).
113. See Gary W. Cox &Mathew D. McCubbins, Legislative Leviathan: Party Government in the House 9-14 (1993); Kiewet &McCubbins, supra note 95, at 92-100; J.R. DeShazo &Jody Freeman, The Congressional Competition to Control Delegated Power, 81 Tex. L. Rev. 1443, 1487-1500 (2003).
114. See Downs, supra note 90, at 133-34.
115. See, e.g., 21 U.S.C. §§ 393(e), 394 (2006) (granting the FDA Commissioner the authority to establish technical and scientific review committees as needed); 29 U.S.C. § 153(b) (2006) (providing that the NLRB may delegate to any group of three or more members any or all of the powers which it exercises; the NLRB may also delegate certain powers to regional directors); 29 U.S.C. § 153(d) (2006) (authorizing the General Counsel of the NLRB to exercise supervisory power over all attorneys, officers, and employees in regional offices and to have final authority, on behalf of the Board, to initiate investigations and issue and prosecute complaints).
116. For example, until 1974, the Attorney General formally signed off on whether antitrust cases would be brought by the Antitrust Division of the Department of Justice. But in 1974, the Attorney General announced that he would no longer routinely review the division's recommendations. Suzanne Weaver, Decision to Prosecute: Organization and Public Policy in the Antitrust Division 4 n.10 (1977). Gregory Huber also describes the internal organization of OSHA's enforcement activities. See Huber, supra note 90, at 51-57.
117. See, e.g., Cynthia B. Dauber, 77ie Ties That Do Not Bind: Nonbinding Arbitration in Federal Administrative Agencies, 9 Admin. L.J. Am. U. 165, 165 n.2 (1995) (noting that 391,108 new cases were filed with federal ALJs in 1982-83 alone).
118. Downs, supra note 90, at 144-57; Huber, supra note 90, at 33-36.
119. James E. Alt &Alberto Alesina, Political Economy: An Overview, in A New Handbook of Political Science, supra note 40, 645, 658-59 (Robert E. Goodin &Hans-Dieter Klingemann eds., 1996); Downs, supra note 90, at 134. If the principal that delegated the au- thority is the legislature, as opposed to the agency head, there will be an additional principal- agent relationship between the agency head and the Congress.
120. A variety of examples of such direct delegation is discussed above. See supra notes 97-100 and accompanying text.
121. See Huber, supra note 90, at 70 (arguing that OSHA structures enforcement of the statute, which includes choices about decentralization and enforcement strategy, in a "strategically neutral" way in order to advance its aims).
122. A structure or process of this sort can be analogized to McCubbins, Noll, and Wein- gast's argument that Congress designs the structure and process of agencies in order to assert control over them. See McCubbins, Noll &Weingast, supra note 41, at 248-49; see also supra note 91 and accompanying text.
123. For example, when and how decisionmakers at the top of the agency review agency work product will affect the choices made. See Weaver, supra note 99, at 107-12, for a discussion of Attorney General review authority over antitrust decisions, and Huber, supra note 90, at 51-57, for a discussion of the internal decisionmaking process at OSHA.
124. See Gary J. Miller, Managerial Dilemmas: The Political Economy of Hierarchy 75-177 (1992) (identifying tradeoffs associated with various managerial controls); Thomas H. Hammond &Paul A. Thomas, The Impossibility of a Neutral Hierarchy, 5 J.L. Econ. &Org. 155, 156-57 (1989) (discussing the costs of various strategies used to control the actions of agency officials).
125. See Barkow &Huber, supra note 13, at 49 (comparing the Federal Communications Commission's informal approach to reviewing telecommunications mergers with the Department of Justice's and Federal Trade Commission's formalized enforcement guidelines).
126. See, e.g., Cmty. Nutrition Inst. v. Young, 818 F.3d 943, 949 (D.C. Cir. 1987); United States v. Fitch Oil Co., 676 F.2d 673, 675 (Temp. Emer. Ct. App. 1982). For a discussion of the "Thompson Memo" and the "McNulty Memo," see supra note 17 and accompanying text.
127. no See Weber, supra note 93; Owen M. Fiss, The Bureaucratization of the Judiciary, 92 Yale L.J. 1442, 1450 (1983) ("A Weberian bureaucrat is an official governed by a rule that prohibits him from taking into account individual circumstances."); Edward Rubin, It's Time to Make the Administrative Procedure Act Administrative, 89 Cornell L. Rev. 95, 146-57 (2003) (reviewing Weberian conception of bureaucracy).
128. See supra notes 64-67 and accompanying text.
129. See Posner &Vermeule, supra note 41, at 1666-67, for a definition of entrenchment.
130. See Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. Rev. 947, 953-98 (2003); Jason M. Loring &Liam R. Roth, After Midnight: The Durability of the "Midnight" Regulations Passed by the Two Previous Outgoing Administrations, 40 Wake Forest. L. Rev. 1441, 1442-50 (2005); Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 Va. L. Rev. 889, 891-92 (2008).
131. The cost of undoing the policy in the future can be greater than preventing the policy's adoption in the first instance. As Dan Carpenter has demonstrated in his study of agency efforts to achieve autonomy, once an agency gets a policy in place it can be more costly for others to undo it than it would have been for them to prevent its adoption in the first instance. In Carpenter's account, agencies create this autonomy by developing reputations for trustworthiness. See
132. Daniel P. Carpenter, The Forgino of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies 1862-1928 (2001); see also Huber, supra note 90, at 15-16.
133. There will be exceptions to this. If for some reason there is no possibility that a court would apply the Accardi principle in a particular context, perhaps because it is settled that judicial review is not available in that context, then the agency would be unable to use self-regulation as a way to protect its autonomy. Self-regulation to protect the agency from political interference depends on the possibility of a court stepping in to enforce the Accardi principle.
134. Cf. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954) (holding that where self-regulatory measures granted discretionary authority over deportation determinations to the Board of Immigration Appeals, the Attorney General could not interfere with the Board's discretion or dictate its decision).
135. The typical problems are coordination, externalities, and public goods. See Shepsle &Weingast, supra note 88, at 162. For instance, Gary Cox and Mathew McCubbins argue in Legislative Leviathan, supra note 96, at 83-84, that legislators delegate certain decisions to political parties in order to overcome various collective dilemmas they face. Keith Krehbiel focuses on the pressing need that legislators have for information and argues that delegation to committees is a way of making certain that such information will be produced and shared widely. See Keith Krehbiel, Information and Legislative Organization 68 (1991).
136. On the legislature's need for information, see Krehbiel, supra note 117, at 66-68.
137. See supra notes 102, 107 and accompanying text.
138. See Croley, supra note 91, at 201 (Forest Service holds over two hundred public meetings on roadless initiative); id. at 183-84 (describing FDA's hearings and solicitation of comment on tobacco rule); see also Noah, supra note 23, at 137-38 (FDA conduct of notice and comment for guidance documents).
139. See 21 C.F.R. § 170.20(a) (2008) (FDA's Food Additive Regulation) ("In reaching a decision on any petition filed under section 409 of the Act, the Commissioner will give full consideration to the specific biological properties of the compound and the adequacy of the methods employed to demonstrate safety for the proposed use, and the Commissioner will be guided by the principles and procedures for establishing the safety of food additives stated in current publications of the National Academy of Sciences-National Research Council."); Notice of Oxygenate Use in Gasoline Panel Meeting, 64 Fed. Reg. 31,852 (June 14,1999) (Administrator of EPA created blue-ribbon panel of experts to review issues posed by methyl tertiary butylether and other oxygenates in gasoline); Sheila Jasanoff, The Fifth Branch: Science Advisors as Policymakers 166-72 (1990) (discussing FDA's reliance on the National Academy of Sciences in reviewing the efficacy of old drugs). For a general discussion of agency actions of this sort, see Jasanoff, supra; Lars Noah, Scientific "Repulicanism": Expert Peer Review and the Quest for Regulatory Deliberation, 49 Emory L.J. 1033, 1047-57 (2000) (discussing use of experts, advisory bodies, and peer review by a variety of health and safety agencies).
140. Cf. Cox &McCubbins, supra note 96, at 109-12 (discussing the institutional role of political parties in maintaining reputation).
141. Ralph K. Winter, Jr., Judicial Review of Agency Decisions: The Labor Board and the Court, 1968 Sup. Ct. Rev. 53, 74-75 (1968).
142. See Magill, supra note 62, at 1443-45. See generally James T. Hamilton &Christopher H. Schroeder, Strategic Regulators and the Choice of Rulemaking Procedures: The Selection of Formal vs. Informal Rules in Regulating Hazardous Waste, 57 Law &Contemp. Probs. Ill (1994) (discussing the Environmental Protection Agency's choice between informal guidance documents and formalized legislative rules governing hazardous waste).
143. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015,1020 (D.C. Cir. 2000) (criticizing EPA's use of guidance documents in augmenting regulations); H.R. Rep. No. 106-1009, at 9 (2000).
144. Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 Harv. L. Rev. 528, 529-31 (2006).
145. M. Elizabeth Magill, The First Word, 16 Wm. &Mary Bill Rts. J. 27, 37-53 (2007) (identifying why and how an agency might not follow presidential wishes and, in light of that, demonstrating which strategies will work for presidents in certain circumstances). Professor Carpenter's account of the development of bureaucratic autonomy also analyzes agency behavior in the face of presidential efforts to control it. Carpenter, supra note 114, at 361.
146. See Stephenson, supra note 126, at 529-30.
147. See Winter, supra note 123, at 74-75.
148. See, e.g., Appalachian Power Co., 208 F.3d at 1028.
149. See supra Part LA.
150. See supra Part II.D.
151. See McGarity, supra note 50, at 1385-86.
152. Magill, supra note 62, at 1443-45; see also Stephenson, supra note 126, at 544.
153. See Jerry L. Mashaw &David L. Harfst, The Struggle for Auto Safety 95 (1990) (discussing a sharp drop in agency rulemaking activity following an adverse judicial decision on one of the agency's rules).
154. See supra notes 80-85 and accompanying text.
155. See supra Part I.C.4.
156. For an argument along these lines, see Krent, supra note 44, at 1189-90 ("Courts insufficiently recognize that permitting third-party review of an agency's compliance with its own policy may have substantially adverse effects.... [A]gencies may respond to such judicial decisions by rescinding regulations or changing directives to prevent judicial oversight.").
157. Laurence R. Heifer, The Politics of Judicial Structure: Creating the United States Court of Veterans Appeals, 25 Conn. L. Rev. 155, 155 (1992) ("[U]ntil recently, judicial oversight was strikingly absent in one important area of agency decision-making-the disability and pension benefit awards of the Veterans Administration.").
158. See, e.g., 42 U.S.C. § 405(g) (2006) (authorizing judicial review of Social Security disability claims).
159. See supra note 95 and accompanying text.
160. See Sidney A. Shapiro, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 Duke L.J. 819, 821-45 (1988) (discussing Congress's move towards tighter control of the EPA).
161. See, e.g., Schoenbrod, supra note 2.
162. Ely, supra note 2, at 131 ("The point is not that such 'faceless bureaucrats' necessarily do a bad job as our effective legislators. It is rather that they are neither elected nor reelected, and are controlled only spasmodically by the officials who are.").
163. Lowi, supra note 2, at 67-126; Schoenbrod, supra note 2, at 49-57 (discussing how Sunkist dominated the Navel Orange Administrative Committee and wielded strong influence over the laws that governed its industry).
164. See, e.g., Downs, supra note 90, at 24-25 (identifying four defining features of a bureau, including the requirement that "[t]he major portion of its output is not directly or indirectly evaluated in any markets external to the organization").
165. See Croley, supra note 91, at 19-22 (identifying "three crucial differences between regulatory decisions and competitive market decisions" which cause the marketplace analogy to "ultimately break[ ] down" before being of much help).
166. See Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345, 345-48 (2000).
167. See supra notes 90-94 and accompanying text.
168. See supra notes 90-91, 93 and accompanying text.
169. See supra notes 92, 94 and accompanying text.
170. I do not mean to suggest that an act of self-regulation is an unconstrained choice. Even without an authoritative source requiring the agency to act, there are many powerful pressures, both internal and external, that will push an agency to adopt such "voluntary" self-regulatory measures. Even so, it seems to me that the absence of an authoritative source that requires the agency to act does allow the observer to have a (relatively) clearer opportunity to detect agency motivations.
171. Weber, supra note 93, at 214-16.
172. See Croley, supra note 91, at 14-25.
173. See Matthew D. Zinn, Policing Environmental Regulatory Enforcement: Cooperation, Capture, and Citizen Suits, 21 Stan. Envtl. L.J. 81, 126-31 (2002) (arguing that agency choices about enforcement are particularly prone to capture by regulated parties).
174. See Croley, supra note 91, at 14-25.
175. See McCubbins, Noll &Weingast, supra note 41, at 243 (introducing the strategies of "oversight" and "administrative procedures" employed by political actors to control bureaucratic decisions).
176. See Landis, supra note 1, at 23-24.