Legislation that Isn't-Attending to Rulemaking's "Democracy Deficit"

California Law Review

Volumn 98, Issue 4, 2010, Pages 1351-1370

  Strauss, Peter L ^a  

^a Och Spine at New York Presbyterian Hospitals   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78649575435     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (112)

1. Sinram v. Pa. R.R. Co., 61 F.2d 767, 771 (2d Cir. 1932) (Hand, J.) (concluding a lengthy opinion explaining a determination about the seaworthiness of a coal barge).
2. See, e.g., JEREMY WALDRON, THE DIGNITY OF LEGISLATION (1999);
3. JOHN HART ELY, DEMOCRACY AND DISTRUST (1980);
4. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH (1962).
5. Compare the super-strong presumption that once an interpretation has been rendered, courts must "adhere to [that] ruling under the doctrine of stare decisis, and ... assess an agency's later interpretation of the statute against that settled law .... Congress, not this Court, has the responsibility for revising its statutes." Neal v. United States, 516 U.S. 284,295-96 (1996), with To the French, ... to universalize the Anglo-American presupposition that "cases" make "law" is to fall into two crass assumptions. First, it assumes that just because judges exercise significant normative control, this control must qualify as lawmaking . . . [which is] to fail to acknowledge that while a few legal systems have decided to exalt the judge by treating his work product as Law, most have not, preferring to reserve this special status to legislative enactments. Secondly . . . [o]ne need hardly call judicial decisionmaking "law" in order to stress that judges must make normative choices .... To do so ... produces ... potentially negative side-effects, such as the glorification of the judiciary and a concomitant tendency to compromise popular control through legislative, administrative, grass-roots, or other processes .... Thus Geny explains that "it is important to note: it is not that the jurisprudence constitutes an independent source of law, any more than it constitutes a custom sui generis." It is only an "authority," a "propulsion device," or "initiator of custom."
6. MITCHEL DE S.-O.-L'E. LASSER, JUDICIAL DELIBERATIONS 172-73 (2004).
7. United States v. Grimaud, 220 U.S. 506 (1911).
8. Americans do not think of legislation as "secondary," but if one takes the Constitution as our primary source of governing law-as the European Union's constitutive treaties are-then this European usage becomes understandable. This is why the administrative agency rules we are prone to characterize as secondary legislation are, for them, tertiary.
9. See, e.g., PAUL CRAIG & GRÁDE BÚRCA, EU LAW - TEXT, CASES, AND MATERIALS 134 (4th ed. 2008);
10. Giandomenico Majone, Europe's 'Democracy Deficit': The Question of Standards, 4 EUR. LJ. 5 (1998).
11. DAVID BEETHAM & CHRISTOPHER LORD, LEGITIMACY AND THE EU (1998). An American reader should perhaps be warned of the confusing (to Americans) European usage, in which acts of the European Parliament and Council, that we would characterize as statutes, are denominated either "directives" or "regulations," depending whether they themselves operate with the force of law on individuals, or rather require further action by member states to create legally binding obligations on citizens that are to be enforced as a matter of (EU-required) national law.
12. See generally CRAIG & DE BÚRCA, supra note 6.
13. On these processes generally, see Peter L. Strauss, Turner T. Smith, Jr. & Lucas Bergkamp, Rulemaking, in ADMINISTRATIVE LAW OF THE EUROPEAN UNION (George Bermann et al. eds., 2008).
14. The English scholar Edward C. Page has published widely on this subject, basing his work on wide-ranging interviews concerning an understudied subject. See, e.g., EDWARD C. PAGE & BILL JENKINS, POLICY BUREAUCRACY: GOVERNMENT WITH A CAST OF THOUSANDS (2005);
15. EDWARD C PAGE, GOVERNING BY NUMBERS (2001);
16. Edward C. Page, How Policy Is Really Made (2006), http://personal.lse.ac. uk/Pagee/Papers/PMPA%20Ed%20Page%202006-2.pdf.
17. JOHN LOCKE, TWO TREATISES OF GOVERNMENT, bk. II, ch. XI, §141 (1690).
18. Edward Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369 (1989).
19. Arsenic, a colorless, tasteless poison, is an inevitable pollutant of some water supplies, as a result both of natural deposits and of human interventions. Setting a threshold level, however minute, has been found adequate to protect the public from the effects of long-term, chronic exposure to it. See EPA, Arsenic in Drinking Water, http://www.epa.gov/safewater/arsenic/ index.html (last visited Apr. 9,2009).
20. See, e.g., Williamson v. Lee Optical, 348 U.S. 483 (1955).
21. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 n.9 (1983) ("The Department of Transportation suggests that the arbitrary-and-capricious standard requires no more than the minimum rationality a statute must bear in order to withstand analysis under the Due Process Clause. We do not view as equivalent the presumption of constitutionality afforded legislation drafted by Congress and the presumption of regularity afforded an agency in fulfilling its statutory mandate.").
22. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166, 170 (1803) (emphasis added).
23. See, e.g., Dalton v. Spector, 511 U.S. 462 (1994).
24. For this Essay, the term discretion is presented as binary, as if it had either law-less or law-full meanings. DISCRETION!!! is the former, which Chief Justice Marshall insisted could "never" be challenged in court and as to which the obligation of a federal officer was to serve as the President's faithful messenger. Discretion is the latter, subject to full, even exacting, review by the courts. As my casebook colleague Cynthia Farina points out, discretion that is constrained by law comes in many shades influencing the degree of judicial review available-the discretion involved in denying a petition for rulemaking, the discretion of a hearer about credibility issues, the discretion made tolerable by the reassurance of professional role, cf. Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305 (1985), as well as that which is deployed by the EPA in deciding just what level of SO2 is tolerable in power plants emissions.
25. 5 U.S.C. §701(a) (2006) ("This chapter applies, according to the provisions thereof, except to the extent that... (2) agency action is committed to agency discretion by law.").
26. Ethyl Corp. v. EPA, 541 F.2d 1, 68 (D.C. Cir. 1976) (Leventhal, J., concurring) ("In the case of agency decision-making the courts have an additional responsibility set by Congress. Congress has been willing to delegate its legislative powers broadly-and courts have upheld such delegation-because there is court review to assure that the agency exercises the delegated power within statutory limits, and that it fleshes out objectives within those limits by an administration that is not irrational or discriminatory.").
27. 5 U.S.C. §706 (2006) ("The reviewing court shall... (2) hold unlawful and set aside agency action, findings, and conclusions found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....") (emphasis added).
28. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,410 (1971).
29. Id. at 416 ("Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.").
30. Auto. Parts & Accessories Ass'n v. Boyd, 407 F.2d 330,337 (D.C. Cir. 1968).
31. Cf. THE FEDERALIST NO. 78 (Alexander Hamilton).
32. Motor Vehicle Mfts. Ass'n v. State Farm Mut Auto. Ins. Co., 463 U.S. 29 (1983).
33. William F. Pedersen, Jr., Formal Records and Informal Rulemaking, 85 YALE LJ. 38, 60 (1975).
34. Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935);
35. A.L.A. Schechter Poultry Co. v. United States, 295 U.S. 495 (1935);
36. see Todd D. Rakoff, The Shape of the Law in the American Administrative State, 11 TEL AVIV U. STUD. L. 9,21-24 (1992).
37. South Dakota v. U.S. Dep't of the Interior, 69 F.3d 878 (8th Cir. 1995), vacated, 519 U.S. 919 (1996).
38. U.S. Dep't of the Interior v. South Dakota, 519 U.S. 919 (1996). The Court did not say just what the standards were, but subsequent courts, including the Eighth Circuit on remand, have proceeded as if they could be found.
39. See Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 30-33 (D.C. Cir. 2008);
40. Carcieri v. Norton, 398 F.3d 22, 29 (1st Cir. 2005);
41. South Dakota v. U.S. Dep't of the Interior, 423 F.3d at 795-96;
42. United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999).
43. Judge Brown of the D.C. Circuit, in Michigan Gambling Opposition v. Kempthorne, strongly stated the opposing view. 525 F.3d at 34.
44. Ethyl Corp. v. EPA, 541 F.2d 1,68 (D.C. Cir. 1976) (footnotes omitted).
45. 517 N.E.2d 1350 (N. Y. 1987).
46. 531 U.S. 457,471 (2001).
47. Thus, Justice Scalia, who in other contexts has inveighed against finding elephants in mouseholes, see MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 (1994), wrote for the Whitman majority that "While Congress need not provide any direction to the EPA regarding the manner in which it is to define 'country elevators' [exempted from ordinarily applicable grain elevator standards]... it must provide substantial guidance on setting air standards that affect the entire national economy." 531 U.S. at 475.
48. 549 U.S. 497 (2007).
49. Id. at 532-33.
50. 129 S. Ct. 1498 (2009).
51. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
52. See Posting of Rick Hills to PrawfsBlawg, http://prawfsblawg.blogs.com/ prawfs-blawg/2009/04/does-scalia-abandon-textualism-in-entergy-corp-v- riverkeeper.html (Apr. 1, 2009, 10:40 PM) ("Does Scalia abandon textualism in Entergy Corp v. Riverkeeperl I think so. If I am right, then Entergy Corp, handed down today, is a significant defeat for textualism at the hands of its most zealous proponent");
53. cf. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE LJ. 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.").
54. "Politics," like "discretion," is a word of contrasting meanings, as Robert Post so thoughtfully shows in his contribution to this symposium. See Robert Post, Theorizing Disagreement.Reconceiving the Relationship Between Law and Politics, 98 CALIF. L. RE V. 1319 (2010). People may operate from the friend/enemy perspective, with loyalty as the central measure, or understand politics to embrace a collective reaching toward an acceptable judgment with celebration of open disagreement as the means of getting there. Presidents will vary how they understand it, as is so dramatically illustrated by the stances of our present and next-previous Presidents, see infra note 84 and accompanying text. The problem of "will" is that it must accept the friend/enemy view as possibly driving the judgment that can "never" be made in court.
55. Motor Vehicle Mfrs. Ass'n v. State Farm Mut Auto. Ins. Co., 463 U.S. 29 (1983).
56. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).
57. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
58. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN L. REV. 363 (1986).
59. See David J. Barron, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization, 76 GEO. WASH. L. REV. 1095, 1123-25 (2008), noting that the number of "political" positions in administration controlled by the White House, outside the Civil Service (including its politically somewhat vulnerable Senior Executive Service), and not requiring Senate confirmation, exceeds 2,500. Persons living in parliamentary systems built over permanent civil service bodies find this level of politically astounding. The Senate-confirmed positions are much less numerous, and notoriously slow to be filled. On April 14, 2009, the Library of Congress's Thomas website reported 127 presidential nominations as having been received for Senate consideration, for civilian positions (i.e., excluding Military, Foreign Service, NOAA, Public Health), and a number of these positions were nominations to judgeships in the federal or District of Columbia courts. See THOMAS, The Library of Congress, http://thomas.loc.gov/ (last visited Apr. 29,2009).
60. See generally STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH (2008);
61. but see Peter L. Strauss, Overseer or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696 (2007).
62. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803).
63. CHRISTOPHER F. EDLEY, JR., ADMINISTRATIVE LAW: RETHINKING JUDICIAL CONTROL OF BUREAUCRACY 169-206 (1990) (discussing doctrinal reforms that would promote the sound accommodation of politics within administrative law).
64. Consider these thoughts, put to me by Keith Bradley: I propose that we think of the difference between political and administrative discretion not in terms of how politics influences the making of a decision, but rather in terms of how one reverses a decision. . . . British politics [is] more democratic, in this sense, because so many decisions are made by ministers, and because the life of governments is undetermined. Even though ministers are appointed without confirmation by a powerful prime minister, a motivated citizen who wants to reverse a ministerial decision knows exactly what he has to do, and it entirely involves working to change the political personnel. Email from Keith Bradley to Peter L. Strauss (July 8, 2009) (on file with author).
65. Cf. THOMAS E. MANN & NORMAN J. ORNSTEIN, THE BROKEN BRANCH (2006).
66. WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION, STATUTES AND THE CREATION OF PUBLIC POLICY 66-68 (4th ed. 2007).
67. RICHARD E. NEUSTADT, PRESIDENTIAL POWER AND THE MODERN PRESIDENTS 10 (1991).
68. Cf. Post, supra note 39.
69. Harry S. Truman, Lecture at Columbia University (Apr. 28, 1959), available at http://www.quotationspage.com/quote/27058.html.
70. See infra text accompanying notes 68-70, 76-78.
71. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (Black, J.) ("[T]he President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker").
72. Rakoff, supra note 27.
73. Strauss, supra note 45.
74. U.S. CONST, art. II, §3.
75. Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct 1498, 1517 (2009) (Stevens, J., dissenting) (internal quotation marks omitted).
76. Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981). The opinion begins at page 298, and discussion of the ex parte issue begins on page 400; excluding its appendices, the opinion ends on page 410.
77. Id. at 410 (footnote omitted). Though footnote 540 was omitted, do note its number, in itself a signal of the intensity of the exercise.
78. BRUCE A. ACKERMAN & WILLIAM T. HASSLER, CLEAN COAL/DIRTY AIR 79-103 (1981).
79. 318 U.S. 80 (1943).
80. Kevin M. Stack, The Constitutional Foundations o/Chenery, 116 YALE LJ. 952, 95657 (2007) ("At its core, the Chenery principle directs judicial scrutiny toward what the agency has said on behalf of its action, not simply toward the permissibility or rationality of its ultimate decision; Chenery links permissibility to the agency's articulation of the grounds for its action.").
81. Stephen F. Williams, The Roots of Deference, 100 YALE LJ. 1103,1107-08 (1991).
82. See Massachusetts v. EPA, 549 U.S. 497 (2007).
83. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001).
84. The piece has since been published as Nina A. Mendelson, Disclosing "Political" Oversight of Agency Decision Making, 108 MICH. L. REV. 1127 (2010).
85. See generally Kagan, supra note 67, at 2272-319 (describing presidential efforts to standardize and centralize administrative practices).
86. Mendelson, supra note 68, at 1146-59. Professor Mendelson also noted opacity with respect to information required to be put in the rulemaking record. Under Executive Order 12,866, 3 C.F.R. 638 (1993), reprinted as amended in 5 U.S.C.A. §601 (2006), which governs White House oversight of rulemaking via OIRA, agencies must identify OIRA-induced changes and make available documents exchanged between OIRA and the agency. However, Professor Mendelson reported great difficulty in locating these items in agency dockets.
87. See Mendelson, supra note 68, at 1157 & n.160; see also id. at 1164-65 ("[T]he disclosure requirements of Executive Order 12,866 have been honored in the breach.").
88. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 YALE LJ. 2 (2009).
89. The two authors accordingly offer different solutions: Professor Watts proposes allowing agencies to defend actions against judicial challenge by identifying political influences consistent with relevant public values or policy choices, whereas Professor Mendelson advocates requiring agencies to include in rulemaking documents summaries of interactions with political actors.
90. Indeed, this is what one might expect of pieces scrutinizing justifications given by agencies in, respectively, the Federal Register and the courts; under SEC v. Chenery Corp., 318 U.S. 80 (1943), the rationales supplied in each forum must be the same.
91. Thus, both acknowledge that an agency should not be allowed to support its action by adverting to, say, the President's desire to help an industry that contributes substantial campaign funds.
92. Watts, supra note 71, at 2 (emphasis added).
93. 2 HARRY S. TRUMAN, MEMOIRS: YEARS OF TRIAL AND HOPE 454 (1956).
94. See swpra note 70.
95. See generally Sierra Club v. Costle, 657 F.2d 298, 405, 405 n.522 (D.C. Cir. 1981) ("To ensure the President's control and supervision over the Executive Branch, the Constitution- and its judicial gloss-vests him with ... the right to invoke executive privilege to protect consultative privacy."). For examples of reliance on executive privilege by, respectively, the Reagan and first Bush administrations,
96. see Steven T. Kargman, Note, OMB Intervention in Agency Rulemaking: The Case for Broadened Record Review, 95 YALE LJ. 1789, 1800-01 (1986)
97. and Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 ADMIN. L. REV. 1,21-23 (1994).
98. See Massachusetts v. EPA, 549 U.S. 497 (2007).
99. Id. at 552-53 (Scalia, J., dissenting).
100. Id.
101. But hardly the only such mechanism; see, e.g., Kagan, supra note 67;
102. Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47 (2006).
103. See Regulatory Review: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 5977 (Feb. 3, 2009);
104. Scientific Integrity: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 10,671 (Mar. 11,2009).
105. For instance, President Obama asked for public input on how to reform Executive Order 12,866,
106. see Office of Management and Budget, Federal Regulatory Review, 74 Fed. Reg. 8819 (Feb. 26, 2009), but of the 183 submissions received, not one came from a public agency.
107. See Public Comments on OMB Recommendations for a New Executive Order on Regulatory Review, http://www.reginfo.gov/public/jsp/EO/fedRegReview/ publicComments.jsp (last visited Mar. 20, 2010). This silence, striking in any event, might be taken to suggest a policy of clamping down on executive branch communications at the expense of transparency. Similarly, while President Obama has trimmed OIRA's role back to what it was in the Clinton years,
108. see Exec. Order No. 13,497, 74 Fed. Reg. 6113 (Feb. 4, 2009), even in the Clinton years, White House review of rulemaking did not lack critics of its politicizing and delay-promoting possibilities. As editing of this essay drew to a close, a watchdog organization reported that President Obama's OIRA appeared to have required specific changes in a recent EPA decision to place air pollution monitors near major roadways.
109. See Posting of Matthew Madia on OMB Watch, White House Meddling in EPA Rule on Air Pollution Monitors, http://ombwatch.org/node/10733 (Jan. 28, 2010).
110. See PETER M. SHANE, MADISON'S NIGHTMARE: HOW EXECUTIVE POWER THREATENS AMERICAN DEMOCRACY (2009).
111. Sinrarn v. Pa. R.R. Co., 61 F.2d 767, 771 (2d Cir. 1932).
112. Adrian Vermeule, Our Schmittian Administrative Law, 122 HARV. L. REV. 1095 (2009).