Administrative Law Assignment Instructions Overview PLEASE COMPLETE A POWERPOINT ? Readings for this assignment: ? Dresang, Dennis. The Public Administration Workbook. 7th ed. New York:

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Administrative Law, Public Administration, and the

Administrative Conference of the United States

Gillian E. Metzger*

ABSTRACT

From its birth, administrative law has claimed a close connection to gov- ernmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. The causes of ad- ministrative law’s disconnect from actual administration are complex and the divide is now longstanding, but it is also a source of concern given the increas- ing importance of internal administration for ensuring accountable govern- ment. This Article analyzes the contemporary manifestations and historical origins of administrative law’s divide from public administration, as well as the growing costs of this disconnect. It also describes the Administrative Con- ference of the United States (“ACUS”)’s exceptional status as the rare forum spanning the worlds of both administrative law and public administration, and the critical role ACUS can play in reasserting linkages between these two criti- cal dimensions of government.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1517 R

I. THE ADMINISTRATIVE LAW AND PUBLIC

ADMINISTRATION DIVIDE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1520 R

A. Manifestations of the Administrative Law-Public Administration Divide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1520 R

B. Historical Antecedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1524 R

C. Contemporary Contributing Forces . . . . . . . . . . . . . . . . . . 1531 R

II. BRIDGING THE DIVIDE: THE ROLE OF THE

ADMINISTRATIVE CONFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . 1534 R

A. The Arguments for Closer Linkage . . . . . . . . . . . . . . . . . 1534 R

B. ACUS’s Bridging Function . . . . . . . . . . . . . . . . . . . . . . . . . . 1536 R

INTRODUCTION

A funny thing happened to administrative law in the United States over the course of the twentieth century. Administrative law

* Stanley H. Fuld Professor of Law, Columbia Law School; Public Member, Administra- tive Conference of the United States.

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emerged as a field at the century’s beginning, in response to the growth in national administrative government.1 The 1946 enactment of the Administrative Procedure Act2 (“APA”), following an intensive study of different federal agencies’ practices, represented an acknowl- edgement that the administrative state was here to stay.3 Subsequent administrative law transformations have also been tied to changes in how agencies operate. For example, the expansion in the procedural requirements for notice-and-comment rulemaking followed agencies’ increased use of such rulemaking.4 Centralized regulatory review and other forms of presidential direction, perhaps the most significant ad- ministrative developments of the last few decades, are a core part of administrative law casebooks and scholarship.5

In short, from its birth, administrative law has claimed a close connection to governmental practice.6 But, in fact, as administrative law has grown and matured, it has moved further away from critical aspects of how agencies function.7 As many have noted, administra- tive law focuses almost entirely on external dimensions of administra- tive action, and the external dimensions it targets are increasingly not the main drivers of administrative action.8 To be sure, courts police

1 See Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1671–72 (1975); see also JERRY L. MASHAW, CREATING THE ADMINISTRATIVE CON-

STITUTION: THE LOST ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE LAW 3–17 (2012) (noting the conventional view that administrative organization and administrative law came into being at the national level in the late nineteenth century, but arguing that both have actually existed since the nation’s founding).

2 Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified at 5 U.S.C. §§ 551–559, 701–706 (2012)).

3 For a detailed history of the APA’s enactment, see George B. Shepherd, Fierce Com- promise: The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. U. L. REV. 1557 (1996). See also Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72 VA. L. REV. 219, 224–29 (1986) (describing the work of the Attorney General’s Committee on Administrative Procedure).

4 See Gillian E. Metzger, Foreword: Embracing Administrative Common Law, 80 GEO. WASH. L. REV. 1293, 1300 & n.26 (2012). New statutes mandating use of rulemaking and impos- ing new procedural requirements, such as the Clean Air Act, also played a significant role.

5 See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 485–91 (2003) (describing the presidential control model in administrative and constitutional law scholarship); Elena Kagan, Presidential Adminis- tration, 114 HARV. L. REV. 2245, 2281–319 (2001) (describing different forms of presidential administration and their increasing importance); see also Don Bradford Hardin, Jr., Comment, Why Cost-Benefit Analysis? A Question (and Some Answers) About the Legal Academy, 59 ALA. L. REV. 1135, 1136–37 (2008) (documenting a dramatic rise in legal scholarship related to cost- benefit analysis, the key component of centralized regulatory review).

6 See infra Part I.B. 7 Id. 8 See infra notes 24–32 and accompanying text. R

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agency conformity with procedural requirements imposed by the APA, other statutes and regulations, and constitutional due process, but these legal mandates govern only a small part of agency opera- tions.9 Courts insistently exclude more systemic aspects of agency functioning from their purview and from administrative law doc- trines.10 Key internal agency dynamics—such as planning, assessment, oversight mechanisms and managerial methods, budgeting, personnel practices, reliance on private contractors, and the like—are left in- stead to public administration. As a result, despite their common con- cern with administrative agencies, the fields of administrative law and public administration interact largely as passing strangers, acknowl- edging each other’s existence but almost never engaging in any sus- tained interchange.

The causes of administrative law’s separation from public admin- istration are complex and rooted in historical field development, ideo- logical commitments, institutional role, constitutional principle, and good old-fashioned turf protection. This separation reflects adminis- trative law’s traditional court-centric focus, and much can be said for keeping the courts out of the internal world of agency functioning. Yet administrative law’s growing disconnect from actual government practices is cause for concern. This disconnect perpetuates a false im- age of how agencies operate and the role of internal administration. In a number of contexts internal administration is the linchpin for en- suring accountable government, particularly given the obstacles to ex- ternal constraint through congressional oversight or judicial review.11

Moreover, whether intentional or not, administrative law affects inter- nal agency operations in significant ways. Hence, administrative law’s inattention to public administration risks impeding development of good administrative practices and worse, incentivizes agencies to adopt bad ones, at a time when the importance of strong internal ad- ministration is only growing.

Enter ACUS. Although the separation of administrative law from public administration is longstanding, there have been rare in- stances of linkage between the two. ACUS represents one such in- stance. Not only does its membership bridge the internal-external

9 See Edward Rubin, It’s Time to Make the Administrative Procedure Act Administrative, 89 CORNELL L. REV. 95, 96–97, 105–11 (2003); see also William H. Simon, The Organizational Premises of Administrative Law, 78 LAW & CONTEMP. PROBS. 61, 61–63, 70–74 (2015).

10 See Gillian E. Metzger, The Constitutional Duty to Supervise, 124 YALE L.J. 1836, 1859–73 (2015).

11 See id. at 1849–59.

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divide, consisting of agency officials and public members from outside of government, but the projects it undertakes also span the worlds of administrative law and public administration. ACUS is thus ideally situated to address the growing disconnect between these two fields, studying how administrative law affects internal agency operations and assessing whether—and how—administrative law might be used to improve public administration.

I. THE ADMINISTRATIVE LAW AND PUBLIC

ADMINISTRATION DIVIDE

Administrative law and public administration scholars both be- moan the disconnect between their fields, a disconnect evident through a comparison of key agency internal practices and administra- tive law doctrines. The historical roots of this divide trace back to both fields’ origins in the United States at the outset of the twentieth century. But over time the divide has expanded and become en- trenched, based today more expressly on separation of powers princi- ples, concerns about the impact of judicial review on agency functioning, and the dominance of managerialist approaches to public administration.

A. Manifestations of the Administrative Law-Public Administration Divide

At first glance, the claim that administrative law is divorced from how agencies actually function seems patently false. After all, a core focus of the APA—the nation’s most foundational administrative law enactment—is agency process, setting out basic procedural require- ments for agencies to follow.12 Federal courts in turn have penned an endless number of administrative law decisions interpreting those re- quirements, and learning the details of the resultant doctrines is one of the joys experienced by many a student of administrative law. Moreover, study of centralized White House regulatory review, imple- mented through the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) and a cen- tral factor today in major rulemaking, is another administrative law staple.13 In addition, administrative law scholars increasingly are turn- ing their attention to important internal dynamics that shape how

12 See, e.g., 5 U.S.C. §§ 553–557 (2012). 13 See, e.g., PETER L. STRAUSS ET AL., GELLHORN & BYSE’S ADMINISTRATIVE LAW: CASES

AND COMMENTS 213–41, 685–89 (11th ed. 2011) (detailing instances of presidential direction and review as well as connected scholarship); see also Kagan, supra note 5. R

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agencies operate, such as an agency’s internal organization and design or the use of multiple agencies to implement a regulatory scheme.14

Yet, appearances can be deceiving. A key feature of the APA is that it represents external controls, imposed by statute and elaborated on by courts. Process requirements developed by agencies themselves rarely rise to the fore in administrative law, except with respect to whether those requirements are judicially enforceable.15 Despite their central importance to how federal agencies function today, centralized regulatory review and presidential direction remain remarkably ab- sent from administrative law decisions.16 The same is true of other significant internal agency features, such as priority-setting and plan- ning processes or the role of career officials in agency decisionmak- ing.17 Perhaps the clearest evidence of this doctrinal absence is offered by Lujan v. National Wildlife Federation,18 where the Supreme Court ruled it lacked jurisdiction over a challenge to the Bureau of Land Management’s failure to undertake programmatic and planning activities with respect to public lands.19 According to the Court, such activities were too “wholesale” or systematic to come within the scope of judicial review, which it deemed limited to discrete agency ac- tions.20 In a subsequent decision the Court tied this exclusion even more firmly to the terms of the APA’s grant of jurisdiction,21 but it has also sometimes held that general or programmatic challenges are barred on constitutional standing grounds.22

14 See, e.g., Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 HARV. L. REV. 1131 (2012) (detailing and analyzing interagency coordination); Jacob E. Gersen, Designing Agencies, in RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW

333 (Daniel A. Farber & Anne Joseph O’Connell eds., 2010) (discussing public choice theory and issues of agency design); Matthew C. Stephenson, Information Acquisition and Institutional Design, 124 HARV. L. REV. 1422 (2011) (discussing the effects of legal-institutional design choices on government decisionmakers’ incentives to invest in information).

15 See Elizabeth Magill, Foreword: Agency Self-Regulation, 77 GEO. WASH. L. REV. 859, 860–61, 873–91 (2009); see also STRAUSS ET AL., supra note 13, at 203–07, 926–34 (describing R internal agency processes connected to rulemaking and with respect to judicial review).

16 See Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 TEX. L. REV. 1137, 1138–39, 1155–57 (2014); Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 YALE L.J. 2, 7, 18–23 (2009).

17 See Rubin, supra note 9, at 97; Sidney A. Shapiro, Why Administrative Law Misunder- R stands How Government Works: The Missing Institutional Analysis, 53 WASHBURN L.J. 1, 10–13, 23–24 (2013); Simon, supra note 9, at 74–79. R

18 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990). 19 Id. at 891–94. 20 Id. 21 See Norton v. S. Utah Wilderness All., 542 U.S. 55, 61–67 (2004). 22 See, e.g., Lewis v. Casey, 518 U.S. 343, 349 (1996); Allen v. Wright, 468 U.S. 737, 759–60

(1984).

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Increasingly administrative law scholars are arguing that exclu- sion of these systemic internal features is separating administrative law from the main drivers of agency functioning. According to these scholars, classical or canonical administrative law—defined generally as “the text and judicial interpretations of the APA and associated constitutional doctrine. . . does not reach some of the most practically important official conduct”23 and “can seem like a minor presence in the modern regulatory process.”24 William Simon argues that admin- istrative law traditionally emphasizes top-down, bureaucratic delega- tions and specific acts of rulemaking.25 Simon further contends that this approach not only leaves vast areas of agency discretion unregu- lated, but also is at odds with contemporary models of administration, which focus on overall planning and monitoring and derive legitimacy from transparency and processes for continuous revision.26 Dan Far- ber and Anne O’Connell agree that current administrative law is pre- mised on a “lost world,” one in which a statutorily authorized agency implements statutory requirements, following mandated procedures and undertaking reasoned consideration of both the requirements and evidence before the agency, with the agency’s determination subse- quently reviewable by courts.27 “The reality of the modern adminis- trative state,” however, is quite different: executive directives as well as statutory requirements are in play; multiple agencies (often lacking confirmed leaders) are charged with implementation, yet in practice authority may rest elsewhere, in particular in the hands of OIRA and White House staff; mandated procedures are avoided; political, as op- posed to statutory, factors drive decisionmaking; and little judicial oversight is available.28

Edward Rubin takes the argument even further, contending that “the APA was out of date at the time it was enacted” because its re- quirements “are derived from an essentially judicial concept of gov- ernance in which laws are discovered rather than invented and policy making is always incremental,” thereby ignoring the distinctive fea- tures of the administrative process and leaving key activities “such as priority setting, resource allocation, research, planning, targeting, gui- dance, and strategic enforcement” either “essentially unregulated or

23 Simon, supra note 9, at 62, 64. R 24 Farber & O’Connell, supra note 16, at 1138. R 25 See Simon, supra note 9, at 63–92. R 26 Id. 27 Farber & O’Connell, supra note 16, at 1154. R 28 Id. at 1154–73.

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subject[ed] . . . to inappropriate procedural rigidities.”29 Like Rubin, Sidney Shapiro faults administrative law for failing to heed the in- sights of public administration.30 In Shapiro’s view, administrative law is excessively focused on “outside-in accountability,” specifically polit- ical and legal controls external to an agency, and ignores the ways that “hierarchy . . . institutional norms, and professionalism promote ac- countability from inside an agency.”31 Jerry Mashaw puts the point particularly well:

[W]e tend to think of our administrative constitution as a set of external constraints on agencies. . . . [and] relentlessly ana- lyze these external constraints as if they were the major de- terminants of agency efficiency, procedural fairness, and legal legitimacy. Yet in many ways it is the internal law of administration—the memoranda, guidelines, circulars, and customs within agencies that most powerfully mold the be- havior of administrative officials.32

Strikingly, some public administration scholars also critique the disconnect between administrative law and public administration. But, they approach this disconnect from the opposite direction, fault- ing their field for its refusal to take seriously the central role of public law in public administration. Thus, Laurence Lynn critiques public administration’s “anti-legal temper,”33 arguing that “a broad consen- sus within public administration appears to hold that law is one of many environmental constraints on administrative discretion rather

29 Rubin, supra note 9, at 96–97. R 30 Shapiro, supra note 17, at 1. R 31 Id. Note that although these scholars agree that administrative law fails to encompass

key dimensions of modern administration, they take somewhat different stances on the specific features of this mismatch. In particular, whereas Simon argues that current administrative law is too bureaucratic and hierarchical in its focus and Farber and O’Connell describe it as failing to acknowledge the role of presidential and executive branch directives, Shapiro’s complaint is that administrative law does not give hierarchy enough weight and is too focused on presidential oversight. Compare Simon, supra note 9, at 67–74, and Farber & O’Connell, supra note 16, at R 1154–60, with Shapiro, supra note 17, at 11–25. See also Sidney A. Shapiro & Ronald F. Wright, R The Future of the Administrative Presidency: Turning Administrative Law Inside-Out, 65 U. MIAMI L. REV. 577, 585–87 (2011) (detailing the benefits of bureaucratic control). This discrep- ancy may result from the fact that Shapiro is targeting administrative law scholarship somewhat more than administrative law’s statutory and doctrinal manifestations, but in any event these differences do not take away from their shared agreement that administrative law fails to ac- knowledge important internal administrative features that drive agency behavior.

32 MASHAW, supra note 1, at 313. R 33 The phrase originated with DWIGHT WALDO, THE ADMINISTRATIVE STATE: A STUDY

OF THE POLITICAL THEORY OF AMERICAN PUBLIC ADMINISTRATION 79 (1948). See Laurence E. Lynn, Jr., Restoring the Rule of Law to Public Administration: What Frank Goodnow Got Right and Leonard White Didn’t, 69 PUB. ADMIN. REV. 803, 803 (2009).

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than its source” and gives “short shrift to the relationship between law and administration.”34 Such dismissals of law are misguided not just because of the myriad ways that law impinges on administration, but also because “public administrators necessarily play an essential role in defining what the rule of law means in practice.”35 Other public administration scholars similarly contend that “the basic theory guid- ing governmental organization and management . . . is to be found in public law” and bemoan that public administration orients itself around management principles instead of public law.36

B. Historical Antecedents

The current divide between administrative law and public admin- istration is not a new phenomenon, but dates back to when both fields emerged as areas of academic study and practice at the beginning of the twentieth century. Early scholars of administrative law disagreed in fundamental ways about how the field should develop. Some, in particular Frank Goodnow and Ernest Freund—both political scien- tists as well as legal academics—saw features of internal administra- tion as a core part of administrative law’s ambit.37 Goodnow began his 1905 treatise on administrative law with a disquisition on the meaning of administration, along with an insistence on paying atten- tion to how government actually operates:

Since administration and administrative law have to do with the governmental system in operation, or, in other words, with the actual operations of political life, it is absolutely necessary that the study of these subjects take into account not merely the formal governmental system as it is outlined in charters of government and legal rules, but, as well, those extralegal conditions and practices which, it has been shown,

34 Lynn, supra note 33, at 803. R

35 Id. at 805, 808–09; see also ANTHONY M. BERTELLI & LAURENCE E. LYNN JR., MADISON’S MANAGERS: PUBLIC ADMINISTRATION AND THE CONSTITUTION 73 (2006) (“By ig- noring [law], public administration contributes to its own powerlessness.”).

36 See Ronald C. Moe & Robert S. Gilmour, Rediscovering Principles of Public Adminis- tration: The Neglected Foundation of Public Law, 55 PUB. ADMIN. REV. 135, 135–36 (1995); see also Lynn, supra note 33, at 805–06 (quoting public administration scholars who emphasize pub- R lic law).

37 See WILLIAM C. CHASE, THE AMERICAN LAW SCHOOL AND THE RISE OF ADMINISTRA-

TIVE GOVERNMENT 47–59 (1982); Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 COLUM. L. REV. 939, 973 (2011).

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have such an important influence on the real character of governmental systems.38

Goodnow followed this introduction with a detailed review of the organization of administration, including the organization of executive departments and chief executive authority, turning to judicial control of administration only at the end.39 Freund, in turn, “sought to bridge what he saw as the differentiated study of administrative organization and administrative powers, the former of which focused on optimizing internal public administration and the latter of which performed the ‘more strictly legal’ task of protecting ‘right and justice.’”40 Freund was an advocate of greater external constraints on administrative dis- cretion, in particular more detailed legislative specification to guide agency decisionmaking. But he also expressly highlighted the poten- tial benefits of internal administrative systems of control, which he emphasized operate constantly on subordinate officers and—unlike courts—can fully address questions of the wisdom and expediency of discretionary action.41 Acknowledging the tendency to see “adminis- trative law . . . [as] primarily judicial law controlling the administra- tion,” he urged also applying the term “to a body of principles produced by the administration” on the grounds that longstanding “administrative practise [sic] has many of the characteristics of law.”42

Goodnow and Freund were not alone. Another leading early ad- ministrative law scholar, Bruce Wyman, framed his 1903 treatise around a distinction between internal and external administrative law. According to Wyman, “[e]xternal administrative law deals with the relations of the admi