Greetings! My name is Jeff Pojanowski and I am excited to be a regular contributor on Notice and Comment. I am an Associate Professor at Notre Dame Law School, teaching and writing in administrative law, statutory interpretation, and legal theory more generally.
My first post is inspired by two readings: (1) Phillip Hamburger’s book Is Administrative Law Unlawful?, and (2) a paper I supervised last spring for a recently graduated law student. Hamburger’s book, which has garnered muchcommentary recently, is a cri de cœur against the constitutionality of the modern American administrative state. Unchecked congressional delegation of legislative power to agencies rates high on Hamburger’s bill of particulars. My student’s paper more modestly asked why the Supreme Court treats delegation challenges as judicially unenforceable while nevertheless grappling with other constitutional separation-of-powers questions that are not obviously more tractable.
All of which has gotten me thinking about what we might call the economy of complexity in constitutional and statutory review in administrative law. Few important legal aims and values of administrative law are easily attended to, especially through levers of judicial review. Attending to any one of these concerns will often lead to doctrinal complexity, as courts argue about, fine-tune, reconsider, or otherwise cast about for rules and standards that help protect a certain aim. Yet it is unlikely that a legal system can focus on all of the various concerns at the same time, or even focus on every way of attending to a single concern. So complexity in administrative law is like squeezing a balloon: you will have bulges in some places, but not others. (This idea is not new to me. Chaim Saiman at Villanova has a working draft exploring the idea regarding different common law systems.)
Accordingly, the areas of law and corresponding values where the courts choose to focus will become the most doctrinally complex ones, presumably because the reviewing courts think the effort is worth it. Other areas will trundle along without judicial supervision, left to negotiation between the other branches, regulated parties, and advocacy groups. (Which, depending on the circumstances, could be fine.) Enacted law can constrain how courts go about this, yet there is going to be some play in the joints, especially when courts have leeway to develop administrative common law and can vary emphasis on (or underenforce) constitutional and statutory norms.
Take concerns over excessive delegation. Even though many (but not all!) would like more direct congressional responsibility for important, hard regulatory choices, there is a broad consensus that direct enforcement of a non-delegation doctrine is a non-starter. Instead, this consensus treats the problem as a harm to be endured for lack of better options or ameliorated through other doctrines. Rather than dealing with the complexity of crafting doctrine on how much delegation is too much, courts arguably compensate with hard-look review, bulked up notice-and-comment requirements, more stringent duties of reasoned explanation, and perhaps even Chevron deference to prod Congress toward greater statutory precision.
This may be the best arrangement, all things considered. Yet we often (or at least I often) take for granted the current distribution of complexity in our administrative law system—the bulges in the balloon simply are where they are. But perhaps it is worth wondering whether such complacence is always warranted. My federal criminal law professor, the late, great, and sorely missed William Stuntz, once commented in class that he would trade the Warren Court’s innovations in criminal procedure for a vigorously enforced right to effective trial counsel. Squeezing complexity to a different part of the balloon, he suggested, could achieve the same goal more effectively.
I am starting to wonder about this in administrative law. Would it make sense, for example, to trade a more vigorously enforceable non-delegation doctrine in exchange for radically lightened notice-and-comment procedural requirements, less monitoring of the use of non-legislative rules, more simplified judicial review of questions of law, and/or arbitrary-and-capricious review that looks a lot more like rationality review? This may be crazy; things often are the way they are for a reason. But it might be worth unpacking. More on this anon.