One of the most effective ways to bridge the gap between the theory and practice of administrative law is for theorists to actually practice administrative law and then reflect on that practice experience. Indeed, some of the most important contributions to the administrative law literature have come from law professors upon their return from stints in government. Now-Justice Elena Kagan’s “Presidential Administration” may be the classic example. More recent examples include Jennifer Nou‘s “Agency Self-Insulation Under Presidential Review” and all that Cass Sunstein has written about his time as OIRA Administrator from 2009 to 2012 (see, for example, here , here, and here).
Add Margo Schlanger‘s “Offices of Goodness: Influence Without Authority in Federal Agencies,” which was just published in the Cardozo Law Review, to the list of pathbreaking articles that leverage experience inside the administrative state to help us better theorize and hopefully administer. Professor Schlanger’s contribution touches on the undertheorized and even less investigated realm of “soft institutional design” in administrative law — to borrow from Adrian Vermeule‘s Jotwell review of the piece . Here’s a summary of the piece, from the SSRN abstract:
Inducing governmental organizations to do the right thing is the central problem of public administration. If Congress or another principal wants a federal executive agency to pay attention to a value that constrains or conflicts with the agency’s overall mission — that additional value is here labeled, generically, “Goodness” — the principal often creates a subsidiary agency office — an “Office of Goodness.” Both policymakers and scholars should care about how and when Offices of Goodness work. Yet while Offices of Goodness are frequently established in federal agencies, they are nearly invisible in scholarship. And the resulting knowledge gap is currently particularly problematic, because President Obama has just proposed a new Office of Goodness, within the National Security Agency, to increase oversight of surveillance activities. An Office of Goodness’s success is far from guaranteed; to actually increase Goodness in its agency, its staff must skillfully use a highly constrained toolkit, and they must avoid the twin shoals of impotence or capture/assimilation. This Article analyzes the relevant dynamics.The Article begins by describing a paradigmatic Office of Goodness, the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, and the details of four controversies — information-sharing relating to the Occupy movement; laptop border searches; Border Patrol’s Spanish-language assistance for police; and data retention by the National Counterterrorism Center. These examples ground the more general discussion that follows, which is also informed by both theory and other case studies. The Article canvasses tools available to an Office of Goodness — inclusion in working groups; clearance authority; advice-giving; training and technical assistance; program review; complaint investigation; outreach; document generation; and congressional reporting. It then explains why Office influence and commitment are continually threatened, and argues that both depend crucially on external reinforcement, from Congress, the White House, non-governmental organizations, the courts, or other agencies. Office of Goodness efficacy should not be taken for granted. Unless the goal is purely cosmetic, each Office’s tools must be carefully prepared, and its influence and commitment purposefully produced and maintained.By focusing inside federal agencies and on personnel who offer advice rather than run agency operations, the Article adds to both the “structure and process” strand of positive political theory and research into public administration and bureaucratic theory. Its ambition is to raise the salience of the Office of Goodness strategy, placing it more prominently on the menu of “internal separation of powers” devices for further analysis and assessment.
The reason that these offices of goodness are “nearly invisible in scholarship” is likely because it takes having worked at one of them — something Professor Schlanger did at the Department of Homeland Security Office for Civil Rights and Civil Liberties. But it’s not enough to have served in government to produce such a theoretically rich yet highly practical framework for understanding how agencies can use less formal institutions within agencies — institutions which may have no formal powers to control or bind, only soft powers to collect information, advise, and persuade — to protect the agency against itself (and to protect the regulated against the regulator). It takes someone steeped in the theory of institutional design and governance. In his Jotwell review of the piece, Professor Vermeule summarizes nicely the contribution this piece makes to the theory and practice of administrative law:
Schlanger has given us one of very few treatments of soft institutional design — perhaps the very first, depending whether one thinks that earlier papers on privacy offices and inspectors-general properly belong in the same category, or instead raise somewhat distinct issues. In any event, those papers did not abstract from the particulars. Schlanger has thus gone well beyond the earlier efforts by generalizing her analysis to the level of species-identification. The result is a memorable contribution to the institutional design of the administrative state.
Professor Schlanger also begins an important practical conversation by suggesting a toolkit for these offices of goodness to utilize to avoid being captured or assimilated into the agency’s more general mission and function as well as to carry out their goodness functions effectively. Although she draws primarily from her personal experience at DHS to identify and develop these tools and best practices, she also looks outward to other agencies. I hope others both inside the administrative state and from the academy continue to build on this important foundation concerning the soft institutional design of the modern administrative state. As the regulatory state continues to subsume the role of lawmaking and policymaking in American governance, having informal goodness checks to protect the individual liberty of the regulated is even more critical.