Notice & Comment

Scholarship Award to Nina Mendelson, by Michael Herz

The Administrative Law Section presents an annual award for the strongest piece of academic scholarship on administrative law published in the past year. The award is presented at the Section’s fall conference.

This year’s winner was Professor Nina Mendelson of the University of Michigan for Disclosing “Political” Oversight of Agency Decision Making, 108 Michigan Law Review 1127 (2010). As the committee noted in announcing its selection, Professor Mendelson, who joined the Michigan faculty in 1999 after several years in the Environment Division of the Department of Justice, has “produced a body of scholarship in administrative law that is rich, complex, and important; indeed, as an active and engaged scholar, she has consistently published creative, thoughtful scholarship of the very highest caliber that has made major contributions to the field. Competition for this award was quite intense, with over a dozen wonderful works, authored by a very gifted group of administrative law scholars, comprising the pool of finalists. After careful reading and review of these works, and several weeks of deliberation, Professor Mendelson’s article emerged as the committee’s clear and unanimous choice.”

The winning article is part of a growing literature on the legitimacy, and relevance to judicial review, of “political considerations” — essentially, White House preferences — in agency rulemaking. Here is the abstract:

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President’s accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action.

The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House’s Office of Management and Budget is associated with high levels of changes in agency rules. Further, this Article documents the comparative silence regarding the effect of that supervision. The Office of Management and Budget and the agencies generally do not report the content of supervision by presidential offices. They also do not report whether a particular agency decision is consistent with presidential preferences. Silence about content, this Article suggests, threatens to undermine the promise of presidential influence as a source of legitimacy for the administrative state.

This Article then argues for greater transparency. Agencies should be required to summarize executive influence on significant rulemaking decisions. Such an ex ante disclosure regime is superior to proposals that judges be more receptive to political reasons in reviewing a particular agency action. Finally, this Article suggests that while some, but not all, political reasons for agency action are legitimate, only a more transparent system-one that facilitates public dialogue and accountability to Congress-can fully resolve the question of which reasons are legitimate and which are not.

For those who would like a longer summary, I have posted one on JOTWELL, available here.  And the article itself can be found here.

The previous winners of the Section’s scholarship award form a distinguished group.  Congratulations to Professor Mendelson on joining them.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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