This week at the Seventh Annual Junior Faculty Federal Courts Workshop, hosted by the University of Georgia School of Law (with Kent Barnett and Matt Hall as organizers), there have been a number of terrific presentations that attempt to bridge the gap between theory and practice with an obvious focus on court-related topics such as standing, habeas, class actions, and the like. But there was also a terrific panel on administrative law, and one piece in particular seemed like a great one to highlight in this week’s AdLaw Bridge Series.
In a very well-written paper entitled “The Power To Privilege” ( University of Pennsylvania Law Review forthcoming), Mila Sohoni explores a recent legislative development in the context of the Affordable Care Act: Congress has delegated authority to a federal agency to create evidentiary privileges — something that has traditionally been left to Congress or the courts. Her abstract nicely summarizes the development and accompanying problems:
A new and startling development has recently occurred in the law of delegation: Congress has for the first time expressly delegated to an administrative agency the power to write rules of privilege. Privileges abound in federal law, but until now they have been defined either by statute or by judicial opinion. The type of law that Congress has now authorized agencies to create — the regulatory evidentiary privilege — is a true novelty in our system of law.This article is the first to grapple with the implications of migrating the power to write rules of privilege from Congress and the courts, on the one hand, to the executive branch, on the other. It begins by describing an underappreciated aspect of the administrative state: that the law of privilege is becoming increasingly important to the functioning of administrative agencies. As a result, administrative agencies are actively pursuing control over the law of evidentiary privilege in order to further their substantive mandates.Granting agencies that sought-after control through a privilege delegation will imperil key federal and state regulatory and governance interests. First, privilege delegations will reduce agency accountability. A delegated authority to write privileges that enables an agency to shield its own communications from disclosure will allow the agency to insulate itself from external review and oversight. Second, privilege delegations will erode state interests in allowing litigants and the public broad access to information. Agencies promulgating regulatory evidentiary privileges are likely to displace state laws that would permit disclosure to a greater extent than would be the case if Congress and the courts retained the privilege pen. Third, privilege delegations threaten to undercut state sovereignty. When Congress authorizes federal agencies to privilege the communications of state officials, it obstructs the capacity of the states to monitor state agents and thereby produces a type of harm akin to prohibited Congressional commandeering of state governance.After establishing the risks attendant to privilege delegations, the article offers some principles that should govern the choice of institution responsible for drafting any new set of privileges that may be invoked by executive branch agencies. Finally, the article explains why this innovation in delegation provides a unique opportunity to test prevailing scholarly models of why and to whom Congress chooses to delegate. When it delegates the power to privilege to an agency, Congress is substituting a new delegate — a politically accountable executive agency — for an old delegate — the politically unaccountable federal courts. Accounts of delegation grounded in party competition have greater explanatory power for this swapping of delegates than alternative accounts.
This is a fascinating legislative development, and it will be interesting to see whether it has staying power as part of the legislative toolbox and what regulatory privilege rules are created (as Professor Sohoni notes, to date there has been no agency action). If I were ever to write an essay calling for the revival of an enforceable Nondelegation Doctrine, this administrative power to privilege may be Exhibit No. 1. Professor Sohoni does a terrific job near the end of the paper in making us rethink our view of the appropriate “delegation swaps” between courts and agencies.
On the other hand, I can imagine that if Congress wanted to create new privileges to assist the administrative state in carrying out its regulatory responsibilities, it would make sense to leverage agency expertise on those substantive matters. Professor Sohoni’s solution is to vest all power in the judicial rulemaking process with input from the federal agencies and other interested parties. Another option could be to retain the statutory delegation as is — a regulation that goes through notice-and-comment rulemaking and maybe even OIRA presidential review (as well as APA hard look review in the courts). But perhaps Congress could also add in the last step of the judicial rulemaking process: require congressional approval of the agency’s proposed privileges.
On a somewhat tangential point, Professor Sohoni’s provocative paper also underscores the breadth and variety of privileges asserted across the regulatory state. I am now curious about how various agencies — in these laboratories of bureaucracy — approach their use of privileges. What are the common pitfalls, best practices, etc.? I hope Professor Sohoni’s paper encourages more work to better understand the role of privileges on the ground in the modern administrative state.