Notice & Comment

The Procedure Fetish

That’s the title of a new article of mine, slated for publication in the Michigan Law Review. It’s more polemical than most of my work, and it aims to disrupt some of the tidy stories that organize modern administrative law. Although I hope it finds an audience across the political spectrum, its primary target is my friends on the left, many of whom I fear are playing into the hands of those who want to strangle the administrative state.

The article opens with a puzzle. Knowing full well that onerous procedural rules will hamstring federal agencies, Republican policymakers have pushed “regulatory reform” bills like the Regulatory Accountability Act, the REINS Act, and the Separation of Powers Restoration Act. By tilting the scales against agency action, Republicans hope to end job-killing regulations and invigorate the free market. It’s a libertarian’s dream.

Democrats get it. They understand that the tangle of new procedural rules, if adopted, would bind the administrative state as effectively as Lilliputian ropes bound Gulliver. And they’ve generally (though not universally) opposed what they view as brazen anti-statist measures, which would frustrate their efforts to forestall environmental degradation, protect consumers, and empower workers.

So here’s the puzzle. If adding new administrative procedures will so obviously advance a libertarian agenda, might not relaxing existing administrative constraints advance liberal ones? What if Gulliver is already bound?

Yet there is no energy on the left behind the idea that relaxing administrative constraints will advance progressive goals. In today’s political landscape, “regulatory reform” is strictly the province of Republican policymakers, so much so that the anodyne phrase has acquired an anti-regulatory connotation. Republicans have a reform agenda. Democrats don’t.

It’s not for want of targets. In prior work, for example, I’ve argued that the Office of Information and Regulatory Affairs imposes a drag on regulation without adequate justification; that the presumption of reviewability, and particularly the presumption in favor of pre-enforcement review, should be abandoned; and that the reflexive invalidation of defective agency action is wasteful and unnecessary. The list goes on. The judicially imposed rigors of notice-and-comment rulemaking, the practice of invalidating guidance documents that are “really” legislative rules, the Information Quality Act, the logical outgrowth doctrine, nationwide injunctions against invalid rules—all could and perhaps should be reconsidered.

Why aren’t progressives clamoring to loosen administrative law’s constraints? The answer, I think, can be traced (at least in part) to two stories that have become deeply embedded in our legal culture. Fidelity to procedures, one story runs, is essential to sustain the fragile legitimacy of a powerful and constitutionally suspect administrative state. On the other story, procedures assure public accountability by shaping the decisions of an executive branch that might otherwise be beholden to factional interests. Taken together, these stories suggest we should be thankful for the procedures we have and nervous about their elimination.

But this legitimacy-and-capture narrative is overdrawn—indeed, it is largely a myth. Proceduralism has a role to play in preserving legitimacy and discouraging capture, but it advances those goals more obliquely than is commonly assumed and may exacerbate the very problems it aims to address. In building this argument, I aim to call into question the administrative lawyer’s instinctive faith in procedures, to reorient discussion to the tradeoffs at the heart of any system designed to structure government action, and to soften resistance to a reform agenda that would undo procedural rules that do more harm than good.

In this, I hope to bring the practice of administrative law into conversation with a line of revisionist academic work that questions the left’s embrace of court-centric legalism. That work, among other things, recovers how Progressive and New Deal state-builders consciously embraced a results-oriented, non-legalistic approach to administrative power. They understood—more clearly than we do now—that strict procedural rules and vigorous judicial oversight could be mobilized to frustrate their efforts to curb market exploitation, to protect workers, and to press for a fairer distribution of resources.

The left’s anti-proceduralist orientation shifted in the wake of Brown v. Board of Education, when the fight for civil rights moved into a legalistic register—a shift that, in the revisionist telling, both narrowed the scope of the civil rights movement’s ambitions and hampered its efforts to address yawning racial inequalities. Inspired by the civil rights example, however, progressive reformers in the 1960s and 1970s embraced antagonistic legalism in an effort to spur the vigorous enforcement of new environmental and consumer protection laws. That legalism, which opponents of state action avidly supported, is our inheritance from that era.

On net and over time, however, the legalistic approach to governance may exacerbate the wealth and power imbalances that liberals wish to root out. I recognize that now may not be the most auspicious time to press the point, when liberals have seized on administrative law as a means to resist the Trump administration. But President Trump is temporary; administrative law is not. And an administrative law oriented around fears of a pathological presidency may itself be pathological—a cure worse than the disease.

In the meantime, the endless hand-wringing over agency legitimacy and accountability breeds contempt for governance. Instead of the instruments of public aspirations, agencies become the bastard stepchildren of a damaged constitutional system, rife with corruption and inside dealing. That dyspeptic vision aligns neatly with suspicion of the state; it is, however, difficult to harmonize with a progressive belief in the promise of government to achieve collective goals.

We should revive a strain of thinking that connects the legitimacy of the administrative state to its ability to satisfy public aspirations: to enable a fairer distribution of wealth and political power; to protect us from the predations of private corporations; and to minimize risks to our health, financial security, and livelihoods. A decade after a financial crisis roiled the financial markets, in a century where climate change threatens environmental catastrophe, and in an era of growing income and wealth inequality, the wisdom of allowing procedural rules to hobble federal agencies is very much open to question.

Administrative law may be about good governance, but it is also about power: about the power to maintain the existing state of affairs, and the power to change it. It’s well past time for more skepticism about procedure.


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