Notice & Comment

Walker on O’Connell and Fringe Administrative Law (AdLaw Bridge Series)

Last week Jotwell—the Journal of Things We Like (Lots)—posted my review of Anne O’Connell’s terrific article Bureaucracy at the Boundary, which was published in the University of Pennsylvania Law Review last year. I’m not alone in heaping praise on this article, as the American Bar Association just named it the best work of administrative law scholarship published in 2014. Here’s the abstract for the article:

The traditional view of the federal administrative state imagines a bureauacy consisting entirely of executive agencies under the control of the President as well as regulatory commissions and boards that are more independent of the White House. Administrative law clings to this image, focusing almost entirely on these conventional agency forms. The classic image, however, is inaccurate. The reality of the administrative state is more complex.

Contrary to the traditional view, a considerable bureaucracy exists outside of executive agencies and independent regulatory commissions: the largest employer of nonmilitary government employees, the U.S. Postal Service; the only major operator of passenger trains in the country, Amtrak; the organization that ended the career of cyclist Lance Armstrong, the U.S. Anti-Doping Agency; the primary responder to domestic emergencies, the National Guard; the major international lender to developing countries, the International Bank for Reconstruction and Development, a part of the World Bank group; and the federal government’s primary oversight agency, the Government Accountability Office, are a few examples.

This bureaucracy lives largely at the boundaries. There are organizations at the border between the federal government and the private sector. There are organizations at the border between the federal government and other governments, including those of states, foreign countries, and Native American tribes. And there are organizations entirely within the federal government that do not fit squarely within the Executive Branch, including but encompassing far more than independent regulatory commissions and boards. The variety, number, and importance of these organizations greatly complicate the structure of the federal bureaucracy as widely perceived.

To widen the lens on the administrative state, while trying to retain some tractability, this Article locates and classifies the missing federal bureaucracy along the borders of more conventional categories and other important boundaries. In addition to placing these missing parts on the bureaucratic map, it also considers movement to and from the center of these categories. The heart of this Article theorizes about these missing components, specifically why political actors would create bureaucracy at the boundary. Under the theory advanced here — and seemingly in reality — these entities are actually the ordinary outcome of the agency design process. This Article also considers whether their creation serves social welfare or democratic legitimacy objectives, suggesting that efficiency may not always trump accountability in these alternative agency structures. Finally, this Article examines important legal issues surrounding these other bureaucracies and how these entities might shape established law and governance of federal agencies.

As I detail in my review, this is an extremely important contribution to our understanding of the modern administrative state and challenges conventional (and overly simplistic) explanations of the structure of federal agencies and their relationship to the President and Congress. Here’s a snippet from the conclusion of my Jotwell review of the article (full review available here):

This article is part of Professor O’Connell’s larger, ambitious project to encourage administrative law scholars (and students) to look at how administrative law actually operates in practice. For instance, as I blogged about here over at the Yale Journal on Regulation, Professor O’Connell has another terrific article, entitled The Lost World of Administrative Law, which she coauthored with Dan Farber and which the Texas Law Review published last year. In that article, Farber and O’Connell argue that we must look beyond the APA and the classic Supreme Court decisions; we must study presidential review of proposed agency action, multi-agency coordination, and agency action that is effectively insulated from judicial review—to name just a few examples.

In her response to their article, Lisa Heinzerling noted that “Farber and O’Connell have opened up a valuable conversation about how much of classical administrative law we should keep—and how much we have already lost.” The same praise applies to O’Connell’s Bureaucracy at the Boundaries: this is a must-read piece for all administrative law scholars to better understand the boundaries of the modern regulatory state. Indeed, I’m not alone in giving such high praise as just last week the American Bar Association recognized Bureaucracy at the Boundary as the best work of administrative law scholarship published in 2014. Now if only we could better incorporate this fringe administrative law in administrative law scholarship and curricula.

Go read Professor O’Connell’s full article here!



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