Is there a description of our administrative law that pays special attention to the values of the rule of law. The result of this analysis is a focus on five dimensions of the rule of law: (1) authorization, (2) notice, (3) justification, (4) coherence, and (5) procedural justice.
T HE D IMENSIONS OF THE R ULE OF L AW
hereafter Waldron, The Concept and the Law of Law] (linking the rule of law and democracy as basic political commitments). This suggests focusing on the following five elements or dimensions of the rule of law.
The purpose of this essay is not to definitively identify the best set of rule of law principles. This part takes up that task organized around the five dimensions of the rule of law just discussed.
Authorization
Decisional Allocation
hereafter Strauss, The President in Administrative Law] (arguing in ordinary administrative contexts, where Congress is delegates to an appointed official of the agency, the president's role is a supervisor and not a decision maker); See Strauss, The President in Administrative Law, above, which argues that delegation to officials does not grant the president access to those powers. For arguments that the President has the authority to exercise powers delegated to other executive officers, see Elena Kagan, Presidential Administration, 114 Harv.
For arguments that the president generally lacks statutory authority to direct the exercise of power given to other officials, see, e.g. See Robert V. Strauss, The President in Administrative Law, supra note 41, at 713 (discussing the view that Congress is unable to delegate authority exclusively to executive officials. While this principle is articulated at a relatively high level of generality , it addresses the contested issue of the president's powers over law administration.
Scope of Authority
Professor Strauss is clear that the question of the scope of an agency's authority—that is, whether an agency is acting within itself. Professor Strauss defends this position as the best reading of the precedent, but also the approach that makes the most sense of the agency's position in government.59 Congress entrusts the agency with the statutory duty. But the structure of that review should reflect, not contradict, the agency's fundamental place within government.
Therefore, the justification for a court to recognize that an agency has been given authority to rule authoritatively within its sphere of authority—a justification that derives from Congressional choice and the agency's experience—does not disappear when the issue is the scope of that authority. In this sense, the court's commitment to ensure respect for the law is not divorced from the understanding of the legal system as a whole and from the agency's place within it. Independent judicial review of an agency's action is often understood reflexively to preclude giving any weight to the agency's view.67 To take an example, consider how the Supreme Court understands judicial duty in the first step of Chevron.
Conclusion
Giving "weight" to agencies' views even in determining their authority provides fidelity to the law in Professor Thayer's sense—recognizing that assigning responsibility to an agency is an act of presumptive finality. The FCC68 abandons the possibility that one of the traditional tools of statutory interpretation used in the first step of a Chevron inquiry is to give some weight to the agency's views.69 Instead, both opinions consider an independent judicial inquiry to exclude weight from the agency's views.70 Consequently, Skidmore's advice , that the agency's views should be given due weight, appropriate only outside of Chevron's application and not within it. The possibility of greater adjustment of the fundamental allocation of legal powers in the context of judicial review is lost.
Independent judgment appears to be a virtue that applies to a wider range of law officers, but it allows for greater consideration of the views of others than many assume. At the same time, the exercise of independent judgment does not preclude giving weight to the views of other actors—whether that independent judgment is exercised by an executive branch official or a court—and is therefore less demanding than some might assume. This view therefore sees a fundamental similarity in the legal duties of agency officials and courts; both work under the burdens of independent judgment, but under the rule of law such work does not require the isolation or exclusion of due consideration of the opinions of others.
Notice
- The Locus of Notice Demands
- Implications for “Choice” Among Policymaking Forms
- Obligation to Issue Guidance
- Conclusion
If they take into account the principles of the rule of law - publicity, clarity, consistency, perspective and stability - the rule of law - publicity, clarity, consistency, perspective and stability -. Strauss, Rules, Judgments, and Other Legal Resources in the Executive Department: Reflections on the Administration of the Department of the Interior's Mining Law, 74 Col. hereafter Strauss, Rules, Rulings, and Other Legal Sources] (arguing that internal organizational structure and operating procedures should be published and internal operating manuals publicly available).
Different forms of political decision-making fare better and worse than others with respect to these rule of law principles. Eisenberg, The Nature of the Common Law C]entral features of the common law method appear to be inconsistent with some of the primary assumptions of a traditional view of the rule of law.”). But the rule-of-law advantages of rulemaking over adjudication impose some obligation on the agency.
Perez thus paves the way for agencies to meet this rule of law obligation to make a prospective statement about the agency's best understanding of the law for guidance when regulations are not practicably enforceable. The theoretical point is that these rule of law requirements are appropriately applied to laws that bind private parties, and so often the bodies of law, not the bodies' enabling statutes, produce them.
Justification
Coherence
Locus of the Demand for Coherence
Statutes have long been recognized as a dominant form of law.120 And in the United States, statutory law has a distinctive character. A civil law purports to provide an integrated and comprehensive account of the governing norms.121 As a result, the requirement for coherence in a country with such a code falls largely on the code's drafters and successors. In the US, by contrast, statutes have less far-reaching ambitions; they give specific directions for specific problems, and even within this more limited area they often bear the distinct stamp of political negotiations.122.
This fundamental contrast between a civil law and the more responsive, ad hoc, situational, and overtly political nature of law in the United States has clear implications for the legal institutions most responsible for creating the coherence of the law. Industry and trade associations had on average 170 times more informal communication during the preparation phase than public interest groups. To the extent that pursuing and realizing this value of systemic coherence invariably involves synthesis and constructive judgment, we can expect coherence to underpin a role for statutory implementers that involves bringing a wide range of judgments into practice, in the form of an ordinary court, also when it comes to statutory materials.
The Agency’s Duty of Systemic Coherence
Just as the agency lacks congressional powers of obscurantism,131 neither can the agency avoid the duty to implement statutory power in a manner that demonstrates how the statute is coherent and creates an integrated set of legal requirements. This coherence is one of the most fundamental requirements legally enforceable through arbitrary and capricious control. Does this duty of coherence apply only to make sense of the agency's particular statutory powers, or does it include a broader obligation to read the statute in the light of the legal system as a whole.
Professor Strauss's rendering of the agency's obligations to achieve coherence within its statutory domain has provided a basis for other scholars to examine the agency's broader obligations to incorporate constitutional and legal background norms into its reasoning. As part of the study of administrative constitutionalism, Professor Gillian Metzger highlights the obligation of agencies to take constitutional norms seriously when implementing statutes, as well as their institutional competence to do so.132 Professor Kenneth Bamberger also defends the ability of agencies to take them into account . broad background norms, including the constitutional implications of their decisions.133 This broader duty fits with the techniques of statutory interpretation developed by Henry Hart and Albert Sacks.134 Underlying Hart and Sacks' work is the premise that agencies'. This perspective also forms the basis for the Agency to incorporate its understanding of the Basic Law among the considerations underlying statutory implementation.
Procedural Fairness
The Administrative State Separation of Powers Act, which notes the FTC's judicial functions, provides a basis for maintaining the agency's takedown protections). See e.g. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. lamentation. "lack of thought" regarding the nature of checks on the executive branch and identification of bureaucratic agencies as "critical mechanism for promoting internal separation of powers [in the executive branch]"); M.
discussed the constitutionality of "vast majority of internal separation of powers mechanisms within the Executive Branch"). Long before the rise of interest in the "internal separation of powers" in agencies, Professor Strauss identified separation of functions as a distinctive strain of separation-of-powers jurisprudence. While traditional separation-of-powers models are concerned with the allocation of government institutions between the branches and the implications that follow from those placement decisions, for example, separation of functions is concerned with the question of "which combinations of functions or impacts of external influence will interfere with the equitable resolution of a particular proceeding." Strauss, The Place of Agencies, supra note 9, at 622.
Summary
Although it is possible to read the Supreme Court's recent removal decision as a weakening of the principle that judicial duties are a sufficient justification for removal protection,142 the principle is still firmly rooted and reflects a core element of the rule of law, namely that the impartiality of the sentence is enhanced when the judge is not acting under " Damocles sword of rejection by the president”143 based on the content of their decisions. And indeed, most initial judges within administrative agencies today are administrative law judges who enjoy good cause protection against removal.144 The structural protection is an element of the rule of law's requirement for internal organization of agencies - and provides reasons to guard against further weakening of removal protection for judges.
