THE SOURCES OF ADMINISTRATIVE PROCEDURES
THE LEGAL ACCOUNT OF ADMINISTRATIVE PROCEDURES
Legal scholars who consider MCA in the context of administrative law often assume a dichotomy between procedures and politics. This does not mean that procedural formality and political control are completely exclusive means of increasing the legitimacy of agency action (the normative goal of administrative law).
The Early Years
As this section shows, the dichotomy is evident in how legal scholars describe the evolution of administrative law itself. Another concept of administrative law quickly arose to fit those statutes, and it de-emphasized procedures.
The M iddle Period
On the positive side, it appears that some groups had more say in the administrative process than others.8 2 The model therefore did not necessarily produce broad participation. On the cost side, the process resulted in more paper for agencies to consider and compile.83 These vulnerabilities opened the door to a new model of administrative law. arbitrary and capricious test of APA);.
The Current Period
THE POSITIVE POLITICAL THEORY ACCOUNT OF
Legal scholars have not given enough thought to what positive political theory (PPT) scholars have said about administrative procedures over the past two decades. But, as this section shows, PPT scholars have no more told a complete story about administrative procedures than legal scholars have.
The APA as a Tool for Legislative Oversight
See McNollgast, Administrative Procedures, supra note 12, at 249-51 (analyzing two forms of policy monitoring: evaluation by congressional committees and "fire alarm monitoring"); McNollgast, Administrative Arrangements, supra note 12, at 440-44 (discussing structural and procedural solutions to the issue of agent deviance). See McNollgast, Administrative Arrangements, supra note 12, at 443 (noting that although expensive, structural and procedural solutions prevent agency deviations).
The M issing Piece
THE LAW OF ADMINISTRATIVE PROCEDURES
This part shows that the Court has developed a law of administrative procedures consistent with the PPT account. On this view, the Court said the agency had not provided the whole story. After Akins, it is reasonable to expect that the Court will grant standing under other informative laws.
What this means is that the court's cases are consistent with the PPT account of administrative procedures. The Court therefore works with the political forces in the administrative process to ensure that decision-making by the agency is consistent with democratic fundamentals. We may hold that the Court is genuinely interested in finding the appropriate rules for agency action.
Instead, I argue that the Court is responding, if only implicitly, to certain basic political facts about the administrative state. This is a general picture of the political background against which the Court has developed administrative procedures. Specifically, the Court can ensure that Congress can use administrative procedures to monitor independent agencies.
Principle I: Reasoned Decisionmaking
Principle II: Hybrid and Formal Rulemaking
Natural Resources Defense Council, Inc., the Court held that reviewing courts cannot order agencies to conduct supplemental hearing-type procedures in no-. But, against this background, we can understand the Court as the line at the procedural hybrid. Congress, the Court effectively reasoned, has sufficient information because of the reasoned decision-making requirement and can therefore be held to that amount unless it.
As long as Congress has the basic information necessary to conduct fire alarm oversight, the Court has no reason to impose further costs. The court should hesitate before asking agencies to undertake formal procedures because those procedures are quite difficult and expensive.
Principle III: Ex Parte Contacts
Rather, they are problematic because they prevent outsiders from accessing information about the agency's operations.20 4 Clients can establish secret contacts with the agency. In other words, ex parte prohibition. post-procedure contacts would ensure that all participants have access to information about the agency's operations and that no party has a secret influence over such action. A ban on ex parte contacts would ensure that groups important to the president do not have a disproportionate influence on agency decision-making.20 6 Scholars have found.
Bush administration.20 8 A tighter judicial reign on ex parte contacts in notice-and-comment rulemaking may bring more vigilance and more congressional oversight. The Circuit has wavered on whether a ban on ex parte communications in informal proceedings is consistent with Overton Park or inconsistent with Vermont Yankee, the answer clearer when viewing the ban in terms of information and oversight.
Principle IV: Procedures for Statutory Interpretation . 1788
As Applied to Nontraditional Formats
A letter of determination from the Customs Service that determined the tariff classification for a particular imported product under the Harmonized Tariff Schedule of the United States. which are "bonded" for tariff purposes.2 39 This classification reflected a change from previous practice and increased the tax liability of the importer.2 40 This was exactly the kind of policy that voters could point Congress to . Barnhart contains an example of a procedure that qualifies for the information control account for a slightly different reason.24 3 The case involved the Social Security Administration's interpretation of the Social Security Act. The agency has issued the interpretation informally, but several times over a long period of time: in a 1957 letter, a 1965 manual, and a 1982 decision.244 In 2001, it issued the same interpretation by creating notice and comment rules. .245 The Court offered a list of factors that were relevant in the interpretation analysis for purposes of deference different from those identified in Mead. one factor – namely the agency's long-standing interpretation.
Perhaps Congress has determined that the potential for legislative oversight of the underlying substantive law (whether fire alarm or police patrol) is sufficient, and interpretive rules can easily become binding on such legislation. If interpretive rules do change the law, the potential for congressional oversight of the initial rule is insufficient.
In Relation to Brand X
The Court may decide that the risk of substantive change is too great to allow deference. What this example shows is that, in the most difficult cases, the information surveillance account may not eliminate the need for judgment about which interpretive formats deserve Chevron deference. If the standard legal accounts point in opposite directions, we can think that the information surveillance concept strongly points to the case in the case.
The agency's interpretation should be entitled to Chevron's deference because it is more likely to reflect legislative preferences than the court's prior interpretation. To conclude this discussion, Mead can be explained in terms of an information surveillance report on administrative law.
Principle V: Standing
A ROLE FOR THE COURT IN POLITICS
Without completely abandoning a positive focus, this section claims that we can see the Court's project in a . the information is not invoked in any interest expressly connected with the political process and when that individual or institution cannot show that the information would relate to relevant activities on his or her part"). emphasizing the statutory interests that Congress sought to defended); Echeverria, supra note 292, at 296-98 (arguing that Article III should not "stand as a legitimate impediment to the authority of Congress"); Krent, supra note 296, at 88 ("The Supreme Court has recognized a broad scope within which Congress may determine what interests may be vindicated in court."); Gene R. describing Akins and Laidlaw as vindicating congressionally recognized interests); Sunstein, Informative Regulation, supra note supra at 273, at 637 ("The unifying theme is that with respect to information, and perhaps more generally, the Court has rooted the issue firmly in Congressional guidance.").
The Court is sincerely interested in facilitating congressional oversight to make the right rules for agency action.
General Considerations
Indeed, how administrative procedures work to enhance the democratic nature of agency action varies depending on whether we consider independent commissions or executive agencies, because the political forces differ accordingly. The Court has allowed Congress to make this initial design choice,314 and it has applied the same administrative law rules to both kinds of agencies.315 But this initial design choice affects how administrative procedures work as a practical and theoretical matter. , as the rest of this part shows.
Independent Agencies
In adopting this reading, it is important not to underestimate the extent to which the president is involved in the decision-making of independent bodies. Independent agencies respond to presidential priorities in part because the president has the authority to choose the commission chair.324 Moreover, independent agencies often share responsibility. arguing that independent agencies should not be entitled to Chevron's deference because they are not subject to presidential direction).
Similarly, the FCC can extract further exemptions from private firms than the executive branch would.328 But it shows that independent agencies are susceptible to a degree of presidential control, even if the removal authority is limited by the initial choice. of design. In sum, the practical control that administrative procedures provide Congress helps explain why independent agencies are constitutionally permissible and deserve judicial deference.
Executive Branch Agencies
O BJECTIONS
Critics of congressional control may further argue that, for the reasons above, Congress cannot be held responsible for agency action that deviates from popular preferences. The President, on the other hand, can be held responsible for an agency action in the executive branch. It is therefore more likely that the President will be held responsible for influencing agency actions.
Although the president is more visible than any member of Congress, those officials who most often influence the agency's operations are not. Finally, critics of congressional oversight might argue that fire alarm oversight is likely to shift the agency's operations in an antiregulatory direction.
Adm inistrative Cost
We might as well maintain the rules we have in the hope that the courts will apply them responsibly and in the hope that the reality is not as bleak as it appears. More work will be done on this issue, but even as it stands, administrative procedures may not impose prohibitive costs. To summarize: The criticism of congressional control may not be as harmful as some scholars might think, and in any case it may not be more harmful than the criticism of presidential control.
The above arguments do not suggest that we should cultivate a system of unilateral congressional control. All things considered, a peer review system is not a panacea, but simply a safe bet.
