P620 South Carolina Relationship Between Administrative Law & Public Administration Paper This assignment must focus on the relationship between administra

P620 South Carolina Relationship Between Administrative Law & Public Administration Paper This assignment must focus on the relationship between administrative law and public administration. the text of this research paper must be 5 (not including title page, reference page, and any appendices). This paper must be in current Turabian format with 1-inch margins and 12-pt Times New Roman font. A title page and reference page must also be included. You must include citations to at least 4–7 appropriate sources (in addition to the course textbooks, assigned readings, and the Bible) to fully support your assertions and conclusions. This assignment draws heavily from the assigned readings for this module/week and you are expected to illustrate your understanding of those sources. \jciprod01productnGGWN83-4-5GWN514.txt
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Administrative Law, Public
Administration, and the
Administrative Conference
of the United States
Gillian E. Metzger*
ABSTRACT
From its birth, administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has
moved further away from how agencies actually function. The causes of administrative law’s disconnect from actual administration are complex and the
divide is now longstanding, but it is also a source of concern given the increasing importance of internal administration for ensuring accountable government. This Article analyzes the contemporary manifestations and historical
origins of administrative law’s divide from public administration, as well as
the growing costs of this disconnect. It also describes the Administrative Conference of the United States (“ACUS”)’s exceptional status as the rare forum
spanning the worlds of both administrative law and public administration, and
the critical role ACUS can play in reasserting linkages between these two critical dimensions of government.
TABLE
OF
CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. THE ADMINISTRATIVE LAW AND PUBLIC
ADMINISTRATION DIVIDE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Manifestations of the Administrative Law-Public
Administration Divide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Historical Antecedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Contemporary Contributing Forces . . . . . . . . . . . . . . . . . .
II. BRIDGING THE DIVIDE: THE ROLE OF THE
ADMINISTRATIVE CONFERENCE . . . . . . . . . . . . . . . . . . . . . . . . .
A. The Arguments for Closer Linkage . . . . . . . . . . . . . . . . .
B. ACUS’s Bridging Function . . . . . . . . . . . . . . . . . . . . . . . . . .
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INTRODUCTION
A funny thing happened to administrative law in the United
States over the course of the twentieth century. Administrative law
* Stanley H. Fuld Professor of Law, Columbia Law School; Public Member, Administrative Conference of the United States.
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emerged as a field at the century’s beginning, in response to the
growth in national administrative government.1 The 1946 enactment
of the Administrative Procedure Act2 (“APA”), following an intensive
study of different federal agencies’ practices, represented an acknowledgement that the administrative state was here to stay.3 Subsequent
administrative law transformations have also been tied to changes in
how agencies operate. For example, the expansion in the procedural
requirements for notice-and-comment rulemaking followed agencies’
increased use of such rulemaking.4 Centralized regulatory review and
other forms of presidential direction, perhaps the most significant administrative developments of the last few decades, are a core part of
administrative law casebooks and scholarship.5
In short, from its birth, administrative law has claimed a close
connection to governmental practice.6 But, in fact, as administrative
law has grown and matured, it has moved further away from critical
aspects of how agencies function.7 As many have noted, administrative law focuses almost entirely on external dimensions of administrative action, and the external dimensions it targets are increasingly not
the main drivers of administrative action.8 To be sure, courts police
1 See Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L.
REV. 1667, 1671–72 (1975); see also JERRY L. MASHAW, CREATING THE ADMINISTRATIVE CONSTITUTION: THE LOST ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE LAW 3–17 (2012)
(noting the conventional view that administrative organization and administrative law came into
being at the national level in the late nineteenth century, but arguing that both have actually
existed since the nation’s founding).
2 Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified at 5
U.S.C. §§ 551–559, 701–706 (2012)).
3 For a detailed history of the APA’s enactment, see George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. U. L. REV.
1557 (1996). See also Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72
VA. L. REV. 219, 224–29 (1986) (describing the work of the Attorney General’s Committee on
Administrative Procedure).
4 See Gillian E. Metzger, Foreword: Embracing Administrative Common Law, 80 GEO.
WASH. L. REV. 1293, 1300 & n.26 (2012). New statutes mandating use of rulemaking and imposing new procedural requirements, such as the Clean Air Act, also played a significant role.
5 See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the
Administrative State, 78 N.Y.U. L. REV. 461, 485–91 (2003) (describing the presidential control
model in administrative and constitutional law scholarship); Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2281–319 (2001) (describing different forms of presidential
administration and their increasing importance); see also Don Bradford Hardin, Jr., Comment,
Why Cost-Benefit Analysis? A Question (and Some Answers) About the Legal Academy, 59 ALA.
L. REV. 1135, 1136–37 (2008) (documenting a dramatic rise in legal scholarship related to costbenefit analysis, the key component of centralized regulatory review).
6 See infra Part I.B.
7 Id.
8 See infra notes 24–32 and accompanying text.
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agency conformity with procedural requirements imposed by the
APA, other statutes and regulations, and constitutional due process,
but these legal mandates govern only a small part of agency operations.9 Courts insistently exclude more systemic aspects of agency
functioning from their purview and from administrative law doctrines.10 Key internal agency dynamics—such as planning, assessment,
oversight mechanisms and managerial methods, budgeting, personnel
practices, reliance on private contractors, and the like—are left instead to public administration. As a result, despite their common concern with administrative agencies, the fields of administrative law and
public administration interact largely as passing strangers, acknowledging each other’s existence but almost never engaging in any sustained interchange.
The causes of administrative law’s separation from public administration are complex and rooted in historical field development, ideological commitments, institutional role, constitutional principle, and
good old-fashioned turf protection. This separation reflects administrative law’s traditional court-centric focus, and much can be said for
keeping the courts out of the internal world of agency functioning.
Yet administrative law’s growing disconnect from actual government
practices is cause for concern. This disconnect perpetuates a false image of how agencies operate and the role of internal administration.
In a number of contexts internal administration is the linchpin for ensuring accountable government, particularly given the obstacles to external constraint through congressional oversight or judicial review.11
Moreover, whether intentional or not, administrative law affects internal agency operations in significant ways. Hence, administrative law’s
inattention to public administration risks impeding development of
good administrative practices and worse, incentivizes agencies to
adopt bad ones, at a time when the importance of strong internal administration is only growing.
Enter ACUS. Although the separation of administrative law
from public administration is longstanding, there have been rare instances of linkage between the two. ACUS represents one such instance. Not only does its membership bridge the internal-external
9 See Edward Rubin, It’s Time to Make the Administrative Procedure Act Administrative,
89 CORNELL L. REV. 95, 96–97, 105–11 (2003); see also William H. Simon, The Organizational
Premises of Administrative Law, 78 LAW & CONTEMP. PROBS. 61, 61–63, 70–74 (2015).
10 See Gillian E. Metzger, The Constitutional Duty to Supervise, 124 YALE L.J. 1836,
1859–73 (2015).
11
See id. at 1849–59.
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divide, consisting of agency officials and public members from outside
of government, but the projects it undertakes also span the worlds of
administrative law and public administration. ACUS is thus ideally
situated to address the growing disconnect between these two fields,
studying how administrative law affects internal agency operations
and assessing whether—and how—administrative law might be used
to improve public administration.
I. THE ADMINISTRATIVE LAW AND PUBLIC
ADMINISTRATION DIVIDE
Administrative law and public administration scholars both bemoan the disconnect between their fields, a disconnect evident
through a comparison of key agency internal practices and administrative law doctrines. The historical roots of this divide trace back to
both fields’ origins in the United States at the outset of the twentieth
century. But over time the divide has expanded and become entrenched, based today more expressly on separation of powers principles, concerns about the impact of judicial review on agency
functioning, and the dominance of managerialist approaches to public
administration.
A. Manifestations of the Administrative Law-Public Administration
Divide
At first glance, the claim that administrative law is divorced from
how agencies actually function seems patently false. After all, a core
focus of the APA—the nation’s most foundational administrative law
enactment—is agency process, setting out basic procedural requirements for agencies to follow.12 Federal courts in turn have penned an
endless number of administrative law decisions interpreting those requirements, and learning the details of the resultant doctrines is one
of the joys experienced by many a student of administrative law.
Moreover, study of centralized White House regulatory review, implemented through the Office of Information and Regulatory Affairs
(OIRA) in the Office of Management and Budget (OMB) and a central factor today in major rulemaking, is another administrative law
staple.13 In addition, administrative law scholars increasingly are turning their attention to important internal dynamics that shape how
See, e.g., 5 U.S.C. §§ 553–557 (2012).
See, e.g., PETER L. STRAUSS ET AL., GELLHORN & BYSE’S ADMINISTRATIVE LAW: CASES
AND COMMENTS 213–41, 685–89 (11th ed. 2011) (detailing instances of presidential direction and
review as well as connected scholarship); see also Kagan, supra note 5.
12
13
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agencies operate, such as an agency’s internal organization and design
or the use of multiple agencies to implement a regulatory scheme.14
Yet, appearances can be deceiving. A key feature of the APA is
that it represents external controls, imposed by statute and elaborated
on by courts. Process requirements developed by agencies themselves
rarely rise to the fore in administrative law, except with respect to
whether those requirements are judicially enforceable.15 Despite their
central importance to how federal agencies function today, centralized
regulatory review and presidential direction remain remarkably absent from administrative law decisions.16 The same is true of other
significant internal agency features, such as priority-setting and planning processes or the role of career officials in agency decisionmaking.17 Perhaps the clearest evidence of this doctrinal absence is
offered by Lujan v. National Wildlife Federation,18 where the Supreme
Court ruled it lacked jurisdiction over a challenge to the Bureau of
Land Management’s failure to undertake programmatic and planning
activities with respect to public lands.19 According to the Court, such
activities were too “wholesale” or systematic to come within the scope
of judicial review, which it deemed limited to discrete agency actions.20 In a subsequent decision the Court tied this exclusion even
more firmly to the terms of the APA’s grant of jurisdiction,21 but it has
also sometimes held that general or programmatic challenges are
barred on constitutional standing grounds.22
14 See, e.g., Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space,
125 HARV. L. REV. 1131 (2012) (detailing and analyzing interagency coordination); Jacob E.
Gersen, Designing Agencies, in RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW
333 (Daniel A. Farber & Anne Joseph O’Connell eds., 2010) (discussing public choice theory
and issues of agency design); Matthew C. Stephenson, Information Acquisition and Institutional
Design, 124 HARV. L. REV. 1422 (2011) (discussing the effects of legal-institutional design
choices on government decisionmakers’ incentives to invest in information).
15 See Elizabeth Magill, Foreword: Agency Self-Regulation, 77 GEO. WASH. L. REV. 859,
860–61, 873–91 (2009); see also STRAUSS ET AL., supra note 13, at 203–07, 926–34 (describing
internal agency processes connected to rulemaking and with respect to judicial review).
16 See Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative
Law, 92 TEX. L. REV. 1137, 1138–39, 1155–57 (2014); Kathryn A. Watts, Proposing a Place for
Politics in Arbitrary and Capricious Review, 119 YALE L.J. 2, 7, 18–23 (2009).
17 See Rubin, supra note 9, at 97; Sidney A. Shapiro, Why Administrative Law Misunderstands How Government Works: The Missing Institutional Analysis, 53 WASHBURN L.J. 1, 10–13,
23–24 (2013); Simon, supra note 9, at 74–79.
18 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990).
19 Id. at 891–94.
20 Id.
21 See Norton v. S. Utah Wilderness All., 542 U.S. 55, 61–67 (2004).
22 See, e.g., Lewis v. Casey, 518 U.S. 343, 349 (1996); Allen v. Wright, 468 U.S. 737, 759–60
(1984).
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Increasingly administrative law scholars are arguing that exclusion of these systemic internal features is separating administrative
law from the main drivers of agency functioning. According to these
scholars, classical or canonical administrative law—defined generally
as “the text and judicial interpretations of the APA and associated
constitutional doctrine. . . does not reach some of the most practically
important official conduct”23 and “can seem like a minor presence in
the modern regulatory process.”24 William Simon argues that administrative law traditionally emphasizes top-down, bureaucratic delegations and specific acts of rulemaking.25 Simon further contends that
this approach not only leaves vast areas of agency discretion unregulated, but also is at odds with contemporary models of administration,
which focus on overall planning and monitoring and derive legitimacy
from transparency and processes for continuous revision.26 Dan Farber and Anne O’Connell agree that current administrative law is premised on a “lost world,” one in which a statutorily authorized agency
implements statutory requirements, following mandated procedures
and undertaking reasoned consideration of both the requirements and
evidence before the agency, with the agency’s determination subsequently reviewable by courts.27 “The reality of the modern administrative state,” however, is quite different: executive directives as well
as statutory requirements are in play; multiple agencies (often lacking
confirmed leaders) are charged with implementation, yet in practice
authority may rest elsewhere, in particular in the hands of OIRA and
White House staff; mandated procedures are avoided; political, as opposed to statutory, factors drive decisionmaking; and little judicial
oversight is available.28
Edward Rubin takes the argument even further, contending that
“the APA was out of date at the time it was enacted” because its requirements “are derived from an essentially judicial concept of governance in which laws are discovered rather than invented and policy
making is always incremental,” thereby ignoring the distinctive features of the administrative process and leaving key activities “such as
priority setting, resource allocation, research, planning, targeting, guidance, and strategic enforcement” either “essentially unregulated or
23
Simon, supra note 9, at 62, 64.
24
Farber & O’Connell, supra note 16, at 1138.
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25
See Simon, supra note 9, at 63–92.
R
26
Id.
27
Farber & O’Connell, supra note 16, at 1154.
28
Id. at 1154–73.
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subject[ed] . . . to inappropriate procedural rigidities.”29 Like Rubin,
Sidney Shapiro faults administrative law for failing to heed the insights of public administration.30 In Shapiro’s view, administrative law
is excessively focused on “outside-in accountability,” specifically political and legal controls external to an agency, and ignores the ways that
“hierarchy . . . institutional norms, and professionalism promote accountability from inside an agency.”31 Jerry Mashaw puts the point
particularly well:
[W]e tend to think of our administrative constitution as a set
of external constraints on agencies. . . . [and] relentlessly analyze these external constraints as if they were the major determinants of agency efficiency, procedural fairness, and
legal legitimacy. Yet in many ways it is the internal law of
administration—the memoranda, guidelines, circulars, and
customs within agencies that most powerfully mold the behavior of administrative officials.32
Strikingly, some public administration scholars also critique the
disconnect between administrative law and public administration.
But, they approach this disconnect from the opposite direction, faulting their field for its refusal to take seriously the central role of public
law in public administration. Thus, Laurence Lynn critiques public
administration’s “anti-legal temper,”33 arguing that “a broad consensus within public administration appears to hold that law is one of
many environmental constraints on administrative discretion rather
Rubin, supra note 9, at 96–97.
Shapiro, supra note 17, at 1.
31 Id. Note that although these scholars agree that administrative law fails to encompass
key dimensions of modern administration, they take somewhat different stances on the specific
features of this mismatch. In particular, whereas Simon argues that current administrative law is
too bureaucratic and hierarchical in its focus and Farber and O’Connell describe it as failing to
acknowledge the role of presidential and executive branch directives, Shapiro’s complaint is that
administrative law does not give hierarchy enough weight and is too focused on presidential
oversight. Compare Simon, supra note 9, at 67–74, and Farber & O’Connell, supra note 16, at
1154–60, with Shapiro, supra note 17, at 11–25. See also Sidney A. Shapiro & Ronald F. Wright,
The Future of the Administrative Presidency: Turning Administrative Law Inside-Out, 65 U.
MIAMI L. REV. 577, 585–87 (2011) (d…
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