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In Procedures as Politics in Administrative Law, I aim to connect the insights of legal scholars and positive political theory (PPT) scholars about the purpose of administrative procedures. For some time now, legal scholars and PPT scholars have maintained parallel but largely independent discussions of this subject. According to legal scholars, administrative procedures serve due process or rule-of-law values and often run at odds with political values, including accountability and efficiency. Because administrative law has vacillated over time between procedures and politics, it seems to contain significant tensions. For example, agencies must confront the prospect of judicial scrutiny but are due judicial deference for their decisions. Agencies must choose procedures that command the force of law, but have a choice among procedures. Agencies must answer for their failures to enforce the law but may choose whether to enforce the law. Within this framework, legal scholars have divided themselves into two camps: those who favor procedure, and those who favor politics. The former group would emphasize the rules that improve the legality or rationality of agency decisions; the latter group would emphasize rules that maximize the accountability of agency decisions, particularly accountability through the President.

PPT scholars, meanwhile, have offered another understanding of the purpose of administrative procedures. The political scientists known collectively as “McNollgast” have argued that administrative procedures can assist Congress in monitoring agency action.[1] More specifically, Congress can use administrative procedures to place its constituents in the administrative process, where those constituents may sound a “fire alarm,” alerting Congress to intervene in agency action that disserves their interests. In this way, administrative procedures afford Congress a particularly efficient means for addressing the inevitable principal-agent problem created by broad delegation. They enable Congress to ensure that agency action roughly tracks legislative preferences without incurring direct monitoring costs. Legal scholars have largely neglected this value, focusing instead on administrative procedures as enhancing the legal qualities of agency decisionmaking.

The Court’s Administrative Politics

PPT scholars have also missed an important feature of administrative procedures. They focus almost exclusively on the legislative design of administrative procedures, failing to consider fully that the Supreme Court, not just Congress, has had a significant hand in shaping these procedures over time. Any discussion of administrative procedures must account for the Court’s role in developing them—that is, the discussion must account for administrative law. Has the Court understood procedures as PPT scholars suggest, facilitating a form of legislative oversight? If so, what are the implications for administrative law?

In the Article, I demonstrate that the Court has explicated procedures in a way that facilitates legislative monitoring. Indeed, many of the pillars of administrative law are actually better understood in this light. For example, after Congress enacted the Administrative Procedure Act, the Court elaborated the reasoned decisionmaking requirement (the “hard look” doctrine), which requires agencies to offer explanations for their decisions.[2] This requirement ensures that agency decisionmaking is thorough and rational, as well as amenable to judicial review. But it also may give agencies an incentive to share information during the administrative process with interested parties who may in turn alert members of Congress to intervene. An agency, knowing it will eventually face judicial scrutiny under the hard look doctrine, may improve its chances of success if beforehand it anticipates and minimizes areas of disagreement with potential plaintiffs. It is difficult for an agency beforehand to even identify areas of disagreement with potential plaintiffs unless it shares information with those groups or individuals.

Through other principles, the Court has ensured that members of Congress will receive adequate information (via its constituents) to intervene in the administrative process. For example, Mead requires agencies to use notice-and-comment rulemaking or other sufficiently formal procedures as a condition of obtaining Chevron deference.[3] One reason for this condition is that notice-and-comment rulemaking is quasi-legislative and therefore suitable for commanding the force of law. Perhaps another reason is that notice-and-comment rulemaking (especially courtesy of the hard look doctrine) facilitates legislative monitoring. This account is not merely plausible but useful. It helps to explain some of Mead’s more mystifying features, not the least of which is determining whether non-traditional procedures are sufficiently formal to command Chevron deference. To see why, consider the procedure at issue in Mead. It was a Customs Service ruling letter, one of 10,000–15,000 per year that emanated from one of 46 different offices, with little explanation and no binding effect beyond the parties to whom it was addressed.[4] How can Congress possibly monitor these? By contrast, a procedure that the Court found worthy of Chevron deference one year later in Barnhart v. Walton contained an interpretation that Congress had multiple opportunities to monitor over the years.[5] Furthermore, the Court devised a multi-factor test, that while bearing little relation to the analysis in Mead, seemed likely to ferret out whether Congress had actual monitoring opportunities.[6]

Other principles may be explained in terms of legislative monitoring, including those that seem to deprive Congress of information about agency action. In Vermont Yankee, the Court prohibited reviewing courts from adding select trial-type procedures to notice-and-comment rulemaking—that is, it prohibited so-called “hybrid rulemaking.”[7] The Court’s rejection of hybrid rulemaking has always seemed puzzling: Why is it okay for courts (or the Court) to demand from agencies an extensive explanation but not an evidentiary hearing? Both practices allow courts to micromanage the administrative process beyond what the APA clearly permits or requires. Surprisingly, the focus on legislative monitoring provides a way to distinguish the two. Perhaps hybrid rulemaking, though not without benefits to judges or parties, provides more information than Congress strictly needs to monitor agency action and therefore consumes administrative resources without providing a countervailing legislative benefit. After all, Congress already has access to a certain degree of information as a result of the reasoned decisionmaking requirement. In addition, a concern exists that courts may impose extra procedures not to assist Congress but to place a thumb on the scale for their preferred policies, substituting one principal-agent problem (between Congress and agencies) for another (between Congress and courts). We would expect administrative law, if truly consistent with PPT, to be cognizant of this Congress-court problem.

It is important to note that, while fortifying administrative procedures, the Court has prevented Congress from using certain mechanisms to monitor agency action. In INS v. Chadha, for example, the Court invalidated the legislative veto.[8] To understand why, consider that the legislative veto (in Chadha, a one-house veto) would have allowed Congress not merely to influence agency action but to reverse such action, without securing bicameral support or a presidential signature. It is one thing for Congress to seek influence in the administrative process, perhaps on par with the President. It is another for Congress to seek absolute control of the administrative process to the exclusion of the President. The legislative veto seems to fly squarely in the face of the Constitution’s dual-branch lawmaking requirement.

One advantage of understanding administrative law as facilitating legislative monitoring is that it helps to explain instances in which the Court has declined to find presidential accountability enough to validate agency decisionmaking. Presidential accountability is a positive, all else being equal. But all else is not equal when the basis for such decisionmaking is not disclosed, depriving Congress of the opportunity to monitor. Thus, in State Farm, the Court remanded a policy to the agency for a better explanation, even though that policy was supported by presidential priorities.[9] The difficulty was that those priorities were nowhere in the record. The remand opened the contested and political aspects of the policy to debate by all in the administrative process.

The Court’s Role as Mediator of the Political Branches

After offering a PPT revision of administrative law, I engage the question of why the Court would have developed rules that facilitate legislative monitoring. PPT scholars, who argue that the Court is inclined to choose whichever rules are least likely to be legislatively overruled, might point out that these rules fit the bill. The rules are just what Congress would have in mind. But this explanation of judicial behavior, even if somewhat predictive, is not compelling here. It is hard to believe that the Court would really fear legislative reprisal in this context. The rules themselves—governing issues like the proper level of reasoned decisionmaking and the proper degree of judicial deference—are so standard-like and amenable to case-by-case elaboration that Congress could not easily codify them, even if the Court had not done an adequate job.

In searching for an alternative explanation, I embrace what legal scholars have been saying about administrative law from its inception. Legal scholars tend to view the Court as sincerely interested in providing appropriate rules for agency action—that is, rules that improve the democratic legitimacy of agency action. In accepting this view, I do not claim to know the Court’s actual motivation in elaborating administrative law. Rather, I claim that the Court is cognizant of the basic political facts surrounding broad delegation. The Court is aware that Congress creates agencies with few constraints on their power and later attempts to control their decisionmaking just as the executive branch does. The Court therefore sees its role as attempting to reconcile the needs of both political branches for control of agency policy. It establishes the conditions for conflict and compromise between the political branches to produce politically reasonable policy outcomes. These conditions are inherent in separation of powers. Thus, I view the Court as attempting to match the practical reality of how the administrative state functions with a normative vision of how it should function in the constitutional structure.

These generalities manifest themselves in particular ways, and those ways vary depending on whether we are discussing independent or executive branch agencies. Start with independent agencies. The Court’s rules empower Congress relative to such agencies. Congress, via its constituents, has access to information about their actions and may intervene accordingly. Thus, the Court, through its rules, may ensure that independent agencies are not too independent; instead, independent agencies remain responsive to the legislative branch. (It is important, as a general matter, not to understate the extent to which independent agencies are responsive to the executive branch. For example, even if independent agencies are not run by heads subject to plenary presidential removal, their chairs are selected by the President. In addition, independent agencies often have powers that are intertwined with those of executive-branch agencies.)

With respect to executive branch agencies, the effect is in some sense even more dramatic because the Court’s rules empower Congress relative to the customary source of agency legitimacy—the President. Through administrative procedures, the Court may ensure that executive branch agencies are not simply beholden to the White House on those occasions when Congress may have different preferences. The President has many legal and practical advantages in controlling executive branch agency action, not merely as a result of appointment and removal authority but through executive orders and informal White House contacts that secure early and ongoing intervention in regulatory policy. By granting Congress access to information about agency action during the administrative process, the Court has allowed Congress a similar measure of early and ongoing intervention. The White House may nevertheless pressure an agency to follow presidential preferences, rather than congressional ones. But if it succeeds, it runs a considerable risk of negative media attention, harassing legislative oversight, and eventual judicial reversal. In these instances, the Court’s administrative law rules ensure that the White House internalizes the risks of deciding to proceed alone, regardless of broader political or popular preferences.

None of this is to say that the President is not entitled to presumptive judicial deference, or that the President and Congress will routinely disagree (or even express interest in a particular matter). Rather, I argue that the rules exist for the rainy day, when political preferences do diverge, especially during times of divided government. There the Court’s role as mediator of the political forces in the administrative process is particularly important for securing the democratic legitimacy of agency action.

In closing, it is worth mentioning a couple of points about what this political account of administrative law does not do. It does not conflict with the standard justification for administrative procedures. The same rules that enable parties to acquire information about agency action also promote fairness, rationality, and participation. Thus, we should continue to talk about these legal values. But we should not fall into the trap of pitting these values against politics. There are politics on both sides of the debate over procedures, which should inform how we think about such procedures.

The political account of administrative law also does not suggest that congressional control is more important than presidential control when it comes to improving the democratic legitimacy of agency action. Congressional control is just as important as presidential control. In truth, both congressional control and presidential control have shortcomings and give rise to fears about political domination and arbitrariness. For this reason, we might conclude that the two are better together than apart, just as the Constitution envisions. The political account of administrative law reinforces just this view.

* Professor of Law and Co-Director, Regulatory Progam, Vanderbilt University Law School.

1. See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243, 254 (1987); Mathew D. McCubbins, Roger G. Noll, & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431, 468–81 (1989).

2. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41–42 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 408, 420 (1971).

3. United States v. Mead Corp., 533 U.S. 218, 221 (2001).

4. See id. at 233.

5. 535 U.S. 212, 217 (2002).

6. See id. at 222.

7. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 548 (1978).

8. See 462 U.S. 919, 959 (1983).

9. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); id. at 59 (Rehnquist, J., concurring in part and dissenting in part).