ADMINISTRATIVE DISSENTS.

Author:Jacobs, Sharon B.
 
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TABLE OF CONTENTS INTRODUCTION 544 I. UNDERSTANDING ADMINISTRATIVE DISSENT 551 A. The Myth of Agency Consensus 556 1. Commissions Are a 'They,' Not an 'It' 556 a. Federal Energy Regulatory Commission 558 b. Nuclear Regulatory Commission 560 c. Federal Communications Commission 562 B. The Myth of Agency Homogeneity 563 1. Process 566 2. Partisanship 569 II. DISSENT'S ROLE IN FACILITATING POLITICAL OVERSIGHT 575 A. Congressional Oversight 577 B. Presidential Oversight 582 III. DISSENT'S ROLE IN CHECKING ARBITRARINESS 586 A. Separate Statements and Decision-Making Quality 587 B. Separate Statements and Deliberation-Forcing 590 1. Arbitrary and Capricious Review 592 2. Interpretive Deference 597 IV. EVALUATING DISSENT 601 A. Institutional Costs and Benefits 602 1. Institutional Legitimacy 602 2. Relationship Costs 608 3. Resource Costs 609 B. Democratic Costs and Benefits 610 1. Rule of Law 610 2. Accountability 612 3. Public Discourse and Civic Engagement 614 CONCLUSION 616 INTRODUCTION

"This order... ;'ignor[es] the elephant in the living room.'" --FERC Commissioner Bill Massey, Dissenting in Part (1) "[T]he lessons we learned from the Three Mile Island accident... seem to have been forgotten by the present Commission." --Separate Views of NRC Commissioner Asselstine (2) "[I]t is sad to witness the FCC's unprecedented attempt to replace ... freedom with government control." --Dissenting Statement of FCC Commissioner Ajit Pai (3) The administrative state, with its "vast hallways," (4) twisted warrens, and dark corners, holds mysteries even for those who inhabit and study it. Scholars have mined the bureaucracy's rich seams for decades, and yet new discoveries are regularly unearthed. (5) This Article sheds light on one such little-studied feature of administrative decision-making: published dissents and concurrences on multimember commissions.

Consider the following examples:

* A NRC Commissioner dissented from a broad Final Statement of Policy on Regulation of Advanced Nuclear Power Plants, asserting that the policy was inadequately protective of public safety and that the Commission's posture for the past thirty years had been reactive and too deferential to industry. (6)

* A FERC Commissioner suggested that the majority's understanding of the statutory phrase "withheld approval for more than 1 year after the filing of an application" as covering cases in which approval is denied was contrary to the plain meaning of the statute. (7)

* A FCC Commissioner dissented from a Notice of Proposed Rulemaking imposing "net neutrality" requirements because he believed the Commission lacked statutory authority to promulgate the rule. (8)

* A FERC Commissioner's dissent from the issuance of a Notice of Proposed Rulemaking on the regulation of fast-responding resources in wholesale markets found the record inadequate to support the Commission's proposal and chastised the majority for not having begun the rulemaking process with a Notice of Inquiry or an Advance Notice of Proposed Rulemaking. (9)

Such formal, public expressions of disagreement on administrative commissions are commonplace. Yet while their judicial counterparts are the subject of a rich literature, (10) administrative dissents and concurrences have largely escaped notice. Even foundational works on independent commissions fail to account for separate statements. (11) Yet separate statements themselves, and the agency procedures that govern them, are no mere quirks of the administrative process. Rather, they are a fundamental feature of agency decision-making.

Given that separate statements are relatively commonplace across agencies, it is puzzling that they have escaped scrutiny. One possible explanation for this oversight is that commissioner separate statements can be difficult to locate. Each agency has its own procedures governing the publication and availability of these statements, and thus visibility varies. But a more likely explanation is that when it comes to administrative dissent, academia's blind spot is simply the latest exemplar of a larger phenomenon: until recently, administrative law scholarship has been outward looking, focusing primarily on the relationship between agencies and other actors. Scholars have been alternately preoccupied with doctrines of judicial review on the one hand, (12) and presidential control of administrative agencies on the other. (13)

Increasingly, however, contemporary administrative law scholars have turned away from theories of external control to study agencies' internal dynamics. Recent articles have focused, for example, on the role of agency heads in coordinating agency operations, (14) power allocations within agencies, (15) the effects of partisanship on agency decision-making, (16) internal agency restraints, (17) and the exercise of agency enforcement discretion. (18) These articles have taken an inductive approach, drawing on actual observations about the way agencies operate to formulate broader conclusions about the systems, both political and legal, that govern them.

This Article contributes both to the established literature on external agency constraints and to the growing literature on internal agency dynamics. Administrative dissents and concurrences are worthy of study for several reasons. First, a more complete picture of this practice reminds us that two common generalizations in administrative law--that commissions act by consensus and that the myriad independent commissions are largely homogenous--are simply that: generalizations. The idea of consensus has been bolstered by a tendency, both inside and outside the academy, to refer generally to "the Agency" or "the Commission," labels which suggest unitary actors. In reality, to paraphrase Ken Shepsle's famous observation about Congress, administrative commissions are a "they," not an "it." (19) In looking beyond majority commission opinions, we find a richer world of disagreement and compromise than is visible from without.

A study of separate statements also reminds us that agencies are heterogeneous. Many so-called independent agencies do share common features including, typically, multimember leadership enjoying for-cause removal protection. (20) But studying dissenting and concurring opinions at three commissions--the Federal Energy Regulatory Commission (FERC), the Nuclear Regulatory Commission (NRC), and the Federal Communications Commission (FCC)--revealed stark differences in culture, procedure, and output. (21) For example, while some commissions produce relatively combative dissents, at others, restraint is the order of the day. (22) While some commissions rely on numerous, and publicly available, internal rules to govern the issuance of separate statements, others operate based largely on long-standing norms. (23) And while the patterns of dissent and concurrence at some commissions suggest partisan decisionmaking, at other commissions politics appear largely irrelevant. (24)

More broadly, separate statements can enlarge our understanding of a fundamental and persistent critique facing administrative governance: the bureaucracy's legitimacy deficit. (25) Administrative law proposes two primary solutions to the legitimacy problem. First, agencies might be disciplined by subjugating them to electorally accountable actors: Congress and the President. (26) By reducing informational barriers between agencies and their political principals, separate statements can increase the effectiveness of such oversight. But the job of checking agency discretion need not be performed exclusively by external actors. As scholars and courts increasingly acknowledge, independent agencies can be controlled from within as well as from without. (27) In other words, we might compensate for the absence of administrative electoral oversight by submitting agencies to a variety of internal checking mechanisms--some reviewable by courts, some not--to ensure rational decision-making. (28) By modifying their approach to the review of agency separate statements, courts can promote internal agency deliberation, thereby checking arbitrariness from within.

This Article proceeds as follows. Part I is both descriptive and analytical, focusing on broader lessons from original empirical work on commissioner separate statements. That work involved a review of dissents and concurrences from rulemaking decisions at FERC and the NRC over the past four decades. Anonymous interviews with current and former Commissioners and staff at those two Agencies and at the FCC fleshed out the process by which these separate statements are generated and provided context for significant findings. Part I sets out the results of this review in context, explaining the potential for the findings to disrupt existing generalizations about commission consensus and commission homogeneity.

Parts II and III turn to the import of separate statements for administrative law's foundational conundrum: how to check undesirable behavior by unelected bureaucrats. Part II proposes that these statements facilitate congressional oversight of administrative commissions, thus mitigating the problem of bureaucratic drift. It also examines the utility of separate statements for presidential monitoring. In Part III, the Article shifts its attention to the role of separate statements in disciplining internal agency decision-making. It argues that courts can enhance such internal mechanisms by showing special solicitude for arguments raised by dissenting commissioners when reviewing agency action under the APA's "arbitrary and capricious" standard. (29) This judicial "deliberation-forcing," Part III concludes, could be expanded to review of agency interpretations of statutory text under Chevron. (30)

Justice William Brennan once proclaimed that "[t]he right to dissent is one of the great and cherished freedoms that we enjoy by reason of the excellent accident of our American births." (31) This much...

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