Administrative Law in an Era of Partisan Volatility

• Citation: Vol. 69 No. 1
• Publication year: 2019

Administrative Law in an Era of Partisan Volatility

Michael A. Livermore

Daniel Richardson

ADMINISTRATIVE LAW IN AN ERA OF PARTISAN VOLATILITY

Michael A. Livermore Daniel Richardson^*

ABSTRACT

Contemporary politics is characterized by a polarized national discourse, weak party organizations, volatile control of government, and an increasingly assertive executive. These political dynamics interact with a system of administrative law inherited from different political times that is ill-suited to addressing the risks of the current moment, which include threats to administrative values such as efficiency, impartiality, and expertise; to democratic values such as accountability, transparency, and participation; and, most generally, to the ability of the law to benefit social well-being through sound policymaking. In recent years, some legal scholars have become attuned to the interaction between administration and these features of the political environment. Unfortunately, administrative law itself has been slow to catch up, with potentially dangerous consequences for the stable functioning of the U.S. administrative state. Drawing from the political science literature that examines the interacting features of organized politics that generate stable party systems, we examine how prior administrative law regimes have responded to political transformations in the past. With this research in view, we find that administrative law as it stands today, which emerged during an earlier party system, is ill-suited to meet the challenges of modern politics. Time will tell whether courts will shape doctrine to better align administrative law with the needs of the times.

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INTRODUCTION ................................................................................................. 3

I. POLITICS AND ADMINISTRATION ........................................................... 8

A. Taking Party Systems Seriously .................................................... 9

1. A Systems-level Perspective on Organized Politics .............. 14
2. Administrative Law through the Party System Lens ............. 17

B. The Versatility of Administrative Law ........................................ 19
C. The Last Era of Administrative Law, 1969-1992 ....................... 29

II. THE CHALLENGES OF PARTISAN VOLATILITY ..................................... 35

A. Partisanship Without Parties ...................................................... 37
B. Oscillating Control ..................................................................... 42
C. Erosion of Stabilizing Institutions .............................................. 49

III. (MAL)ADAPTIVE DOCTRINE ................................................................56

A. Review of Policy Reversals ......................................................... 57
B. Agency Independence ................................................................. 64
C. Deference .................................................................................... 68

CONCLUSION ................................................................................................... 72

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INTRODUCTION

Debates about the relationship between politics and administration are as old as modern bureaucracies, extending at least back to foundational figures such as Woodrow Wilson and Max Weber.¹ Early notions of a strict dichotomy between politics and administration that helped justify the vast discretion granted to administrative agencies in the early to mid-twentieth century have given way to an understanding of the inseparability of administration and politics in any complex legal regime.² In recent years, some legal scholars have become particularly attuned to the interaction between administration and features of the political environment, such as divided versus unified government and political polarization.³ Unfortunately, administrative law itself has been slow to catch up, with potentially dangerous consequences for the stable functioning of the U.S. administrative state.

A recent Supreme Court administrative law intervention illustrates this claim. In Lucia v. SEC, the Supreme Court held that the SEC's administrative law judges (ALJs) are subject to selection through the Appointments Clause

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rather than the independent civil service system.⁴ Shortly thereafter, the President issued an executive order removing all ALJs from the competitive civil service process and subjecting them to political appointment by agency heads.⁵ The administrative law doctrine announced in Lucia, which was limited to the SEC, was transmuted almost immediately through political channels to apply broadly across the government.⁶ This move occurs against a political backdrop that includes the growth of presidential administration, an increasingly polarized electorate, the declining institutional efficacy of political parties, and a pattern of wildly shifting governing coalitions.⁷ The seemingly technical constitutional holding in Lucia is given life by this political context, where the consequences of upsetting a longstanding compromise that insulates agency adjudicators from partisan influence will be felt.

This interaction of politics and administrative law is nothing new. Professor Jerry MASHAW's work in recovering the "lost era" of American administrative law documents how the changing landscape of American politics over the course of the Republic's first one hundred years were tracked by fundamental transformations in administrative law and practice.⁸ When the Jeffersonian Era of Good Feelings gave way to Jacksonian democracy, for example, that shift was accompanied by a change in administration that moved away from an emphasis on governance by "men of good standing" and toward a spoils system that supported mass political mobilization.⁹ Legal changes, including a decline in the importance of qui tam actions and the extension of personal immunity for official acts, followed these political and administrative changes.¹⁰ Similar linked transformations in political organization, administrative form, and legal doctrine have been a consistent feature of the U.S. system ever since.

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Indeed, the standard administrative law narrative—which continues to be embodied in the leading treatises and casebooks—essentially tracks doctrinal developments against the backdrop of the waxing and waning of the New Deal coalition.¹¹ The 1932 election brought a realigned and ascendant Democratic Party to power with a mandate to combat the Great Depression. New Deal legislation created a massive administrative apparatus that, while building on prior forms, was something new in American political life. Administrative law as it is taught and practiced today—from the non-delegation cases to the Administrative Procedure Act and its subsequent interpretation—remains shaped by doctrine that arose from a legal order in constant conversation with the administrative necessities and political realities of that time.¹²

If contemporary politics do not (yet) rise to the level of crisis represented by the Great Depression, they nonetheless require a reckoning. Administrative law could adapt: U.S. history provides an ample storehouse of examples where jurists and other decision makers responded to the needs of the day by altering the legal and organizational structures that translate politics into policy. But success is far from a foregone conclusion. The law could fail to change, or change in ways that are counterproductive, exacerbating the weaknesses of the current system while failing to capitalize on its potential.

Borrowing from recent work in political science, we characterize current politics as an era of "partisan volatility" with several defining characteristics.¹³ These include weak party organizations alongside strong partisan polarization; alternating periods of unified and divided government; the accumulation of policymaking power in the executive; and the weakening of moderating institutions such as the civil service. Together, these political facts have important consequences for how administrative law doctrines—from Lucia's holding on ALJs to efforts to limit Chevron deference—should be understood.

The core takeaway from our argument is that contemporary administrative law is poorly suited to the political moment and is poised to become even more so. In the post-New Deal period of divided government that lasted from 1969-1992, an almost exclusively Republican executive, aligned around a coalescing coalition of social conservatives, defense hawks, and business interests,

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negotiated with a Congress that was the remaining holdout of the traditional labor-dominated Democratic Party. It was during this period that administrative law, as recognized today, developed its current form. Core features include notice-and-comment rulemaking as a chief vehicle for policy change and the (somewhat contradictory) judicial doctrines of hard look arbitrary or capricious review and Chevron deference. This period also saw the rise of what Professor Cass Sunstein refers to as the "cost-benefit state,"¹⁴ with its hallmark characteristic of White House regulatory review.

In retrospect, it is relatively clear that the election of Bill Clinton ended the period of divided government in favor of the new period of partisan volatility. Institutionally and doctrinally, change—where it has occurred—has primarily been accomplished via grafting, rather than the development of new legal regimes. Practices from the prior era, such as cost-benefit analysis and doctrines such as Chevron deference took on new meaning with alternating Democratic and Republican administrations, and during periods of united versus divided government. For a time, this process of grafting worked well enough, but the election of Donald Trump at the head of a newly unstable Republican party, and the level of tempest represented by his administration, may serve as the breaking...