An Article I, Section 7 perspective on administrative law remedies.

• Author: Bershteyn, Boris

CONTENTS INTRODUCTION I. METHODOLOGY: PLAYING THE ARTICLE I, SECTION 7 GAME A. The Sequential Structure of Article I, Section 7 B. Article I, Section 7 as a Sequential Game 1. Original Rules: Bicameralism and Presentment 2. New (Deal) Rules: A Pro-President Bias 3. Adaptive Responses: Too Little or Too Much C. What if Courts Played Too? 1. Motivating Judicial Participation 2. A Role for Courts: Some Proposals and Critical Responses II. A NEW PLAYING FIELD: REMEDIAL CHOICE IN ADMINISTRATIVE LAW A. Presumptive Vacatur: A Winning Move in the Article I, Section 7 Game B. Leaving the Allied-Signal Test Behind III. MEDIA--OWNERSHIP RULES: A CASE STUDY OF REMEDIAL ERROR A. Before Fox: A Brief Regulatory History B. A Critical Look at Fox Remedies C. After Fox: Testing Predictions 1. Prediction 1: Agency Action on Remand 2. Prediction 2: Congressional Use of Appropriations Process 3. Prediction 3: Agency Responses to Informal Congressional Pressure CONCLUSION INTRODUCTION

In recent decades, our understanding of the administrative state, and particularly its relationship to political institutions created by the U.S. Constitution, has benefited substantially from game-theoretic analysis. (1) Scholars who apply game theory to policy formation "view[] relationships between political actors, such as the President, Congress, and the Supreme Court, as a sequential game in which each party acts based on its expectations of the other parties' responses." (2) Not surprisingly, the familiar sequence created by Article I, Section 7--which sets forth the bicameralism and presentment requirements for federal lawmaking--has attracted particular attention. (3) Scholars applying sequential models have explored how this constitutional game has been transformed by the arrival of a new player, the twentieth-century administrative state. (4) Since federal administrative agencies enjoy significant delegated powers (5) and discretion in statutory interpretation, (6) it is perhaps axiomatic that they may alter federal policy in favor of the President who oversees them. (7) Game theory has added analytic precision to this intuition. It has also permitted legal scholars to recommend specific doctrinal reforms that counteract the pro-President bias created by the federal bureaucracy: reforms in constitutional law, in statutory interpretation techniques, and in judicial deference to administrative decisions (the so-called Chevron doctrine). (8)

This Note explores another possible compensating strategy. It applies sequential analysis to a judicial function that has not been extensively explored by legal theorists--the choice of remedies in administrative law. When a court finds a legal defect in an agency's decision, two remedial options are available: It can either vacate the defective rule or remand it back to the agency without vacatur (that is, leave the rule in place for the time being). (9) This Note makes two arguments about this choice, one descriptive and one normative. First, sequential analysis suggests that the two remedies can lead to different lawmaking sequences and may therefore generate distinct policy outcomes. Second, presumptive vacatur would best reflect the original design of Article I, Section 7 in the age of administrative bureaucracy. Remand without vacatur, in comparison, biases policy outcomes in favor of the President. In short, this Note argues that, to the extent that the sequential structure of Article I, Section 7 should inform courts' remedial choices, vacatur should be the presumptive administrative law remedy. Importantly, this recommendation runs counter to a recent judicial trend: Starting in the early 1990s, courts have increasingly remanded agency rules without vacating them. (10) This Note offers a reason to be wary of this development.

Much of the theoretical analysis that supports this Note's presumptive vacatur thesis derives from a straightforward sequential model. Admittedly, such a model makes numerous simplifying assumptions and therefore cannot fully replicate the rich dynamics of our political life. This predicament raises two concerns about real-world application of this Note's recommendation: Can courts implement presumptive vacatur in the context of specific cases? Can the sequential model, on which the rationale for presumptive vacatur rests, accurately predict the aftermath of judicial remedies?

This Note will make a preliminary inquiry into these questions by using the national television station ownership rule as a case study. In 2002, the Court of Appeals for the District of Columbia Circuit found the Federal Communications Commission's latest iteration of this rule "arbitrary and capricious and contrary" to the Telecommunications Act of 1996. (11) Despite these defects, the court remanded the rule to the FCC without vacating it. (12) This Note's presumptive vacatur analysis suggests that the court erred: Vacatur, not remand, was the appropriate remedy. More importantly, the aftermath of the court's improvident remand proved broadly consistent with the predictions of the sequential model. Of course, no abstract model can be conclusively verified by examining a single administrative policy. Rather, this Note pursues its case study with the less ambitious goal of illustrating its theoretical analysis in a tangible policy context.

Part I introduces sequential analysis of the Constitution's lawmaking process and outlines the normative recommendations that legal scholars have derived from this technique. Part II then applies this Article I, Section 7 game to a new field--administrative law remedies--and makes the theoretical case for presumptive vacatur as an alternative to today's remand-friendly jurisprudence. Finally, Part III turns to the national television ownership rule for a real-life illustration of this Note's analysis.

1. METHODOLOGY: PLAYING THE ARTICLE I, SECTION 7 GAME

   As a crucial point of departure for their game-theoretic analysis, political theorists have observed that policymaking "has an inherently sequential structure" and that the specifics of this sequence "can have significant implications for the kinds of policy that can be produced." (13) The reasons a "particular sequential structure has arisen rather than others.... would seem to lie in the logic of constitutional design" (14)--and Article I, Section 7 specifies one such design. This Part articulates how this constitutional sequence can inform legal doctrine. Section A outlines the Founding ideology behind the bicameralism and presentment requirements. Section B focuses on a sequential model of these requirements developed by William Eskridge and John Ferejohn--a model that traces how the administrative state has altered the Founders' sequential scheme in favor of the President. Section C suggests why jurists--originalists and nonoriginalists alike--might seek to restore the original sequential structure without fundamentally curtailing the scope of the federal bureaucracy. It then summarizes existing proposals for such compensating reforms. This review of existing work will lay the foundation for this Note's main task--developing an Article I, Section 7 perspective on administrative law remedies.

   1. The Sequential Structure of Article I, Section 7

      According to the Supreme Court, "the prescription for legislative action" in Article I, Section 7 "represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure." (15) This procedure requires that, before becoming law, a bill must be adopted by a majority of both the House of Representatives and the Senate and must then be presented to the President for signature. Should the President veto the bill, it can become law only upon the approval of two-thirds of each legislative chamber.

      These fundamental requirements of Article I, Section 7--bicameralism and presentment--reflect the Framers' insight that "every institution calculated to ... keep things in the same state in which they happen to be at any given period" is "much more likely to do good than harm." (16) Diffusion of political power among differently constituted entities came to be seen as "the best defense of liberty," for "[u]nless individuals and minorities were protected against the power of majorities no government could be truly free." (17)

      Bicameralism and presentment were to serve precisely these purposes. Since "the legislative authority necessarily predominates" in a republic, the Framers required departures from the status quo to gain assent from two separate chambers, which were rendered "as little connected with each other as the nature of their common functions and their common dependence on the society will admit." (18) Presidential veto, meanwhile, responded to the fear that bicameralism would not alone stem the tide of improvident legislation. The veto, of course, was not absolute (an absolute veto power having "something in the appearance of it more harsh, and more apt to irritate" (19)), but subject to legislative override. The Founders hoped "that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in defiance of the counterposing weight of the executive." (20) Thus, the drafters of Article I, Section 7 deliberately crafted an elaborate sequential process by which majoritarian institutions could alter the nation's course through legislation.

      Two decades ago, the Court adopted a particularly formalist reading of Article I, Section 7. In INS v. Chadha, it rejected the constitutionality of the legislative veto, a statutory provision allowing a congressional majority to annul administrative agency decisions without presenting this annulment to the President. (21) The Court held that this procedure violated the "[e]xplicit and unambiguous" policymaking sequence of...