Internal administrative law.

• Author: Metzger, Gillian E.

ABSTRACT

For years, administrative law has been identified as the external review of agency action, primarily by courts. Following in the footsteps of pioneering administrative law scholars, a growing body of recent scholarship has begun to attend to the role of internal norms and structures in controlling agency action. This Article offers a conceptual and historical account of these internal forces as internal administrative law. Internal administrative law consists of the internal directives, guidance, and organizational forms through which agencies structure the discretion of their employees and presidents control the workings of the executive branch. It is the critical means for shaping the discretion of officials and ensuring accountability within agencies. Internal administrative law's binding status in structuring agency decision marks it as a form of law.

This Article's project is one of recovery more than invention. The decade-long debate culminating in enactment of the Administrative Procedure Act (APA) reflected consistent recognition of internal controls' contributions to agency accountability. Despite this history, judicial enforcement of the APA undermined internal administrative law and constrained its content by treating the agency's articulation of internal norms that bind agency actors as triggering external judicial enforcement. At the same time, expanded White House control has made internal administrative law more centralized. Given the importance of internal administrative law to agency accountability and administrative legitimacy, the time has come for more sustained engagement with the idea of internal administrative law and measures to foster its development.

TABLE OF CONTENTS INTRODUCTION I. INTERNAL ADMINISTRATIVE LAW A. Categories and Varieties of Internal Administrative Law B. Internal Administrative Law as Law 1. The Characteristics and Values of Law 2. Externality Is Not a Precondition for Law 3. Why Law and Not Administration or Management? C. The Critical Role of Internal Administrative Law II. INTERNAL ADMINISTRATIVE LAW AND THE ENACTMENT OF THE APA A. The President's Committee on Administration and Management B. The Attorney General's Committee on Administrative Procedure C. The APA III. INTERNAL ADMINISTRATIVE LAW AFTER THE APA A. Procedural Invalidation: Legislative v. Nonlegislative Rules B. Externalization: Reviewability and Accardi 1. Reviewability 2. Accardi and Ruiz C. Executive Branch Regulation of Internal Law D. Impact on Internal Administrative Law IV. FOSTERING INTERNAL ADMINISTRATIVE LAW A. External Reforms: Congress and the Courts 1. Congress 2. The Courts B. Internal Reforms: The President and the Agencies 1. Administering Central Executive Branch Law 2. Fostering Agencies' Internal Administrative Law 3. Agency Self-Reform C. Internal Administrative Law and Political Culture CONCLUSION INTRODUCTION

To the parties in United States v. Texas, (1) the Obama Administration's immigration initiatives (2) represented either unilateral presidential usurpation of lawmaking power or simply the standard executive tasks of statutory implementation and priority setting. (3) The Supreme Court split on which of these diametrically opposed accounts to adopt, affirming the Fifth Circuit's invalidation of the initiatives by an equally divided Court. (4) But from an alternative perspective, the initiatives were not just about the scope of presidential power. Instead, they raised a question that is central to modern administrative governance: What is, or should be, the role of internal administrative law in the U.S. administrative state?

Agencies act in myriad ways. Many are externally focused and aim at creating rights and imposing duties that bind third parties outside the agency. (5) Others, however, have an internal focus, targeting agency staff and operations or the executive branch more broadly. (6) Needless to say, no clear line differentiates these two; the internal and external dimensions of administrative action are closely linked and often hard to separate. Nonetheless, increasingly the internal, agency-facing sides of agency action are rising to the fore.

The immigration initiatives, enforcement policies adopted by the secretary of the Department of Homeland Security (DHS), were paradigmatic examples of internal administrative law. Adopted outside of notice-and-comment rulemaking, the policies identified several categories of undocumented aliens as priorities for deportation and others as eligible to apply for deportation relief. (7) Although these polices had a major impact on individuals outside of the executive branch--with an estimated five million aliens qualifying for deferred action--they were ostensibly aimed at DHS personnel and announced in the form of internal memoranda from the secretary to the heads of DHS's immigration units. (8)

More and more, presidents and executive branch officials rely on internal issuances and internal administration to achieve policy goals and govern effectively. (9) The causes of this agency move to internal administration are varied: Most prominent perhaps is the overall trend towards administrative governance in response to polarized politics and legislative gridlock, a trend evident in growing reliance on regulatory measures in general, and not just on internal administrative law. (10) Other factors include searching judicial review and transformations in the form of regulation, such as greater privatization and devolution or the rising importance of national security and crisis governance. (11) Whatever the cause, the growing centrality of internal administration is evident across a broad range of substantive areas. To give just a few examples: interagency arrangements are important parts of recent environmental and financial regulation and national security initiatives; (12) guidance and enforcement policy play an increasingly central role in education and employment contexts; (13) and administrative oversight, negotiated agreements, and funding protocols have significantly affected the shape of contemporary federalism. (14) Equally, if not more, significant is the growing number of issuances from centralized entities like the Office of Management and Budget (OMB) and its Office of Information and Regulatory Affairs (OIRA), governing everything from regulatory promulgation and analysis to agency use of guidance, budgeting, enforcement policy, and peer review. (15)

Administrative law scholarship has also gone internal. Agency design and coordination, centralized White House control, the civil service and internal separation of powers, internal supervision, the role of agency guidance--these are just some of the topics now receiving sustained scholarly analysis. (16) By focusing on the internal life of agencies, today's scholars are retracing the steps of administrative law pioneers at the turn of the nineteenth century. (17) They are also heeding the insights of Jerry Mashaw, who emphasized the importance of internal agency administration decades before it was popular. (18)

But while administrative law scholarship and administrative reality have turned internal, the same is not true of administrative law as it is generally understood. The reigning model for administrative law doctrine continues to be external constraints on agencies imposed by Congress and the courts. (19) Under this model, internal administrative measures are often painted as unlawful efforts by agencies to evade external legal restrictions. Here again, the immigration initiatives are Exhibit A: in Texas v. United States both the federal district court and the Fifth Circuit held that DHS memos violated the externally imposed procedural constraints on agency action contained in the Administrative Procedure Act (APA). (20) Another prime example is the frequent complaint that agencies are using guidance and other forms of internal law to evade the procedural requirements of notice-and-comment rulemaking. (21)

Even when not portrayed as violating the APA, however, key features of internal administration--internal policies, procedures, practices, oversight mechanisms, and the like--are rarely viewed as part of administrative law. (22) Just as public administration and administrative law are distinguished as academic fields, so too are they viewed as distinct phenomena in the life of administrative agencies. The longstanding distinction between "law" and "politics" reinforces the sense that internal measures, often driven by policy concerns and political imperatives, should be excluded from the legal side of the ledger. (23)

Our goal in this Article is to offer a full-throated account of internal administrative law that challenges this received administration--law divide. We argue that many internal measures, ranging from substantive guidelines to management structures that allow for oversight of agency operations, qualify as forms of law. These measures not only bind and are perceived as binding by agency officials; they also encourage consistency, predictability, and reasoned argument in agency decisionmaking. (24) They frequently involve traditional lawmaking activity, including interpretation and enforcement of statutes, regulations, executive orders, treaties, and the Constitution. (25) Put together, they have many of the paradigmatic features of legal norms even if they lack the element of enforcement through independent courts. In arguing for the legal nature of internal administration, we are following and expanding upon the work of Jerry Mashaw, who--himself drawing on the early work of Bruce Wyman--has long advocated recognizing the status and importance of internal administrative law. (26)

Acknowledging the lawlike character of internal administration still leaves the concern that such internal measures are nonetheless unlawful because they undermine and conflict with external law, and in particular the APA. As a result, exploring...