Localist administrative law.

Author:Davidson, Nestor M.
Position:Author abstract

ARTICLE CONTENTS INTRODUCTION I. A DOUBLE LACUNA: LOCAL/ADMINISTRATION II. A FEDERAL BASELINE FOR A VERTICAL COMPARATIVE PERSPECTIVE A. The Structural Predicates of Administrative Law's Federal Focus B. (Federal) Themes in the Administrative Law Discourse III. LOCAL ADMINISTRATION: DOMAIN, CONTEXT, AND PRACTICE A. The Regulatory Domains and Forms of Local Administration 1. The Breadth of Local Agency Action 2. The Ubiquity and Variety of Local Agencies B. The Structural Context of Local Administration 1. The Vertical Dimension: The State-Local Relationship 2. The Horizontal Dimension: Local Fragmentation 3. The Internal Dimension: Structure Within Local Governments C. The Granular Texture of Local Agency Action 1. Formality and Informality in Local Agency Action 2. The Local Permeability of Public and Private IV. LOCALIST ADMINISTRATIVE LAW A. A Jurisprudence for Judicial Review of Local Agency Action 1. Recognizing the Implications of Local Structure 2. Calibrating Procedural Regularity 3. Accommodating Public/Private Ambiguities 4. Reconceptualizing Local Expertise B. Two Doctrinal Examples 1. Deference and Substantive Review--Localist Chevron and Skidmore 2. Nondelegation in the Shadow of Local Practice V. THE LACUNAE REVISITED A. Administration in the Discourse of Localism 1. New Variables for Democracy, Community, and Parochialism 2. Experimentalism Refracted Through Administration B. The Place of the Local in Administrative Law 1. Embracing Institutional Variety 2. Unifying Administrative Law "All the Way Down" C. Toward an Agenda Moving Forward CONCLUSION INTRODUCTION

In the waning days of Mayor Michael Bloomberg's administration, the New York City Department of Health and Mental Hygiene promulgated a regulation that would have limited sales based on the portion size of so-called "sugary" drinks. (1) This effort was the best-known--and arguably the most controversial-of a long series of public-health rules from the agency that included smoking restrictions, a ban on trans fats, and a mandate for listing calorie counts in restaurants. (2) Before the portion-limit regulation could take effect, however, the New York state courts invalidated it on grounds seemingly familiar to any scholar of administrative law: separation of powers and the nondelegation doctrine. (3)

What is distinctive about this controversy is not that the judiciary found that an administrative agency had overstepped its bounds; that much is relatively banal, although not without its problems in this particular case. (4) It is, rather, that the relevant agency promulgating the rule at issue was part of a local government.

In legal scholarship, administrative law is almost always synonymous with federal administrative law. (5) The institutional frameworks, doctrinal questions, and theoretical concerns that drive the voluminous literature on administrative law almost exclusively take the alphabet soup of federal executive-branch agencies, acting pursuant to statutes enacted by Congress and overseen by Article III courts, as the reigning paradigm. The preoccupations and prescriptions of mainstream administrative law accordingly flow from this institutional and regulatory context. (6)

This myopic federal focus obscures a massive, submerged, and surprisingly vibrant domain of administration that exists at the local-government level. Nested within the tens of thousands of cities, suburbs, towns, and counties that span the country is a vast panoply of local agencies with significant frontline regulatory responsibility. These agencies work in policy domains as varied as economic regulation, public health, land use, policing, environmental protection, education, public benefits, and consumer welfare. (7) It is no exaggeration that almost every area of local governance operates through myriad zoning boards, education departments, police commissions, motor vehicle bureaus, social-service agencies, and similar institutions. If, as the introduction to a leading casebook on local-government law puts it, three core relationships have traditionally defined the field--those "between cities and higher levels of government, between neighboring cities, and between cities and the people who live within their boundaries" (8)--then local administration represents a crucial fourth relationship--between and among institutions within local governments.

Political scientists, economists, and scholars of public management have long grappled with the interplay between bureaucracy and democracy at the local level. (9) Yet legal scholars have been oddly absent from this discourse, paying too little attention to the inner workings of local government in general (10)--and even less to the important arena of local agency practice (11)--despite the voluminous literature on administrative law and practice that predominates at the federal level. This is unfortunate, because the administrative state that exists at the local-government level--one might call it the administrative city-state--is every bit as worthy of scholarly examination as its more familiar federal counterpart. (12)

When one turns the lens on the metaphorical microscope, what does local administration actually look like? It is difficult to generalize, given the number and variety of local agencies, but several themes emerge. First, as noted, local agencies reflect the breadth of the work of local governments. Agencies are involved in the delivery of core local services, such as education, policing, and sanitation, often the functions most closely identified with local governments. (13) But it is easy to forget that local governments also exercise significant regulatory authority, delegated from the state government or under "home rule." (14) Local agencies, for example, set the rules and oversee the functioning of many aspects of the built environment--through zoning, subdivision rules, building and housing codes, and similar statutory regimes. They also regulate significant aspects of local economies, including wage and hour rules, workplace conditions, and antidiscrimination requirements. And an increasingly important aspect of local regulation involves the environment. Much of local agencies' work across policy areas happens through licensing, (15) but local agencies also engage in traditional direct regulation. (16)

If this is what local agencies do, what can be discerned about the legal and institutional contexts in which they operate? Local agencies are not simply junior-league counterparts to federal agencies. While there are some local governments --particularly in larger cities such as New York--that have surface resemblance to the federal three-branch paradigm, most have distinctly different structures. (17) For example, many local governments have little or no formal separation of powers, with lawmaking authority often vested in a unified legislative-executive body. The "mayor" in these jurisdictions, if there is one, is just another council member. Even for those local governments that have a recognizable independent chief executive, that executive's ability to directly oversee agencies is often circumscribed. (18) And many local agencies are subject to quite limited electoral accountability, reporting to the state or entirely lacking a relevant, direct electoral mechanism of any sort. (19)

While some local agencies, moreover, are well staffed and operate as formally as any federal agency, local administration tends to work more informally. Indeed, the precise procedural requirements binding local agencies are often surprisingly murky. (20) Local agencies also often operate at the edge of a blurry line between governmental action and public participation. Community engagement in zoning regulation, school board decisions, police review commissions, and other examples of the blending of public and private underscore the breadth of citizen participation in local agency work that is uncommon at the federal level. (21) And local-government functions can be entirely privatized, including some administration. All of these variations inform this Article's first aim--providing a descriptive foundation to understand the nature and work of local administration.

Shifting from this empirical grounding to doctrinal questions, this Article argues that these features of local agency context and practice should shape a new, distinctly localist administrative jurisprudence. (22) Courts--and it is mostly state courts that review local agency action--engage in judicial review across a variety of contexts, from statutory interpretation, to substantive agency policymaking, to policing the bounds of procedural regularity. (23) When they do, they should attend to four particularly salient aspects of the local context.

First, rather than importing federal--or even state--administrative law norms wholesale, courts should be clear-eyed about the doctrinal implications of local governmental structure and the complex nature of delegated authority for local agencies. (24) Courts should consider, for example, whether limits on executive oversight militate against deference, or whether the absence of separation of powers in a local government might change the nature of the nondelegation doctrine. Similarly, the fact that many local agencies have two layers of oversight--by their local and state governments--may mitigate concerns about capture, corruption, and faithless agents. In these and many other ways, the details of local governmental structure matter for judicial review. (25)

Second, courts should be sensitive to the contexts for formality and informality in the work of local agencies. In most instances, as with the approach that courts take when scaling deference in reviewing federal administration, (26) formality should be accorded judicial respect. Where an agency has acted through legislatively prescribed procedure or adopted careful processes of its own, with substantial evidence when appropriate, that...

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