'Relative checks': towards optimal control of administrative power.

AuthorRubenstein, David S.

ABSTRACT

Administrative agencies wield a necessary but dangerous power. Some control of that power is constitutionally required and normatively justified. Yet widely discordant views persist concerning the appropriate means of control. Scholars have proposed competing administrative control models that variably place the judiciary, the President, and Congress at the helm. Although these models offer critical insights into the institutional competencies of the respective branches, they tend to understate the limitations of those branches to check administrative power and ultimately marginalize the public interest costs occasioned by second-guessing administrative choice. The "relative checks" paradigm introduced here seeks to improve upon existing models in at least two critical respects. First, it posits the existence of an optimal control point within the shared values of two sometimes competing missions in administrative law: that of promoting the public interest and that of legitimizing administrative power within our constitutional scheme. Next, the paradigm argues that the optimal control ideal can be best realized by tailoring both the source and degree of administrative control to particular types of administrative actions with sensitivity to the institutional competencies of the respective checking bodies. Prescriptively, this framework seeks to apportion control among the respective branches in a way that capitalizes on each branch's competencies while democratically promoting the public interest. Descriptively, looking through a relative checks lens may also enhance our understanding of existing administrative practices and the academic critiques thereof.

TABLE OF CONTENTS INTRODUCTION I. CONTEXTUALIZING ADMINISTRATIVE POWER WITHIN OUR CONSTITUTIONAL STRUCTURE A. Congressional Delegation of Authority B. The Policy-Making Power II. LEGITIMIZING ADMINISTRATIVE POWER THROUGH OVERSIGHT AND CONTROL A. Judicial-Control Model 1. The Legitimizing Judiciary 2. Critiques of the Judicial-Control Model a. Judicial-Realist Critiques b. The Indeterminacy of Law c. The Problem of Political Independence d. The Problem of Checking-the-Checker and the "Balkanization" of National Policy e. Other Normative Critiques B. Presidential-Control Model 1. Presidential Control and Oversight 2. Critiques of the Presidential-Control Model C. Congressional-Control Model 1. Congressional Oversight and Control 2. Critiques of the Congressional-Control Model D. Themes and Lessons of Existing Administrative-Control Models III. DEVELOPING A RELATIVE CHECKS PARADIGM A. Reconceptualizing the Administrative Puzzle 1. Missions 2. Fronts and Players 3. Revisiting the Questions B. Foundational Principles C. Tailoring Review Toward "Optimal Control" 1. Optimal Control Point 2. Need for Tailored Control 3. Source and Degree Dimensions 4. Type of Administrative Output 5. Combining the Elements IV. RELATIVE CHECKS IN ACTION A. Source of Control B. Degree of Control 1. Chevron Doctrine 2. Hard-Look Doctrine CONCLUSION INTRODUCTION

Administrative agencies wield a necessary but dangerous power. (1) Some control over that power is constitutionally required and normatively justified. (2) But widely discordant views persist concerning the appropriate means of administrative control. The problem is complex, and the stakes are escalating: Congress recently armed agencies with unprecedented sums of money; (3) President Obama is restructuring executive review of agency policy in response to perceived failures of the Bush administration; (4) and the financial and health industries are targeted for sweeping regulatory growth. (5) As both the necessity and danger of administrative power reach new levels, a more tailored approach to administrative control than presently exists is desperately needed. The "relative checks" paradigm introduced here seeks to fill that void.

The administrative-control puzzle is complicated by the need to balance the virtues of administrative power against the costs of over- or underchecking it by the various branches of government. Scholars have proposed competing models of administrative control that variably place the judiciary, President, or Congress at the helm. The judicial-control model posits that courts, by virtue of their political independence and sensitivity to legal norms, provide an essential check on administrative action. (6) The presidential-control model, instead, relies on the President's national accountability and influence over administrative policy as democratizing forces. (7) Meanwhile, the congressional-control model boasts of Congress's lawmaking pedigree and its ability to control administrative action through legislative power, committee pressure, and other modes of influence. (8) These models, insofar as they aim to legitimize administrative power, offer critical insights into issues of administrative control. But their shortcomings are twofold: they tend both to overstate the institutional competencies of the respective branches to control administrative power, and they tend to marginalize the public-interest costs occasioned by second-guessing administrative choice.

The relative checks paradigm seeks to improve upon existing administrative-control models in at least two critical respects. First, the paradigm posits the existence of an optimal-control point that strikes a balance between the costs and benefits of administrative control. Next, I argue that the optimal-control ideal can be best realized by (1) tailoring both the source and degree of administrative control (2) to particular types of administrative actions (3) with sensitivity to the institutional competencies of the respective checking bodies. (9) Prescriptively, this approach seeks to apportion control among the tripartite branches in a way that democratically promotes the public interest. Descriptively, looking through a relative checks lens may also enhance our perspectives on existing administrative practices and the critiques thereof.

Part I of this Article contextualizes the rather uneasy place of the administrative state within our tripartite system of government and highlights the potential virtues of administrative power. As free-market solutions prove inadequate to deal with emerging economic and social conditions, Congress assumes increasing regulatory responsibility. (10) But Congress's ability or desire to legislate with specificity over this broadened public law spectrum wanes in negative proportion. (11) The result is significant policy vacuums within the regulatory territories staked by Congress. (12) In filling that void, agencies offer resources, expertise, and flexibility not generally enjoyed by the judicial or political branches. (13) Indeed, for these reasons, agencies are potentially the best vehicles to promote the public interest.

The legitimacy of administrative power, however, is sharply questioned on both constitutional and normative grounds. The once heralded ideal of administrative objectivity is now widely regarded as myth. (14) Administrative policymaking is now understood to be as much or more about politics as it is about expertise and science. (15) Although necessity and convenience are understood as the causes of congressional delegations of authority to administrative bureaucrats, these considerations fall short in justifying administrative power within our separated-and-balanced government system. (16) Thus, it is generally argued, administrative power must be legitimized through its oversight and control. (17)

Part II explores the claims and critiques of existing administrative-control models. Several important themes and lessons emerge from their study. Most importantly, each oversight branch offers unique competencies and perspectives for controlling administrative power. But their respective attributes are more usefully put to work in some contexts than in others. For example, a court may be well suited to resolve legal questions but not scientific or political ones, whereas the President may be better suited to resolve political questions rather than scientific or legal ones.

Building on the insights and critiques of the existing control models, Part III develops a more cohesive "relative checks" framework for analyzing issues of administrative control. The paradigm rests on an important pairing of principles. First, just because a checking body should control administrative action does not mean it properly can in light of logistical or constitutional limits. (18) Second--and conversely--just because a checking body can control administrative action does not mean normatively that it should. Accepting, however, that oversight and control are necessary conditions of administrative power, the predicate questions that the relative checks paradigm addresses are: (1) from what source, and (2) in what degree should such checks come?

I approach the problem by conceptualizing an optimal control point within the shared values of two sometimes competing missions in administrative law: that of Iegitimizing administrative power within our constitutional structure, the "legitimacy mission," and that of promoting an objective public interest, the "public-interest mission." (19) While the legitimacy and public-interest missions are not mutually exclusive, neither are they mutually dependent. Whatever public-interest values administrative agencies may promise, our constitutional structure cannot countenance autonomous power by unelected agency bureaucrats. At some point, however, legitimacy concerns--upon being translated into oversight and control--might yield a decision by the checking body that has worse public outcomes than the one administratively adopted. The relative-checks paradigm thus conceives of optimal control at the intersection between the public interest and the constitutional imperative to check administrative action.

Next, I argue that the optimal control ideal may best be...

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