When I agreed to respond to Professor Postell’s essay, I thought that we would be operating on premises shared, not only by him and me, but also by the general community of scholars who study the administrative state. Upon reading his essay, however, I realized that my understanding was incorrect. Postell’s essay rests on strictly libertarian assumptions, namely, that the best government is the smallest and, accordingly, that the proper job of courts is to reduce the size of the administrative state.

The way Postell sets out his essay poses a conundrum for me. It reminds me of my youth, watching my high school basketball team. When a call did not go our team’s way, the loyal fans would scream at the referee: “Ref, did you stop beating your wife yet”? Any direct response necessarily acquiesces in the assumption that at some point the referee beat his wife. Similarly, Postell’s essay essentially asks whether conservatives should rely on the courts to limit government.[1] Any direct response must acquiesce in the assumption that the appropriate role of courts is to limit government.

In fact, however, outside of protecting fundamental rights, administrative law scholars who are not libertarians believe that the goal of courts should be to ensure that government operates deliberatively and transparently to perform the tasks that the political branches have assigned it by statute. Whether the federal government is large or small is a political choice; as such it should properly depend on whom the people have elected to Congress and the presidency. It should not be a concern of the courts. Postell tries to suggest that there is some bona fides in using the courts to limit the administrative state independent of the task it has been statutorily assigned. He spends most of his essay arguing that agencies are no longer responsive to presidential direction.[2] Historically, however, this is false in the sense that the administrative apparatus of the federal government is more susceptible to presidential influence today than for virtually all of the twentieth century. More fundamentally, it is misleading in suggesting that somehow any shortfalls in the ability of the President to control the bureaucracy justify the courts filling in for the political branches to make regulatory decisions.

Rather than allowing myself to be hemmed in by Postell’s untenable assumption, I have not framed my reply as a direct response to his polemics. Rather, I address the question: “What is the appropriate relationship of the courts to agencies in our constitutional democracy”?

The Distinction between Policy and Law

To understand the appropriate role of courts in the administrative state, it is imperative to distinguish between law and policy. Dating at least as far back as Marbury v. Madison[3] there has been fairly universal consensus that it not appropriate for courts to make policy decisions. This distinction remains crucial to such judicially self-imposed constraints as the “political question doctrine,”[4] and I would contend much of current administrative law. Policy decisions require subject area expertise to understand the implications of choosing one policy over another – expertise that courts lack and could not gain without recreating the kind of staff structure that agencies exhibit and that Postell laments.[5] In addition, once the implications of policy choices are understood, the ultimate choice will involve value judgments about the trade-offs that will result. These value choices are inherently arbitrary in the sense that they reflect pure preferences and cannot be derived from any reasoned calculus. In our representative democracy, such choices are quintessentially political: they are to be made by the representatives of the people, who in turn can be held politically accountable for their choices.

Courts, in contrast, interpret and apply the law. To be legitimate, judicial decisions must derive from legal sources such as statutory text, precedent and accepted fundamental understandings of our legal system. Postell argues that because agencies are not sufficiently controlled by the President, the courts must step in to constrain agencies.[6] He even intimates that it would be appropriate to jettison the regulatory system in favor of courts applying common law doctrines.[7] Federal courts, however, are intentionally insulated from politics and do not have experts who can understand the implications of particular regulatory choices. The judiciary simply is not the appropriate institution to decide on how limited a role federal regulation should play in our system of government, let alone to make particular regulatory choices. That being said, the courts do play a legitimate role of assuring that an agency consider criteria that the law deems relevant and identify the value judgments inherent in any action it takes, thereby increasing political transparency.

Administrative Law and the Appropriate Role of Courts

A doctrine that I believe reflects the judiciary’s role in regulatory government is the hard look standard of review. Under this standard, courts review the policy choices that underlie agency actions. The doctrine explicitly requires that the agency consider relevant factors and plausible alternatives to the action it chooses, evaluating the implications of the action and explaining why it chose that action versus an alternative.[8] That is, agencies must properly use their expertise to identify the trade-offs inherent in their actions, and explain why they chose those trade-offs.[9] Many scholars of administrative law believe that courts overstep their appropriate role when applying the hard look test in part because judges apply the test more rigorously when they ideologically disagree with an agency action, and thereby engage in judicial policy-making when applying the test.[10] But, because of the nature of judicial review, such review by itself rarely prevents agencies ultimately from implementing their preferred policies,[11] although review can slow down that implementation. Hard look review tends to prevent agency implementation of its preferred policies when it triggers a political reaction that constrains the agency or alters its goals.[12] Moreover, the hard look doctrine is inherently biased toward neither big nor small government because it applies to deregulatory actions as well as regulatory ones.

Another doctrine that appropriately incorporates the judiciary into the regulatory state is Chevron review of statutory interpretation. Despite Postell’s objection that under Chevron courts abdicate what he sees as their responsibility to constrain agencies, that doctrine is consistent with, and perhaps even mandated by, the appropriate judicial role in our regulatory system. Chevron divides the process of statutory interpretation into two steps. Courts first ask whether the statute resolves the precise interpretative question under review. If the statute does so, then the court applies its interpretation of the law. If, however, the statute is silent or ambiguous with respect to that precise question, then courts defer to an agency interpretation as long as it is permissible and reasonable.[13] Essentially, Chevron recognizes that once a court cannot resolve the interpretive issue using the “traditional tools of statutory interpretation,”[14] then the matter is really one of policy.[15] Step two calls for the courts to review choices of interpretation in that context with the same deference courts apply to policy decisions, again ensuring that agencies use their expertise to identify and explain trade-offs inherent in their actions.

I would note in passing that my skepticism about an increased judicial role does not stem from favoring liberalism over conservatism. As Postell points out, it was the Supreme Court that essentially ordered the Environmental Protection Agency to regulate greenhouse gasses.[16] And, as Michael Greve’s research has revealed, replacing agency enforcement of regulatory standards with citizen suits subjects regulated entities to greater vagaries and even extortion than relying on agency adjudication.[17] Furthermore, reliance on courts to “regulate” via common law actions can also favor liberal as well as conservative outcomes. Thus, without the EPA’s Clean Air Act program, the common law might very well support nuisance suits against coal fired power plants.[18]

The Alleged Problem of Insufficient Accountability

Postell’s argument for judicial control over regulation thus seems misguided. But it is worth addressing his assumption that there is insufficient political control over administrative agencies to see what, if any, purchase that argument gives to his recommendations.

The inability to control the federal bureaucracy has been a recurrent presidential complaint over the past century. Today, however, the Executive Office of the White House and the Office of Information and Regulatory Affairs are heavily involved at least in major regulatory actions of executive agencies.[19] Recent appointments of regulatory czars in the White House and increased focus on appointing agency heads with close ties to the President have also increased White House control over regulation. And the willingness of Presidents to take personal “ownership” of regulatory issues has further increased presidential control and political accountability for regulatory outcomes.[20] Granted, the federal government today is too large for any one person to know, let alone direct, all of its regulatory actions. But, for any matter of which the President is aware and wishes to take control, usually he is able to dictate his preferred policy.

The key point, however, is that the response to any problem of potentially insufficient presidential control of the administrative state should not be judicial control. The notion that the courts through common law actions can provide the regulation necessary to maintain even a minimalist conception of the modern state is ludicrous. Regulatory outcomes would depend on such factors as the amenability of particular harms to proof of causation, whether harms are sufficiently great to motivate private suits, and the particular judge who would preside over a case. After all, as judge Skelly Wright once said when confronted with the prospect of reversal by the Supreme Court: “Well hell, they can’t grant cert on everything!”[21] If Postell is correct that there is insufficient presidential control over the administrative state, a point with which many mainstream administrative law scholars disagree,[22] the remedy is to restructure the regulatory system to provide increased accountability not to empower the non-majoritarian courts to make policy.

Focusing on Postell’s particular desire for a more conservative administrative state, whether stronger presidential control will promote conservative causes will depend on who is in the White House, and justifiably so. Whether increased judicial control would promote conservative causes would depend on the make-up of the federal judiciary, and that is not justifiably so.

[1] Joseph Postell, Should the Courts Tame our Administrative State, at 1 (In this forum I will argue that . . . conservatives should reconsider [their] reluctance [to use courts to limit the administrative state]”)

[2] Postell supra note 1 at 3-8

[3] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803).

[4] Thus courts are not to decide a case “for which there is a lack of judicially discoverable and manageable standards for resolving it; or . . .the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.” Baker v. Carr, 369 U.S. 186, 217 (1962).

[5] Postell, supra note 1 at 6 & n. 10 (citing Richard Nathan for proposition that agencies are too complex and staffs too large for the White House to control).

[6] Postell, supra note 1 at 8-10.

[7] Postell, supra note 1 at 9-10.

[8]See Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co.463 U.S. 29, 43 (1983).

[9] See Mark Seidenfeld, The Irrelevance of Politics for Arbitrary and Capricious Review, 90 Wash. U. L Rev. 141, 160 (2012).

[10]See Matthew C. Stephenson, A Costly Signaling Theory of “Hard Look” Judicial Review, 58 Admin. L. Rev. 753, 764-65 (2006) (summarizing arguments of opponents of hard look review).

[11]See generally William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 Nw. U. L. Rev. 393 (2000) (reviewing the ultimate fate of rules remanded as arbitrary and capricious).

[12] The best known example of hard look review prompting political action was NHTSA’s backing off auto safety regulations in favor of a recall system for defective cars. See Jerry L. Mashaw & David L. Harfst, The Struggle for Auto Safety 92, 134-40 (1990); Mark Seidenfeld, Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review, 70 Ohio St. L. Rev. 251, 317-20 (2009).

[13] Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1983).

[14]See INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987).

[15]See generally Ronald Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 Chi. Kent L. Rev. 1253, (1996) (advocating that step two of Chevron be identical to arbitrary and capricious review because both address agency discretionary choices).

[16] Postell, supra note 1, at 8-9.

[17] Michael S. Greve, Private Enforcement, Private Rewards: How Environmental Citizen Suits Became an Entitlement Program, in Environmental Politics: Public Costs, Private Rewards 105, 112 (Michael S. Greve & Fred L. Smith, Jr. eds., 1992); see also Mark Seidenfeld, Limits on Collaborative Regulation, 41 Wm. & Mary L. Rev. 411, 464-65 (2000) (citizen suits interfere with EPA’s efforts to reach informal agreements to alleviate violations of the Clean Water Act).

[18]See American Electric Power Co. v. Connecticut, 131 S.Ct. 2527, 2534-35 (summarizing the 2d Circuit decision allowing the nuisance suit against power plant operators based on global warming to proceed); id. at 2537 (holding “that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.)

[19]See generally Cass R. Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838 (2013)

[20]See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2300 (2001).

[21] Author’s private conversation with Don Verrilli when he was clerking for Judge Wright in 1984.

[22]See, e.g., Peter L. Strauss, Overseer, or “The Decider”? The President In Administrative Law, 75 Geo. Wash. L. Rev. 696 (2007).