The Twilight of Administrative Law?

Close to a year ago, Judge Douglas H. Ginsburg delivered a wonderful speech in acceptance of the Georgetown Federalist Society Chapter’s Lifetime Achievement Award and on the occasion of his 25th anniversary on the federal Court of Appeals for the D.C. Circuit. His remarks, recently published in the form of a law review article, reflect the man—not in all respects (the article is short, the judge isn’t) but in most: gracious, erudite, numerate, thoughtful, insightful, witty, generous. Ten minutes worth of anecdotes would have sufficed for the occasion. Instead, Judge Ginsburg conducted serious research on the trajectory of appellate administrative law over a quarter-century and presented his findings in a series of intriguing charts. His summary:

 Looking back over these last twenty-five years, from a statistical point of view several things are apparent. The D.C. Circuit has fewer administrative lawcases and yet a larger share than ever of all the administrative law cases in the federal courts of appeals. The number of rehearings en banc in the Circuit has decreased dramatically over time, and we now have very few; we also have few dissenting opinions, and shorter opinions with far fewer footnotes than in decades past. Consistent with these developments, the level of collegiality has increased steadily over the years and continues to be a robust and pleasant feature of service on the court.

This isn’t just the life and times of the D.C. Circuit; potentially, it’s a very big deal, though perhaps not entirely in the way intended by Judge Ginsburg. Start with some background and context:

A quarter-century ago, when Judge Ginsburg began to co-shape AdLaw and little me had just learned, or at any rate been exposed to, its basic tenets, the field teemed with ideological conflict. Then-common dissents and en bancs on the D.C. Circuit weren’t over subsections in obscure statutes; they were about the basic function and contours of administrative law and its judicial review. ‘Twas a battle of the titans: Skelly Wright, Harold Leventhal et al versus Bork, Buckley, Ginsburg, Scalia, Silberman, Starr, Thomas, Williams, etc. A fundamental disagreement about the administrative state and its constitutional underpinnings produced intense conflicts over standing, the scope of judicial review, administrative procedure, statutory interpretation, and much else.

All this has abated. Now as (and perhaps more than) then, the D.C. Circuit is composed of exceptional jurists. Unlike then, however, they agree on the basic rules, and everyone knows what they are: Agencies never lose on procedural issues (they have learned how to play the game). They never lose on their interpretation of statutory language (Chevron I, in AdLaw parlance). And quasi-constitutional attacks (for example, on excessive delegations of legislative powers) are non-starters. If and when agencies lose, it’s because their rules are deemed “arbitrary and capricious” (Chevron II).

Naturally, in this environment, the number of challenges drops. Naturally, too, the D.C. Circuit’s leadership position, coupled with its expertise and quite probably the narrowing to Chevron II review, creates a positive feedback effect. Out in the numbered circuits, you may have to spend a precious thirty pages of briefing to explain the regulatory regime; without it, a judge who sees the Federal X Act for the first time isn’t going to understand why rule Y issued thereunder might be arbitrary. That’s not going to happen in the D.C. Circuit. Judges Ginsburg, Garland et al. will give you a hard time. But they will understand the underlying statutory regime; they won’t be very far apart; and you know where they are. And so, as reasonable, risk-averse litigants migrate to the D.C. Circuit, and as that court sees an ever-narrowing class of challenges, the system tends toward equilibrium.

Here’s the problem: an equilibrium may be good or bad. And a powerful case can be made that the D.C. Circuit’s collegial, no-one-knows-what-Chevron-means-but-it’s-all-that-there-is-and-we-know-how-to-run-it equilibrium is woefully inadequate to the problems of the contemporary administrative state. By any measure, the creation of a global warming regime under the Clean Air Act, the Patient Protection Act, and Dodd-Frank herald a monumental expansion of the administrative state, coupled with a huge array of institutional innovations. The notion that this stuff can be cabined by constitutional means is a libertarian fantasy; any serious discipline will have to come from three-yards-and-a-cloud-of-dust AdLaw wrangling. Alas, the D.C. Circuit’s AdLaw—a riff on an Administrative Procedure Act (APA) designed for a long-gone world—may not be commensurate to that task. Examples:

  • The APA presumes regulation by a single agency, whose “final” action can be challenged in court. Modern regulatory regimes layer agencies on top of one another and next to each other, and final rules are products of long inter-agency cascades. Try to challenge some inter-governmental recommendation, rule, or memorandum, and you’ll be told it’s premature; wait until the final agency action, and you may well be told you’re too late. That doesn’t seem right, but we have no doctrine to prevent routine recourse to that strategy.
  • In emergencies (including impending legislative deadlines), agencies may dispense with “notice and comment” rulemaking and instead issue “interim final rules.” Under the APA and judicial decisions, agencies may not manufacture emergencies by backing themselves up against deadlines. However, Dodd-Frank and Obamacare create emergencies all by themselves, by subjecting the agencies to oodles of deadlines—the great majority of which have already been missed. So interim rules proliferate, and after-the-fact notice-and-comment and judicial review is often useless for regulated parties that must comply with the rules right then and there. That doesn’t seem right, either; but again, there’s nothing to stop it.
  • Contemporary laws and regulations often threaten the decimation of entire industries but couple that threat with ample waiver authority for the regulatory agency: dear regulated firm, we’ll save you, provided you agree to conditions that Congress never thought of but we did, five minutes ago. (Obamacare works on this principle vis-à-vis insurers and employers, as does No Child Left Behind vis-à-vis states.) Again, that doesn’t seem right; but again, no extant AdLaw doctrine checks the conduct.

I could go on, but we’re already deep in dorkland. My principal worry—and it’s a worry, not an empirical observation that could withstand Ginsburgian rigor—is that the D.C. Circuit’s AdLaw may have become too disconnected from rule-of-law values to be of much service in an environment for which is wasn’t intended or designed, and which it could not anticipate. Undoubtedly, as Judge Ginsburg has shown impressively, the D.C. Circuit has managed to create legal certainty, and that is a rule of law value. Its stability and utility, however, depend on a certain amount of comity, forbearance, and a rough balance of power among the parties. Lately, the government has been pushing its inherent advantages awfully hard; sooner or later, regulated parties will push back. In that light, increased judicial conflict over the administrative state—between judges who deem the existing framework adequate and others who may advocate a back-to-basics, wake-up-to-reality approach—may be in the offing, and it may actually be good news.

Better news yet, and very good news in any event: senior Judge Ginsburg will continue to carry a full load of cases.