The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power

Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the courts say. But in fact, the federal government\u27s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government\u27s disobedience. The Article makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions (fines and imprisonment) to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power

Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries

The typical federal agency issues a vast amount of guidance, advising the public on how it plans to exercise discretion and interpret law. Under the Administrative Procedure Act (APA), the agency must follow onerous procedures to issue full-blown regulations (including notice and comment) but can issue guidance far more easily. What justifies this difference, in the familiar telling, is that guidance is not binding in the way regulations are. Agencies are supposed to use guidance flexibly. But critics claim that agencies are not flexible-instead they follow guidance rigidly and thus pressure regulated parties to do the same. If true, this claim means agencies can issue de facto regulations simply by calling them guidance, threatening to make a dead letter of the APA \u27s constraints

The De-Privatization of American Warfare: How the U.S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century

The U.S. government has recently moved toward privatizing military services, most noticeably in Iraq, where profit-seeking contractors frequently engage in combat against insurgents. Many observers are shocked and disturbed by these developments, since they violate the governmental monopoly on military combat, which is probably the most accepted and intuitive aspect of the public-private distinction in America today. In fact, however, exclusive governmental control of combat is not an inherent nor even a particularly old part of the American experience. For much of U.S. history, one of the most important options in the nation\u27s military repertoire was the use of privateers, that is, privately owned and operated ships, licensed to forcibly capture enemy merchant vessels and pocket the proceeds. Privateering constituted the principal U.S. offensive strategy in the maritime theater of the War of 1812 and was a major part of U.S. contingency planning through the Civil War. But sometime thereafter, the U.S. government ceased to consider the option. Thus far, no scholar has seriously investigated how and why the United States abandoned privateering. This Article fills the gap. It recreates the choice that the government faced, delineating how privateers differed from a public navy in terms of strategic capabilities, financing, technology, and the incentives and rules that operated on the persons who did the fighting, plus the institutions that enforced those rules. The Article concludes that privateering survived for so long-in spite of persistent humanitarian objections that accountability structures were not sturdy enough to control the violence that privateers inflicted because the American people wished to avoid a large permanent military establishment, fearing that such an institution would be a menace to democracy. It was only in the 1890s, when the nation gave up its anti-militarist tradition and embarked on a program of imperial expansion overseas, that privateering proved functionally inadequate to the nation\u27s new ambitions and therefore vanished from the realm of possibility

Towards an Administrative Law of Central Banking

A world in turmoil caused by Covid-19has revealed again what has long been true: the Federal Reserve is arguably the most powerful administrative agency in government, but neither administrative-law scholars nor the Fed itself treat it that way. In this Article, we present the first effort to map the contours of what administrative law should mean for the Fed, with particular attention to the processes the Fed should follow in determining and announcing legal interpretations and major policy changes. First, we synthesize literature from administrative law and social science to show the advantages that an agency like the Fed can glean from greater openness and transparency in its interpretations of law and in its long-term policy making processes. These advantages fall into two categories: (1) sending more credible signals of future action and thereby shaping the behavior of regulated parties and other constituents, and (2) increasing the diversity of incoming information on which to base decisions, thereby improving their factual and predictive accuracy. Second, we apply this framework to two key areas—monetary policy and emergency lending—to show how the Fed can improve its policy signaling and input diversity in the areas of its authority that are most expansive. The result is a positive account of what the Fed already does as an administrative agency and a normative account of what it should do in order to preserve necessary policy flexibility without sacrificing the public demands for policy clarity and rigor

Administrative Constitutionalism and Administrative Power

In a narrative of great depth and nuance, Sophia Lee’s The Workplace Constitution tells how the National Labor Relations Board (NLRB) and the Federal Communications Commission (FCC) took upon themselves a duty, under the Fifth Amendment’s principle of equal protection, to prevent the companies (and, in the NLRB’s case, the unions) under their jurisdiction from discriminating among employees on the basis of race and, in some contexts, sex. But, as Lee makes clear, this strain of administrative constitutionalism did not become a permanent part of American law. Although the Civil Rights Commission (CRC) in 1970 pressured every federal regulatory agency to follow the NLRB-FCC example and to recognize its supposed constitutional duty “to end any discriminatory practices (including employment) of … all who deal with the agency,” the initiative came to naught. The Federal Power Commission resisted the CRC’s call and largely won in the Supreme Court in 1976, after which regulatory agencies generally decided that “very little” was required of them in the way of preventing workplace bias. The FCC’s policy on equal employment would be struck down altogether in the 1990s, while the NLRB’s policy, though technically still alive, is now “tucked away in an obscure agency manual and rarely put to use.” Lee unearths and analyzes a wealth of important material on what can happen when an agency seeks to enforce the constitution. I would like to reflect here on what her material suggests about whether (or when) bureaucratic enforcement of the constitution is normatively desirable and practically sustainable. There are many normative arguments for administrative power generally, but perhaps the most foundational – and the only one I shall discuss here — is that an agency is suited to acquire the specialized capacity to effectively convert the value choices of some higher authority (such as the legislature) into reality – capacity that is rooted in the knowledge and commitment of the agency’s personnel. Personally, I think it’s a fine idea for agencies to play a role in implementing not only the value choices that come from the legislature but also those that come from the constitution (i.e., from the complicated mix of institutions and popular feelings that produce constitutional choice, including the Supreme Court). Indeed, many have argued that the aspiration of Brown v. Board was made a reality thanks to Congress’s enactment of the Civil Rights Act, the Voting Rights Act, and the Elementary and Secondary Education Act – and also, crucially, by the aggressive enforcement of those statutes by the Department of Justice and the Department of Health, Education, and Welfare (especially the agencies’ use of statistics to define, measure, and demand school districts’ progress in integration). That being said, the policy-implementing capacities that an agency can effectively maintain and use are not infinite. An agency that is good at one thing may, for that very reason, be bad at doing anything else. Given this, one must take seriously Chief Justice Burger’s warning in a 1976 concurrence that diffusing responsibility for fighting employment discrimination among numerous regulatory agencies, each primarily concerned with some other subject, was a bad idea. One is reminded of the cogent arguments made by environmentalists, circa 1970, that (a) environmental values would never receive sufficient attention from industry-specific and industry-focused agencies like the Interstate Commerce Commission, the Federal Power Commission (FPC), or the Atomic Energy Commission, and (b) an agency specifically devoted to environmental protection – an Environmental Protection Agency – was therefore necessary. But the industrial-regulatory agencies in Lee’s story were not all equally incompetent to enforce workplace equality. In fact, they differed widely in their claims to specialized capacity for this task. At one extreme was the FPC, with a focus on the relation of a regulated utility to its customers, not its employees. The FPC recoiled from any mandate to handle employment discrimination, based on a narrow view of its mission that was largely endorsed by the Supreme Court. At the other extreme was the NLRB, with a competence precisely in the realm of employment (and perhaps even more relevant, after the Landrum-Griffin Act of 1959, in the realm of internal union governance). The NLRB’s special competence seemed evident from the complexity of the issues involved in the fateful Hughes Tool proceeding of 1962-64: whether the Fifth Amendment made it an unfair labor practice for a white local and employer to negotiate and approve discriminatory contracts and for the white local to fail to grieve a black worker’s exclusion from an apprenticeship program. Even the Justice Department’s Civil Rights Division was, as Lee recounts, initially skittish to become involved in Hughes Tool, for the matter was, according to a Division report, “extremely complex,” and the Division was “completely inexperienced in this area.” Between the two extremes was the FCC: this agency was not designed to focus on employment, but as Lee reminds us the Supreme Court said, it had a “statutory duty to ensure that broadcasting ‘reflect[ed] the tastes and viewpoints of minority groups,’” to which minority employment was relevant. It is an especially intriguing question, then, why the NLRB, despite its plausible claims to expertise in employment and union governance, did not play a lasting role in the interpretation and enforcement of workplace equality grounded in constitutional equal protection. To be sure, the Supreme Court’s state action jurisprudence went in an unfriendly direction. But the Court’s 1970s case law did not entirely foreclose a constitutionally-inflected reading of the National Labor Relations Act. And in any event, it is possible for an agency – if it builds a strong enough reputation for unique competence – to win deference from the courts. (Consider, for example, the Food and Drug Administration as portrayed in Daniel Carpenter’s Reputation and Power.) The problem for the NLRB, as Lee’s beautifully researched and subtle narrative suggests, was that the Fifth Amendment proved so indeterminate in its policy meaning. As fleshed out by Nixon appointees, the Board’s equal protection policies became susceptible to manipulation by employers resisting collective bargaining. This, in turn, caused subsequent Board members in Handy Andy to abandon the practice of decertifying discriminatory unions or releasing employers from the obligation to bargain with such unions, as such actions undermined collective bargaining and perversely aided recalcitrant employers. The one Board member to reject the agency’s turnabout was Howard Jenkins, who had written the Hughes Tool decision establishing the Board’s constitutionalism back in 1964. Jenkins in 1977 maintained faith that the Board’s equal employment policies could be used for liberal purposes, yet in answering the Handy Andy majority, he was thrown back on an anti-policy formalism: “The constitutional impediment to certification of a discriminating union … forecloses consideration of policy reasons for adopting a procedure which … postpones determination of disqualifying discrimination to a later date.” With such language, Jenkins gave up one of the strongest grounds for a distinctly administrative constitutionalism: the notion that agencies can bring constitutional aspirations nearer to reality precisely through policy thinking about the efficacy of government action. It is often said that agencies have the hardest time building up authority and legitimating themselves when their goals are ambiguous and contested. This was true of federal policy regarding unions, whether rooted in the NLRB’s statutes or, as Lee vividly shows, in the Fifth Amendment. It seems from Lee’s narrative that certain organizational features of the Board aggravated goal definition problems. One was its “independent” status, which precluded the possibility of presidential direction and protection and left unclear “[e]xactly whom the Board members were supposed to be independent from and to whom (or what) they owed a duty.” Another was the Board’s multi-member, multi-partisan structure, which produced the fractured policymaking of the Nixon era, including the Board’s inability to achieve the consensus necessary for rulemaking – one of the most effective bureaucratic technologies of the post-1970 era. Perhaps such factors help explain why the NLRB – despite much experience and expertise relevant to workplace equality – never succeeded in establishing a distinctly administrative legitimacy in the enforcement of constitutional rights