Planning for Excellence: Insights from an International Review of Regulators’ Strategic Plans

What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success. In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on a unique source of data that provides an important window on regulators’ own aspirations: their strategic plans. Strategic plans have been required or voluntarily undertaken for the past decade or longer by regulators around the globe. In these plans, regulators offer mission statements, strategic goals, and measurable and achievable outcomes, all of which indicate what regulators value and are striving to become. Occasionally, they even state explicitly where they have fallen short of “best-in-class” status and how they intend to improve. To date, a voluminous literature exists examining agency practices in strategic planning, but we are aware of no study that tries to glean from the substance of a sizeable number of plans how regulators themselves construe regulatory excellence. The main task of this Article is undertaking this effort. This Article draws on twenty plans from different regulators in nine countries. We found most generally that excellent regulators describe themselves (though not necessarily using exactly these words) as institutions that are more (1) efficient, (2) educative, (3) multiplicative, (4) proportional, (5) vital, (6) just, and (7) honest. In addition to these seven shared attribute categories, our reading of the plans also revealed five other “unusual” attributes that only one or two agencies mentioned. Beyond merely cataloguing the attributes identified by agencies, this Article also discusses commonalities (and differences) between plan structures, emphases, and framings. We found that the plans differed widely in features such as the specificity of their mission statements, the extent to which they emphasized actions over outcomes (or vice versa), and the extent to which commitments were organized along organizational fiefdoms or cut across bureaucratic lines. We urge future scholarship to explore alternative methods of text mining, and to study strategic plans over time within agencies, in order to track how agencies’ notions of regulatory excellence respond to changes in the regulatory context and the larger circumstances within which agencies operate. Looking longitudinally will also shed light on how agencies handle strategic goals that are either met or that prove to be unattainable

The Self-Delegation False Alarm: Analyzing Auer Deference’s Effect on Agency Rules

Auer deference holds that reviewing courts should defer to agen­cies when the latter interpret their own preexisting regulations. This doc­trine relieves pressure on agencies to undergo costly notice-and-com­ment rulemaking each time interpretation of existing regulations is neces­sary. But according to some leading scholars and jurists, the doc­trine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of pow­ers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial defer­ence—has helped to persuade the Supreme Court to take up this term the question of whether to overturn the doctrine. Yet, surprisingly, the self-delega­tion thesis has never been tested. This Article scrutinizes the thesis empirically, using an original and extensive dataset of the texts of federal rules from 1982 to 2016. My lin­guistic analysis reveals that agencies did not measurably increase the vagueness of their writing in response to Auer. If anything, rule writ­ing arguably became more specific over time, at least by one measure, despite Auer’s increasing prominence. These findings run against common wisdom, but they should not be at all surprising. The self-delegation thesis depends on a model of agency behavior that is inconsistent with what is known about the insti­tutional pressures and cognitive horizons that cause agencies to pur­sue clarity in rule writing. By revealing the failures of theoretical predictions about Auer, this Article more generally draws attention to the need to test behavioral theories of administrative law against empiri­cal reality before unsettling settled law

Capturing the Regulatory Agenda: An Empirical Study of Agency Responsiveness to Rulemaking Petitions

In environmental regulation as well as in other regulatory domains, a critical question is how outside interests shape the rulemaking agenda. A great deal of skepticism toward regulation stems from the widespread perception that agencies excessively, or even exclusively, cater to business interests. One answer to these concerns is administrative procedure, in particular rulemaking petitions, which are provided for in the Administrative Procedure Act and in many substantive environmental statutes. Although rulemaking petitions could in theory be used by business interests to strengthen their hold on regulatory agenda-setting, a growing number of scholars, highlighting the critical role a rulemaking petition played in the Supreme Court’s 2007 decision forcing EPA action on climate change, have pointed to the potential for rulemaking petitions to combat agency inaction and under-regulation. Despite these warring descriptions, we actually have very little generalizable understanding of how rulemaking petitions operate in practice and to whom the benefits of the institution flow. In this Article, I take a close look at original data on all the rulemaking petitions submitted to three administrative agencies from 2000 to 2016, statistically tracing petitions’ fates from submission to resolution. I find that, although business interests may participate at a higher rate than public interest groups and individuals, there is little evidence of full-on regulatory capture via petitions. Even in a venue where it would be exceedingly easy to give business interests precisely what they want, agencies remain largely unmoved and evenhanded. The pattern that does emerge—an agency preference for using petitions to inform incremental revision and softening of existing regulations to reflect changed circumstances or new technologies—probably does inure mostly to the benefit of regulated entities, but it is difficult to square these findings with theories of excessive influence or capture of the regulatory process by business interests. At the same time, the findings pour cold water on the more sanguine account of petitions as a tool to advance environmental regulation. Despite the allure of such an account after Massachusetts v. EPA, the reality is that petitions are rarely transformative and will remain so unless significant changes are made to the institution

The Justiciability of Fair Balance under the Federal Advisory Committee Act: Toward a Deliberative Process Approach

The Federal Advisory Committee Act\u27s requirement that advisory committees be fairly balanced in terms of the points of view represented and the functions to be performed is generally considered either nonjusticiable under the Administrative Procedure Act or justiciable but subject to highly deferential review. These approaches stem from courts\u27 purported inability to discern from the text of the statute any meaningful legal standards for policing representational balance. Thus, the Federal Advisory Committee Act\u27s most important substantive limitation on institutional pathologies such as committee capture or domination is generally unused despite the ubiquity of federal advisory committees in the modern regulatory state. This Note argues for a new reading of the Federal Advisory Committee Act\u27s fair balance provision that would make the provision justiciable. Instead of reading the provision to require quantitative representational balancing of various interests-and thus asking courts to make political decisions-this Note contends that the text of the provision permits an alternative reading, which I call the deliberative process reading. Under this reading, courts would decide whether a committee\u27s record airs all of the relevant viewpoints associated with the issue under the committee\u27s consideration. This kind of review is familiar to courts in other administrative law contexts, so there would be no plausible argument that the provision is unreviewable for lack of meaningful standards. I argue that this deliberative process reading would enhance advisory outputs and ensure that this fifth branch of government is still under public control

The Justiciability of Fair Balance under the Federal Advisory Committee Act: Toward a Deliberative Process Approach

The Federal Advisory Committee Act’s requirement that advisory committees be “fairly balanced in terms of the points of view represented and the functions to be performed” is generally considered either nonjusticiable under the Administrative Procedure Act or justiciable but subject to highly deferential review. These approaches stem from courts’ purported inability to discern from the text of the statute any meaningful legal standards for policing representational balance. Thus, the Federal Advisory Committee Act’s most important substantive limitation on institutional pathologies such as committee “capture” or domination is generally unused despite the ubiquity of federal advisory committees in the modern regulatory state. This note argues for a new reading of the Federal Advisory Committee Act’s fair balance provision that would make the provision justiciable. Instead of reading the provision to require quantitative representational balancing of various interests — and thus asking courts to make political decisions — this note contends that the text of the provision permits an alternative reading, which I call the “deliberative process” reading. Under this reading, courts would decide whether a committee’s record airs all of the relevant viewpoints associated with the issue under the committee’s consideration. This kind of review is familiar to courts in other administrative law contexts, so there would be no plausible argument that the provision is unreviewable for lack of meaningful standards. I argue that this deliberative process reading would enhance advisory outputs and ensure that this “fifth branch” of government is still under public control

Decoding Nondelegation after Gundy: What the Experience in State Courts Tells Us about What to Expect When We\u27re Expecting

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill up details or find facts triggering policies, which can be. Whether observers’ view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects such limits to be highly consequential. While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This Article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, this Article shows that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Supreme Court actually does over a series of cases, not on what it says it is going to do. Moreover, the research findings suggest significant limitations on the ability of the Gundydissent’s approach to provide any ex ante guidance to the lower courts, or even future Supreme Courts, about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine

Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control

The idea of political control dominates our understanding of both what administrative law does and what it should do. This emphasis on political control, however, downplays the important ways that administrative law facilitates resistance to political control in administrative agencies. In this article, I offer studies of two instances in which agencies harnessed the power of seemingly standard administrative law litigation to resist the imposition of policies by political leadership. I classify these kinds of modes of resistance as instances of “litigation-fostered bureaucratic autonomy” and flesh out the mechanisms that drive the process. Acknowledging the role of such modes of resistance is critical to administrative law scholarship insofar as it casts some doubt on the empirical underpinnings of a principal-agent understanding of the function of administrative law. It also poses a potential challenge to the democratic justification of the administrative state, though I ultimately conclude that modes of resistance such as that demonstrated by litigation-fostered bureaucratic autonomy can help curb the excesses of political principals and encourage public-interest-minded deliberation about issues that are both highly technical and value laden

The Judicial Role in Constraining Presidential Nonenforcement Discretion: The Virtues of an APA Approach

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to “take Care that the Laws be faithfully executed. Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and do constrain presidential nonenforcement discretion, and that they are far better situated to do so when they operate under the rubric of conventional administrative law. Often caricatured as categorically deferential to questions of enforcement discretion, the law of agency inaction is in fact nimble enough to constrain the most egregious instances of executive overreach in nonenforcement, and unique doctrinal features, such as the doctrine of finality, give courts a safety valve to control strains on judicial capacity