Administrative Law at the Department of Justice, by Andrew Kloster

by Guest Blogger — Wednesday, Mar. 6, 2019

I was extremely pleased to hear last week that the President has decided to nominate the Deputy Secretary of the United States Department of Transportation, Jeffrey Rosen, to serve as Deputy Attorney General in the Department of Justice. Not only was Rosen a frequent contributor to this blog, but his already-storied career has been replete with administrative law successes, including serving as General Counsel at the Office of Management and Budget. I was privileged to work with him for a brief time at DOT and while he was chairman of the American Bar Association’s Section on Administrative Law and Regulatory Practice. I know the careers and noncareers at DOT are sorry to see him leave, because the lion’s share of success of that agency’s regulatory reform efforts can be laid squarely at his feet.

His election as chair of the ABA Administrative Law section by a very diverse group of practitioners and academics should signal his neutral, consensus-driven management style that would be a boon to DOJ at this time. His tenure as chair culminated in the issuance of a report by a balanced Ad Hoc Committee on Administrative Law Transition to the incoming president at a time when it wasn’t known who that president might be. This report is replete with good-government recommendations that could have been adopted by any incoming administration, and which were in fact largely adopted by DOT and other agencies.

The point of this short blog is not to list off his accomplishments, but to speculate a bit about what this could potentially mean for administrative law. If I were a betting man, I would not have put any money on Rosen heading to DOJ. I would have seen him as a possible successor to his boss at DOT, or as a possible head of OMB. But moving over to DOJ makes a lot of sense. Certainly Rosen will be occupied at DOJ putting out many, many fires on a daily basis. But as principal litigating authority for most of the U.S. government, DOJ does have strong influence over the regulatory process, and I suspect Rosen might look here to help reform and innovate on a broader scale than he was able to at DOT.

Recall, for example, the “Brand Memo.” This short memorandum of then-Associate Attorney General Rachel Brand alerted the Department and the public that for affirmative civil enforcement cases, DOJ would not “use noncompliance with guidance documents as a basis for proving violations of applicable law.”

While the Trump administration has had some difficulty implementing regulatory reform, with some agencies (such as Rosen’s DOT) moving quickly and others lagging behind, central direction by DOJ can operate like a hot knife through butter. An agency might have many incentives to issue vague, shifting, or expansive interpretations of its own organic statute, but without the ability to rely upon these interpretations in court (at least in affirmative enforcement), what’s the point?

However positive a step the Brand Memo is, however, DOJ can do much more, and perhaps the new DAG Rosen will explore options.

One such option might be to expand the Brand Memo, operationalizing the various good-government statutes applied by OMB at the line-attorney level at DOJ. Imagine, for example, DOJ refusing to bring affirmative civil enforcement actions in cases where the underlying data (say, for a disparity study in the government contracting context) is nonpublic, or when the underlying data fails to comport with the Data Quality Act? Or imagine DOJ stepping up its coordinating function in the environmental or civil rights context, refusing to sign-off on rules which go beyond the plain meaning of the statute in question? One often-cited limitation of the Office of Information and Regulatory Affairs is how short-staffed it is: could DOJ, with thousands of attorneys, step up its review of rulemaking?

Furthermore, while the DAG’s office has historically taken a primary interest in matters involving criminal law and national security law at DOJ, leaving civil law and administrative law matters to the Associate Attorney General who reports to him, there is no reason for this to be so. Focusing on civil and administrative law matters would be more than enough to occupy Rosen’s time at DOJ, given his interests and competencies. At DOT, Rosen served as the Regulatory Reform Officer (RRO) and Chairman of the Regulatory Reform Task Force, the point-person for implementing President Trump’s Executive Order 13777. At DOJ, this important role is currently served by the Principal Deputy Associate Attorney General: whether Rosen will be redesignated this officer, or whether he simply takes a more active managerial role remains to be seen. Having a principal officer—one nominated by the President and confirmed by the Senate—as the RRO could signal the seriousness with which DOJ might see its task of bringing regular order to its rulemaking process.

Finally, given this administration’s focus on criminal justice reform (which has thus far culminated in the passage of the First Step Act), I will be watching with interest the possible administrative reforms to our nation’s criminal law enforcement apparatus. All told, while I am disappointed to see Rosen leave an agency where he has done so much good, his expertise and initiative could be brought to bear at DOJ, helping to accelerate the Trump administration’s regulatory reform efforts.

 

Andrew Kloster is the Deputy Director of the C. Boyden Gray Center for the Study of the Administrative State at the Scalia Law School. From 2017-2018 he served as the Legal Adviser (Associate General Counsel) at the United States Department of Transportation.

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