Deliberate and Serendipitous Separation of Powers in the Administrative State

by Emily Bremer — Friday, Mar. 9, 2018@emilysbremer

Jon Michaels’ new book is a masterful blend of important and fascinating subjects, including the constitutional character of administrative law, superstatute theory, privatization, and procedure. It’s a fun read, too, and a must for anyone interested in a fresh perspective on the perils of privatization! In this post, however, I’m going to focus on some discrete details of Michaels’ account of the emergence and structure of the administrative separation of powers. By bringing adjudication more squarely into the discussion, at least two interesting points present themselves. (Actually, there are more than two, but this is a blog post and not an essay, so I will restrain myself!)

In Michaels’ account, 20th century administrative law established a regime for administrative governance that carried the U.S. Constitution’s tripartite separation of powers through the modern bureaucracy. Two “superstatutes,” the Pendleton Act of 1883 and the Administrative Procedure Act (APA), provide the foundation for this regime, which is further fleshed out in other statutes, judicial decisions, and administrative practices. Together, over many decades, these sources have produced what Michaels’ describes as the administrative separation of powers, in which:

[A]gency leaders stood in for the president, taking on the president’s political, agenda-setting role; the tenured, expert civil service acted the part of our independent and largely apolitical federal judiciary, insisting on reasoned explanations and an intra-agency commitment to the rule of law; and the public writ large (what I call civil society) re-created Congress’s populist, pluralistic, and cacophonic deliberative role, bringing new and diverse opinions and sentiments into the administrative polis (9).

As Michaels’ describes it, this “administrative separation of powers arose somewhat serendipitously” (163). It was not a deliberate design choice made, for example, in the APA. Rather, it is a replication of the U.S. Constitution’s design that emerged through the long and tangled process of the modern administrative state’s emergence.

As in most accounts (including my own!) of administrative law’s quasi-constitutional character, Michaels seems to place much more weight on the rulemaking process than on adjudication. This is understandable–the rulemaking process is substantially uniform and is a predominant avenue through which civil society participates in administrative governance. It’s a natural and compelling fit in any account of administrative law’s quasi-constitutional character and of the APA’s superstatute bonafides. With respect to this latter point, the influence of the APA’s notice-and-comment rulemaking procedure seems particularly clear in the book. Michaels explains that the APA contributes to the administrative separation of powers by “guaranteeing the public meaningful and extensive opportunities to help shape modern welfare and regulatory policy” (70), and “assur[ing] civil society a seat at the administrative table” (72). In the course of the discussion, most of the examples given involve public engagement in the rulemaking process.

So, what about the other primary mode of agency decisionmaking: adjudication? It does not go ignored, but neither does it play a robust role in analysis. But bringing adjudication into the discussion raises a couple of interesting points.

First, the APA’s adjudication provisions were deliberately designed to carry a concept of separation of powers through to agency hearings. The separation of powers is evident in the APA’s prohibitions on ex parte communications. More profoundly, the APA established the position of the Administrative Law Judge (ALJ). To preserve independent decisionmaking, Congress vested the Office of Personnel Management with responsibility for the selection, certification, salary, and tenure of ALJs. Adjudicating agencies that employ ALJs cannot subject to them to performance reviews or terminate them without cause, which is ultimately determined by the Merit Systems Protection Board.

What’s interesting is that the APA’s deliberate separation of powers in adjudication has proven far less durable than the serendipitous separation of powers that Michaels describes. Since shortly after the APA’s enactment, Congress has consistently created specialized adjudicatory procedures to suit the needs of particular agencies and regulatory programs. Agencies generally avoid adjudicating under the APA’s adjudication provisions. The courts, for their part, have supported the abandonment of the APA’s adjudication structure through the application of various deferential doctrines. The consequence is that most adjudications are not conducted according to the procedures established in the APA. Most administrative judges are not ALJs. And agencies exercise broad discretion to design the position and powers of non-ALJ adjudicators, thereby gaining some measure of the control that that APA sought to keep out of their hands.

Second, there is one aspect of the APA’s adjudicatory design that deserves special attention in light of Michaels’ account of how privatization threatens the administrative separation of powers: agency head control. Michaels argues that government contracting is problematic precisely because it “concentrates administrative power in agency heads” (131), allowing them to circumvent the limitations that might otherwise be imposed upon them by civil servants and civil society.

In adjudication, the APA’s separation of powers design includes a strong principle of agency head control. The statute contemplates that the agency head may preside over the hearing of evidence. And, even when an ALJ presides, the APA reserves ultimate decisionmaking authority for the agency head. As Chris Walker and Melissa Wasserman discuss in a new draft article, this core feature of the APA’s procedural design is part of the “lost world” of agency adjudication that has faded as Congress, agencies, and courts have moved away from adjudication under the APA.

Perhaps the APA’s architects were simply wrong to embrace agency head control as part of the adjudicatory design. This could be a place where principle was surrendered to achieve the “fierce compromise” embodied in the APA. Or perhaps agency head control is a principle that can, in combination with other practices and procedures, be part of a robust separation of powers. If so, does that same possibility exist in the contracting context? I don’t have an answer to this question, but I’ll surely keep thinking about it. If you enjoy a thought-provoking read, be sure to pick up a copy of Michaels’ book!

This post is part of a symposium reviewing Constitutional Coup: Privatization’s Threat to the American Republic, a new book by Jon D. Michaels, Professor of Law at UCLA School of Law. All of the posts can be read here.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

About Emily Bremer

Emily S. Bremer is an Assistant Professor at the University of Wyoming College of Law. Before joining the faculty, Professor Bremer served as the Research Chief of the Administrative Conference of the United States, worked as an associate in the telecommunications and appellate practice of Wiley Rein LLP, and clerked for Judge Andrew J. Kleinfeld of the United States Court of Appeals for the Ninth Circuit. Her research focuses on the intersection of public and private governance, with a particular focus on the use of privately developed technical standards in government regulation.

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