Metzger and Stack on Internal Administrative Law

Gillian Metzger and Kevin Stack’s article “Internal Administrative Law” can be accessed at the Michigan Law Review‘s website. Here is the abstract:

For years, administrative law has been identified as the external review of agency action, primarily by courts. Following in the footsteps of pioneering administrative law scholars, a growing body of recent scholarship has begun to attend to the role of internal norms and structures in controlling agency action. This Article offers a conceptual and historical account of these internal forces as internal administrative law. Internal administrative law consists of the internal directives, guidance, and organizational forms through which agencies structure the discretion of their employees and presidents control the workings of the executive branch. It is the critical means for shaping the discretion of officials and ensuring accountability within agencies. Internal administrative law’s binding status in structuring agency decision marks it as a form of law.
This Article’s project is one of recovery more than invention. The decade-long debate culminating in enactment of the Administrative Procedure Act (APA) reflected consistent recognition of internal controls’ contributions to agency accountability. Despite this history, judicial enforcement of the APA under-mined internal administrative law and constrained its content by treating the agency’s articulation of internal norms that bind agency actors as triggering external judicial enforcement. At the same time, expanded White House control has made internal administrative law more centralized. Given the importance of internal administrative law to agency accountability and administrative legitimacy, the time has come for more sustained engagement with the idea of internal administrative law and measures to foster its development.

Do download the paper here.

It might be too strong to state that administrative law has come to be identified exclusively with judicial review of administrative action (though see also Peter Strauss, “Jerry Mashaw and the Public Law Curriculum“). It is certainly true that legal academics have produced piles of learned articles attempting to synthesize or theorize the thousands upon thousands of judicial review decisions handed down annually. In the United States, Chevron deference is a cottage industry. But academic attention to agency structure is hardly unheard of: in Canada, for instance, there is a strong tradition of focusing on ‘what actually happens’ in administrative agencies, associated first with Willis, later McDonald and Janisch and more recently with Sossin; in the United Kingdom, the functionalists at the London School of Economics were of a similar bent and, of course, there is Harlow and Rawlings’ classic text on administrative law.

But that is a minor quibble. Metzger and Stack’s main point is that the norms developed within agencies to structure their activities are law and should be treated as such: “As opposed to recognizing agencies’ practices as a form of law on its own, judicial enforcement of agency internal law asserts that the law is what the courts can review and see. This posture degrades forms of legal ordering that do not create the sort of rights enforceable in court as less than law” (at p. 1297. See also pp. 1259-1263).

They rightly decry judicial review doctrines that subject more detailed internal agency rules to more rigorous procedural requirements and substantive judicial oversight:

This matrix creates incentives for agencies to be less specific, less decisive, and less clear in their internal documents. From the perspective of internal law, those are the wrong incentives. Most directly, to the extent that agencies craft their internal law to avoid judicial cognizance, this doctrine undermines the capacity of internal administrative law to serve its political, managerial and legal accountability roles. Clarity, not vagueness, is needed for these roles. More insidiously, agency officials’ need to make sense of abstract and vague internal law will prompt them to develop a set of under- standings of what that internal really means or requires. These specifications are inevitably less public and transparent than the official internal law itself. While developing an operational understanding is an inevitable feature of administration, judicial doctrines that provide incentives for agencies to be more abstract actually widen the gap between the internal law on the books and the internal law in action (at p. 1288).

These doctrines could be revised (p. 1295) and, more generally courts could:

…go beyond judicial acceptance to judicial encouragement of internal administrative law. Currently, judicial deference is often a function of the formality of the  procedure through which the agency acts. That structure incentivizes the agency to demonstrate its deliberation and responsiveness in a given context, but does not prioritize the quality of the agency’s overall administration. Review (and deference) are determined without attempting to incentivize agencies to pay attention to some features important to internal law, in particular structures of internal management, the agency’s internal deliberative process or use of expert staff, or the extent to which the vetted its proposed decision with internal and external constituencies. To the extent that agencies are responsive to judicial review incentives, deference doctrines could be a useful lever to employ to foster greater agency attention to internal law. Moreover, given that current deference doctrines are largely the result of judicial creation, working off the APA’s judicial-review provisions, courts need not wait for new legislation to act (at pp. 1295-1296).

Metzger and Stack suggest a suite of potential reforms which could be adopted by various actors, though  they are not especially optimistic. In the United States, they observe, law, politics and popular culture are all hostile to administrative agencies:

As a result, preservation of space for internal administrative law requires a deeper ideological and conceptual transformation than political or judicial reforms can provide. It entails acknowledging the legal character of internal administration and the central role that internal administration plays in preserving the rule of law. That, in turn, requires rejecting the false idea that external enforcement is essential to law. It also necessitates more forthright legal and political acknowledgement of the inevitability and constitutionality of administrative agencies, for once we acknowledge that we live in an administrative world, the need for internal administrative law becomes apparent. In short, to appreciate and protect internal administrative law, we must appreciate and affirm the need for administrative government (at p. 1306).

With this I wholeheartedly agree.

This content has been updated on September 6, 2017 at 13:48.