Peter L. Strauss

The Internal Relations of Government: Cautionary Tales from Inside the Black Box

Both the structure of the Constitution and elementary civics texts imagine an Executive Branch under the close, unitary control of an elected chief executive, the President. Doubtless from the start, and unmistakably in the administrative state, the reality has been quite different. Those to whom Congress has delegated authority to act, particularly in that domain that we have in mind when invoking a “government of laws,” conduct their business within a web more aptly described as coordination than control. In regulatory matters, the coordinating impulses run through the Department of Justice (“DOJ”) and, increasingly, the Office of Information and Regulatory Affairs (“OIRA”) of the presidential Office of Management and Budget (“OMB”). Perhaps as strongly, coordination may result from the regulators and their lawyers understanding themselves to be part of a single government. Yet, both within the DOJ and within any given agency, distortions of perspective that are the product of an actor’s task, or perhaps even personal ambition, can complicate its achievement. And institutions for forcing consideration of broader, more inclusive visions are few. What follows is an effort to explore some of these problems, drawing on personal experience as a government attorney often faced by what seemed failures or distortions in attempted coordination. From 1975 to 1977, I was privileged to serve as General Counsel to the spanking new United States Nuclear Regulatory Commission (“NRC”). The NRC was an independent regulatory

‘Deference’ is Too Confusing - Let’s Call Them ‘Chevron Space’ and ‘Skidmore Weight’

Administrative law scholars have leveled a forest of trees exploring the mysteries of the Chevron approach contemporary judges take to reviewing law-related aspects of administrative action. Without wishing to deny for a moment that judicial practice has been inconstant – influenced by the importance of the matter, by the accessibility of the issues to non-expert judges, by politics, and by the earned reputations of differing agencies – this short comment suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, a structure whose basic impulse may be captured by the concept of “allocation.” Steering clear of commonly used review concepts that may muddle rather than clarify the structure’s operation, it avoids the term “deference,” and argues that Instead of “Chevron deference” and “Skidmore deference,” one could more profitably think in terms of “Chevron space” and “Skidmore weight.”“Chevron space” denotes the area within which an administrative agency has been statutorily empowered to act in a manner that creates legal obligations or constraints, its allocated authority. “Skidmore weight” addresses the possibility that an agency’s view on a given statutory question may in itself warrant respect by judges who are themselves unmistakably responsible to decide the question.The paper thus argues that a simple and rational synthesis of the leading cases can without difficulty be made, if one abandons the confusions of “deference” for the distinct qualities of “weight” and “space.” Agency views of statutory meaning may often be entitled to considerable weight when judges come to decide for themselves issues of statutory meaning. American courts have recognized this proposition for almost two centuries. More recently we have come to understand and accept that executive agencies may be vested by Congress with authority to act with the force of law, so long as the boundaries of that action can be judicially determined. In that space, the agency is the prime actor, and the very conclusion that Congress has delegated authority to it commands reviewing courts to act, not as deciders, but as overseers.

Legislation that Isn't - Attending to Rulemaking's Democracy Deficit

Written in celebration of Philip Frickey’s many contributions to the legislation literature, this essay is a further effort to understand the President’s relationship to administrative agency rulemaking. On the one hand, the President’s executive authority precludes the possibility that he is to be a lawmaker (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (opinion of Black, J.)); on the other, we unhesitatingly embrace agency rulemaking - as, indeed, as a practical matter, we must. On the one hand, “where the heads of departments are ... to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear, than that their acts are only politically examinable” (Marbury v. Madison, 5 U.S. 137, 165-66 (1803); on the other, courts tolerate agency authority to adopt regulations if and only if there exist “intelligible principles” by which their legality can be judicially tested. The strong unitary presidency positions so recently in vogue underscore the tensions evident here. The enduring problem for a democracy that this essay addresses is the legitimacy of permitting unelected officials to create binding legal texts, that if valid have the force and effect of statutes, without conferring levels of power on a single individual or institution that it should find insupportable.

Considering Political Alternatives to "Hard Look" Review

That is absolutely right. I am sufficiently confused by the facts that are already on the table-two of them in particular. One (the dog that I thought was barking in that interesting first chart Don Elliott put up, on which he did not remark), is that the first two periods of judicial review he showed us had 337 and 294 cases of judicial review each; for the third period, for the same length of time, the figure is about 800.1 Something is going on there. The other is just a square conflict that our moderator is much better positioned than I am to tell us about. He recently published a fascinating study in the Duke Law Journal that purports to show that the affirmance rate for administrative agencies in the D.C. Circuit, which gets about 60% of administrative appeals these days, is only 30%.2 His figures are from 1987, not 1984 or 1985, but I doubt court performance has changed so sharply in such a very short period of time. These facts warrant some further exploration. Cass Sunstein and Don Elliott each, in his way, was talking about the results of individual cases and the implications for individual cases of litigation or litigation outcomes. I might describe this as the micro-perspective on judicial review and its impact. I will be speaking at a different level of abstraction-without facts, of course-but at a level that seems an important one. My remarks are generally addressed to the macro-perspective, to examining the overall, systemic impact of judicial review of a certain intensity on the way agencies go about their business. This is rather like the Mashaw-Harfst study to which you have already heard Cass Sunstein refer, a good portion of which appeared over a year ago in the Yale Journal on Regulation,3 and that will eventually appear as a book from Harvard University Press. It is a wonderful study. Rather like Shep Melnicks study4 and some others, it tells a cautionary

The Challenges of Fitting Principled Modern Government – A Unified Public Law – To an Eighteenth Century Constitution

The papers presented at a fall 2016 conference at Cambridge University, The Unity of Public Law?, generally addressed issues of judicial review in the UK, Canada, Australia and New Zealand, often from a comparative perspective and the view that unifying impulses in “public law” arose from the common law. Accepting what Justice Harlan Fisk Stone once characterized as the ideal of “a unified system of judge-made and statute law woven into a seamless whole by [judges],” The Common Law in the United States, 50 Harvard L Rev 4 (1936), this paper considers a variety of issues that have complicated maintaining the unity of public law under our written Constitution: executive discretion; interpretive styles, variations in “due process”; the Constitution’s failure to define our government and resulting variation in its institutions; the resulting difficulty in accommodating “separation of powers”; issues of presidential role; and the place of “deference” in accommodating uniform national administration of law in the face of the geography of our essentially final circuit courts.

In Memoriam: Clark Byse

Clark Byse was a member of that great generation of scholars that created administrative law. He worked with Walter Gellhorn, Louis Jaffe, Kenneth Culp Davis, Nat Nathanson, and a handful of others. They began with a few traditional common law rules, a new federal statute, a group of New Deal agencies, and a growing number of judicial decisions. They formed these materials into more coherent legal principles, approaches, and systems of interpretation. They helped to define the proper relationship between citizen and government in a world that must rely upon administrative expertise to translate the electorate’s desires into effective policy and action. In a word, Clark and those few others were the intellectual architects of the modern democratic administrative state. Clark Byse as scholar participated fully in that great enterprise. His casebook with Walter Gellhorn, now in its tenth edition, is a legal classic.1 He did not limit his writing to administrative law, however, for he also wrote much of value about, for example, contracts, civil procedure, and academic freedom. Clark Byse as teacher taught administrative law and contract law to generations of law students. His object was to transmit what we call “legal thinking” — the disciplined, critical, purpose-oriented approach that underlies American law. Indeed, Clark made a point of telling his students, “[N]ever forget that the emphasis in this class is on what and how you think, not on what some judge or treatise writer or