This Article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, tend to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine does. As a result, neoclassical administrative law finds a place for both legislative supremacy and the rule of law within the administrative state, without subordinating either of those central values to the other. Such an approach reconciles traditional notions of the judicial role and separation of powers within the administrative state that Congress has chosen to construct and provides a clearer, more appealing allocation of responsibilities between courts and agencies. This theory is “classical” in its defense of the autonomy of law and legal reasoning, separation of powers, and the supremacy of law. These commitments distinguish it from theorists that would have courts make a substantial retreat in administrative law. It is “new” in that, unlike other more classical critiques of contemporary administrative law, it seeks to integrate those more formalist commitments with the administrative state we have today — and will have for the foreseeable future.
It is never easy to theorize complex bodies of law, but the current state of administrative legal theory is particularly hard to capture.1×1. I expressed similar views on the current state of administrative law in my introduction to a recent symposium on administrative law hosted by the Notre Dame Law Review. See Jeffrey A. Pojanowski, Introduction: Administrative Lawmaking in the Twenty-First Century, 93 Notre Dame L. Rev. 1415 (2018). Earlier eras strike us, in retrospect, as susceptible to easy periodization. We can speak of the time from the nation’s founding to the dramatic growth of the administrative state, a period characterized by separation of powers formalism supervised by courts, as well as a limited role for federal agencies. This was followed by the Progressive and New Deal eras, which rejected both of those features in favor of expert agencies applying — and, later, having the primary task of formulating — wide-ranging federal policy while courts got out of the way. Then we can speak of the capture era,2×2. See generally Thomas W. Merrill, Capture Theory and the Courts: 1967–1983, 72 Chi.-Kent L. Rev. 1039 (1997) (describing capture theory and its rise in administrative law and scholarship). in which courts reengaged to ensure agencies pursued the interest of the public, not regulated industries. Each characterization is of course subject to qualification, but even such rough cuts suggest a distinctive cast of mind for each era in administrative thought.
Things have not been so clear ever since. Perhaps starting with the Supreme Court’s decision in Vermont Yankee,3×3. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519 (1978). administrative legal thought has been marked by an absence of any dominant tendency. More than anything, the current state of administrative law reflects a pragmatic compromise: carefully calibrated judicial deference on questions of law matched by similarly modulated freedom for agencies on questions of politics and policy. Respect for the limits of judicial capacity interweaves with concerns about agency slack or fecklessness, leading to a doctrinal fabric that is either nuanced or incoherent, depending on one’s priors. Yet, for much of this time, it would have been wrong to say that administrative law was in a state of theoretical crisis. Aside from a few marginal voices condemning the entire project, administrative law and scholarship trundled along, disagreeing, for example, about when Chevron4×4. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (holding that in a category of cases, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency”); see also United States v. Mead Corp., 533 U.S. 218, 228–31 (2001) (identifying factors that indicate when Chevron deference applies). deference should apply or precisely how much a reviewing court should demand from agencies in policymaking decisions.5×5. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–44 (1983) (elaborating the scope of review under the “arbitrary and capricious” standard of the Administrative Procedure Act). These were important disagreements, to be sure, but they operated within a shared framework of admittedly unstated, and perhaps conflicting, assumptions about the administrative state and the rule of law.
As with contemporary politics, however, that comfortable, overlapping consensus is showing cracks. Whatever one thinks about the nature and causes of our fractured politics today, the arising dissent from the administrative law mainstream is principled and intellectually rigorous — and does not always have a neat partisan valence. Although they share little else in common, Professors Adrian Vermeule and Philip Hamburger both offer important challenges to the pragmatic balance that administrative legal doctrine has struck in the past three decades. Vermeule sees the inner logic of administrative legal doctrine “working itself pure,” such that courts come to recognize the vanity of trying to do more than ensure agency decisions satisfy thin legal rationality.6×6. Adrian Vermeule, Law’s Abnegation 22 (2016) (“Law has decided that it best serves its own ends by lying more or less quietly under the throne.”). Hamburger, by contrast, sees contemporary doctrine propping up an unconstitutional Leviathan.7×7. See Philip Hamburger, Is Administrative Law Unlawful? 7 (2014) (“Administrative power thus brings back to life three basic elements of absolute power. It is extralegal, supralegal, and consolidated.”). Yet both tug at the two threads mainstream administrative law seeks to hold together in workable tension, namely (a) the desire for effective and politically responsive administrative governance in a complex world and (b) the aspiration for a robust yet impersonal rule of law above administrative fiat.8×8. See Jeffrey A. Pojanowski, Reason and Reasonableness in Review of Agency Decisions, 104 Nw. U. L. Rev. 799, 851 (2010) (arguing that in administrative law, conceptions of “law as discretionary command and law as reasoned resolution . . . are prominent and perhaps ineradicable in discussion of legal reasoning”).
Rumblings at the Supreme Court also suggest that the current balance is becoming unstable. Inspired by criticisms along the line of Hamburger’s, a number of Justices have questioned the breadth and even the validity of Chevron deference to agencies’ interpretations of statutes.9×9. Three current Justices, in addition to recently retired Justice Kennedy, have raised such questions. See Pereira v. Sessions, 138 S. Ct. 2105, 2120–21 (2018) (Kennedy, J., concurring) (noting that “reflexive deference” to agencies under Chevron is “troubling” and stating “it seems necessary and appropriate to reconsider” the doctrine); Michigan v. EPA, 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring) (arguing Chevron is inconsistent with the Constitution and Marbury v. Madison); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch, J., concurring) (suggesting that the abdication of judicial power under Chevron could cause due process and equal protection concerns); Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2150 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)) (claiming that “Chevron [itself] is an atextual invention by courts”). Chief Justice Roberts has not directly challenged Chevron, though he has argued that the courts must be more exacting in ensuring Congress has delegated agencies interpretive authority. See City of Arlington v. FCC, 569 U.S. 290, 318–22 (2013) (Roberts, C.J., dissenting) (identifying cases where the Court has carefully scrutinized whether Congress has delegated interpretive authority). Justice Alito joined his dissent in City of Arlington. Id. at 312. Judges on the courts of appeals have followed suit.10×10. See Waterkeeper All. v. EPA, 853 F.3d 527, 539 (D.C. Cir. 2017) (Brown, J., concurring) (“An Article III renaissance is emerging against the judicial abdication performed in Chevron’s name.”); Egan v. Del. River Port Auth., 851 F.3d 263, 278 (3d Cir. 2017) (Jordan, J., concurring in the judgment) (calling for the reconsideration of Chevron); Raymond M. Kethledge, Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 323–26 (2017) (criticizing Chevron deference); Amul R. Thapar & Benjamin Beaton, The Pragmatism of Interpretation: A Review of Richard A. Posner, The Federal Judiciary, 116 Mich. L. Rev. 819, 822 (2018) (book review) (criticizing “convoluted tiers of deference”). Following up on a line of criticism voiced in concurring opinions,11×11. See Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1212–13 (2015) (Scalia, J., concurring in the judgment); id. at 1225 (Thomas, J., concurring in the judgment); id. at 1210 (Alito, J., concurring in part and concurring in the judgment); Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 616–21 (2013) (Scalia, J., concurring in part and dissenting in part); Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 67–69 (2011) (Scalia, J., concurring). Appellate judges have also questioned Auer deference. Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding that a reviewing court will uphold an agency’s interpretation unless it is “plainly erroneous or inconsistent with the regulation” (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989))); see United States v. Havis, 907 F.3d 439, 450 (6th Cir. 2018) (Thapar, J., concurring) (questioning Auer deference); Egan, 851 F.3d at 278 (Jordan, J., concurring) (calling for the reconsideration of Auer). the Court also considered in Kisor v. Wilkie,12×12. 139 S. Ct. 2400 (2019). decided last Term, whether to overrule the longstanding doctrine of judicial deference to agencies’ interpretations of their own regulations.13×13. See id. at 2408. Justice Kagan cobbled together a majority to preserve such deference,14×14. Id. at 2408. but only by reformulating the doctrine in a manner that, for most purposes, could render it practically indistinguishable from the approach recommended by its critics.15×15. See id. at 2425 (Gorsuch, J., concurring in the judgment) (“The Court cannot muster even five votes to say that Auer is lawful or wise. Instead, a majority retains Auer only because of stare decisis. And yet, far from standing by that precedent, the majority proceeds to impose so many new and nebulous qualifications and limitations on Auer that the Chief Justice claims to see little practical difference between keeping it on life support in this way and overruling it entirely. So the doctrine emerges maimed and enfeebled — in truth, zombified.”).
Coming in the opposite direction are challenges to judicially imposed constraints on agencies’ policymaking processes. The Supreme Court unanimously repudiated as inconsistent with the Administrative Procedure Act16×16. 5 U.S.C. §§ 551, 553–559, 701–706 (2018). (APA) a D.C. Circuit doctrine that required agencies to go through the notice-and-comment process before changing interpretive rules that lack the force of law.17×17. Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1206–10 (2015) (abrogating the holding in Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997)). One of then-Judge Kavanaugh’s most notable opinions on the D.C. Circuit, moreover, criticized that court’s imposition of common law procedural requirements atop the APA’s provisions for agency rulemaking.18×18. See Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 246 (D.C. Cir. 2008) (Kavanaugh, J., concurring in part, concurring in the judgment in part, and dissenting in part). That said, the Court’s scrutiny of agency policymaking often is consistent with more intrusive, “hard look” review. Compare Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (applying vigorous arbitrary and capricious review), and Judulang v. Holder, 565 U.S. 42, 52–53 (2011) (same), with FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 782 (2016) (applying a lighter touch to arbitrary and capricious review).
All told, hornbook doctrine on judicial review is under fire for being both too timid and too intrusive. With an eye toward such uncertainty, and taking the opportunity to rethink settled practice, this Article proposes an alternative way forward.
It does not offer a wholesale defense of contemporary doctrine’s eclectic balancing of administrative fiat and legal reason, but neither does it embrace the wholesale rejection of the administrative state or bureaucratic supremacy over law. Rather, it identifies and offers a tentative defense of an approach that returns to a more formalist, classical understanding of law and its supremacy. This approach accounts for, and embraces, much of the recent criticism of administrative law doctrine, while also explaining why those worries need not entail that courts police the details of regulatory policy or single-handedly undo the administrative state Congress has constructed. To make this showing, this Article pulls together strands of thought emerging in administrative law and scholarship and expands upon the pattern.19×19. See generally, e.g., Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908 (2017) (offering a historical explanation of the development of judicial deference to executive interpretation); Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75 Geo. Wash. L. Rev. 856 (2007) (arguing against judicial imposition of procedural requirements on informal rulemaking); John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113 (1998) (criticizing judges who ignore statutory language that “under any interpretive theory, would be relevant to deciding the issue,” id. at 152); Kavanaugh, supra note 9, at 2150–54 (questioning Chevron deference from formalist premises); Kathryn E. Kovacs, Rules About Rulemaking and the Rise of the Unitary Executive, 70 Admin. L. Rev. 515 (2018) (arguing that judicial interference in agency rulemaking conflicts with the text and history of the APA). I call this alternative neoclassical administrative law.20×20. I have used this term, albeit in a slightly different sense, in a short essay on the early twentieth-century scholar John Dickinson and his work’s relationship to contemporary administrative law. See Jeffrey A. Pojanowski, Neoclassical Administrative Common Law, New Rambler (Sept. 26, 2016), https://newramblerreview.com/book-reviews/law/neoclassical-administrative-common-law [https://perma.cc/QWP9-ZP37]. The movement I describe here is different than the approach Professor Keith Werhan criticized in The Neoclassical Revival in Administrative Law, 44 Admin. L. Rev. 567 (1992). Werhan’s account unites Chevron deference with a retreat of judicial common lawmaking in procedural and policymaking review, emphasizing a decline of faith in legal determinacy as part of 1980s administrative law. Id. at 594. In my account, Chevron is suspect and the positive law governing judicial review comes front and center because of increased faith in legal craft. Both approaches, however, embrace the line between law and policy, id. at 590, though this Article is more sympathetic to that development than Werhan’s, which defends an approach along the lines of administrative pragmatism discussed below.
The neoclassical approach rejects judicial deference on legal questions while respecting the policy choices that agencies legislate in the discretionary space Congress has given them. In doing so, neoclassical administrative law finds a place for both legislative supremacy and the rule of law within the administrative state, without subordinating either of those central values to the other. Such an approach reconciles traditional notions of the judicial role and separation of powers within the administrative state that Congress has chosen to construct and provides a clearer, more appealing allocation of responsibilities between courts and agencies.
Neoclassical administrative law has a greater faith in the autonomy and determinacy of legal craft than the working, moderate legal realism that characterizes much mainstream administrative law. This faith in the autonomy of law does not, however, translate into a belief that the law never runs out. Rather, neoclassical administrative law holds that courts should be less engaged in review of agency policymaking than current doctrine suggests. Such an approach insists that the line between law and policy is sharper than administrative law’s standard account, and that courts should be more vigilant in patrolling that boundary. Overall, this approach is “classical” in its defense of the autonomy of law and legal reasoning and its commitment to the separation of powers and supremacy of law. These commitments distinguish it from approaches to administrative law that would have reviewing courts beat a retreat to the margins. It is “new” in that, unlike other more classical, critical approaches of contemporary administrative law, it seeks to integrate those more formal commitments with the administrative state we have — and will have for the foreseeable future.
Importantly, and relatedly, neoclassical administrative law holds that courts should be more attentive and faithful to the positive law governing the administrative state, especially the APA. In particular, it contends that closer attention to the APA may provide more determinate and legitimate answers to questions of judicial review than does the current doctrine’s working pragmatism. This neoclassical approach is not inherently skeptical of administrative common law. In fact, a neoclassicist reading of the APA can turn on lawyerly investigation of the common law of judicial review that Congress originally incorporated within the statute. It is a recognition of the hierarchy of statutory law over judicial doctrine, not skepticism about legal craft, that presses toward closer attention to the APA. This reading of the APA, moreover, coalesces with the neoclassicist’s broader jurisprudential commitments to the division of labor between courts and agencies in the realms of law and policy, respectively.
The Article proceeds in three parts. First, I situate neoclassical administrative law by outlining three established, competing frameworks for administrative law. In doing so, I focus on those frameworks’ approaches to judicial review of questions of law and policy. Second, I introduce neoclassical administrative law. There I take a first pass at identifying its legal commitments and then explain how they play out along the same dimensions as the established frameworks. This is in part a work of reconstruction and speculation, because I do not yet see a critical mass of thinkers marching under this banner with a uniform program on the questions at issue. Third, I address the questions and challenges neoclassical administrative law faces, a task that will further illuminate its jurisprudential commitments.
* Professor of Law, Notre Dame Law School. I am grateful for comments and questions from Roger Alford, Nick Bagley, Kent Barnett, Tricia Bellia, Evan Bernick, Sam Bray, Emily Bremer, Christian Burset, Bill Buzbee, Katherine Crocker, Barry Cushman, Nicole Garnett, Rick Garnett, Michael Herz, Kristin Hickman, Bruce Huber, Randy Kozel, Anita Krishna-kumar, Ron Levin, John Manning, Jenn Mascott, Mark McKenna, Nina Mendelson, Aaron Nielson, Paul Noe, Jennifer Nou, Allison Orr Larsen, Nicholas Parrillo, Eloise Pasachoff, Zach Price, Connor Raso, Dan Rodriguez, Peter Shane, Glen Staszewski, Lee Strang, Peter Strauss, Cass Sunstein, Adrian Vermeule, Chris Walker, Adam White, and the participants at faculty workshops at Harvard Law School, Notre Dame Law School, and St. John’s Univer-sity Law School. I am grateful for the opportunity to develop this paper with the help of conferences organized and hosted by the Center for the Study of the Administrative State and the University of Michigan Law School. Meredith Holland provided excellent research assis-tance. I’m especially grateful to Sarah Pojanowski.