Constraining Bureaucracy - IA de Investigación especializada en el MIT

Constraining Bureaucracy
Beyond Judicial Review

Christopher J. Caminante

The modern regulatory state–and the field of administrative law that studies it–is
in need of “deconstruction.” That does not mean that it should be dismantled en-
tirely. This essay does not embrace the reformers’ fixation on courts as the bulwark
against agency overreach. Bastante, this essay develops the concept of bureaucracy
beyond judicial review: not only agency actions that statute or judicial doctrine pre-
cludes from judicial review, but also agency actions that are technically subject to
judicial review yet effectively insulated from it. Appreciating the phenomenon of bu-
reaucracy beyond judicial review should encourage us to rethink theories and doc-
trines in administrative law. If judicial review provides no safeguard against po-
tential abuses of power in most regulatory activities, we must turn to other mecha-
nisms. All three branches of the federal government must play their roles, as should
civil society and the agencies themselves.

T he vast majority of federal lawmaking today takes place not in the halls of

Congreso, but in the bureaucratic trenches: by hundreds of thousands of
political and career bureaucrats in Washington, CORRIENTE CONTINUA., and throughout the
nación. As regulation rises and legislation declines, administrative law, también, grows
in importance. Administrative law, después de todo, sets the ground rules for regulation. Él
dictates how federal agencies regulate and how the other federal government ac-
tors–the president, Congreso, and the courts–supervise, revisar, influencia, mo-
tivate, and constrain agency action. It also opens up space for public participation
in the regulatory process, while attempting to close out undue outside influence
and lobbying. When there is a change in presidential administration, administra-
tive law enables law and policy change without legislative action. En efecto, con un
Congress that has arguably lost much of its lawmaking ambition, change we can
believe in must inevitably come from the administrative state. This ascendant vi-
sion of bureaucratic governance goes well beyond the “presidential administra-
tion” Elena Kagan articulated two decades ago.1

With this rise and rise–and further rise!–of the administrative state in feder-
al lawmaking, it is no surprise that administrative law itself has become an ideo-
logical battleground.2 During the Obama administration, we began to see an up-

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swing in scholars (largely conservative and libertarian) questioning the modern
administrative state’s legitimacy in our constitutional order.3 In response, Gillian
Metzger dedicated her foreword to the Harvard Law Review volume on the 2016 Su-
preme Court term to declare that the administrative state is “under siege” and to
divide the legal academy into two camps: those who favor a robust administrative
state and the “anti-administrativists.”4

More recently, legal scholar Jeffrey Pojanowski attempted to bring granular-
ity to this us-versus-them dichotomy by disaggregating the field into three main
camps.5 The “administrative supremacy” camp views the administrative state as
constitutionally necessary for modern governance. Courts should not patrol agen-
cies’ substantive actions or their choice of procedures, only review to encourage
effective governance. “Administrative skepticism,” by contrast, is formalist in na-
ture and finds much of the modern administrative state unconstitutional. Tribunales
should review de novo administrative interpretations of law, utilize the non-
delegation doctrine to strike down broad statutory delegations, and otherwise
embrace judicial doctrines that constrain bureaucratic action.

“Administrative pragmatism,” which Pojanowski situates in between these
two extremes, “seeks to reconcile the reality of administrative power, expertise,
and political authority with broader constitutional and rule-of-law values.” In
many respects, administrative pragmatism is the conventional view, reflected in
current administrative law doctrine and regulatory practice. Pojanowski argues
for a neoclassical alternative to administrative skepticism, in which courts would
not defer to administrative interpretations of law but would defer to agency pol-
icy decisions. It would disarm the constitutional calls to deconstruct the modern
regulatory state. En cambio, it would encourage courts to faithfully interpret the Ad-
ministrative Procedure Act and the agencies’ organic statutes to ensure agencies
do not exceed their statutory authority.

However administrative law scholars are categorized, it is beyond serious dis-
pute that the academic criticisms of the modern administrative state have risen
over the last decade, and the academic rebuttals and defenses have followed.6
These academic criticisms have made their way from the ivory tower into the real
world (y viceversa, tal vez). A growing number of federal judges and mem-
bers of Congress (de nuevo, largely conservative and libertarian) have called for ad-
ministrative law reform. Por ejemplo, they have argued for eliminating judicial
deference to administrative interpretations of law and for reinvigorating the non-
delegation doctrine to strike down as unconstitutional broad statutory grants of
lawmaking authority to federal agencies.7

Donald Trump’s election as president, además, ushered in a deregulatory
agenda, one that perhaps went beyond a typical Republican presidential adminis-
tration. Shortly after the 2016 election, President Trump’s chief strategist Stephen
Bannon grabbed headlines by demanding a “deconstruction of the administrative

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesConstraining Bureaucracy Beyond Judicial Review

state.”8 The Trump administration took many measures to curtail administrative
governance, even in ways that inhibit the president’s power to make law and pol-
icy through the executive branch. Reforms to agency guidance, adjudication and
enforcement policies, rulemaking processes, and the civil service come immedi-
ately to mind. Yet the Trump administration also leveraged the regulatory state
to wield administrative power in unprecedented ways. One need look no further
than its various sweeping immigration regulatory actions as well as its attempts to
respond to the COVID-19 pandemic independent of Congress.

One would think that the Trump administration’s regulatory actions would
cause even “administrative supremacists” to become concerned about bureau-
cratic sprawl and overreach–perhaps even more so as the field of administrative
law took a critical race theory turn during the summer of 2020.9 Administrative
skeptics certainly have not changed their tune about the need to rein in the regula-
tory state. The vast majority of administrative law scholars, sin embargo, are not what
Pojanowski labels administrative supremacists. Ni, por supuesto, are they adminis-
trative skeptics. En cambio, they are administrative pragmatists who view the mod-
ern administrative state as imperfect yet necessary. These pragmatists recognize
the importance of both enabling administrative discretion and constraining that
exercise of discretion to avoid arbitrary and capricious agency action. In shap-
ing administrative law, they promote values such as agency expertise, reasoned
Toma de decisiones, due process, fairness, consistencia, transparencia, and public ac-
countability in administrative governance.

En otras palabras, the vast majority of administrative law scholars have always
been concerned with constraining bureaucratic power. And many of us–par-
ticularly administrative skeptics but also many administrative pragmatists–are
growing increasingly concerned about the shift from legislation to regulation to
make major policy decisions at the federal level and what that means for the future
of administrative law. Yet our focus has been myopically court-centric. Adminis-
trative law, as a field, has long fixated on the role of federal courts in reviewing and
constraining agency action. Each year hundreds of law review articles are pub-
lished on administrative law’s judicial deference doctrines and other standards of
judicial review. En efecto, since its birth in 1984, the Supreme Court’s landmark ju-
dicial deference decision in Chevron v. Natural Resources Defense Council has been cit-
ed on Westlaw more than ninety thousand times, including in more than twenty
thousand law review articles and other secondary materials. In the last year alone,
the Chevron decision has appeared in more than fifteen hundred secondary ma-
terials. As legal scholars Kevin Stack and Peter Strauss have argued, the history
of our approach to teach administrative law has no doubt also contributed to the
field’s emphasis on courts.10

This judicial focal point should come as no surprise. Federal courts serve as a
critical safeguard in the modern administrative state. But it is a mistake to focus

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150 (3) Summer 2021Christopher J. Caminante

just on courts. Much of administrative law happens without courts. Put different-
ly, federal agencies regulate us in many meaningful, and sometimes frightening,
ways that either evade judicial review entirely or are at least substantially insulat-
ed from such review. I am not the first to make this observation in the field of ad-
ley administrativa. Among others, Jerry Mashaw has been examining this phenom-
enon for decades, including in his seminal book Bureaucratic Justice.11 No doubt
sparked by Mashaw’s work, internal administrative law has become a trending
subfield in administrative law.12

To be sure, scholars of public administration have spent decades developing
theories about internal bureaucratic organization and control.13 In the field of ad-
ley administrativa, sin embargo, a more comprehensive and sustained inquiry is needed,
especially for those of us intent on “deconstructing” the modern administrative
state by strengthening safeguards against bureaucratic overreach. This essay fo-
cuses on the state of the administrative law field, but more interaction with these
other fields is sorely needed. To help move this work forward, this essay sketches
out a research agenda for a more systemic investigation into this phenomenon,
which I will call bureaucracy beyond judicial review. I have two main goals.

Primero, in the field of administrative law, the concept of bureaucracy beyond ju-
dicial review is undertheorized. The conventional account focuses on one under-
inclusive category of agency action: where judicial review is expressly preclud-
ed by statute or judicial doctrine. If our goal is to constrain bureaucracy beyond
judicial review, at least three additional categories deserve attention. En el uno
mano, judicial review is technically available for many agency actions, yet for a va-
riety of reasons they never make it to federal court. En el otro, even agency ac-
tions that make it to court are often subject to deferential standards of review that
create an administrative policy-making space insulated from judicial review.

This agency policy-making space is further complicated by the fact that fed-
eral agencies play a substantial, judicially unreviewable role in drafting the stat-
utes (and presidential budgets and executive orders) that govern them. En otra
palabras, federal agencies have the potential to essentially self-delegate the bureau-
cratic power that is insulated from judicial review. In theorizing bureaucracy be-
yond judicial review in the first part of this essay, I draw on recent examples from
both the Obama and Trump administrations.

Segundo, understanding bureaucracy beyond judicial review should encourage
us to rethink existing theories and doctrines in administrative law. So much schol-
arly attention has focused on refining judicial deference doctrines and standards
of review to strike the right balance of allowing agencies to reasonably exercise
their expertise yet rein in arbitrary exercises of agency discretion. But because
judicial review provides no adequate safeguard against potential abuses with re-
spect to these regulatory activities, we must turn to other actors and actions. Nosotros
must develop a theory of administrative law that better incorporates the various

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesConstraining Bureaucracy Beyond Judicial Review

other actors who can help monitor, constrain, and protect against agency abuse in
regulatory activities insulated from judicial review.

That does not mean we give up on judicial review. When reframed in light of
bureaucracy beyond judicial review, administrative law’s theory of judicial review
would focus not just on the individual cases that make it to court but also on how
courts can have a more systemic effect on those agency actions that never reach
a ellos. The second part of this essay explores how courts, Congreso, and the agen-
cies themselves can help counteract the dangers of bureaucracy beyond judicial
revisar.

T he conventional account of bureaucracy beyond judicial review focus-

es on agency actions that statute or judicial doctrine expressly excludes
from the courts’ purview. The founders of the Administrative Procedure
Acto (QUÉ) de 1946 envisioned that some agency actions would be precluded from
judicial review. En efecto, en la sección 701(a) of the APA, Congress makes clear that
the APA does not apply when “(1) statutes preclude judicial review; o (2) agency
action is committed to agency discretion by law.” These two categories arguably
make up the standard view of bureaucracy beyond judicial review. Each category
merits some further elaboration.

It is not uncommon for Congress to statutorily exclude judicial review for cer-
tain agency actions. Immigration law is a prime example. In Department of Home-
land Security v. Thuraissigiam (2020), the Supreme Court confronted the constitu-
tionality of the lack of judicial review for one such agency action: expedited re-
moval of noncitizens at or near the border.14 Expedited removal is one form of
what immigration scholars have coined “shadow removals” or “speedy deporta-
tions”: where Congress has generally precluded not only Article III (of the U.S.
Constitution) judicial review but even administrative review in an Article II im-
migration court.15 The Thuraissigiam Court rejected constitutional challenges to
expedited removal under both the Due Process Clause and the Suspension Clause.
In dissent, Justice Sonia Sotomayor declared that the “decision handcuffs the Ju-
diciary’s ability to perform its constitutional duty to safeguard individual liberty
and dismantles a critical component of the separation of powers.”

The breadth of shadow removals is staggering. En 2018, immigration judges,
who are agency adjudicators within the Justice Department’s Executive Office for
Immigration Review, received roughly three hundred thousand cases and con-
cluded more than two hundred thousand cases.16 Those cases receive administra-
tive review in the immigration courts. If the noncitizens are ordered removed at
the conclusion of the administrative proceedings, they generally can seek further
review in an Article III federal court. Pero, as immigration law scholar Jennifer Koh
has documented, the vast majority of removal orders today never make it to im-
migration court. They are issued through shadow removals “by front-line immi-

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150 (3) Summer 2021Christopher J. Caminante

gration officers acting as investigator, prosecutor, and judge, thus bypassing the
immigration courts entirely.”17 Indeed, en 2018, more than four out of five remov-
als were shadow removals, conducted without a formal administrative hearing or
Article III judicial review.

Many agency actions are not judicially reviewable because they are “commit-
ted to agency discretion by law.” Agency enforcement discretion is the quintes-
sential example. As the Supreme Court held in Heckler v. Chaney (1985), agencias
enjoy a form of prosecutorial discretion for enforcement decisions: a “presump-
tion that agency decisions not to institute enforcement proceedings are unreview-
able.”18 In Department of Homeland Security v. Regents of the University of California
(2020), the Court confronted this category of discretionary agency action in the
context of the Trump administration’s decision to rescind the Obama adminis-
tration’s Deferred Action for Childhood Arrivals program (DACA). Allá, de nuevo,
the Court reaffirmed that agency enforcement decisions are generally unreview-
able as committed to agency discretion. Yet the Court disagreed that DACA is just
a nonenforcement policy, as DACA also grants certain benefits.19

This nonreviewable agency discretion extends not just to under-enforcement
but also to over-enforcement. O, as legal scholar Mila Sohoni calls it, “crack-
downs.” A crackdown is “an executive decision to intensify the severity of en-
forcement of existing regulations or laws as to a selected class of offenders or a
selected set of offenses.”20 Consider the Trump administration’s immigration en-
forcement crackdown in San Francisco and surrounding cities. En 2018, reports
swirled that Immigration and Customs Enforcement (ICE) sought to arrest more
than 1,500 noncitizens and that the crackdown was motivated in part by Califor-
nia’s decision to become a sanctuary state and thus not fully cooperate with the
federal government to enforce federal immigration law. En efecto, ICE’s acting di-
rector publicly declared: “California better hold on tight”; if state and local offi-
cials “don’t want to protect their communities, then ICE will.”21

Deciding when and where to dedicate enforcement resources is a powerful reg-
ulatory tool. Agency decisions to refrain from enforcement benefit the potential
enforcees. And they harm the beneficiaries of the potential enforcement action:
the consumers, competitors, investors, employees, Etcétera, whose rights and
interests go unprotected by the regulators’ decision not to enforce the laws. Estafa-
versely, when agencies decide to crack down, the subjects of the crackdown suffer,
whereas similarly situated regulated parties do not, for reasons beyond the con-
trol of the regulated. Eso, también, can create arbitrary advantages and disadvantages
for similarly situated regulated parties, in addition to the accompanying external-
ities for third parties. Yet courts generally cannot patrol agency decisions on when
and how to wield their enforcement authority.

The concept of bureaucracy beyond judicial review should also include agen-
cy actions for which judicial review is technically available, yet for a variety

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesConstraining Bureaucracy Beyond Judicial Review

of reasons never make it to federal court. High-volume agency adjudication is
a classic example. As I have explored elsewhere, the Article III federal judicia-
ry receives outsized attention compared with the attention paid to the federal
administrative judiciary.22 After all, more than twelve thousand agency adjudi-
cators hold hearings and decide cases, compared with fewer than nine hundred
Article III judges. Much has been made of the Trump administration’s appoint-
ment of some two hundred Article III judges. Yet its hiring of nearly two hundred
and fifty Article II immigration judges has hardly been noticed (outside of immi-
gration law circles).

In the realm of formal agency adjudication, one perhaps would not anticipate
discovering bureaucracy beyond judicial review. Después de todo, formal adjudication in-
volves trial-like agency proceedings before an administrative law judge or some
other agency adjudicator, where the parties have the statutory right to seek judi-
cial review of the agency’s final decision. But even formal agency adjudication can
be insulated from judicial review. This is particularly true for mass agency adju-
dication–such as immigration, Social Security, and veterans’ adjudications–in
which only a fraction of cases ever reach federal courts.

Let us return to immigration adjudication. As noted above, immigration
courts decide several hundred thousand cases per year. According to one 2015
estudiar, roughly two in five immigrants in removal proceedings in immigration
court had legal representation, and less than half of those represented had repre-
sentation for all of their agency hearings.23 Unsurprisingly, immigrants represent-
ed by counsel are more likely to prevail: that same study found that represented
immigrants won tenfold (21 por ciento) more often than unrepresented immigrants
(2 por ciento). That is in part because unrepresented immigrants were fifteen times
less likely to even seek relief from removal. The lack of legal representation no
doubt plays a significant role in creating the stark disparities in the immigration
adjudication system, and in preventing many potentially successful claims from
reaching an Article III court. There’s a reason why a seminal empirical study on
immigration adjudication labels the system “refugee roulette.”24

So what does this mean for the phenomenon of bureaucracy beyond judicial
revisar? Because noncitizens often navigate agency adjudication without legal
representación, it is much more likely that individuals will not seek judicial re-
view of erroneous agency decisions. Either they lack the knowledge or resources
to navigate the process, or they have otherwise procedurally defaulted meritori-
ous claims in the administrative process. De este modo, courts never have the opportunity
to directly help these individuals. Courts’ ability to correct agency errors is limit-
ed to the subset of cases in which individuals have the wherewithal to seek judicial
revisar.

Subregulatory guidance is another context in which agency action is substan-
tially insulated from judicial review. The conventional understanding is that agen-

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150 (3) Summer 2021Christopher J. Caminante

cy guidance does not have the force of law, and thus is not judicially reviewable
absent the agency’s application of that guidance in enforcement or adjudication.
Whether agency guidance is actually nonbinding on regulated parties is subject to
considerable debate. Por ejemplo, last year, the Justice Department issued an in-
terim final rule that sets forth a number of requirements and procedures for creat-
ing agency guidance documents, including that “guidance documents may not be
used as a substitute for regulation and may not be used to impose new standards
of conduct on persons outside the Executive Branch.”25

Regardless of whether agency guidance can be formally binding yet escape
judicial review, it often functionally binds regulated parties in ways insulat-
ed from judicial review. As legal scholar Nicholas Parrillo has documented,
even when agency guidance is not legally binding, regulated parties often have
strong incentives to comply due to significant risks of agency enforcement, cer-
tain agency preapproval requirements, the need to maintain a good relation-
ship with the agency, or “intra-firm constituencies for compliance beyond legal
requirements.”26

En efecto, in the context of the Obama administration’s “dear colleague letter”
to universities on Title IX sexual harassment claims procedures, some scholars ob-
served that, “terrified, administrators not only complied; they over-complied.”27
To be sure, the universities could have sought judicial review. They could have re-
fused to comply, and then challenged in court the agency’s enforcement decision
or the federal government’s withdrawal of all federal funding. But the stakes (los-
ing all federal funding) were obviously too high. And it certainly does not encour-
age regulated parties to seek judicial review when, under the Auer deference doc-
trine, the court must defer to the agency’s regulatory interpretation advanced in
agency guidance “unless plainly erroneous or inconsistent with the regulation.”28
I have previously called this effect regulation by compliance.29

In discussing the potential dangers of agency guidance, I do not mean to sug-
gest we should abandon it. Agency guidance serves important purposes. Its role
in the modern regulatory state is critical. My point is that it is greatly insulated
from judicial review. And as Parrillo observes, administrative law scholarship on
guidance “misses much about the everyday workings of guidance that pervade
the administrative state, for it focuses on the tiny fraction of guidance documents
that get challenged in litigation, and only on the kinds of facts about guidance that
reach the courts.”30

Bureaucracy beyond judicial review should also encompass the administra-
tive policy-making space that administrative law’s judicial deference doctrines
create. Chevron deference is perhaps the prime example. As the Supreme Court
explained in the Chevron decision itself, the reviewing court “need not conclude
that the agency construction was the only one it permissibly could have adopted
to uphold the construction, or even the reading the court would have reached if

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesConstraining Bureaucracy Beyond Judicial Review

the question initially had arisen in a judicial proceeding.”31 Agencies thus enjoy
Chevron policy-making “space” to regulate in ways subject to judicial review only
for their reasonableness.32

This Chevron policy-making space is real and substantial. In reviewing every
published federal court of appeals decision from 2003 a través de 2013 that refers to
Chevron deference, administrative law scholar Kent Barnett and I found a differ-
ence of nearly twenty-five percentage points in agency-win rates when judges de-
cide to apply the Chevron deference framework.33 And once the circuit courts got
to Chevron’s second step, agencies prevailed 93.8 por ciento del tiempo.

It is also clear that federal agencies are keenly aware of this Chevron space. en un
survey of 128 federal agency rule drafters, Chevron deference was the most-known
interpretive tool by name (94 por ciento) and most reported as playing a role in agen-
cy rule drafting (90 por ciento) among twenty-two interpretive tools included in the
survey.34 Nearly nine out of ten rule drafters agreed or strongly agreed that they
think about subsequent judicial review when drafting statutes, and two out of ev-
ery five rule drafters surveyed agreed or strongly agreed–with another two in five
somewhat agreeing–that a federal agency is more “aggressive” in its interpre-
tive efforts if it is confident that Chevron deference applies (as opposed to some
less-deferential standard).

En otras palabras, agencies know they have policy-making space under Chevron;
not surprisingly, they act differently when they believe the threat of judicial inval-
idation is low.

How Chevron’s policy-making space enhances bureaucracy beyond judicial re-
view is further complicated by the fact that federal agencies play a substantial role
in drafting the laws that delegate them that space in the first place. As I have doc-
umented elsewhere, federal agencies are substantially involved in the legislative
proceso. They propose substantive legislation to Congress and provide confiden-
tial technical drafting assistance on nearly all legislation drafted by congressio-
nal staffers that affect the agency.35 Legal scholars Eloise Pasachoff and Tara Leigh
Grove have similarly documented the substantial role federal agencies play in the
drafting of presidential budget and executive orders, respectively.36

Tribunales, por supuesto, review enacted statutes to determine their meaning and
constitutionality. But courts do not review how agencies participate in statutory
drafting (or in the drafting of presidential directives). They do not assess if agen-
cies self-delegate lawmaking authority by leaving statutory mandates broad and
ambiguous, much less the role agencies may play in drafting statutes that elimi-
nate judicial review of agency action altogether. This judicially insulated legisla-
tive role is remarkable in and of itself. But it may well also compound the prob-
lematic lack of judicial review for the categories of agency action discussed above.
Después de todo, all of these agency actions are at least in part creatures of statutes–stat-
utes the agencies themselves helped create.

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I n light of the vast, underexplored terrain of bureaucracy beyond judicial re-

vista, how should administrative law theory and doctrine adjust? As I noted
at the outset, administrative law as a field must exit the courtrooms and enter
into the expansive world of external and internal laws, doctrines, y practicas
that assist the various actors who monitor, constrain, and protect against agency
abuse in regulatory activities that are insulated from the courts. Aquí, I focus on
the three branches of the federal government. But states and civil society obvious-
ly also play important constraining roles.

The Judicial Branch. Federal courts must view their role in the modern adminis-
trative state as one of more than mere error correction. Much ink has been spilled
arguing for shrinking or eliminating the Chevron policy-making space. Others
have argued to make certain actions more judicially reviewable, such as enforce-
ment decisions, agency guidance documents, and agency actions currently pre-
cluded from judicial review by statute. Many of these proposals would likely re-
quire congressional action, or at least a judicial philosophy that disregards stare
decisis (law by precedent) and the Bickelian “passive virtues” I generally embrace.
In light of bureaucracy beyond judicial review, sin embargo, courts could more ful-
ly embrace one substantial shift in mindset: courts should view their role in the
administrative state not only as reviewing the agency actions that reach them but
also as engaging in a dialogue with the political branches. This vision reorienta-
tion may be particularly important in the context of high-volume agency adjudi-
catión, where many individuals have meritorious claims but lack the wherewithal
to seek judicial review. As I have documented elsewhere, federal courts possess
a toolbox of dialogue-enhancing tools that they can employ when remanding
flawed agency adjudications back to the agency.37

Where courts are skeptical of the agency getting it right on remand, concerned
about undue delay, or worried about the petitioner getting lost on remand, alguno
courts require the agency to provide notice of its final determination, retain pan-
el jurisdiction over the matter, or set deadlines for an agency response to the re-
mand. Others suggest (or order) that administrative judges be replaced on re-
mand, certify issues for decision on remand, or set forth hypothetical answers in
dicta or concurring opinions. Some courts, además, obtain concessions from
the government at argument to narrow the potential grounds for denial of relief
on remand. And courts through their published opinions can set off fire alarms
for Congress, the president, and the public to draw attention to potential systemic
issues in a regulatory process.

These tools help courts play a more active role in improving equity, eficiencia,
and consistency in the agency adjudication system generally, rather than just the
limited number of cases that make it to a federal court. Yet the tools still respect
the proper separation of powers by using mere words instead of orders that may
exceed their statutory (o, en algunos casos, perhaps constitutional) authority. Usando

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this toolbox is one example of how judicial review in administrative law should
be enhanced to address the present-day realities of mass agency adjudication and
other bureaucratic actions that otherwise evade judicial review.

The Executive Branch. The executive branch itself can play a powerful role in
constraining bureaucracy beyond judicial review. Aquí, I focus on the role of the
agencies themselves, and leave for another day the role of the president and cen-
tralized regulatory review. The APA and the agencies’ organic statutes set the min-
imum procedural requirements for agency action. The Supreme Court has re-
peatedly reaffirmed that federal “agencies are free to grant additional procedural
rights in the exercise of their discretion.”38 Agencies do so through the creation
of internal administrative law, which encompasses a wide range of internal agen-
cy procedures, estructuras, practicas, and guidance that seek to constrain their ex-
ercises of discretion. This Vermont Yankee “white space,” as legal scholars Emily
Bremer and Sharon Jacobs have called it, has the potential to serve as a potent de-
fense against agency overreach, especially in the context of bureaucracy beyond
judicial review.39 The universe of internal law that could constrain bureaucracy is
vast, and I have surveyed it elsewhere.40 But a few examples for each type of bu-
reaucracy beyond judicial review can illustrate the constraining power of internal
administrative law.

For agency actions where judicial review is precluded by statute or judicial
doctrina, federal agencies can embrace a variety of internal procedures to protect
individuals in those processes. On the shadow removals front, Por ejemplo, el
agency could establish internal review procedures and additional procedural pro-
tections. It could create what civil rights law scholar Margo Schlanger has termed
an “office of goodness”: an internal ombuds office that looks out for the rights of
noncitizens in the informal adjudicative process and ensures the agency complies
with its external and internal laws.41

The Internal Revenue Service’s (IRS) Taxpayer Advocate Service provides a
model that may be worth adapting in other agency contexts.42 The Taxpayer Ad-
vocate Service is an independent office within the IRS with two distinct main ob-
jectives. Primero, it has physical offices in every state, where individual taxpayers can
get free help with their tax problems with the IRS. Segundo, leveraging these tens
of thousands of annual individual interactions nationwide, the Service is required
to report regularly to Congress to recommend systemic reforms to the federal tax
sistema. Similar internal structures and procedures could be beneficial in the con-
text of agency enforcement discretion.

For agency actions that are technically subject to judicial review but often
evade such review, federal agencies have and should continue to adopt internal
laws to protect individuals subject to those regulatory processes. On the mass ad-
judication front, the Administrative Conference of the United States (an indepen-
dent federal agency that studies administrative procedure) regularly recommends

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150 (3) Summer 2021Christopher J. Caminante

best practices, including public availability of practice rules, availability of adjudi-
cation materials on agency websites, establishment of recusal rules for adjudica-
tores, best practices for assisting self-represented individuals, and a sweeping suite
of procedural protections for agency hearings. Agencies have also adopted appel-
late review systems and other quality assurance programs by internal law.43 The
Social Security Appeals Council is a prominent example: a creature of internal ad-
ministrative law that now consists of nearly one hundred administrative appeals
judges and officers and processes more than one hundred thousand appeals per
año.

Finalmente, when it comes to an agency’s policy-making space created by judicial
deference doctrines, the Administrative Conference has recommended a num-
ber of best practices agencies can adopt to increase public participation and ac-
countability, including targeting and meeting with knowledgeable or affected
parties for feedback, improving online access to rulemaking dockets and related
materiales, utilizing social media to improve public engagement and awareness of
rulemaking activities, and drafting rules in plain language for better public com-
prehension, just to name a few. As the preceding paragraphs illustrate, the Admin-
istrative Conference plays an important role in assessing internal agency laws and
practices and identifying best practices agencies can embrace internally to help
address bureaucracy beyond judicial review.

Federal agencies can also bind themselves internally to seek only judicial def-
erence if they follow certain procedures. As noted above, last year the Justice De-
partment issued an interim final rule requiring the agency to follow certain proce-
dures when creating guidance documents, with heightened procedures for “sig-
nificant guidance documents.” The rule instructs the agency not to seek any Auer
deference in litigation for a guidance document that does not “substantially com-
ply” with these requirements. Along similar lines, immigration law scholar Shoba
Wadhia and I have argued that the Justice Department and the Department of
Homeland Security should create internal administrative law that shifts the de-
fault for major policy-making in the immigration context from agency adjudica-
tion to notice-and-comment rulemaking.44 Like the Justice Department’s new
rule for agency guidance, this new immigration internal law should instruct the
immigration agencies not to seek Chevron deference for agency statutory inter-
pretations promulgated through agency adjudication (while preserving Chevron
deference for rulemaking). We argue that shifting the default from adjudication
to rulemaking for immigration policy-making is more consistent with Chevron’s
theoretical foundations: to leverage agency expertise, to engage in a deliberative
proceso, and to increase political accountability.

The Legislative Branch. Congress must play a more prominent role in constrain-
ing bureaucracy beyond judicial review. As legal scholar Josh Chafetz has docu-
mented, Congress possesses a suite of hard powers (power of the purse, personal

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fuerza, contempt authority) and soft powers (freedom of speech and debate, en-
ternal discipline, cameral rules) that it can employ to constrain the administrative
state.45 Congress should utilize this toolbox to address agency actions that evade
judicial review. And administrative law scholars should dedicate more attention
to exploring how Congress can better wield these powers in this context; ellos
debería, Sucesivamente, also leverage the ample literature on the subject in other fields.

At the end of the day, aunque, increased congressional oversight is unlikely
to be sufficient to effectively constrain bureaucracy beyond judicial review. El
same is true for senatorial pressure during the confirmation process for the ad-
ministration’s nominees to run the agencies. So, también, with using appropriations
power to influence administrative policy change. Congress must also reinvigorate
its ambition to legislate and revisit the often decades-old statutes that empower
federal agencies.

To encourage Congress to return to passing laws on a regular basis, legal schol-
ar Jonathan Adler and I have argued that Congress should embrace the practice
of regular reauthorization of statutes that govern federal agencies.46 This engage-
ment would include regular assessment of agency action and regular recalibra-
ción, if the agency’s regulatory activities are inconsistent with the current Con-
gress’s policy objectives. In some regulatory contexts, it may require Congress to
enact reauthorization incentives, such as sunset provisions designed to induce
legislative engagement. In other contexts, Congress may decide that the costs of
mandatory reauthorization outweigh the benefits. Sin embargo, Congress should
more regularly use reauthorization to mitigate the democratic deficits that come
with broad delegations of lawmaking authority to federal agencies. It goes with-
out saying that, as with many proposals to reform Congress, ours would require
a greater investment in congressional capacity–in terms of staffing and other
resources.

A regular reauthorization process could have dramatic effects on constraining
bureaucracy beyond judicial review. Congress would, Por ejemplo, have to choose
whether to continue to preclude judicial review by statute in certain circumstanc-
es. In the hearings leading up to reauthorization, it would have an opportunity to
hear from the agency and those affected by agency enforcement decisions, y
it could apply pressure for the agency to modify its enforcement policies or even
legislate to constrain such discretion. For agency actions that are judicially re-
viewable but often evade review, Congress could similarly assess those systems
through reauthorization hearings and could codify best practices for quality as-
surance, offices of goodness, and the like.

Regarding the agency policy-making space created by judicial deference doc-
trines, regular reauthorization could play an important role. For many of us, Chev-
ron deference has become far more problematic in the current era of congressional
inaction. Congress appears to have insufficient capacity or willpower to intervene

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150 (3) Summer 2021Christopher J. Caminante

when an agency has used statutory ambiguity to pursue a policy inconsistent with
current congressional wishes, much less when an agency’s organic statute is so
outdated as to not equip the agency with authority and direction to address new
tecnologías, challenges, and circumstances. A regular reauthorization process
would alleviate many of these concerns.

It is also possible that Congress would consider eliminating or narrowing judi-
cial deference with respect to certain subject matters or administrative processes.
Legal scholar Kent Barnett has explored how Congress did so in the Dodd-Frank
Act with respect to the Office of the Comptroller of the Currency’s statutory inter-
pretations that preempt state law.47 Similarly, as noted above, Wadhia and I have
argued that Congress should eliminate Chevron deference in the immigration ad-
judication context, while preserving it for notice-and-comment rulemaking.

A ppreciating the phenomenon of bureaucracy beyond judicial review

should encourage us to rethink theories and doctrines in administrative
law, and to reconsider the direction of the field of administrative law. So
much scholarly attention has focused on refining judicial deference doctrines
and standards of review to strike the right balance of allowing agencies to em-
ploy their expertise to reasonably exercise their statutorily vested discretion while
reining in arbitrary exercises of agency discretion. Administrative skeptics seem
to have similarly fixated on courts, calling for the elimination of Auer and Chevron
deference and the reinvigoration of an exacting nondelegation doctrine.

But if judicial review provides no safeguard against potential abuses of power
in most regulatory activities, we must turn to other mechanisms. All three branch-
es of the federal government must play their roles. As should civil society and the
agencies themselves. (When it comes to the agencies, this also must include the
role of a professionalized civil service.) This is the type of “deconstruction of the
administrative state” that deserves more scholarly and real-world attention.

nota del autor

This essay draws from the author’s address at the V International Congress on In-
stitutional Theory at the Federal University of Rio de Janeiro, Brasil. It also weaves
together a number of distinct lines in the author’s research agenda; the endnotes
attribute such reliance. The themes presented in this essay are further developed in
the author’s forthcoming book, Constraining Bureaucracy: Rethinking Administrative Law
in a System without Courts (Prensa de la Universidad de Cambridge).

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesConstraining Bureaucracy Beyond Judicial Review

Sobre el Autor

Christopher J. Walker is the John W. Bricker Professor of Law at The Ohio State
University Moritz College of Law and Chair of the American Bar Association’s Sec-
tion of Administrative Law and Regulatory Practice. He previously clerked for Jus-
tice Anthony Kennedy in the U.S. Supreme Court and worked on the Civil Appel-
late Staff at the U.S. Department of Justice. He blogs regularly for the Yale Journal on
Regulation and has published in such journals as the California Law Review, Georgetown
Law Journal, Michigan Law Review, and Stanford Law Review.

notas finales

1 Elena Kagan, “Presidential Administration,” Harvard Law Review 114 (8) (2001): 2245.
2 Gary Lawson, “The Rise and Rise of the Administrative State,” Harvard Law Review 107 (6)

(1994): 1231.

3 Ver, Por ejemplo, Richard Epstein, The Dubious Morality of Administrative Law (Lanham,
Maryland.: Roman and Littlefield, 2020); Philip Hamburger, ¿Es ilegal el derecho administrativo??
(chicago: University of Chicago Press, 2014); and Joseph Postell, Burocracia en Estados Unidos:
The Administrative State’s Challenge to Constitutional Government (Columbia: University of
Misuri, 2017).

4 Gillian E. Metzger, “Reducción de los años 30: El Estado administrativo bajo asedio,” Harvard Law
Revisar 131 (1) (2017). Metzger included me among the anti-administrativists, and I share
many of the confessions Aaron Nielson expressed in his response. See Aaron Nielson,
“Confessions of an ‘Anti-Administrativist,’” Harvard Law Review 131 (1) (2017).

5 Jeffrey A. Pojanowski, “Neoclassical Administrative Law,” Harvard Law Review 133 (2019):

852.

6 Ver, Por ejemplo, Jon D. Michaels, Constitutional Coup: Privatization’s Threat to the American
República (Cambridge, Masa.: Prensa de la Universidad de Harvard, 2017); Cass R. Sunstein and
Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State (Cambridge,
Masa.: Prensa de la Universidad de Harvard, 2020); and Paul R. Verkuil, Valuing Bureaucracy: El
Case for Professional Government (Cambridge: Prensa de la Universidad de Cambridge, 2017).

7 For a survey of such criticisms, see Christopher J. Caminante, “Attacking Auer and Chev-
ron Deference: A Literature Review,” Georgetown Journal of Law and Public Policy 103 (1)
(2018); and Jonathan H. Adler and Christopher J. Caminante, “Delegation and Time,” Iowa
Law Review 105 (5) (2020): 1931.

8 Philip Rucker and Robert Costa, “Bannon Vows a Daily Fight for ‘Deconstruction of the
Administrative State,’” The Washington Post, Febrero 23, 2017, https://www.washington
post.com/politics/top-wh-strategist-vows-a-daily-fight-for-deconstruction-of-the
-administrative-state/2017/02/23/03f6b8da-f9ea-11e6-bf01-d47f8cf9b643_story.html.
9 In summer 2020, in the wake of the killing of George Floyd and subsequent Black Lives
Matter protests across the nation, the Yale Journal on Regulation Notice and Comment blog
published more than two-dozen essays as part of its symposium on racism in admin-
istrative law. Those essays are collected at https://www.yalejreg.com/topic/racism
-in-administrative-law-symposium/.

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150 (3) Summer 2021Christopher J. Caminante

10 Kevin Stack, “Lessons from the Turn of the Twentieth Century for First-Year Courses
on Legislation and Regulation,” Journal of Legal Education 65 (1) (2015): 28; and Peter
Strauss, “Review Essay: Christopher Columbus Langdell and the Public Law Curricu-
lum,” Journal of Legal Education 66 (1) (2016): 157.

11 jerry l. masha, Bureaucratic Justice: Managing Social Security Disability Claims (nuevo refugio,
Conexión.: Prensa de la Universidad de Yale, 1983). See also Nicholas R. Parrillo, ed., Administrative Law
from the Inside Out: Essays on Themes in the Work of Jerry L. masha (Cambridge: Cambridge
University Pres, 2017).

12 Ver, Por ejemplo, Gillian E. Metzger and Kevin M. Stack, “Internal Administrative Law,"

Michigan Law Review 115 (8) (2017): 1239.

13 Ver, Por ejemplo, Donald P. Moynihan, “‘Our Usable Past’: A Historical Context Ap-
proach to Administrative Values,” Public Administration Review 69 (5) (2009): 813–821.

14 Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020).
15 Shoba Sivaprasad Wadhia, Banned: Immigration Enforcement in the Time of Trump (Nueva York:
New York University Press, 2019), cap. 5; and Jennifer Lee Koh, “When Shadow Re-
movals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited
Removal and Reinstatement,” Washington University Law Review 96 (2) (2018).

16 Executive Office for Immigration Review, Statistics Yearbook Fiscal Year 2018 (Washington,
CORRIENTE CONTINUA.: A NOSOTROS. Department of Justice, 2019), Tables 4 y 5, https://www.justice.gov/eoir/
file/1198896/download.

17 Jennifer Lee Koh, “Removal in the Shadows of Immigration Court,” Southern California

Law Review 90 (2) (2017): 181, 183.

18 Heckler v. Chaney, 470 A NOSOTROS. 821, 837 (1985).
19 Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1906

(2020).

20 Mila Sohoni, “Crackdowns,” Virginia Law Review 103 (1) (2017): 31, 33.
21 Hamed Aleaziz, “Feds Planning Massive Northern California Immigration Sweep to
Strike against Sanctuary Laws,” SFGATE, Enero 17, 2018, https://www.sfgate.com/
bayarea/article/Feds-planning-massive-Northern-California-12502689.php.

22 Christopher J. Caminante, “Charting the New Landscape of Administrative Adjudication,"
Duke Law Journal 69 (8) (2020). See also Christopher J. Walker and Melissa F. Wasser-
hombre, “The New World of Agency Adjudication,” California Law Review 107 (2019): 141.
23 Ingrid V. Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigra-

tion Court,” University of Pennsylvania Law Review 164 (1) (2015): 7–8.

24 Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Refugee Roulette: Dispar-
ities in Asylum Adjudication and Proposals for Reform (Nueva York: New York University Press,
2011).

25 28 C.F.R. § 50.27(C)(1)(I), https://www.justice.gov/file/1308736/download.
26 Nicholas R. Parrillo, Federal Agency Guidance: An Institutional Perspective (Washington, CORRIENTE CONTINUA.:

Conferencia Administrativa de los Estados Unidos, 2017).

27 Elizabeth Bartholet, Nancy Gertner, Janet Halley, and Jeannie Suk Gersen, “Fairness for
All Students Under Title IX,” Digital Access to Scholarship at Harvard, Agosto 21, 2017.

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesConstraining Bureaucracy Beyond Judicial Review

28 Auer v. robbins, 519 A NOSOTROS. 452, 461 (1997).
29 Christopher J. Caminante, “Administrative Law Without Courts,” UCLA Law Review 25

(2018): 1620.

30 Parrillo, Federal Agency Guidance, 5.
31 Chevron U.S.A. v. Natural Resource Defense Council, 467 A NOSOTROS. 837, 843 N.11 (1984).
32 Pedro L.. Strauss, “‘Deference’ Is Too Confusing–Let’s Call Them ‘Chevron Space’ and

‘Skidmore Weight,’” Columbia Law Review 112 (5) (2012): 1143.

33 Kent Barnett and Christopher J. Caminante, “Chevron in the Circuit Courts,” Michigan Law Re-

vista 116 (1) (2017): 5–6, 30 (Cifra 1).

34 Christopher J. Caminante, “Inside Agency Statutory Interpretation,” Stanford Law Review 67

(5) (2015): 999, 1019 (Cifra 1), 1020 (Cifra 2).

35 Christopher J. Caminante, “Legislating in the Shadows,” University of Pennsylvania Law Review

165 (6) (2017): 1377.

36 Eloise Pasachoff, “The President’s Budget as a Source of Agency Policy Control,” Yale Law
Diario 125 (8) (2016): 2182; and Tara Leigh Grove, “Presidential Laws and the Missing
Interpretive Theory,” University of Pennsylvania Law Review 168 (2020): 877.

37 Christopher J. Caminante, “The Ordinary Remand Rule and the Judicial Toolbox for Agency

Dialogue,” George Washington Law Review 82 (5) (2014): 1553.

38 Vermont Yankee Nuclear Power Corporation v. National Resources Defense Council, 435 A NOSOTROS. 519,

524 (1978).

39 Emily S. Bremer and Sharon B. Jacobs, “Agency Innovation in Vermont Yankee’s White

Space,” Journal of Land Use and Environmental Law 32 (2017): 523.

40 Christopher J. Walker and Rebecca Turnbull, “Operationalizing Internal Administrative

Law,” Hastings Law Journal 71 (5) (2020): 1225.

41 Margo Schlanger, “Offices of Goodness: Influence without Authority in Federal Agen-

cíes,” Cardozo Law Review 36 (1) (2014): 53.

42 See Nina E. Olson, “Taxpayer Rights, Customer Service, and Compliance: A Three-

Legged Stool,” University of Kansas Law Review 51 (2003): 1239.

43 Ver, Por ejemplo, David Ames, Cassandra Handan-Nader, Daniel E. A, and David Mar-
cus, “Due Process and Mass Adjudication: Crisis and Reform,” Stanford Law Review 72
(1) (2020).

44 Shoba Sivaprasad Wadhia and Christopher J. Caminante, “The Case Against Chevron Defer-

ence in Immigration Adjudication,” Duke Law Journal 70 (2021): 1197.

45 Josh Chafetz, Congress’s Constitution: Legislative Authority and Separation of Powers (nuevo refugio,
Conexión.: Prensa de la Universidad de Yale, 2017). See also Christopher J. Caminante, “Restoring Con-
gress’s Role in the Modern Administrative State,” Michigan Law Review 116 (6) (2018):
1101 (reviewing Chafetz, Congress’s Constitution).

46 Adler and Walker, “Delegation and Time.”
47 Kent H. barnett, “Codifying Chevmore,” New York University Law Review 90 (1) (2015).

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150 (3) Summer 2021Christopher J. Caminante
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