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Internal Administrative Law
Open accessAbstract
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 undermined 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.
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“Legislation 'may stipulate some basic details of agency structure, such as specific divisions or departments and requirements for key agency personnel.'”
From Administrative Sabotage (2022) · cites this paper as [257]
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- Grisinger, Law in Action, supra note 180, at 384, 404-08. For analyses of the political background and calculations behind the APA's enactment, see Grisinger, Unwieldy, supra note 136, at 59-108, and Shepherd, supra note 167, at 1560, 1649-83. 207. Shepherd, supra note 167, at 1649. 208. H.R. Rep. No. 79-1908, at 16 (1946), reprinted in Senate Comm. on the Judiciary, 79th Cong., Legislative History of the Administrative Procedure Act, 1944-46, at 233, 250 (1946) [hereinafter Legislative History of the APA]. 209. See U.S. Dep't of Justice, Attorney General's Manual on the Administrative Procedure Act 31 (1947)
- AG Manual] (noting that informal rulemaking proce- dures "have already been extensively employed by Federal agencies"). 210. Administrative Procedure Act, Pub. L. 79-404, § 3(a), 60 Stat. 237, 238 (1946). 211. Id. These publication requirements supplemented those of the Federal Register Act, which had required publication of final orders, regulations, licenses and certificates. See Fed- eral Register Act of 1935, Pub. L. No. 220, § § 4-5, 49 Stat. 500, 501 (1935). 212. See Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 250 (1966). 213. See S. Rep. No. 79-752, at 12 (1946), reprinted in Legislative History of the APA, supra note 208, at 185, 198;
- U.S.C. § 601 note (2012). 280. Final Bulletin, supra note 15. 281. See id. at 3439 (defining guidance documents as those agency statements of general applicability and future effect other than regulations that set forth policy on statutory, regula- tory, and technical issues). 282. Id. at 3432. 283. Id. (noting the importance of these procedures for guidance). 284. Id. at 3439-40. 285. Id. at 3440. 286. Id. at 3436. 287. Id. at 3437. 307. Daniel B. Rodriguez & Barry R. Weingast, Is Administrative Law Inevitable? 40-41 (Mar. 2, 2009) (unpublished manuscript), http://escholarship.org/uc/item6mx3s46p [https:// perma.cc/GA9D-CKHJ]. 308. See, e.g., Separation of Powers Restoration Act of 2016, H.R. 4768, 114th Cong. § 2
- Regula- tory Accountability Act of 2015, H.R. 185, 114th Cong. § § 3-7 (as passed by House, Jan. 13, 2015) (imposing great procedural constraints on agency rulemaking and heightened standards of judicial review). The IQA appears to have had a similar, antiregulatory motivation. Enacted without debate as an appropriations rider, the statute was justified on contentious industry concerns about "bad science" and has served to increase industry's ability to challenge infor- mation in rulemakings. See Wagner, supra note 302, at 68-69, 73-77, 95-96. 309. See supra note 32 (discussing current version of the Regulatory Accountability Act, combining these individual measures and recently passed by the House). 310. H.R. 4768, 114th Cong. (2016). 311. H.R. 185, 114th Cong. (2015). 312. H.R. 427, 114th Cong. (2015). 313. See Anne Joseph O'Connell, Shortening Agency and Judicial Vacancies Through Fili- buster Reform? An Examination of Confirmation Rates and Delays from 1981 to 2014, 64
- Duke L.J. 1645, 1649-52, 1683 (2015) (describing contribution of partisanship as well as other fac- tors to ongoing delays despite filibuster reform);
- Gillian E. Metzger, Agencies, Polarization, and the States, 115 Colum. L. Rev. 1739, 1750 (2015)
- U.S.C. § § 1201-1206 (2012) (Merit Systems Protection Board). 320. See Margo Schlanger, Intelligence Legalism and the National Security Agency's Civil Liberties Gap, 6 Harv. Nat'l Security J. 112, 166 (2015) (emphasizing PCLOB's lack of enforcement power); Shirin Sinnar, Institutionalizing Rights in the National Security Executive, 366.
- Katherine A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2, 23-26 (2009) (providing examples of agencies not disclosing political influences in justifying their decisions). 369. See Metzger, Embracing Administrative Common Law, supra note 113, at 1295, 1298-1305;
- Kevin M. Stack, The Statutory Fiction of Judicial Review of Administrative Action in the United States, in Effective Judicial Review: A Cornerstone of Good Governance 317, 318-22 (
Cited by
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Frost, N. (2024) · Oxford Journal of Legal Studies · doi:10.1093/ojls/gqae027 · Cited by 6
Noll, D. (2022) · Michigan Law Review · doi:10.36644/mlr.120.5.administrative · Cited by 6
Metadata
- Authors
- Metzger, G., & Stack, K.
- Affiliations
- Columbia University (US)
- Vanderbilt University (US)
- ORCID
- Stack, Kevin
- Venue
- Michigan Law Review
- Publisher
- University of Michigan Law Library
- Published
- 2017
- Volume
- 115
- Issue
- 115.8
- Pages
- 1239
- ISSN
- 0026-2234 (ISSN-L)
- 1939-8557
- OpenAlex
- W2624569111
- Cited by
- 38
- References
- 0
- Citations by year
- 2026: 1 · 2025: 5 · 2024: 1 · 2023: 3 · 2022: 2 · 2021: 4 · 2020: 19 · 2019: 3
- FWCI
- 27.65
- Type
- journal article
- Language
- en
- Open access
- bronze
- doi.org
- Locations
- Michigan Law Review (publishedVersion)
- bepress Legal Repository (submittedVersion)
- eYLS (Yale Law School) (submittedVersion)
- Michigan Law Review
- Topics
- Social Sciences › Law › Administrative Law and Governance
- Social Sciences › Economics, Econometrics and Finance › Economics and Econometrics › Legal and Constitutional Studies
- Social Sciences › Public Administration › Public Policy and Administration Research
- Keywords
- administrative discretion, agency accountability, Administrative Procedure Act, executive branch, administrative legitimacy
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