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Monday, March 19, 2018

The Challenge of Teaching "Internal Administrative Law": Bureaucratic Secrecy

I agree 100% with Gillian Metzger's and Kevin Stack's excellent recent article on "internal administrative law" that the major action in administrative law is within agencies, before any bureaucratic decision is subject to judicial review. As Metzger and Stack note, an elaborate web of rules, guidance documents, MOUs, EOs, and statutory provisions govern the process, substance, and jurisdiction of agencies, and agencies' lawyers, bureau chiefs, and ALJs enforce these internal rules against themselves and each other. The natural conclusion is that we ought to spend more time teaching internal administrative law in our classes.

The big challenge is finding publicly available materials: Bureaucrats tend to hold their internal legal arguments close to their chest. (That's what makes them "internal"). Sure, I can give my students the guidance documents and other rules: These are generally published on the agency's website. But I cannot show them how the bureaucracy implements or argues about or ignores these general rules. Those interpretative arguments take place behind closed doors. Unless one was in the room where it happens, one really does not know how much influence internal law had on the some agency GC's decision regarding one division's jurisdiction or another division's procedures: that's what makes both "internal." By contrast, the briefs and oral arguments presented to courts are available to the public: Outsiders can observe, applaud, criticize, the lawyers' arguments and the judges' responses.

Is there any easy way to overcome bureaucratic secrecy and obtain genuinely "internal" legal reasoning? One could work for an agency -- but then one's internal deliberations are privileged. One can assign excerpts from NPRMs and Final Rules "Bases and Purposes" that focus on agencies' statutory interpretation before a rule reaches the courts. (A great way to find fun leg-reg problems is to do searches on regulations.gov using Latinate canons as search terms. When an agency says "expressio unius" or "noscitur a sociis" in a rule's Basis and Purpose, you know that there is an exam question buried in the rule). But note that the Basis and Purpose is a document drafted in anticipation of judicial review: It really is not "internal" in any meaningful sense. The same goes, of course, for the reasons in ALJs' opinions. (To the extent that Chevron induces ALJs to pay attention exclusively to higher agency tribunals within the agency, I guess that those opinions should approach the status of being genuinely "internal" -- but Chevron is a murky enough line that it is hard to be confident that an ALJ is making a decision on purely internal grounds).

All of this leads me to a request: If any readers out there have syllabi containing genuinely "internal" materials or, better yet, tips on finding such materials (teach a man to fish...), I would be grateful for your sharing them with me (and sharing offline is fine).

Posted by Rick Hills on March 19, 2018 at 08:02 PM | Permalink


P.s. If you decide to use ACUS materials, and especially if you have students submit comments, I would LOVE to hear about your experience!

Posted by: Emily Bremer | Mar 21, 2018 11:14:54 AM

I would classify the nature of the discussion as ACUS as predominantly "internal" because the recommendations tend to focus on matters within the boundaries of agency procedural discretion as defined by statute and judicial precedent. That is, the mode of analysis in an ACUS project often starts with a first, framing question: "what minimum requirements and maximum limitations does the law establish in x area of agency procedure?" And then the meat of the deliberation is about a second, internal question: "how should agencies use the procedural discretion afforded to them by the law?" As a consequence, the recommendations often address matters of agency procedural discretion that courts are unlikely to review (and which are less likely to be addressed in a traditional administrative law class).

A comment on an ACUS project could one that sounds in legal interpretation, addressing the first, framing question. As you note, this kind of comment would be more like a litigation-anticipating comment. In my experience, however, most of the action in ACUS proceedings involves that second, internal question. I think it would be easy, if desired, to direct the students to focus on the latter.

Posted by: Emily Bremer | Mar 21, 2018 10:55:45 AM

“El roam” suggests FOIA as a way of getting at the internal debates about legal interpretation within an agency. In my experience, however, Exception 5 of FOIA places a major obstacle to this use. Any debates within an agency involving the General Counsel or legal staff often fall with attorney-client privilege or attorney work-product.

Emily, I think that both the comment-submitting and SACUS-perusing ideas are terrific: Thanks! When he was at NYU, Mike Wishnie actually divided his section of 1L Leg-Reg 90-odd person class into small groups that would submit actual comments on behalf of actual clients. (He was, and remains, insanely diligent as a teacher).

Once caveat: To the extent that such comments involve legal interpretation, I guess they could be understood as “internal” to the agency — but, of course, they often function as first-stage briefing in anticipation of future litigation before the courts. Are they really “internal”? Is the style or substance of a legal argument in a comment all that different from the same argument in a brief before a court? Who cares, really? It seems to me to be a really great idea to have students engage in that’ sort of legal writing.

And thanks as well for the ACUS idea: I hadn’t thought of that at all.

Joseph, I think that the whole point of “internal administrative law” is that the courts do NOT intervene — that this is law completely outside the courtroom but nonetheless “law” for being extra-judicial. The extra-judicial quality, indeed, is precisely what makes me doubt whether comments in the APA rule-making process count as “internal.” So there are no separation-of-powers problems here. There is only the problem of getting one’s hands on materials that tend by their very nature to fall with the attorney-client privilege, attorney work product, or otherwise outside the scope of FOIA or other devices for disclosure to the public.

Posted by: Rick Hills | Mar 21, 2018 3:41:16 AM

One way to get some measure of the internal perspective into the classroom is to assign reports and recommendations of the Administrative Conference of the United States. ACUS is one place where agency insiders debate the nuts and bolts of how internal administrative procedure should work. I have found that my LegReg students really enjoy the practical, inside-the-agency dimension that these materials bring to the discussion. On it's website, ACUS provides all draft and final reports, recommendations, and written comments, along with video of all committee meetings and semi-annual plenary sessions (www.acus.gov). To get a shorter summary of the issues and proceedings, I have sometimes assigned or shared with students blog posts about ACUS work. Notice and Comment (http://yalejreg.com/nc/) and The Regulatory Review (https://www.theregreview.org/) are good sources of these.

I've also toyed with the idea of having students dig deeper into a project that interests them and requiring them to submit a comment to ACUS. Since ACUS's calendar is roughly an academic calendar, with committee meetings concentrated in September-November and February-April, that could work well. It would probably be more appropriate to devote that kind of time to it in a seminar instead of in a traditional Leg-Reg course, which is the primary reason I haven't yet done it.

Posted by: Emily Bremer | Mar 20, 2018 10:59:33 AM

Does "internal administrative law" encompass things like presidential pardon and firing a special counsel?

In order to grant a pardon under the DOJ rules, normally an applicant has to wait five years after release from confinement. An applicant can apply for a waiver however. In the recent pardon of the sailor who took photos on a submarine, the DOJ originally denied waiver thereby ending the possibility of pardon. But later unilaterally reversed that decision, followed by Trump granting the pardon.

Given that the power of pardon belongs exclusively to the president under the Constitution, all the rules laid on top may be helpful to a decision but seems they can be brushed aside if the president says so. And it seems that is what happened there.

There are also of course rules for firing a special counsel, only for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause." It's an open question whether Trump can fire Mueller notwithstanding the rules. This again goes to presidential authority granted in the Constitution.

I notice the article begins with the prosecutorial discretion exercised by the Obama Administration for immigration enforcement and Trump's current attempt to undo and/or exercise the very same power (depending on your point of view).

So if these are the kinds of things encompassed by "internal administrative law" are we hewing close so close, if not hitting, the bones of executive authority that it is problematic for the courts to intervene? I think some would say that's a positive and natural development, but it is also seems violative of the separation of powers.

Posted by: Joseph | Mar 20, 2018 10:58:46 AM

You can definitely start with the " freedom of information act " , by petitioning , or by reading decisions have to do with it and so forth…. This is a very good way , for learning the conduct , the behavior , the state of mind of agencies and so forth….. Thanks

Posted by: El roam | Mar 19, 2018 8:48:45 PM

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