Habib Olapade is a senior at Stanford University studying political science.
Federal administrative agencies interpret, enforce, and in some cases adjudicate disputes arising under congressional statutes. Agency officials acquire an intimate and complex understanding of the regulatory laws they carry out because they interact with them on a daily basis. Bureaucratic expertise is a double edged sword.
On one hand, agency specialists facilitate compromise between the political branches by allowing lawmakers to agree on broad, non-controversial principles and then passing the buck to agency staff who turn those principles into a concrete set of policies. Congress benefits from this arrangement because members can claim credit for any agency accomplishments while avoiding responsibility for agency malfeasance by arguing that they do not promulgate agency directives or were misled in an oversight hearing. Likewise, the general populace also benefits from agency expertise because it receives a public good that would otherwise not be available, calibrated to the particular needs of society as a whole or an influential segment of society.
Federal courts have responded to this conundrum by developing different standards for review of agency regulations. Under the Chevron doctrine, for example, courts will defer to an agency’s interpretation of a statute if (1) congress has delegated authority to the agency to make rules carrying the force of law and (2) the agency interpretation was promulgated in the exercise of that authority. The Auer doctrine, a corollary to the Chevron rule, dictates that courts must defer to an agency’s interpretation of its own rules so long as the interpretation is not clearly erroneous. Conversely, under the Skidmore doctrine, a court will defer to an agency interpretation only to the extent that the agency’s statutory reading is thoroughly considered, well-reasoned, and consistent with earlier agency pronouncements.
The Office of Legal Counsel (OLC), the main administrative agency that provides legal advice to executive branch officials, does not fit into the Chevron-Skidmore framework neatly. The OLC is a unique agency because its primary task is to resolve legal disputes between executive agencies. The OLC, in other words, functions as a quasi-court that is distinct from run-of-the-mill agency arbitration boards and adjudicatory panels because there is no clear statutory provision that permits judicial review of OLC opinions. OLC staff’s professional qualifications reflect the office’s institutional design. While a plurality of OLC attorney-advisors have impressive academic credentials, clerkship experience, and a deep understanding of the Supreme Court’s separation-of-powers jurisprudence, OLC attorneys resemble federal judges in the sense that they are generalists and do not usually have specialized technocratic or subject area knowledge of a particular regulatory domain. Therefore, in comparison to other independent regulatory agencies such as the EPA or SEC, the case for deference to OLC opinions is rather weak because, all things being equal, a judge’s guess as to what a given statutory provision means is just as ill-informed as an OLC attorney’s conjecture.
The Office also vigorously defends executive prerogatives against congressional usurpation even in cases where the legal basis for the executive’s position is shaky at best. In the past fifty years, for instance, OLC attorney-advisers have authorized:
- The kidnapping of foreign nationals in clear contravention of international law
- Recess appointments within a two-day period between senate pro forma sessions
- Non-compliance with reporting requirements in the War Powers Act – even in conflicts that last longer than 60 days
- Warrantless wiretapping of some domestic telephone and email conversations in clear violation of the Foreign Intelligence Surveillance Act (FISA) and
- Executive refusal to comply with judicial summons to answer an indictment alleging criminal contempt of Congress
While these instances may not be entirely representative of the OLC’s work, they do suggest that the executive branch can manipulate the deputy attorney general running OLC when it needs legal support for a policy position. But, even assuming, arguendo, that the OLC’s unusual structure and pro-executive proclivity, has no bearing on whether courts should defer to its opinions, the OLC lacks the consistency and procedural safeguards to warrant judicial deference to its decisions.
Courts defer to consistent agency positions for two reasons. One must first consider the fact that an agency’s maintenance of a consistent position suggests that it is not manipulating its interpretive discretion for arbitrary ends. Second, in general, it is easier for private parties to comply with stable policies. An agency can demonstrate the consistency of its position by, among other things, showing that its current position is consistent with past positions or, that a new position is unlikely to change in the future. OLC can do neither. As a preliminary matter, the OLC does not disclose certain opinions containing classified government information so a judge may not have the requisite information to decide if a position is consistent. Moreover, OLC opinions are often delivered orally so attorney-advisors can dodge compliance with the Freedom of Information Act. Finally, OLC attorney-advisors generally do not hesitate to overturn past opinions whenever enough pressure has been put on them from superiors notwithstanding the Office’s re-commitment to stare decisis after David Barron’s tenure.
Every administrative agency must exercise its rulemaking authority in compliance with the Administrative Procedure Act (APA) unless otherwise provided. The APA requires agencies to hold a ‘notice-and-comment’ period for new regulations. During the comment period, industry representatives and concerned citizens can voice objections to proposed rules. Courts are more likely to defer to agency regulations that have gone through a notice-and-comment evaluation because the rules may have been modified to reflect legitimate popular concerns and are, therefore, less likely to be the product of groupthink. OLC opinions do not have to endure a similar process. Office opinions are written after an attorney-advisor has researched an issue for two to four weeks, solicited input from concerned agencies with a stake in the matter, and had her opinion reviewed by two deputy attorneys general. The OLC procedure does not support the notion that courts should defer to OLC opinions because Office procedure does not provide the same public exposure benefits that the notice-and-comment process does.
Deference is earned, not given. The administrative state is already in tension with the constitution’s command that all legislative powers be vested in, and exercised by, the Congress. The Supreme Court’s refusal to enforce the nondelegation doctrine in tandem with subsequent decisions in Chevron and Auer have only added fuel to the fire emboldening bureaucrats with no public visibility. Neutral principles and cost-benefit analysis may suggest that regulatory agencies must be given a carte blanche. It is important, however, that we refrain from cutting checks to the wrong payees. The OLC must not receive payment.
Photo Credit: Flickr User Cliff
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.