An Article I, Section 7 Perspective on Administrative Law Remedies

By Bershteyn, Boris | The Yale Law Journal, November 2004 | Go to article overview
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An Article I, Section 7 Perspective on Administrative Law Remedies


Bershteyn, Boris, The Yale Law Journal


CONTENTS

INTRODUCTION

  I. METHODOLOGY: PLAYING THE ARTICLE I, SECTION 7 GAME
     A. The Sequential Structure of Article I, Section 7
     B. Article I, Section 7 as a Sequential Game
        1. Original Rules: Bicameralism and Presentment
        2. New (Deal) Rules: A Pro-President Bias
        3. Adaptive Responses: Too Little or Too Much
     C. What if Courts Played Too?
        1. Motivating Judicial Participation
        2. A Role for Courts: Some Proposals and
         Critical Responses

 II. A NEW PLAYING FIELD: REMEDIAL CHOICE IN
     ADMINISTRATIVE LAW
     A. Presumptive Vacatur: A Winning Move in the Article I,
        Section 7 Game
     B. Leaving the Allied-Signal Test Behind

III. MEDIA--OWNERSHIP RULES: A CASE STUDY OF
     REMEDIAL ERROR

     A. Before Fox: A Brief Regulatory History
     B. A Critical Look at Fox Remedies
     C. After Fox: Testing Predictions
        1. Prediction 1: Agency Action on Remand
        2. Prediction 2: Congressional Use of Appropriations
           Process
        3. Prediction 3: Agency Responses to Informal
           Congressional Pressure

CONCLUSION

INTRODUCTION

In recent decades, our understanding of the administrative state, and particularly its relationship to political institutions created by the U.S. Constitution, has benefited substantially from game-theoretic analysis. (1) Scholars who apply game theory to policy formation "view[] relationships between political actors, such as the President, Congress, and the Supreme Court, as a sequential game in which each party acts based on its expectations of the other parties' responses." (2) Not surprisingly, the familiar sequence created by Article I, Section 7--which sets forth the bicameralism and presentment requirements for federal lawmaking--has attracted particular attention. (3) Scholars applying sequential models have explored how this constitutional game has been transformed by the arrival of a new player, the twentieth-century administrative state. (4) Since federal administrative agencies enjoy significant delegated powers (5) and discretion in statutory interpretation, (6) it is perhaps axiomatic that they may alter federal policy in favor of the President who oversees them. (7) Game theory has added analytic precision to this intuition. It has also permitted legal scholars to recommend specific doctrinal reforms that counteract the pro-President bias created by the federal bureaucracy: reforms in constitutional law, in statutory interpretation techniques, and in judicial deference to administrative decisions (the so-called Chevron doctrine). (8)

This Note explores another possible compensating strategy. It applies sequential analysis to a judicial function that has not been extensively explored by legal theorists--the choice of remedies in administrative law. When a court finds a legal defect in an agency's decision, two remedial options are available: It can either vacate the defective rule or remand it back to the agency without vacatur (that is, leave the rule in place for the time being). (9) This Note makes two arguments about this choice, one descriptive and one normative. First, sequential analysis suggests that the two remedies can lead to different lawmaking sequences and may therefore generate distinct policy outcomes. Second, presumptive vacatur would best reflect the original design of Article I, Section 7 in the age of administrative bureaucracy. Remand without vacatur, in comparison, biases policy outcomes in favor of the President. In short, this Note argues that, to the extent that the sequential structure of Article I, Section 7 should inform courts' remedial choices, vacatur should be the presumptive administrative law remedy. Importantly, this recommendation runs counter to a recent judicial trend: Starting in the early 1990s, courts have increasingly remanded agency rules without vacating them. (10) This Note offers a reason to be wary of this development.

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