Academic journal article The William and Mary Bill of Rights Journal

Administrative Judges and Agency Policy Development: The Koch Way

Academic journal article The William and Mary Bill of Rights Journal

Administrative Judges and Agency Policy Development: The Koch Way

Article excerpt

Among the creative contributions that the late Charles H. Koch, Jr., made to administrative law thinking was his exploration of the present and potential role of administrative judges as policymakers. Charles stood in firm opposition to recent trends that, in his view, had served to strengthen the policymaking role of administrative judges at the expense of agency heads. He insisted that ultimate control over the policy direction of a program should rest with the officials who have been appointed to administer that program. While adhering to this baseline, however, Charles gravitated over time toward a nuanced view that sought to define an affirmative role for administrative judges in the policymaking process. He suggested, for example, that these judges could be helpful to agencies by initiating proposals for new directions and by building records that would enable agencies to appraise those proposals. In this sense, he argued, administrative judges could work in collaboration with, rather than at cross-purposes with, the agencies to which they are answerable.

This memorial essay aims to review Charles's analysis of this generally neglected topic and to contribute a few additional insights to the discussion. After examining the background issue of where ultimate policy control should rest, the essay describes and evaluates several of Charles's ideas for refinement of the role of administrative judges as policymakers. In addition, the essay takes up related questions regarding agencies' use of regulations and guidance documents to circumscribe the policy choices that administrative judges make.



The scholarship of the late Charles H. Koch, Jr., ranged over numerous topics in administrative law, both domestic and global, as the articles in this memorial symposium attest. For my contribution, I will focus on an article that Charles wrote about the role of administrative judges as policymakers. I corresponded with Charles on this subject in the spring of 2011, shortly before his passing, and I will draw upon that correspondence, as well as the underlying article, as the basis for reviewing and probing his analysis of the topic and for adding some thoughts of my own.

In the early 1990s, Charles participated as one of several consultants to the Administrative Conference of the United States (ACUS) in a study of the administrative law judiciary.1 The study examined the roles of both "administrative law judges" (ALJs) and other administrative adjudicators, often called "administrative judges" (AJs).2 The ACUS recommendation emanating from that study articulated a seemingly unequivocal position:

Where the agency has made its policies known in an appropriate fashion, ALJs and AJs are bound to apply them in individual cases. Policymaking is the realm of the agency, and the ALJ's (or AJ's) role is to apply such policies to the facts that the judge finds in an individual case.3

As Charles noted to me in our recent correspondence, he would have agreed with that statement at the time the ACUS made it. But, he continued, after talking with administrative judges "I began to see that our (ad law's) thinking is insufficient 5,4 In his more evolved view, he ceased to regard policymaking as falling exclusively within "the realm of the agency."5 Accordingly, he eventually undertook to envision and describe an affirmative role for administrative judges in the process of administrative policymaking. This role, he thought, could include policy incubation and related recordbuilding.6 In this fashion, he argued, the interaction between administrative adjudicators and agency heads in regard to policymaking could be coordinated rather than antagonistic.7 He spelled out this vision most comprehensively in an article published in the Alabama Law Review in 2005, entitled Policymaking by the Administrative Judiciary? In the following pages, I will offer what amounts to a review essay responding to that article. …

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