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Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State

Despite the administrative state’s extensive scope, we know little about how it operates as an empirical matter. This Article provides the first comprehensive empirical examination of agency rulemaking, with and without prior public comment, from President Ronald Reagan to President George W. Bush. Using a large new dataset constructed from twenty years’ (1983–2003) worth of federal agencies’ semi-annual reports in the Unified Agenda of Federal Regulatory and Deregulatory Actions, this Article analyzes variation in agency rulemaking activities with an emphasis on rulemaking at the beginning and end of presidential administrations and around shifts in party control of Congress—midnight and crack-of-dawn regulatory activity—while also assessing some patterns outside those periods. 

The empirical results offer new insights into the rulemaking process and the interplay of politics and regulation. Some of these insights are surprising. For example, certain agencies withdrew more proposed rules after political transitions in Congress than after a new President took office. Rather than capitalizing quickly on their electoral mandates, Presidents generally started fewer, not more, rules in the first year of their terms than in later years. Agencies generally did complete more rules in the final quarter of each presidential administration, but cabinet departments (as a group), finished slightly more actions after the 1994 election changed control of Congress than in President Clinton’s last quarter. And although the press highlighted President Clinton’s spate of midnight regulatory activity, President George H.W. Bush began nearly 50 percent more notice-and-comment rulemakings in the final quarter of his term than did President Clinton and nearly 40 percent more than President Reagan. 

The results have potentially far-reaching normative and doctrinal implications for the functioning and oversight of the administrative state. Politics aside, many agencies have engaged in considerable notice-and-comment rulemaking, suggesting that the traditional regulatory process may not be significantly ossified. Nevertheless, binding rulemaking without prior comment has increased across a wide range of agencies. Focusing on politics, these patterns of regulatory activity during political transitions undermine theories of judicial deference based entirely on agency expertise. But, at the same time, they do not support a political accountability theory based solely on the President. Rather, the regulatory trends call attention to the importance of Congress, in addition to the President, for bureaucratic oversight. In sum, the timing of rulemaking raises interesting questions about the effectiveness and legitimacy of the administrative state.

A Theory of Procedural Common Law

Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law—common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized as procedural common law. This body of law does not fit easily into the traditional account of federal common lawmaking power, because it generally lacks certain features thought characteristic of federal common law: It does not bind state courts, it falls outside of the recognized enclaves of federal common law, and it is not entirely subject to congressional abrogation.

This Article offers a tentative account of the power of the federal courts to make procedural common law. One explanation for this power is a variation on the enclave theory advanced in the context of substantive common law: the constitutional structure preempts the state’s ability to regulate federal-court procedure, and, if Congress fails to specify procedural rules, federal courts must. This theory rings partly true insofar as it recognizes that federal-court procedure lies beyond state control. It is unsatisfying, however, insofar as it conceives of the procedural power of the federal courts as entirely derivative of and subservient to that of Congress. The Article thus considers an alternate theory: that procedural common lawmaking authority derives not from congressional default, but from Article III’s grant of judicial power. This theory has more force insofar as it accounts for the fact that the power of the courts sometimes, even if rarely, exceeds that of Congress in matters of procedure. It depends, however, on the widely assumed but largely untested proposition that federal courts possess inherent procedural authority. The Article canvasses Founding-era history to determine whether the Constitution can fairly be understood to confer this power, concluding that the historical evidence, while far from overwhelming, supports the claim that federal courts possess inherent procedural authority. Building from this notion of inherent procedural authority, the Article then sketches a theory to explain the power of the federal courts to make procedural common law.

The Right to Education in Juvenile Detention Under State Constitutions

The importance of education to succeed in today’s society is well documented and recognized by courts, but is not adequately provided to the over 96,000 juveniles who are confined each year in the name of rehabilitation. This Note argues that children in juvenile detention have a right to an adequate education based on state constitutional guarantees of education. This right can be used to challenge the inadequacy of the current educational services provided in juvenile detention facilities. The argument proceeds in three parts. Part I provides background on the juvenile justice system, explains the importance of education in juvenile detention, and surveys the applicable federal statutes and corresponding litigation. Part II briefly discusses potential federal constitutional challenges based on the Equal Protection Clause and the Due Process Clause, but concludes that these challenges are unlikely to be successful. Part III argues that state constitutional guarantees of education are applicable to students in juvenile detention facilities. First, it analyzes the contours of the state rights to education as interpreted in school finance litigation. Second, it responds to the main objection that children in juvenile detention have sacrificed their right to education by arguing that (1) the purpose of confinement is rehabilitation, which is consistent with the right to education, and (2) even if the purpose of confinement is punishment, it does not follow that juveniles have sacrificed their right to education. Third, it analyzes specific challenges that could be raised by children in juvenile detention. Part IV concludes that given the acceptance of the adequacy conception of the right to education, the time is ripe to challenge the inadequacy of education currently provided in juvenile detention.

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