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UC Law Constitutional Quarterly

Daniel Epstein

Abstract

Much of our federal administrative law relies upon supposedly mandatory procedures that agencies often ignore. So, can the administrative state achieve legitimacy if it is bound by laws that it rarely, if ever, complies with? New data shows that agencies simply ignore administrative procedures without recourse because compliance ultimately depends on who holds power in the administrative state––not congressionally delegated rules or procedures imposed by the President. This article refutes the prevailing assumption that, as the sole powerholder of the entire executive department, the President is responsible for the current state of administrative non-compliance and underenforcement because the President decides not to enforce rules. This presidentially-centered argument relies on two variables: presidential discretion and judicial deference to that discretion. However, in this article, I present new empirical evidence showing that public interest groups influence the enforcement of administrative procedures notwithstanding presidential discretion––even overriding congressional attempts to cabin agency decision-making and sometimes judicial oversight. If these parties can shape how the President can exercise enforcement discretion, then power in the administrative state is in fact pluralistic, rather than presidentially centered. This article contributes not simply to our understanding of internal administrative law, but also illustrates how noncompliance with internal procedures has real world consequences for regulated parties and the federal government at large.

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