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Ronald Reagan Presidential Library
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Collection: Roberts, John G.: Files
Folder Title: JGR/Testimony Approval
(09/01/1983-09/28/1983)
Box: 53
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THE WHITE HOUSE
WASHINGTON
September 15, 1983
MEMORANDUM FOR HILDA SCHREIBER
OFFICE OF MANAGEMENT AND BUDGET
Onig. signed by AP
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement of Jonathan Rose Regarding
Legislation to Establish Administrative Law
Judge Corps (S. 1275) - September 20, 1983
Counsel's Office has reviewed the above-referenced proposed
testimony, and finds no objection to it from a legal
perspective.
FFF:JGR:aea 9/15/83
CC: FFFielding
JGRoberts
Subj.
Chron
THE WHITE HOUSE
WASHINGTON
September 15, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Statement of Jonathan Rose Regarding
Legislation to Establish Administrative Law
Judge Corps (S. 1275) - September 20, 1983
Assistant Attorney General Jonathan Rose proposes to deliver
the attached testimony before the Subcommittee on
Administrative Practice and Procedure of the Senate
Judiciary Committee on September 20. Rose's proposed
testimony considers general issues raised by S. 1275,
which would create an independent administrative structure
for the operation of agency level adjudication. The
testimony expressly does not take a position on the
desirability of such a general restructuring of the
administrative law judge system. In essence, S. 1275 would
remove administrative law judges from the particular
agencies, and place them in an administrative law judge
agency, where each administrative law judge would have
responsibility for cases from different agencies. Rose's
testimony reviews the pros and cons of such a proposal in a
fairly neutral manner.
Rose then discusses alternatives to the creation of an
administrative law judge agency, including the development
of single-agency administrative courts, multi-agency
administrative courts, and more limited administrative law
judge corps proposals. In discussing some of the
particulars of S. 1275, Rose's testimony is consistent with
a defense of the prerogatives of the Executive, objecting,
for example, to provisions for a nominating commission and
selection of new administrative law judges by existing
administrative law judges rather than the executive
agencies.
The proposal to establish an administrative law judge corps
is in the incipient stages, and Rose's testimony is
generally noncommital. I see no legal objections.
Attachment
ID
#. 171440
CU
WHITE HOUSE
Jh007
O OUTGOING
H INTERNAL
I . INCOMING
CORRESPONDENCE TRACKING WORKSHEET JR
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
yolanda Branche
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Statement of Jonathan Rose re legislation
to establish an administrative law judge
Corps (5.1275) September 20, 1983
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
WHOII
ORIGINATOR 0983,09,14
/
/
Referral Note:
CUAT 18
D 88,09,14
$ 83,09,24
Referral Note:
/
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Referral Note:
/
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/ /
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/
I
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I . Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R - Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D Draft Response
S For Signature
F - Furnish Fact Sheet
X . Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code
=
"A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
DRAFT.
STATEMENT
OF
JONATHAN C. ROSE
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL POLICY
DEPARTMENT OF JUSTICE
CONCERNING LEGISLATION TO ESTABLISH
AN ADMINISTRATIVE LAW JUDGE CORPS (S. 1275)
BEFORE
THE COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE
OF THE
UNITED STATES SENATE
SEPTEMBER 20, 1983
DRAFT
Mr. Chairman, I am pleased to appear before this Subcommittee
to testify concerning the proposal to establish an Administrative
Law Judge Corps.
In essence, the proposal would separate the administrative
law judges from the agencies in which they are presently employed
and establish an independent administrative structure for the
operation of the system of agency-level adjudication. Similar
proposals have been advanced periodically over the past fifty
years an an alternative to existing systems of intra-agency
adjudication. 1/ Independent systems of administrative adjudica-
tion, characterized as "central panel" systems, have in fact been
established in a number of states. 2/
I would emphasize at the outset that we do not now take any
position on the desirability of a general re-structuring of the
administrative law judge system. A reform of this magnitude
obviously calls for thorough reflection and study, including
consideration of the views of each agency that utilizes adminis-
trative law judges.
1/
See Marquardt & Wheat, The Developing Concept of an Admini-
strative Court, 33 Ad. L. Rev. 301, 305-10 (1981) ; Lubbers,
A Unified Corps of ALJs: A Proposal to Test the Idea at the
Federal Level, 65 Judicature 266, 273 (1981).
2/ See The Central Panel System: A New Framework for the Use of
Administrative Law Judges, 65 Judicature 231-65 (1981).
- 2 -
The issues raised by S. 1275 are, however, of great concern
to the Department of Justice, 3/ and we are very interested in
working with the Subcommittee in exploring the potential of this
approach and other reforms. My testimony today will set out our
initial comments and observations concerning the general concept
of an independent system of administrative adjudication, alter-
native reform options that should also be considered, and the
specific design of the system proposed in S. 1275.
General Considerations
-
I.
Under the existing system of administrative adjudication,
the judges who hear and decide cases arising under administrative
programs are in most instances employees of the agencies respon-
sible for administering the programs. A number of considerations
have been advanced for and against the consolidation of this
adjudicatory function in a separate agency that would handle the
cases of all agencies that presently utilize administrative law
judges:
3/
The current system of administrative adjudication ultimately
derives from the recommendations of the Attorney General's
Committee on Administrative Procedure, which laid the
groundwork for the Administrative Procedure Act. See
Attorney General's Committee on Administrative Procedure,
Administrative Procedure in Government Agencies, S. Doc. No.
8, 77th Cong., 1st Sess. 43-60 (1941); The Legislative
History of the Administrative Procedure Act, S. Doc. No.
248, 79th Cong., 2d Sess. 190-93, 244-49 (1946).
- 3 -
A.
Positive Considerations
Independence. A frequently emphasized objective of the
Administrative Law Judge Corps proposal is that of assuring that
judges will both actually be and appear to be free of improper
influences and partiality. The most serious potential problem
presented by the current system is that of conflict arising in an
agency over management initiatives that are perceived as inimical
to impartial adjudication. While few agencies have experienced
such extreme situations, concerns have sometimes been stated over
the possibility in more ordinary circumstances of subtler forms
of pressure or bias arising from the status of administrative law
judges as employees of the agencies whose cases they decide. 4/
More Varied Caseloads. While there is currently
some provision for inter-agency assignment of administrative
4/
See Floyd Lewis, The Administrative Law Judge System 32
(Congressional Research Service of the Library of Congress
1982) ; Lubbers, supra note 1, at 274; Statement of Loren A.
Smith, Chairman of the Administrative Conference of the
United States, on S. 1275 Before the Subcomm. on Admini-
strative Practice and Procedure of the Senate Comm. on the
Judiciary 3, 6 (June 23, 1983) [hereafter cited as "Smith
Statement"] i Statement of Judge Victor W. Palmer on Behalf
of the Federal Administrative Law Judges Conference Con-
cerning S. 1275 Before the Subcomm. on Administrative
Practice and Procedure of the Senate Comm. on the Judiciary
(June 23, 1983) [hereafter cited as "ALJ Conference
Statement"].
- 4 -
law judges, for the most part such judges hear cases arising
under the programs administered by their employing agencies.
This degree of specialization may not be conducive to the
breadth of perspective one would wish to see in judges. A
monotonous caseload over a period of years may also have an
intellectually deadening effect, adversely affecting the quality
of decisions. 5/
The Administrative Law Judge Corps proposal offers some
definite advantages over the current system in this regard. The
usual formulations of the proposal contemplate that the judges of
the Corps would be organized into a number of courts or divisions.
The jurisdiction of a division would not, in most instances, be
confined to the cases of a single agency, but would extend over
the cases generated by a number of agencies whose programs have a
general or specific similarity in subject matter. 6/ In addition
to offering current administrative law judges a more varied and
stimulating caseload, the prospect of a diversified work
5/ See Lubbers, supra note 1, at 274. See generally Pfeiffer,
Hearing Cases Before Several Agencies -- Odyssey of an
Administrative Law Judge, 27 Ad. L. Rev. 217 (1975).
6/ See, e.g., Lubbers, Federal Administrative Law Judges: A
Focus on Our Invisible Judiciary, 33 Ad. L. Rev. 109, 123
(1981) ; ALJ Conference Statement, supra note 4, at 28-29;
Letter of Leland E. Beck, Counsel, Administrative Office of
the United States Courts to Honorable Strom Thurmond
Concerning S. 1275, at 2 (June 28, 1983) ; Harves, Making
Administrative Proceedings More Efficient and Effective: How
the ALJ Central Panel System Works in Minnesota, 65 Judicature
257, 261 (1981) ; Marquardt & Wheat, supra note 1, at 314.
- 5 -
experience could make service as an administrative law judge more
attractive, increasing the pool of candidates for selection.
Fungibility. A related potential benefit of a unified
Corps is freer transferability of judicial resources to meet
shifting caseloads. Administrative caseloads may change rapidly
in response to changes in administrative policy or new legis-
lation. Prompt adjustments meeting these changes currently
depend on the limited possibility of inter-agency loan of judges. 7/
-
Efficiency. Administrative centralization would
promote efficiency by eliminating redundancies in support ser-
vices and facilities which occur among the roughly 30 agencies
that currently employ administrative law judges. Potential
improvements include, for example, consolidation of law
libraries, clerks' offices, and case-tracking and case-reporting
systems. 8/
Facilitation of Other Judicial Reform Measures. The
workload problems of the courts and the expense and delay that
7/
See ALJ Conference Statement, supra note 4, at 3; Smith
Statement, supra note 4, at 2; Lubbers, supra note 1, at
274.
8/ See ALJ Conference Statement, supra note 4, at 2-3; Lubbers,
supra note 1, at 274.
- 6 -
accompany litigation provide particular currency to efforts to
find alternatives to litigation. One approach that holds promise
in certain areas is the replacement of judicial proceedings by
less formal and more efficient administrative processes. 9/ We
have, for example, stated support for broadened use of admini-
stratively imposed civil penalties in program fraud cases. 10/
Expressed concerns over the impartiality of the administrative
adjudication process are one ground of objection or resistance to
such reforms. The establishment of a more clearly independent
system of administrative adjudication could help meet this type
of objection.
B. Negative Considerations
Lack of accountability. The concern may be raised that
separating judges from the agencies whose cases they decide would
reduce accountability and foster irresponsible behavior. An
9/ See generally Diver, The Assessment and Mitigation of Civil
Money Penalties by Federal Administrative Agencies, 1979
Recommendations and Reports of the Administrative Conference
of the United States 203, 203-205 (1981) i Goldschmid, An
Evaluation of the Present and Potential Use of Civil Money
Penalties As a Sanction by Federal Administrative Agencies,
2 Recommendations and Reports of the Administrative Conference
of the United States 896, 900-02, 925-27 (1973) i H. Friendly,
Federal Jurisdiction: A General View 129-33 (1973) i Erwin N.
Griswold, Cutting the Cloak to Fit the Cloth, The Brendan F.
Brown Lecture Delivered at Catholic University Law School,
at 14 (March 23, 1983).
10/ See Program Fraud Civil Penalties Act: Hearing on S. 1780
Before the Senate Comm. on Governmental Affairs, 97th Cong.,
2d Sess. 11-29 (1982) (testimony of Assistant Attorney
General J. Paul McGrath).
- 7 -
obvious reference point for this concern is the activism that is
sometimes seen in the Article III judiciary.
This concern is not insubstantial, but a number of
considerations limit its force. The function and authority of
administrative law judges are, to begin with, more limited than
those of Article III judges -- the jurisdiction of administrative
law judges is confined to the cases generated by certain admini-
strative programs 11/ and they have no authority to invalidate
acts of Congress. The agencies that presently"employ administra-
tive law judges have various mechanisms for intra-agency review
of their decisions, 12/ and the agencies' control over the final
disposition of cases generated by their programs would not be
affected by the proposal of S. 1275. 13/
To the extent that excesses of authority or incompe-
tence may occur among administrative law judges, it is not
11/ These cases, however, exceed in number the caseload of the
Article III judiciary and include many proceedings of great
complexity and importance. See Lubbers, supra note 6, at
109-10; Lewis, supra note 4, at 10-11.
12/ A comprehensive survey of existing intra-agency review
systems appears in a recent report prepared under contract
for the Administrative Conference. See Ronald A. Cass,
Agency Review of Administrative Law Judges' Decisions (ACUS
Contract No. T-18632428).
13/ The bill contemplates that a two-year study of agency review
would be undertaken after the Corps was established, re-
sulting in recommendations to Congress and the President,
but that creation of the Corps would not in itself have any
effect on review authority.
- 8 -
apparent that the current system provides effective means for
dealing with the problem. 14/ Administrative law judges are
already made independent of their employing agencies in many
respects, 15/ and management initiatives that are perceived as
affecting the decision of cases are likely to be resisted.
Perhaps the main implication of the concern over accountability
-- together with the arguable deficiencies of the current system
in this regard -- is that care should be taken in the design of
an independent adjudicatory system to insure that it incorporates
adequate mechanisms of oversight and accountability. 16/ Propo-
nents of the Corps proposal have suggested that creation of such
mechanisms could more readily be accomplished in the context
of an independent, unified Corps, and have advanced this consid-
eration as a positive ground for enactment of the proposal. 17/
Loss of Expertise. A second objection is that the
current system of single-agency specialization ensures that a
judge acquires a high degree of expertise in his agency's cases.
14/ See the sources cited in note 16 infra.
15/ See Lubbers, supra note 6, at 111-12; Lewis, supra note 4,
at 4-5.
16/ With respect to performance evaluation and mechanisms of
accountability generally, see Lewis, supra note 4, at 34-40;
Scalia, The ALJ Fiasco -- A Reprise, 47 U. Chi. L. Rev. 57
(1979) ; Lubbers, supra note 1, at 274; Rich, Adapting the
Central Panel System: A Study of Seven States, 65 Judicature
246, 254 (1981) ; Harves, supra note 6, at 263.
17/ See Lewis, supra note 4, at 35, 40; Lubbers, supra note 1,
at 274.
- 9 -
Judges of a unified administrative judiciary would hear a broader
range of cases. This could result in more limited familiarity
with cases arising under particular programs, affecting the
quality of decisions and requiring litigants to put more work
into "educating" judges concerning the applicable law and perti-
nent background information. 18/
This objection goes more to the question of design than
to the validity of the basic concept. If a particular class of
administrative cases can be handled best by fully specialized
judges, a court or division could be established whose juris-
diction would be limited to that class of cases. In other areas,
in which the benefits of a more generalist perspective pre-
dominate, a division's jurisdiction could extend over cases
generated by a number of different programs or agencies. 19/
Availability of Alternatives. A final possible ob-
jection is that many of the benefits asserted for an Admini-
strative Law Judge Corps could be realized -- and are currently
realized in some areas -- through more modest measures that show
greater sensitivity to the special needs and characteristics of
18/ See Lubbers, supra note 1, at 274; Smith Statement, supra
note 4, at 4, 6.
19/ Case-by-case assignment on the basis of required expertise
is an additional option that is presently employed in some
of the state central panel systems. See Rich, supra note
16, at 253-54; Harves, supra note 6, at 261.
- 10 -
the various agencies and programs. Alternative reforms are
discussed at length in the next part.
II. Alternative Reforms of a More Limited Character
A. Single-Agency Administrative Courts
Congress has established two agencies that effectively
function as independent administrative courts. These are the
Federal Mine Safety and Health Review Commission 20/ and the
Occupational Safety and Health Review Commission. 21/ These
agencies are wholly adjudicatory in character and are headed by
Presidentially appointed commissions. 22/ They are institu-
tionally autonomous from the Labor Department, which administers
the programs that generate their cases. This model might be
considered if a need exists in other areas for an adjudicatory
capacity that is fully independent from the administering agency.
Another approach which achieves the same result is
the creation of more conventionally structured courts whose
20/ See generally 30 U.S.C. § 823; S. Rep. No. 181, 95th Cong.,
1st Sess. 13 (1977) ; Lubbers, supra note 1, at 273.
21/ See generally 29 U.S.C. § 661; Lubbers, supra note 1, at
273.
22/ In structural terms these are two-tier courts, consisting
of a lower tier of administrative law judges and the
Commission itself which reviews their decisions.
- 11 -
jurisdiction is confined to cases generated by a single agency's
programs. The Tax Court (I.R.S. cases) is an example.
Within particular agencies measures may be taken to
insulate adjudicatory activities from control or influence by
officials with potentially conflicting programmatic responsi-
bilities. In the Labor Department, for example, a statutorily
established Benefits Review Board heads the adjudicatory system
for cases arising under the Longshoremen's and Harbor Workers'
Compensation Act. The Board consists of three members appointed
by the Secretary of Labor. 23/
B. Multi-Agency Administrative Courts
A second alternative possibility is adjudicatory
commissions or courts whose jurisdiction would include cases
generated by a number of different agencies. This general
approach can be adapted in various ways to suit the needs and
characteristics of particular programs. An inter-agency adju-
dicatory body could be headed by a Presidentially appointed
commission, or by a board or commission chosen by the heads of
the various agencies whose cases it would handle. 24/ It could
23/ See generally 33 U.S.C. § 921; H.R. Rep. No. 1441, 92d
Cong., 2d Sess. 11-12, 21 (1972).
24/ The single-agency Occupational Safety and Mine Safety
systems involve Presidentially appointed Review Commissions.
(Footnote Continued)
- 12 -
be made fully independent of the administering agencies, on the
model of the single-agency Occupational Safety and Mine Safety
Review Commissions, or could remain subject to the review
authority of those agencies. The commission or other governing
body of an inter-agency adjudicatory capacity could function as
an appellate tier in relation to the decisions of its judges, or
could be limited to administrative functions.
More conventionally structured courts whose jurisdiction
encompasses cases arising under a number of different programs
are an additional option in this category. An existing example
is the Claims Court, which hears various types of claims against
the government that may result from the activities of almost any
agency. 25/ Another example is the Court of International Trade,
whose jurisdiction includes customs and international trade cases
arising under programs administered by the Treasury, Commerce and
Labor Departments. 26/
(Footnote Continued)
Appointment of the governing body of an inter-agency
adjudicatory system by the heads of the affected agencies
may be compared to the selection of the single-agency
Benefits Review Board, described in the preceding part, by
the Secretary of Labor.
25/ See 28 U.S.C. §§ 1491-1508.
26/ See 28 U.S.C. §§ 1581-83.
- 13 -
C.
An Administrative Law Judge Corps Covering a Limited
Range of Agencies.
A final possibility would be to establish an Admini-
strative Law Judge Corps along the general lines of S. 1275 that
would incorporate the judges from a large number of agencies, but
not all. Testimony at the first day of hearings on this bill
suggested a limited trial version of the Corps that would cover
15 agencies that employ relatively small numbers of judges. A
Corps following this design would have about 70 judges. 27/
-
This particular approach seems questionable since the
interest of an agency in participating in such an experiment
would not obviously be correlated with the number of judges it
employs. The intimation in the proposal that agencies using
small numbers of judges do not consider them important to their
operations and would not resist their incorporation into a larger
system 28/ is dubious. If a limited Corps is to be created on a
trial basis, a more realistic possibility might be to have it
cover all agencies that have a positive attitude toward partici-
pating, without regard to the number of judges they employ.
27/ See Smith Statement, supra note 4, at 7-9.
28/ See id. at 9.
- 14 -
III.
The Design of the Specific Proposal of S. 1275
We have a number of concerns over particular features
of the design of the system proposed in S. 1275. It would be
premature at this point in the development of the proposal to
undertake a fully detailed technical assessment; my remarks here
will be limited to the largest substantive issues.
A.
Composition of the Governing Body
The bill provides that the governing body of the Corps
is to be a Council composed of the chief judges of the divisions
of the Corps and the chief judge of the whole system. These
would, of course, all be administrative law judge.
We think that broader representation is desirable. The
Council would not itself be a court; it would be an administrative
body responsible for realizing the Corps' essential objective --
the provision of just and efficient adjudicatory services to the
various agencies and the public affected by their programs.
Representation of administrative law judges on such a body is
appropriate, but other perspectives would be equally valuable.
For example, there would be value in having on the Council such
persons as leading legal scholars in the areas of administrative
law or adjudication; persons with experience as judges in the
federal or state courts; persons with experience as chief admini-
strative law judges in state systems; and persons with experience
- 15 -
as high-level administrators in executive or independent agencies.
It would accordingly be preferable to have a mixed Council or
Commission at the head of such an adjudicatory system, including
both administrative law judges and other persons with pertinent
experience or expertise.
B. Powers of the Governing Body
The powers proposed for the Council of the Corps are in
some respects excessive. One example is the Council's authority
over the constitution and jurisdiction of the divisions of the
Corps. In functional terms these divisions would be the courts
of the administrative judiciary. The bill would accordingly give
the Council authority to create and abolish the administrative
judiciary's courts and to define the jurisdiction of those
courts. Needless to say, the Article III judiciary has been
given no such authority with respect to its court structure.
Decisions of this sort are essentially legislative in character
and should be made by Congress and the Executive.
C.
Selection of the Governing Body
The procedure specified in the bill for selection of
the Council of the Corps (however it may be constituted) includes
some highly questionable features. The members of the Council
would be chosen by the President, subject to Senate confirmation,
- 16 -
from lists of nominees proposed by a Nomination Commission. 29/
Two of the members of the Nomination Commission would be chosen
by the chief judges of D.C. courts. 30/ This seems arbitrary.
If the judiciary is to participate in the selection of such a
Commission, the Chief Justice should do the selecting, following
the general practice in assignments to special commissions by
the judiciary. The bill also provides that two members of the
Nomination Commission would be chosen by the heads of certain
private organizations (a section of the American Bar Association
and the Federal Administrative Law Judges Conference). 31/
29/ The bill properly provides that the President may reject
lists and require the submission of additional lists. While
Congress may impose qualifications for Presidential
appointments and define the general class from which
appointments are to be made, this does not mean that the
President can be compelled to appoint persons whom he
considers unsuitable for the position. A list submitted to
the President therefore must contain a sufficient number of
candidates to afford the President "ample room for choice."
See 13 Op. A.G. 516, 524-25 (1871) ; see also 29 Op. A.G.
254, 256 (1911) i 41 Op. A.G. 291, 292-93 (1956). In our
view requiring selection from a list of three nominees would
not comply with that requirement if the President were not
given the right to reject a list which does not contain any
acceptable nominees.
30/ The bill provides that two members are to be chosen by the
" [t]he chief judge of the United States Court of Appeals for
the District of Columbia Circuit" and If [t]he chief judge of
the United States District Court for the District of
Columbia."
31/ The bill provides that two members are to be chosen by
" [t] he Chairman of the Administrative Law Section of the
American Bar Association" and "[t]he President of the
Federal Administrative Law Judges Conference."
The remaining member of the Commission would be
chosen under the bill by the Chairman of the Administrative
Conference.
- 17 -
Giving representatives of private organizations a statutory role
in the selection of public officials (the members of the Council)
is troubling in principle.
A more basic question is why there should be any use of
a Nomination Commission, as opposed to straightforward selection
by the President subject to Senate confirmation. Testimony at
the initial hearing on S. 1275 suggested that the purpose is to
secure a de-politicized system of merit selection for the members
of the Council. 32/ It is not apparent, however, that it would
have that effect. Perhaps the two members of the Commission from
the judicial branch would be free of political involvements, but
it is much less clear that the same would be true of the other
members. The same objective could be achieved more simply and
effectively by a provision in the bill stating that the Presi-
dent's appointments to the Council are to be made on merit alone,
excluding consideration of such factors as party affiliation,
patronage and personal favoritism. 33/
32/ See ALJ Conference Statement, supra note 4, at 29-30.
33/ Cf. 26 U.S.C. § 7443 (judges of the Tax Court to be
appointed by the President, subject to Senate confirmation,
"solely on the grounds of fitness to perform the duties of
the office").
- 18 -
D.
Selection of New Administrative Law Judges
The bill provides that new administrative law judges
would be chosen by the Council of the Corps from registers of
eligibles maintained by the Office of Personnel Management (OPM).
In comparison, administrative law judges are now chosen by the
employing agencies from OPM's registers of eligibles.
The best procedure for selecting administrative law
judges merits serious consideration by Congress, 34/ and some
changes in the existing procedure would obviously be required as
part of a general re-structuring of the administrative law judge
system. We think, however, that the specific alternative proposed
in S. 1275 would not be sound. Since the members of the Council
would all be administrative law judges, the effect would be that
administrative law judges would be appointed exclusively by
administrative law judges. No other class of federal public
servants has been made self-selecting. It would be unwise to
take this approach in relation to administrative law judges. 35/
34/ See generally Scalia, supra note 16, at 58-62; Lubbers,
supra note 6, at 112-23; Lewis, supra note 4, at 11-30.
35/ The specific concern relating to self-selection would apply
with less force if the governing body of the Corps had a
varied membership, see section III.A supra, but many other
factors would also have to be considered in devising a
selection process for such a system. Various reform
proposals concerning selection are discussed in the sources
cited in note 34 supra.
- 19 -
E.
Discipline
Under the proposal of the bill, judges of the Adminis-
trative Law Judge Corps would be subject to removal, suspension,
reprimand and other disciplinary measures on a finding by the
Merit Systems Protection Board that there is good cause for such
action. To advise the Council concerning disciplinary measures,
two judges from each division would be elected by that division
to a Complaints Resolution Board. A complaint would be referred
to a three-judge panel of members of the Complaints Resolution
Board who serve in different divisions from the judge who is the
subject of the complaint. The subject of the complaint would
have two peremptory challenges to members of the panel. The
panel would advise the Council concerning the action to be taken.
If the panel recommended taking no action against the judge, the
Council would be bound by that recommendation unless it found
that extraordinary circumstances warranted overriding it.
The proposed disciplinary process raises a number of
basic problems. We doubt that a process involving normally
dispositive recommendations by a panel composed entirely of
professional colleagues of the person complained about would
appear fair or impartial to complainants and the general public.
It is unsound in principle to give the judge accused of misconduct
a voice in the selection of the panel that will look into the
charges against him (through peremptory challenges) if no compa-
rable voice is given to the complainant. It is unclear why
- 20 -
adverse action by the Council against the panel's recommendation
is limited to extraordinary circumstances; the bill contains no
corresponding provision stating that the Council must take
adverse action recommended by the panel in the absence of extra-
ordinary circumstances.
A better approach might be a simple provision giving
the Council authority to remove an administrative law judge on
specified grounds after notice of charges and opportunity for a
hearing. 36/ This simple approach is followed in all existing
statutory provisions for removal of other types of judges and
judicial officers. 371 The authority to impose lesser disci-
plinary sanctions could also be assigned to the Council without
the surrounding complications that presently appear in the bill.
* * *
In sum, the Department of Justice views this proposal
with interest and looks forward to working with the Subcommittee
in its further exploration and development. The point of essen-
tial interest raised by the proposal is the possibility of more
extensive use, in appropriate areas, of administrative courts or
36/ This suggestion is conditioned on the earlier suggestion
that the Council have a varied membership. See section
III.A supra.
37/ See 28 U.S.C. § 176 (removal of Claims Court judges by
Federal Circuit) i 26 U.S.C. § 7443 (f) (removal of Tax Court
judges by President) ; 28 U.S.C. § 153 (b) (removal of bank-
ruptcy judges by circuit councils) i 28 U.S.C. § 631 (i)
(removal of magistrates by district courts).
- 21 -
other adjudicatory bodies whose jurisdiction includes cases
arising from a number of agencies or programs. We think that
work in this area is most likely to be productive if a flexible
range of options is kept in mind, including the intermediate
possibilities noted earlier in my testimony. 38/
The specific design of the system proposed in S. 1275
raises a number of problems. These include the composition and
powers of the governing Council; the process for selecting new
judges; and the disciplinary process. My general comment on the
design of the proposal is that it appears to involve too reactive
a response to particular problems and aggravations that have
arisen under the current system and does not, in some respects,
adequately consider what alternative arrangements would best
serve the objectives of the reform and the public interest.
I would be pleased to answer any questions the Sub-
committee may have.
38/ See text accompanying notes 20-28 supra.
THE WHITE HOUSE
WASHINGTON
September 16, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Statement of Dan K. Webb Regarding
Vote Fraud - September 19, 1983
United States Attorney Dan Webb, of the Northern District of
Illinois, proposes to deliver the attached testimony at a
hearing of the Subcommittee on the Constitution of the
Senate Judiciary Committee on September 19. Webb's
testimony begins with an overview of his office's
involvement in vote fraud investigation, and a review of the
applicable federal statutes. Webb then proceeds to discuss
his office's investigation of the November 1982 election,
principally in the Chicago area. The proposed testimony
discusses particular instances of vote fraud, with a
detailed discussion of the difficulties presented by
registration of aliens. Webb concludes by noting that there
were fewer instances of vote fraud in the February and April
Chicago mayoral elections, and attributes this, at least in
part, to his office's activities with respect to the
November 1982 election. Webb reaffirms his office's
commitment to investigate and prosecute cases of vote fraud
in the Northern District of Illinois. I see no objections.
Attachment
THE WHITE HOUSE
WASHINGTON
September 16, 1983
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING Orix signal by FIF
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement of Dan K. Webb Regarding
Vote Fraud - September 19, 1983
Counsel's Office has reviewed the above-referenced proposed
testimony, and finds no objection to it from a legal
perspective.
FFF:JGR:aea 9/16/83
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1983
SHIP
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$
1978
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Subject: Statement 3 Dan K. webb
re: vots Fraud
september 19 1983
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5/81
STATEMENT OF DAN K. WEBB
DRAFT
UNITED STATES ATTORNEY FOR THE
NORTHERN DISTRICT OF ILLINOIS AT
A HEARING BY THE UNITED STATES
SENATE JUDICIARY SUBCOMMITTEE
ON THE CONSTITUTION, SEPTEMBER 19, 1983
Office's History Regarding Vote Fraud
The Office of the United States Attorney for the Northern District of Illinois
has had a long history of active investigation of vote fraud. Since the early 1970's,
our office has been one of the few, if not the only, United States Attorney's Office in
the country to actively monitor voting practices on election days. On election days,
our office, in conjunction with the United States Marshal's Service, the Immigration
and Naturalization Service (INS), and the Federal Bureau of Investigation (FBI),
implement a field effort which entails sending Assistant United States Attorneys and
Deputy United States Marshals to various polling places throughout the City of
Chicago in order to detect and prevent vote fraud. Numerous teams of Assistant
United States Attorneys, accompanied by Deputy United States Marshals and equipped
with radios, tour Chicago and other areas in this district and respond to and
investigate allegations of vote fraud. They target key wards and precincts based on
evidence of fraud in past elections and on other information. FBI agents and INS
investigators are available to respond to specific problems related to their area of
expertise. Federal agents also are available to act upon serious complaints made
prior to election day. Additionally, Assistant United States Attorneys and federal
personnel in the United States Attorney's Office answer complaints made by
telephone.
Our election day efforts include cooperation with local law enforcement
officials such as the Cook County State's Attorney's Office, the Illinois Attorney
General's Office, the Chicago Police- Department, the Chicago Board of Election
Commissioners, as well as local watchdog groups.
Our ability to actively monitor elections is facilitated by Illinois law, which
permits law enforcement personnel, including my Assistants, to enter polling places
and closely observe voting activities. The primary purpose of our monitoring efforts
on election days has been to deter vote fraud, but an additional purpose has been to
uncover and preserve any evidence that could be used in a vote fraud prosecution.
Federal Statutes
There are several federal statutes which condemn vote fraud and which we rely
on in our prosecutions. When a federal candidate is on the ballot, specific federal
statutes become applicable. These statutes prohibit voting more than once, supplying
false information to vote, voting in the name of another person, and paying people to
vote. 42 U.S.C. SS 1973i(c),(e). Further, the civil rights statutes (18 U.S.C. SS
241,242) prohibit conspiracies and substantive conduct directed at depriving the
public-at-large of their constitutional right to the fair and impartial administration of
federal elections. Also, voter intimidation directed at influencing the results of a
federal contest is outlawed by statute. 18 U.S.C. S 594. When a federal candidate is
not on the ballot, the federal civil rights statutes prohibit the deprivation of voters'
federal constitutional right to vote in a local election in accordance with the one-
person-one-vote principle. Serious vote fraud committed with the assistance of
election judges violates these civil rights statutes. Finally, the mail fraud statute (18
U.S.C. S 1341) has been used to prosecute vote fraud that is perpetrated through the
use of the mails. This statute has been applied most often to fraudulent schemes
involving absentee ballots.
Investigation of November 1982 Election
Our office, together with the Federal Bureau of Investigation and the
Immigration and Naturalization Service, have undertaken an intense and wide-ranging
investigation of alleged vote fraud in the November 1982 general election. Offices at
2
stake in this election in Illinois included representatives in Congress and Governor.
Because this investigation is quite active right now and is subject to grand jury
scrutiny, I am unable to discuss the investigation in detail. I will, however, describe
it in broad outline. This investigation started the way many investigations start:
citizens with knowledge of crimes came forward and told us about them.
Additionally, the media and certain candidates' organizations made us aware of
allegations of vote fraud. Our investigation this year, however, has included a unique
and very important new facet-namely, the use of a computer. In order to provide
the data base for the computer analysis, Federal Bureau of Investigation agents had to
review virtually all of the 1,000,000 ballot applications submitted in the city of
Chicago in the November election. One of the most important results of this
investigation is that the FBI has developed an effective computerized method of
investigation that has proved very helpful in detecting vote fraud and that can be
used in all future elections. This technique includes cross-matching the names of
persons who voted with the names of persons who have died and compiling a list of
names where more than one vote was cast in the same name.
Kind of Vote Fraud Found
Based on indictments and convictions that we have obtained concerning the
November 1982 general election, we have uncovered certain species of vote fraud. All
of these crimes occurred in Chicago in areas that were dominated by one political
party. In each instance of fraud there was one prerequisite, and that was that the
leader of the dominant political party at the precinct level (the precinct captain)
controlled the actions of the officials administering the élection at the polling place
(the election judges).
3
With the election judges in his control, the precinct captain perpetrated the
most common type of vote fraud, which consisted of forging on ballot applications the
names of persons who did not come in to vote and then voting ballots in their names.
Either the precinct captain himself, one of his workers, or an election judge would do
the forging. For example, in an extreme case a large number of ballot applications
were forged and then an equal number of ballots were taken to a back room, voted,
and then placed in the ballot box.
Another type of fraud consisted of a precinct worker getting into line and posing
as a legitimate voter and then voting in the name of this person.
Another type of vote fraud consisted of false registration. Here, a precinct
captain caused another person who did not live in his precinct to register to vote in
his precinct in order to increase the number of votes that the precinct captain
controlled.
Another instance of fraud that we uncovered concerned elderly and disabled
voters. Such voters will need assistance to vote. We found examples of election
judges who voted ballots on behalf of these people without the authorization or
understanding of the elderly voters.
We also uncovered instances of precinct captains and precinct workers paying
people to vote.
Another instance of fraud that we found involved absentee ballots. Under this
scheme, false information was submitted in order to obtain blank absentee ballots,
which were then voted by the precinct captain.
Perhaps the most flagrant example of vote fraud that we have prosecuted
occurred in the 30th Precinct of the 27th Ward. In this precinct, in November, a
precinct captain and his son in effect ran their own election at the end of the day.
Instead of properly tabulating the vote, the election judges stood aside and watched
4
the precinct captain's son take one straight Democratic ballot and run it though the
tabulating machine 203 times.
Election Canvasses
The principal vote fraud problem that we have uncovered is the forging of ballot
applications and the fraudulent voting of ballots in the forged names by precinct
captains and persons working for the precinct captains. To accomplish this illicit
process, the precinct captain needs a pool of registered voters whose names he can
forge. Persons who have died or who have moved are prime candidates for this pool.
It is therefore imperative to assure an honest election that these names be removed
from the voting rolls prior to each election.
In Chicago, these names are supposed to be removed in periodic canvasses. We
have found that all too often these canvasses have not been performed. Again, the
canvasses are supposed to be conducted by the election judges. The judges, however,
are often controlled by the local precinct captains, who do not want good canvasses
and who prevent the canvasses from being property performed. These faulty
canvasses contribute significantly to vote fraud.
Alien Problem
Another serious problem that we uncovered involves illegal aliens and other non-
citizens who illegally register to vote and vote in various elections.
We have found that many illegal aliens register to vote for the purpose of
acquiring voter registration cards, which they then use to commit additional crimes.
We have found instances of illegal aliens using an illegally obtained voter registration
card to fraudulently obtain passports, public aid, and food stamps. We also found that
on one occasion a non-citizen used an illegally obtained voter registration card in
order to get security clearance to work for a contractor selling weapons parts to the
United States Department of Defense.
5
Furthermore, our investigation shows that some of these aliens actually cast
illegal votes in various elections. We have found instances in which some persons
have actively sought the registration of illegal aliens for the very purpose of
influencing the outcome of an election. If these people do not vote, their illegal
registrations can still lead to a dishonest election because they constitute additional
names added to the pool that can be fraudulently voted.
We have obtained the convictions of seven aliens charged with offenses related
to their illegal registration and voting, including passport fraud and fraud against the
government. Also, our office and INS have referred to the State's Attorney's Office
twenty-nine cases resulting in indictments.
We would note, however, that where an alien, who is lawfully in the United
States, has been convicted of casting an illegal vote in an election, his deportation is
not necessarily required under 8 U.S.C. S 1251(a)(4), since that provision only requires
deportation for crimes of "moral turpitude" resulting in a prison sentence.
The illegal alien registration problem stems in part from the ease with which
persons may register to vote in Illinois. Persons who want to register to vote should
be required to furnish identification. I understand that legislation has been passed by
the General Assembly and is awaiting approval by Governor that would alleviate this
problem by requiring identification when a person registers to vote.
Circumstances Conducing to Vote Fraud
In analyzing the results of our investigation, we can point to certain
circumstances that are conducive to vote fraud. The first prerequisite is that one
party dominate the precinct, and that there not be any hotly-contested races in that
precinct. If there is a hotly-contested local race, or if both major political parties
are viable in that particular precinct, there will be enough persons watching the
activity in the polling place to prevent most kinds of vote fraud. If the people in the
6
polling place-judges and watchers-observe each other and have an adversary
relationship, an honest election is the likely result.
Vote fraud cannot occur if election judges do their job. Therefore, a
precondition to a dishonest election is that the judges, either because of their
economic situation or personality, must be of a type to be dominated by a precinct
captain.
We have also found that a significant amount of fraud occurs in those areas
where it is hard for a precinct captain to make his quota by legitimate means. For
example, if the voter pool consists of a substantial number of transients or otherwise
unreliable people, a precinct captain will have a hard time getting out the vote
legitimately, and he may have to resort to illegal methods.
Results and Reasons for Our Investigation
Our investigation of the November 1982 election has resulted so far in the
indictment, conviction, and penitentiary sentence for a precinct captain, the
indictment of three other precinct captains, and the indictment and conviction of
other precinct workers and election judges. In addition to the seven convictions of
aliens, we have obtained vote fraud convictions of five persons, and vote fraud
indictments against fourteen others. Our investigation is continuing, and we expect
additional results in the near future.
Numerous FBI agents, INS agents, and attorneys in my office are assigned to the
investigation of vote fraud. I have assigned these resources to this investigation for
several reasons. I believe that the right to vote is one of the most precious that we
Americans possess. It must be protected. Because of the level of fraud we detected
in the November election, I believe the problem is a serious one. The February and
April mayoral elections, according to our indicators, were not tainted with the kind of
fraudulent conduct we detected in the November election. We hope that this
7
improvement was due not only to the hotly contested nature of the mayoral elections,
but also in part to our intensive investigation begun in January of this year.
I believe that if the U.S. Attorney's Office can do its part to achieve fair
elections, we will be performing an important service to this district and to this
country. I therefore reaffirm my commitment to continue our efforts on behalf of
honest elections.
8
THE WHITE HOUSE
WASHINGTON
September 19, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
ISR
SUBJECT:
Statement of Jonathan Rose Regarding
S. 1080 - The Regulatory Reform Act
on September 21, 1983
OMB has asked for our views on the attached testimony, which
Assistant Attorney General Rose proposes to deliver before
the Subcommittee on Administrative Practice and Procedure of
the Senate Judiciary Committee. The testimony reviews
Department of Justice opposition to section 5 of S. 1080,
the so-called "Bumpers Amendment." This proposal, which has
significant conservative support, seeks to restrain agency
action by authorizing more searching judicial review. In
particular, section 5 would (1) require courts to determine
if an agency were acting within its jurisdiction by
reference to the enabling act, (2) generally eliminate the
presumption that agency action is lawful, and (3) require
agency factual determinations to have substantial support
rather than simply satisfy the "arbitrary and capricious"
test.
The testimony correctly points out that the well-intentioned
bill would simply shift power from the agencies to the
judiciary. The testimony also notes that giving the courts
added review power could jeopardize deregulatory efforts as
well as more traditional regulation. I have no objection.
Attachment
THE WHITE HOUSE
WASHINGTON
September 19, 1983
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement of Jonathan Rose Regarding
S. 1080 - The Regulatory Reform Act
on September 21, 1983
Counsel's Office has reviewed the above-referenced proposed
testimony, and finds no objection to it from a legal
perspective.
FFF:JGR:aea 9/19/83
CC: FFFielding
JGRoberts
Subj.
Chron
KATTE C Corresponden
(4)
SINCE
DISPOSITION
DRAFT
STATEMENT
OF
JONATHAN C. ROSE
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL POLICY
BEFORE
THE
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE
UNITED STATES SENATE
CONCERNING
S. 1080, THE REGULATORY REFORM ACT
ON
SEPTEMBER 21, 1983
Mr. Chairman, thank you for the opportunity to submit
this statement of the views of the Department of Justice on
S. 1080 M the Regulatory Reform Act. We will confine our comments
to section 5 of the bill, which would amend the judicial review
provisions (5 U.S.C. $ 706) of the Administrative Procedure Act
(APA). I/ We defer to other federal agencies on all of the other
parts of S. 1080.
For the reasons set forth below, the Department recom-
mends against enactment of section 5. Section 5 would modify the
APA's rules on judicial review of agency actions in three signif-
icant ways. First, new subsection (c) of section 706 would
require reviewing courts to determine whether an agency acted
within the scope of its statutory "jurisdiction or authority" on
the basis of the language of the statute or, "in the event of
ambiguity, other evidence of ascertainable legislative intent."
Second, with respect to "other questions of law," subsection (c)
would forbid courts from according any presumption "in favor of
or against agency action," but require them to give agency
interpretations "such weight as [they] warrant." Finally, the
bill would further define the existing "arbitrary and capricious*
standard upon which a reviewing court may set aside agency action
1/
We note that section 13 of S. 1080 contains a legislative
veto provision which is of doubtful constitutionality in
light of the Supreme Court's June 23, 1983 decision in INS
V. Chadha (No. 80-1832) We assume that this section of the
bill is being reevaluated in light of Chadha.
- 2 -
by establishing a new section 706 (d), which would require a court
to "determine whether the factual basis of a rule adopted in a
proceeding subject to section 553 is without substantial
support in the rule making file." For the purpose of conve-
nience, I will refer to these provisions (which also are found in
other regulatory reform bills currently pending) as the "Bumpers
Amendment". 2/
General Observations
As a general matter, the Department of Justice believes
that the Bumpers Amendment is unnecessary and undesirable. Our
principal objection is that these changes, taken as a whole,
purport to transfer to the federal courts significantly more
power than they now possess to oversee implementation of congres-
sional regulatory objectives by the executive branch. This shift
of power would, in the Department's judgment, further distort the
balance of power between the executive and judicial branches of
government -- a balance which has already been tipped heavily in
favor of the courts, principally through the activism of federal
judges. The Department believes that the Bumpers Amendment would
2/
The bill would also require reviewing courts to
"independently" decide all relevant questions of law,
interpret constitutional and statutory provisions, and
determine the meaning or applicability of the terms of an
agency action. However, we do not consider the addition of
"independently" to be a significant change because it simply
reaffirms the authority the courts clearly have under the
Constitution.
- 3 -
further encourage this activism by inviting the federal courts to
assume responsibilities for which they are institutionally
ill-suited and would disrupt the efforts of administrative
agencies to implement broad congressional mandates expeditiously
and effectively.
We disagree with assumptions that seem to have been
made by supporters of the Bumpers Amendment. The amendment
assumes that the federal courts have neglected their duty to
exercise independent judgment in deciding "questions of law" that
arise in connection with review of agency action. We believe
that this supposition is wrong as a factual matter. Moreover, to
the extent that certain courts have been remiss in their duties,
the proper response is not to expand generally their powers to
review agency action. A better means of assuring independent
judicial scrutiny of agency action is to clarify and tighten the
statutory standards which agencies and courts must interpret.
The Bumpers Amendment also assumes that many agency
excesses have gone unchecked by the courts. While we agree that
some agencies have acted beyond the limits of their authority, we
believe that the roots of agency activism more often lie in the
vaguely-defined objectives and standards found in many regulatory
statutes. Of course, general delegations of power to administra-
tive agencies are inevitable, given the sophistication and
complexity of the technical areas covered by many regulatory
statutes and the institutional constraints upon the time and
- 4 -
resources of Congress. However, as the full Senate Judiciary
Committee acknowledged in its report last Congress on S. 1080
(which contained similar judicial review amendments), 3/ Congress
has frequently asked the agencies to make the basic, vitally
important policy choices that, at least in theory, are more
properly for the legislature to make. To the extent that
agencies have misread the direction that Congress intended them
to take, we believe that Congress -- and not the courts -- should
be responsible for articulating regulatory policies.
Specific Comments
A. Questions of "Statutory Jurisdiction or Authority"
The first sentence of proposed section 706 (c) states
that in considering questions of statutory jurisdiction or
authority
the court shall require that the action by
the agency is within the scope of the agency
jurisdiction or authority on the basis of the
language of the statute or, in the event of
ambiguity, other evidence of ascertainable
legislative intent.
The intent, as stated unequivocally in the Committee Report
(at 169-70), is to shift the burden of proof to the government to
show by "affirmative evidence" drawn from the statute or
3/
S. Rep. No. 97-284, 97th Cong., 1st Sess. 164 (1981)
(hereafter the "Committee Report").
- 5 -
legislative history that its action is within its statutory
jurisdiction or authority. The Report states, at page 169, that
"[r]easonableness and consistency with the statutory purpose are
not the equivalent of evidence of ascertainable legislative
intent."
We find this provision troubling for several reasons.
First, its application might extend to virtually all questions of
statutory construction: it is difficult to imagine a statutory
issue that could not be framed in terms of statutory "jurisdic-
tion or authority.' 4/ Litigants would have a strong incentive
to frame their challenges to agency action as questions of
statutory jurisdiction or authority, which would eliminate any
presumption of validity with respect to such issues and, indeed,
establish a presumption of invalidity by shifting the burden of
proof to the government. 5/
4/ Thus, for instance, the Committee Report cites FCC v.
National Citizens Committee for Broadcasting, 436 U.S. 775
(1978), which upheld FCC cross-ownership regulations
promulgated under a "public convenience, interest and
necessity" statute, as a case which presented the question
of the Commission's statutory "authority" to consider
cross-ownership as a licensing factor. Neither the
legislative history nor the case law construing
"jurisdiction or authority" under the current section
706 (a) (2) (C) supplies an effective, principled basis for
narrowing the meaning of "authority."
5/
The Committee Report, at 170, also makes clear that the
statement in the second sentence that the court should
accord no presumption "against" agency action applies only
to "other questions of law.
- 6 -
We believe that the effect of this provision would be
to significantly narrow the legitimate regulatory powers of
government agencies. In many cases, it would be difficult or
impossible to meet the burden of affirmatively proving congres-
sional authorization. The reason for this is that Congress often
does not expressly or implicitly spell out the full range of
measures agencies may properly devise to implement regulatory
goods. Given the difficulty of drafting statutory language or
preparing legislative history that anticipates the full range of
problems that may confront an administrative agency in the
future, many legitimate questions about an agency's jurisdiction
or authority can only be resolved by determining whether the
agency interpretation is reasonable and consistent with the
congressional purpose. However, the Bumpers Amendment would
foreclose such inquiry, remitting many agencies to antiquated
statutory grants in formulating their regulatory agendas.
We would note that these problems with the Bumpers
Amendment would affect both regulatory and deregulatory initia-
tives. The recent case of American Trucking Association V.
Interstate Commerce Commission, 659 F.2d 452 (5th Cir. 1981),
illustrates the potential problem in a deregulatory context. The
statute in question, the Motor Carrier Act of 1980, required the
ICC to "reasonably broaden" certificates of authority and to
increase competition by promulgating regulations expanding
carriers' authorization. The court struck down the new regula-
tions, however, finding that the ICC had exceeded its statutory
- 7 -
authority because the new regulations went beyond the "reasonable"
broadening allowed by the statute. Relying primarily on the
general language of the statute (because the legislative history
was conflicting, id. at 459), the court substituted its judgment
of what was "reasonable" for that of the agency, even though it
recognized that the agency's views were entitled to some defer-
ence. We believe that the practical effect of proposed subsec-
tion (c) would be to invite more cases like American Trucking, by
authorizing the courts to substitute their own policy judgments
for those of an agency under the guise of statutory interpre-
tation.
B. Deference to Agency Interpretation of
"Other" Questions of Law
Traditionally, courts have deferred to agency interpre-
tations of law only on a case-by-case basis. The practice of
deferring in appropriate cases has developed in recognition of
the fact that agencies "tend to be familiar with, and sophisti-
cated about, statutes that they are charged with administering." 6/
This familiarity and sophistication give the agency insights
which Congress and the courts have long understood warrant
considerable weight. But the degree to which a court will give
weight to a particular agency interpretation depends upon a
6/ Wilderness Soc'y V. Morton, 479 F.2d 842, 866 (D.C. Cir.)
(en banc), cert. denied, 411 U.S. 197 (1973).
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variety of factors, which include the technical nature of the
subject matter, the consistency with which the agency has adhered
to the interpretation, and the extent to which Congress has
vested the agency with broad legislative-type powers.
We recognize that the language of S. 1080 on this point
is a marked improvement over provisions of earlier bills, which
explicitly abolished the presumption of validity of agency
actions and negated the deference traditionally accorded agency
interpretations. Nevertheless, the compromise language of the
second sentence of proposed section 706 (c), while more subtle,
remains problematic:
In making determinations on other questions
of law, the court shall not accord any
presumption in favor of or against agency
action, but in reaching its independent
judgment concerning an agency's interpreta-
tion of a statutory provision, the court
shall give the agency interpretation such
weight as it warrants, taking into account
the discretionary authority provided to the
agency by law.
As a threshold matter, we observe that the language
allowing courts to give "weight" to agency statutory determina-
tions applies only to questions of statutory construction "other"
than those concerning "jurisdiction or authority." Since, as
noted above (pp. 4-5), it is likely that litigants will attempt
whenever possible to claim that all legal issues are no more than
questions of jurisdiction or agency authority, there may well be
little room left for application of the higher standard of review
for "other" statutory questions. Thus, as a practical matter,
- 9 -
the class of statutory questions to which the language added by
the compromise applies may be very narrow indeed.
Another "scope" concern is that the language allowing
the courts to give weight to agency views applies by its terms
only to "an agency's interpretation of a statutory provision" and
does not apply to non-statutory questions of law, such as an
agency's construction of its own regulations. This language,
which applies to all "agency actions" and non-statutory "questions
of law," would strip the agency of the deference that courts have
accorded to such actions and questions today. 7/ This judicial
deference to agencies' interpretations of their regulations has
served to bring consistency to administrative programs and has
encouraged the orderly development of regulatory law. The
compromise language does nothing to save these principles.
We are also troubled by the meaning of the confusing
mandate that, in interpreting statutory issues, courts should
"accord no presumption but give warranted weight" to agency
interpretation. The Committee Report (at 165) states that the
"no presumption" language is intended to eliminate the existing
"judicially created doctrine of deference" by which courts
presume an agency's construction of law to be valid, and place
the burden on the challenger of agency action to demonstrate
7/ See Udall V. Tallman, 380 U.S. 1, 16 (1965).
- 10 -
otherwise. We are concerned that the "presumptions" that the
Bumpers Amendment would eliminate might encompass the wide
variety of doctrines under which courts defer to agency determi-
nations. Many of these doctrines serve useful purposes; often
they recognize the agency's familiarity with, and responsibility
to apply and interpret, particular statutes. We do not believe
that the language allowing a court to give an agency construction
"such weight as it warrants" would restore all of these rules, or
equally further these policies.
The inadequacy of a rule which affords "weight" to
agency constructions of statutes only to the extent they are
"persuasive" may be illustrated by considering its application to
tax regulations. Tax regulations currently enjoy a strong
presumption of validity; they "must be sustained unless unrea-
sonable and plainly inconsistent with the revenue statutes and
should not be overruled except for weighty reasons." 8/ This
heavy burden of proof is imposed on challengers of tax regula-
tions not simply on the basis of agency expertise or the persua-
siveness of its interpretation, but more broadly because of the
responsibility of the Treasury Department to create and implement
a coherent regulatory scheme, whose validity can be firmly relied
on in planning tax transactions. This responsibility gives the
8/ Fulman V. United States, 434 U.S. 528, 533 (1978).
- 11 -
agency's views an authority based upon the Treasury Department's
status as the responsible "agent" of Congress.
The proposed compromise language would appear to
eliminate this strong presumption of the validity of tax regula-
tions. Moreover, this provision would eliminate any deference or
presumption in favor of the Treasury's interpretation of its own
regulations. The loss or dilution of such presumptions would
invite noncompliance with Treasury regulations or Treasury
interpretations of tax regulations.
This language would be equally troublesome to many
deregulatory efforts. Regulations or other agency initiatives to
reduce the burdens of regulation are routinely challenged by
special interest groups as improper constructions of statutory
mandates or existing regulations. The successful defense of such
initiatives often rests upon existing principles of deference to
the agency's construction of its statute or of its own regula-
tions.
In sum, although the compromise language is meant to
give somewhat greater deference to agency interpretations than
the Bumpers Amendment originally provided last Congress, it is
unrealistic to believe that the dilution of principles of defer-
ence is wholly avoided by the compromise language in S. 1080.
Moreover, the lack of clarity within the provision provides great
opportunities for an activist court to substitute its policy
- 12 -
judgments for that of the agency under the guise of legal review.
While current rules of deference provide some reasonably estab-
lished limitations on judicial intervention, the compromise
language of S. 1080 requires courts to give agency views only
"such weight as it warrants." We simply cannot know whether or
the extent to which this phrase would ultimately be construed as
an effective limitation on unwarranted judicial intervention in
the regulatory process.
C.
"Substantial Support" Test
The Department has consistently opposed a "substantial
support" test for judicial review of determinations of fact made
in informal agency rulemaking. The version of that test found in
S. 1080 has been transformed from the originally proposed inde-
pendent standard of review to an element of the "arbitrary and
capricious" standard:
(d) In making a finding under subsection
(a) (2) (A) of this section, the court shall
determine whether the factual basis of a rule
adopted in a proceeding subject to section
553 of this title is without substantial
support in the rule making file.
Although we believe that this new language is an improvement over
the earlier versions of this provision, we continue to think that
this test would in some instances prove extremely burdensome to
the agencies. Just as troubling is the fact that it would also
give rise to many lawsuits challenging the factual underpinnings
of informal rules.
- 13 -
Perhaps our greatest concern is that the bill would
require that the factual premises of all informal rulemaking be
documented in a rulemaking file in every instance. We believe
that this would unnecessarily burden and "formalize" the informal
rulemaking process. Moreover, this requirement could prohibit
the agency from relying on its factual expertise in formulating
informal rules unless that expertise were fully documented in the
rulemaking file. Even if an agency's factual expertise achieved
over a period of years could be documented in the rulemaking
file, the task of providing such documentation in every case
would be costly, time-consuming, and wasteful.
In any event, to the extent that review of the factual
basis for informal rulemaking is appropriate, it is adequately
provided by current law. Under the existing "arbitrary and
capricious" standard, courts must engage in "thorough, probing,
in-depth review" that includes, where appropriate, a "searching
and careful" inquiry into the facts. 9/ Thus, we believe that
current law is adequate to enable courts to overturn agency
action where factual deficiencies demonstrate the arbitrariness
or capriciousness of the rule. Current law, however, has the
additional advantage of permitting courts to retain some discre-
tion in determining the extent to which careful inquiry into the
9/ Citizens to Preserve Overton Park V. Volpe, 401 U.S. 402,
415-16 (1971); Montana Power Co. V. EPA, 608 F.2d 334, 345
(D.C. Cir. 1979) i Natural Resources Defense Council, Inc. V.
SEC, 606 F.2d 1031, 1049-50 (D.C. Cir. 1979).
- 14 -
factual support on the record is necessary. We believe that this
kind of flexibility is appropriate and necessary in light of the
number and types of regulations adopted through the informal
rulemaking process.
It is by no means clear how courts would apply subsec-
tion (d) if it were enacted. While it is perhaps intended that
the test be equivalent to the "hard look" doctrine developed by
some courts, 10/ it is entirely possible that courts would con-
strue subsection (d) as something more than a directive to
continue to review agencies' factual findings as they have in the
past. Indeed, if subsection (d) were only codifying the existing
"hard look" rule, it is unclear why it would be needed. The more
intensive scrutiny of facts required by the substantial support
test would thus expose agency regulatory and deregulatory efforts
to increased second-guessing by the courts. Such an invitation
to the courts to expand their role in the regulatory decision-
making process is particularly inappropriate in the case of
agency factual determinations, inasmuch as courts have no insti-
tutional expertise or familiarity with the facts pertinent to
informal rulemaking.
Finally, we are concerned that the substantial support
test would not easily be applied across-the-board to informal
10/ See National Lime Association V. EPA, 627 F.2d 416, 451 n.
126 (D.C. Cir. 1980).
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rules, many of which reflect "essentially legislative policy
judgement [s] that are "not susceptible to the same type of
verification or refutation by reference to the record as are some
factual questions." 11/ The "hard look" doctrine, which sub-
section (d) apparently is intended to codify, has traditionally
been invoked in the context of review of rulemaking involving
numerous and complex facts. 12/ Thus, application of the sub-
stantial support test to rules that are not based on an extensive
factual record might inappropriately result in their invalida-
tion, because the underlying factual justifications for what are
primarily policy judgments frequently cannot be found in the
rulemaking file.
*
In conclusion, the Department of Justice recommends
against enactment of the Bumpers Amendment set forth in section 5
of S. 1080.
11/ Nat'l Small Shipments V. CAB, 618 F.2d 819, 830 n.23 (D.C.
Cir. 1980), quoting Industrial Union Dept't, AFL-CIO V.
Hodgson, 499 F.2d 467, 475 (D.C. Cir. 1974).
12/ See, e.g., National Lime Association V. EPA, supra.