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The new dynamics of bureaucratic autonomy: courts, litigation, and agencies in the modern American state
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The new dynamics of bureaucratic autonomy: courts, litigation, and agencies in the modern American state
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THE NEW DYNAMICS OF BUREAUCRATIC AUTONOMY: COURTS,
LITIGATION, AND AGENCIES IN THE MODERN AMERICAN STATE
by
Daniel Evan Walters
A Thesis Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
MASTER OF ARTS
(POLITICS AND INTERNATIONAL RELATIONS)
May 2008
Copyright 2008 Daniel Evan Walters
ii
Dedication
This thesis is dedicated to my family and friends back home in Illinois. Their
support and guidance have been the key to all of the success that I have had.
iii
Acknowledgements
I would like to thank Jeb Barnes, whose guidance as chair on this thesis
committee was invaluable. I would also like to thank Howard Gillman and Phil
Ethington for their helpful suggestions and patience. I must acknowledge Anthony
Kammas, who, although not involved directly in the research in this thesis, has been
an integral part of my intellectual growth here at USC. Also, I would like to thank
all of my mentors at Northern Illinois University—Brendon Swedlow, Art Ward,
Matt Streb, and John Butler—who had enough faith in me to lead me into academia.
iv
Table of Contents
Dedication ii
Acknowledgements iii
Abstract v
Introduction 1
Data and Methods 4
Chapter 1: Bureaucratic Constraint and Bureaucratic Autonomy 7
Bureaucratic Constraint 7
Bureaucratic Autonomy 9
Discussion 12
Chapter 2: Bureaucratic Autonomy in the Environmental Protection Agency 15
A History of Regulatory Development 16
A Changing Wind? Presidential-Agency Politics 22
The Case of the EPA 24
Institutional Formation 26
The Courts Step In 28
The Reagan Years and Beyond 32
The Republican Forces Align and the Agency Responds 37
Discussion 48
Chapter 3: Military Lawyers, Domestic Courts, and Military Tribunals 51
The Foundations of Military Tribunals 51
The Development of the Military Justice Bureaucracy 53
The Bush Administration and Military Tribunals 56
Discussion 65
Conclusion 67
Bibliography 79
Appendix A 88
Appendix B 90
v
Abstract
This thesis examines two cases—air pollution regulation in the
Environmental Protection Agency and military tribunal policy in the Department of
Defense—in an attempt to better understand bureaucratic politics in the modern era.
The central claim is that modern bureaucratic agencies, while under significant
pressure from congress, the president, and his political appointees to support the
elected branches’ policy priorities, are frequently shielded from presidential and
congressional usurpations. They are thus protected because of their internalization
of and instrumental use of adversarial legal recourses, a mechanism I call “litigation-
fostered bureaucratic autonomy.” It is hypothesized that litigation-fostered
bureaucratic autonomy emerges from a conversion of the original place of courts as
instruments of bureaucratic control. The main contributions of the thesis are its
challenges to the literatures on bureaucratic control (principal-agent models),
bureaucratic autonomy, and adversarial legalism. The argument is that all of these
literatures have underestimated and/or misunderstood the complex use of litigation in
agency rulemaking. The primary purpose of the paper is concept-building, not
comprehensive analysis, but the paper finishes with a discussion of the next steps in
the larger project and a reflection on possible applications of the project to other
debates within political science, namely the debates on judicial behavior and regime
politics.
1
Introduction
Bureaucratic administration is a staple of modern political life. With the
authority to create and execute the details of policy in a nation as large and diverse as
the United States comes tremendous power—power likely to be the object of
significant competition. Many scholars have noted the participation of common
competitors such as congress and the president (Moe 1985; McCubbins, Noll, and
Weingast 1989; Huber and Shipan 2002). Fewer have noted that some people in
bureaucratic agencies themselves, especially those professionals populating the
“mezzo level” of bureaucracies, are also frequently among those competing for the
authority to steer the leviathan. Often, they have been successful in achieving a
degree of bureaucratic autonomy (Carpenter 2001), but, at least since the New Deal
era, bureaucratic agencies have become increasingly deferential to the elected
branches’ wishes, especially to presidents who have aggressively sought to create an
“administrative presidency” (Nathan 1975; Vig 2000). Or so the story goes. As we
will soon see in the case studies in Chapter Two and Chapter Three, the fight for
control of the vast administrative powers of America’s bureaucratic apparatuses is
heating up. Scholars have generally noticed that recent presidents have attempted to
exert unprecedented control over the actions of agencies (Krent; E. Kagan 2001), but
the ways that presidents have failed have been under-theorized.
This thesis seeks to fill in our understanding of the dynamics of this
competition. The main proposition is that modern bureaucratic agencies, while
under significant pressure from congress, the president, and his political appointees
2
to support the elected branches’ policy priorities, are frequently shielded from
presidential and congressional usurpations. In other words, they are able to be
autonomous in the sense that they are able to resist pressure from other actors and are
able to preserve a significant amount of authentic discretion in rulemaking and
execution. Beyond this general proposition, the case studies in this thesis are
valuable because they give hints as to the general mechanisms by which bureaucratic
autonomy develops. The case studies in this thesis demonstrate that modern
bureaucratic agencies are protected by the persistent presence of litigation and
courts, which, though they were originally intended as a check on bureaucratic
autonomy and discretion, have actually fostered autonomy by judicializing
bureaucratic operations, forcing implementation and rulemaking in the face of
intransigent politically appointed administrators, causing bureaucracies to internalize
legal structures into their day-to-day operations, and ensuring that rulemaking is
transparent, public, and adversarial, not political. Litigation-fostered bureaucratic
autonomy is closely related to general mechanisms of institutional change identified
by other scholars, but in particular to the concepts of conversion and layering
(Barnes 2008; Hacker 2004). As these case studies reveal, the institutional place of
courts in the modern administrative state was originally conceived as a check on
bureaucratic autonomy, but over time that order has evolved.
We start with a discussion of the research questions and a review of the
relevant literature on political control of the bureaucracy, the politics of structural
choice, and the development of autonomy at various stages of American political
3
development. Doing so allows us to understand that a) elected officials are aware of
the potential power of bureaucracies and have employed a variety of mechanisms to
control them, and b) bureaucracies also develop unique structures and practices
internally without the oversight of elected officials. The combination of these
different determinants of bureaucratic structure and behavior will prove quite
important as we move to an analysis of two case studies of bureaucratic
development—air pollution regulation through the Environmental Protection Agency
and military tribunals in the Department of Defense. These case studies reveal that
domestic courts and lawyers have become inextricably interwoven in the institutional
structures and organizational patterns that determine bureaucratic autonomy in the
modern era both because the elected branches hardwired them in this way and
because patterns of behavior can become entrenched and path dependent, but also
because the original purpose of institutions is subject to many kinds of institutional
evolution.
The purpose of this paper is essentially descriptive and conceptual. Its
primary contribution is the introduction of a variable which has been systematically
omitted or misunderstood in debates over bureaucratic control and bureaucratic
autonomy. However, the introduction of this variable should be conceived as a first
step in a larger research agenda which potentially sheds lights on literatures
seemingly quite separate from the narrow question of the determinants of
bureaucratic autonomy. Thus, in addition to the analysis of litigation-fostered
bureaucratic autonomy in the two cases, the paper ends with a discussion of the next
4
steps in a comprehensive empirical analysis of litigation-fostered bureaucratic
autonomy and a reflection on the possible applications of the idea to other debates in
political science. But before we begin, a word about data and methods is in order.
Data and Methods
The data for the case studies were drawn from a variety of sources. Much of
the data comes from personally conducted interviews and original content analysis of
relevant federal court cases and newspaper articles. A good deal of data has been
collected over the years by the many fine scholars who have written case studies of
their own for different purposes than shedding light on bureaucratic autonomy. I use
their excellent data, compiled from interviews, content analyses, and observations,
liberally since they have had more time than I have to immerse themselves in the
culture and conflict of bureaucratic politics. In some ways, my use of their data has
a strategic advantage: In particular, I draw heavily on the work of R. Shep Melnick,
but I come to a very different conclusion than he does.
The use of case studies is appropriate for a variety of reasons. First, and most
intuitively, the study of bureaucratic politics is an inherently complex enterprise
requiring attention to detail. Moreover, because bureaucratic politics are complex,
the ideal method for studying them would be one that can use process-tracing to
identify causal mechanisms. Case studies are particularly suited for this task.
Second, case studies are an important part of any research agenda, especially when
the primary purpose of the researcher is description and the development of theory.
5
Case studies, conceived as “an in-depth study of a single unit (a relatively bounded
phenomenon) where the scholar’s aim is to elucidate features of a larger class of
similar phenomena,” are simply a complementary part of any complete research
agenda (Gerring 2004, 341). The particular choice of case studies in this thesis—air
pollution regulation in the Environmental Protection Agency and military tribunals
in the Department of Defense—was made because these agencies are both least
likely cases for a rise of litigation-fostered bureaucratic autonomy. In the case of the
EPA, scholars have typically shown that it was designed by politicians to be
responsive to the wishes of the electoral branches (Moe 1989), and that courts and
adversarial legal structures were generally used as a mechanism of control of the
agency (Melnick 1983; Kagan 2001). A rise in litigation-fostered bureaucratic
autonomy in this case where we would least expect it would warrant a re-evaluation
of currently prominent theories on the politics of bureaucratic control. However,
skeptical readers might very well take their cue from Daniel Carpenter (2001) and
argue that the case of the EPA does not say much about authentic bureaucratic
autonomy because the technical nature of environmental policy questions might have
merely encouraged delegation and deferral on the part of the elected branches.
Indeed, Carpenter’s main contribution to the literature on bureaucratic autonomy was
to identify the importance of perceived prudence and expertise of agency staffs in
their search for greater autonomy. Though the case of the EPA can help us
understand litigation-fostered bureaucratic autonomy, we can only be sure that this
pattern justifies a revisiting of current theories if we see a replication of similar
6
patterns in a case where the balance of perceived prudence and expertise between
elected officials and agency staffs is not so asymmetrical. Conceived this way, the
second case study in this thesis—military tribunal policy in the Department of
Defense—can help control for Carpenter’s expertise variable. In short, military
tribunal policy and national security issues have long been controlled by the
president and his military-executive advisors. Indeed, the notion of the president as
commander-in-chief in military and national security issues is one of the most
pervasive political norms in American history. A finding of litigation-fostered
bureaucratic autonomy in this case would suggest that there is something bigger than
the mere delegation afforded to agencies who have demonstrated policy and
scientific expertise.
Thus, the selection of cases here is purposive. Together, the cases allow us to
isolate litigation-fostered bureaucratic autonomy as a unique mechanism of
bureaucratic autonomy beyond the explanatory capabilities of traditional narratives
of the rise of bureaucratic autonomy. Of course, the purposive nature of the case
selection is not meant to bestow a faux generalizability on this stage of the project;
the least likely case/most different case combination here is simply designed to show
that litigation-fostered bureaucratic autonomy is a concept worth looking into in
future research.
7
Chapter One
Bureaucratic Constraint and Bureaucratic Autonomy
Bureaucratic Constraint
Larry B. Hill has composed a comprehensive list of possible models of
bureaucratic control (1991), but there are undoubtedly some theories that are simply
more important than the others. Variants of principal-agent theory have long
enjoyed prominence in the study of bureaucracies in our political system. At the
core of this body of literature is the assumption that one group of actors (the
principal) issues commands which are then executed by another group of actors (the
agent). Applied to the study of bureaucracy, principal-agent theory suggests that
various elected officials are the principals and bureaucracies are the agents
(Waterman and Meier 1998, 174-178). The question is how principals are able to
effectively control the agents when there are a) inevitable conflicts between
principals, who seek general policy outcomes, and agents, who possess superior
knowledge and expertise, and b) significant costs associated with monitoring agents’
actions (Waterman and Meier 1998, 174-178). Scholars have offered several
accounts for how this is possible. For example, Elizabeth Sanders generally argues
for the effectiveness of statutory specification of congressional intentions (1990).
Other scholars have argued that congress can set up regulatory structure and
administrative procedures to ensure agency control (McCubbins 1985; McCubbins,
Noll, and Weingast 1987; McCubbins, Noll, and Weingast 1989). Still others have
8
argued that the primary mechanism for controlling bureaucracies is the power to
appoint agency administrators who are sympathetic to the elected branches’ wishes
(Wood and Waterman 1991). Huber and Shipan sum up the received wisdom of
political control of the administrative state by claiming that even the vague laws
promulgated by elected officials, which seem to “symbolize the wresting of
policymaking control by bureaucrats from politicians,” are correctly understood as
“deliberate.” Discretion is “purposefully granted by politicians to bureaucrats
because doing so is the best strategy for achieving desired policy goals” (2002, 9).
Related to this literature is the work of Terry Moe, but instead of focusing on
control mechanisms and formal principal-agent logics, Moe suggests that
bureaucratic subservience and general inefficacy are the products of what he calls
“the politics of structural choice” (1989). Moe claims,
Because democratic politics, by its very nature, raises uncertainties
about who will control public bureaucracy, winning groups will have
strong incentives to demand protective structures they know are
impediments to effective performance. Because American politics,
by its very nature, makes compromise a virtual necessity in the
legislative process, losing groups will have opportunities to impose
structures fully intended to promote failure and conflict. (1989, 327)
Moe’s argument differs from that of Sanders, McCubbins, Noll, and Weingast in that
it suggests that bureaucracies are lacking in autonomy and efficacy not because they
are commanded to be so by some actor, but because multiple actors react to the
uncertainty of American politics by ensuring that, in effect, bureaucracies are
hopelessly crippled. Politicians are aware that, even under the best circumstances,
their electoral coalitions are fragile and they may be replaced by politicians with very
9
different policy objectives—such is the nature of American politics in the twentieth
century. Aware of the contingency of American politics, even politicians in a strong
position are likely to be wary of leaving a powerful bureaucratic structure for their
successors to inherit and wield. Moe also presciently suggests that, if any one actor
is able to wield more control than the others, it would be presidents, not congress.
Moe notes that “all modern presidents have strong political incentives to bring the
federal bureaucracy under their control, and future presidents of both parties can be
expected to protect and elaborate upon the managerial institutions that their
predecessors have built” (1989, 328; 1985), and this has arguably been borne out in
recent years (Heclo 1975; Nathan 1975; Randall 1979; Moe 1985; Warshaw 1995;
Krent).
Between principal-agent models and structural choice models, there is strong
reason to believe that American bureaucracies will not be autonomous however one
defines autonomy. Regardless of whether the constriction of bureaucratic discretion
is intentional or simply a product of our Madisonian system of separated institutions
sharing power, bureaucracies apparently must overcome significant institutional
obstacles to attain anything resembling autonomy.
Bureaucratic Autonomy
Despite the wealth of literature on the specific mechanisms by which the
elected branches control administration by bureaucrats, a good deal of literature has
also engaged the question of bureaucratic autonomy, at least implicitly.
10
Implementation studies, a classic genre of the literature on the administrative
state, are not primarily concerned with questions of bureaucratic autonomy. Indeed,
more often than not, these studies suggest (as Moe suggested) that bureaucratic
implementation and decision-making is hopelessly chaotic, informal, and ineffective,
even to the point where clear support and direction from elected officials fizzles in
dysfunctional implementation (Pressman and Wildavsky 1973; Lindblom 1979;
Sabatier 1986). Obviously, the picture painted by implementation studies could be
interpreted as a Moevian check on both bureaucratic autonomy and bureaucratic
control; on the other hand, the problems of implementation can be understood to
facilitate bureaucratic autonomy. On a strategic level, bureaucratic foot-dragging,
cleverly disguised as bureaucratic incapacity, could be an effective weapon in battles
against hostile political directives.
On another level, the vacuum left by failed implementation can be and is
effectively filled by organizational responses fueled by bureaucratic ingenuity and
creativity. For instance, Knott and Miller (1987) suggest that bureaucracies create
their own coalitions to achieve bureaucratic goals. The literature on capture that
instigated vast reform of the administrative state also noted the way that bureaucrats
used ad hoc, informal mechanisms of interaction with regulated industries to achieve
bureaucratic goals (although the capture literature also suggests that the
bureaucracies of the time were frequently not very autonomous) (Quirk 1981).
Unlike the findings of the studies of bureaucratic control mentioned above,
both of these organizational responses to the difficulties of implementation suggest
11
that a good deal of the action of bureaucratic politics is not cross-institutional, but
internal and organizational. Moreover, patterns of behavior and organizational
structures can often have as much influence as explicit directives in the final product
of administration. Though scholars have pointed out a variety of institutional control
mechanisms that elected officials can and do use to try to ensure that bureaucracies
are well within their control, bureaucracies are also internally dynamic. As scholars
have shown, “organizations differentiate among actors, they structure the relations
and contracts among actors, and they give actors an identity. The way that
bureaucracies conduct this differentiation, this structuring, and this indentifying
powerfully affects their capacity and their autonomy” (Carpenter 2001, 18). For
instance, Carpenter shows that early twentieth century bureaucracies usually divided
themselves into three levels: the executive level, the mezzo level, and the operations
level. Carpenter suggests that bureaucracies were able to forge bureaucratic
autonomy from elected officials in this time because mezzo level officials created
“political differentiation through bureau-led hiring, capacity growth through program
experimentation and accumulation of expertise, and reputation-building through
propaganda and coalition formation” (2001, 19).
Carpenter’s observations regarding turn-of-century bureaucracies are relevant
even in today’s changed political landscape. As we shall see in the case studies,
elected officials fought back against the growing bureaucratic autonomy in the
middle of the twentieth century, but they did so largely by beefing up institutional
mechanisms of control. But bureaucracies are organizations, and as such, they often
12
have missions, interests, norms, and patterns of behavior that develop independent of
elected officials’ wishes, usually in a path-dependent manner (Pierson 2004). As we
will see in more detail later, one possible development is the internalization of legal
and judicial institutions into organizations (Edelman and Suchman 1997). The
internalization of law into the way that bureaucracies manage themselves and the
stable patterns of interaction they develop in doing their daily business could have
major implications for their ultimate level of differentiation and insulation from
hostile elected officials.
Discussion
Overall, the literature on bureaucratic politics tends to be overwhelmingly
hostile to the idea of bureaucratic autonomy. Most scholars have argued that what
the elected branches want out of the administrative state they get, and a few have
qualified that finding, but only by pointing out that bureaucratic structures are
hardwired to be dysfunctional because of a calculated, quasi-Hobbesian contract. A
few scholars, either implicitly or explicitly, have raised the notion of bureaucratic
autonomy. These scholars move beyond the top-down, principal-agent models to
suggest that we will miss much if we do not examine bureaucratic institutions
themselves. Once we turn to the actual operation of bureaucracies, we are able to see
a rich landscape of power conflicts—one where bureaucrats fare relatively well.
Despite the recognition of this second side of bureaucratic politics, no
previous research has considered the role of courts in fostering bureaucratic
13
autonomy. The reason for this is that the prominent scholars who do trace the role of
courts, administrative law, and bureaucratic politics have usually told quite a
different story. For instance, Robert Kagan has argued that courts and adversarial
legalism were programmed into the new administrative state in the mid-twentieth
century because of a profound distrust of bureaucracy. In the new administrative
regime, “regulations promulgated by administrative agencies…had to be made
through formal, adversarial procedures re-viewable in court. No more backroom
deals with regulated businesses” (Kagan 2004, 29). R. Shep Melnick (1992; 1983)
likewise argues that the courts were brought in to deny agencies the opportunity to
develop any kind of autonomy. Of course, Kagan and Melnick both suggest that
courts have used this power to subvert the wishes of elected officials, but they do not
find the courts to have increased bureaucratic autonomy—instead, the story is a story
of the accretion of judicial power. While bureaucracies might develop other
institutional capacities to resist directives by elected officials, courts and the
adversarial legal process were certainly not an option.
This thesis takes this familiar story and turns it on its head. While Kagan and
Melnick undoubtedly describe the state of things circa 1970, this thesis suggests that
courts and adversarial legal procedures have, in a process of conversion and layering
(Barnes 2008; Hacker 2004), used the institution of judicial review to significantly
bolster authentic bureaucratic autonomy in the face of increasingly aggressive
elected officials (especially presidents). The case studies in this thesis highlight and
explore the complex mechanisms of conversion and layering as they play out in two
14
very different sectors of the American administrative state, and in doing so, they add
a new dimension to the budding study of bureaucratic autonomy and the familiar
study of adversarial legalism: litigation-fostered bureaucratic autonomy.
15
Chapter Two
Bureaucratic Autonomy in the Environmental Protection Agency
Recall that the main proposition of this thesis is that bureaucracies are able to
maintain significant autonomy in the face of persistent efforts by elected officials to
control them. They are able to do this because courts, interest groups, and agencies
have thoroughly legalized and judicialized bureaucratic operations in the modern era,
often using their powers to insulate bureaucracies from the most egregious
challenges to their discretionary authority and helping to foster internalization of law
in bureaucratic structures. In this first case study, we will see that this is indeed the
case, and, more importantly, we will begin to understand the institutional and
organizational foundations of this new dynamic as it applies to one of the largest
sectors of the bureaucratic state: the regulatory agencies. We start with a review of
the historical development of the regulatory state, and we trace that development
through the middle of the twentieth century when the regulatory state was reshuffled
and the institutional and organizational foundations of the new dynamics of
litigation-fostered bureaucratic autonomy were laid. We then move from the general
to the specific by focusing on one regulatory agency in particular—the
Environmental Protection Agency. By utilizing an in-depth method of process
tracing and micro-institutional analysis, we can appreciate the complexity of this
new dynamic as it plays out in one of the most contested forums of bureaucratic
regulation.
16
A History of Regulatory Agency Development
Though it is tempting to fall into the trap of thinking of the development of
the alphabet soup programs of the New Deal as the birth of the modern regulatory
state, leading scholars have argued that regulatory state-building actually occurred as
far back as the Civil War (Skocpol 1992). Stephen Skowronek’s hugely influential
work on the rise of the new administrative state through the late nineteenth century
and early twentieth century suggests that such a development was brought on by the
new needs generated by the move to an industrialized society (1982).
It is clear that executive agencies came to new prominence by the early
decades of the twentieth century. Skowronek’s popular account, a kind of inversion
of Terry Moe’s argument about modern bureaucratic politics, suggests that the
regulatory agencies of the period gained power and autonomy because of a stalemate
in the elected branches which created a political vacuum of sorts. As Carpenter
(2001) has argued, the shift to executive agencies in the early decades of the
twentieth century did indeed bring the first instances of true bureaucratic autonomy,
but his account of the rise of this autonomy depends less on power vacuums than on
the specific organizational aspects of the new agencies. Bureaucratic reform of
governmental administration began in the Progressive Era as the product of rational
strategies of reform groups upset with “party-dominated public administration” and
determined to enhance the efficiency, neutrality, and effectiveness of government
(Knott and Miller 1987, 38-53). Indeed, the push towards professionalism had begun
17
several decades earlier with the passage of the Pendleton Act of 1883, which
replaced the spoils system with a professionally anchored civil service system
(Nathan 1975, 8-9). Autonomy did not emerge all at once due solely to some
universal change like civil service reform; instead, it emerged in pockets of the
administrative state as individual agencies achieved the three conditions Daniel
Carpenter identifies as necessary for bureaucratic autonomy. Those three conditions
for bureaucracies are a) “political differentiation from the actors who seek to control
them,” b) the development of “unique organizational capacities,” and c) political
legitimacy based on perceived expertise and reputational networks (Carpenter 2001,
14). Central to the achievement of these three conditions among certain agencies in
the early decades of the twentieth century was the growth of “a mezzo level of
managers and inspectors that integrated turn-of-century bureaucracies and
organizational networks that assisted recruitment and reduced turnover among
personnel” (Carpenter 2001, 29). In short, during the Progressive Era, pockets of the
administrative state slowly evolved to attain the necessary organizational capacities
to maintain a level of institutional continuity, competence, and divergence from the
interests of elected officials. This in turn allowed these agencies to develop often
surprising amounts of autonomy. As we will see, the nascent organizational
structures and the institutionalization of professional staffers in the mezzo level of
managers which developed in selected bureaucracies in the Progressive Era have
fully developed and expanded in the modern era as well, and they have laid the
foundations for the current dynamics of bureaucratic autonomy.
18
By the time of the New Deal, the functional place of administrative
bureaucracies morphed as the exigencies the nation faced evolved, and the
bureaucracies were used more and more as a tool of Roosevelt’s unilateral control of
the economy (perhaps a perversion of the original intent of the progressive
reformers) (Knott and Miller 1987, 77-98). President Roosevelt generally opted for
creating new bureaus which were designed as “commissions or hybrid agencies like
government corporations” (D. Lewis 2003, 7). Dealing with the fallout of the Great
Depression required a turn away from neutrality and administrative science to
political leadership and an ethos of cooperation with businesses subject to regulation.
The regulations that bureaucracies were charged with enforcing were consequently
vague, often exhorting agencies to promote the nebulous concept of “the public
interest” and to ensure “fair and reasonable rates” (Melnick 1983, 7). The norm was
for regulatory agencies to practice a “discretionary inspector-as-consultant style”
(Bardach and Kagan 1982). As one can easily imagine, the lack of clear instructions
made the action of regulatory agencies during this era very dependent on who was
running them. Perhaps because agencies were restructured during the New Deal Era
to work with business to craft manageable solutions, agencies typically entered into
symbiotic relationships with the actors they regulated. As R. Shep Melnick notes,
“For years critics of regulation as varied as Ralph Nader and conservative Chicago
school economists had argued that the dominant influence of regulated industries had
perverted government regulation of business, leading it to serve the private interest
of the regulated rather than the broader public interest” (Melnick 1983, 9). These
19
agencies were frequently accused of being “weak-willed, lethargic ‘captives’ of the
industries they regulated,” but despite the common knowledge of “capture theory”
among political scientists, very little changed in bureaucratic politics all the way
through the Johnson presidency (Bardach and Kagan 1982).
By the 1960s and 1970s, the critiques of agency capture and the perils of
immense agency discretion became so clear that the politics of reforming America’s
administrative state heated up in a hurry. Policy liberals in Congress responded to
these concerns and the growing demand for more vigorous regulation of the harms to
modern society by writing more laws, writing more detailed and explicit laws, and
liberalizing judicial review of agency behavior. The pace of legislation was furious:
from the Clean Air Act to the Child Protection and Toy Safety Act to the
Occupational Safety and Health Act to the Equal Employment Opportunity Act,
virtually every industry was now under the wing of the administrative state, and new
agencies such as the Occupational Safety and Health Administration and the
National Highway Traffic Safety Administration sprang up to ensure that the new
laws were actually enforced (Melnick 1983, 7-9; Melnick 2004, 90-97; Bardach and
Kagan 1982). As we will see in the case of the Environmental Protection Agency,
old New Deal agencies were fundamentally transformed, rearranged, or replaced to
accommodate the pressing needs of this new administrative regime. This process
might very well be understood as a prime example of the type of institutional change
known as layering, which “involves grafting new institutional arrangements or
policies on old ones” (Barnes 2008; Hacker 2004). But the important aspect of
20
layering is that it by definition creates internal tension since the past order is still
interlaced with new institutions; in this case, new structures designed for
bureaucratic control were grafted onto the old guard of civil servants and their
institutional legacies and differentiated priorities.
In the reshuffling of the administrative state in the late 60s and early 70s, we
can clearly see Moe’s politics of structural choice play out in all their glory (this
comment is only partially facetious). While it was common among both liberals and
conservatives during this period to support a stronger administrative state, both
liberals and conservatives had reason to be skeptical and careful when it came to
setting up the new agencies and passing the new laws. The divide between the
Democratic congress and the Nixon administration during this period of change was
particularly important in that it forced both sides into strategic games of “one-
upmanship” and made both sides acutely aware of the uncertainty which breeds
careful disabling of bureaucratic structures (Moe 1989, 310). The battle over the
EPA and the Clean Air Act was only one example of a larger trend of both sides
making compromises about bureaucratic structure which made little scientific sense
but plenty of political sense (Moe 1989, 313). In a sort of Rawlsian veil of ignorance
bargain, the political branches used changes in agency structure and process to create
an “ex ante agreement…that limits the ability of each [political branch] to engage in
ex post opportunistic behavior” (McCubbins, Noll, and Weingast 1989, 432-433). It
is truly one of the greatest ironies in American political development that this
21
episode, like so many others throughout American history, went from a moment of
bipartisan determination for change to a politics of damage control.
One of the structural choices generally made during this period without
much concern for its long-term implications was the systematic inclusion of courts in
the agency oversight apparatus. In an effort to ensure that the new agencies being
formed at the time would not, like their predecessors, fall victim to capture, congress
made sure that most of the new regulatory statutes included private attorney general
provisions which “authorized ‘any citizen’ to file suit against administrators either
for taking unauthorized action or for failing to perform ‘nondiscretionary duties’”
(Melnick 1983, 8). As with most of the developments during this period, it might be
questioned why President Nixon allowed these provisions to pass, and the answer is
simply that all parties knew that any bold assertion of power on technical matters
like these could backfire if political circumstances changed. Also, for the Nixon
administration, allowing for liberalized judicial review of administrative action or
inaction was a compromise they were willing to make to secure the location of the
new agencies firmly in the executive branch, where they could be staffed with
political appointees (Moe 1989; Melnick 1983). Besides, with the specificity of the
regulatory statutes being churned out by congress, most parties had reason to believe
that the courts would be held in check.
Though courts did show signs of expanding their authority, especially in their
increasingly broad interpretation of the Administrative Procedures Act to ensure
relevant third parties access to agency deliberation and to require more scientific or
22
rationalistic decision-making by agencies (known as the “hard look” requirement)
(Melnick 1983, 10-11; Sunstein 1983), courts did not focus their attention on
protecting bureaucratic autonomy or discretion. On the contrary, the courts clearly
utilized their judicial review function to ensure that capture by industry would not
occur. In short, judges used their powers to deal with the “bureaucracy problem”:
that is “that administrators often lose sight of their original goals, become bogged
down in red tape, fail to announce or defend coherent policies, suffer from the
parochialism that comes from specialization, and, most seriously, develop such close
relations with those they regulate that they come to serve the very groups originally
believed to threaten the public interest” (Melnick 1983, 12-13). Despite the potential
for many different roles, courts are generally thought to have settled into this “new
administrative law” regime in which autonomy was to be stifled in favor of the strict
directions of the elected branches, and for better or worse, courts were very good at
ensuring that agencies vigorously pursued the objectives of the elected branches’
mandates.
A Changing Wind? Presidential-Agency Politics
In American politics, change is omnipresent. As we have seen, the
development of the bureaucratic state has occurred in pockets of society and in
wholesale reorganization. It has occurred in spurts and in evolutions. If we assume
that little has changed since the 60s and 70s in bureaucratic politics, it is more than
likely the case that we are simply not looking hard enough.
23
The dust had hardly settled before presidents began to attempt to wield
greater control over the new agencies formed in the 60s and 70s, and, indeed, it
would have been surprising if they had not since there are plenty of incentives for
presidents to maintain control of the executive apparatus that could make the
difference between being perceived as effective or being perceived as impotent (Moe
1985). As part of the attempt to create efficient and effective execution of the new
laws, the new administrative agencies were generally lodged squarely within the
executive branch. Presidents quickly learned that they could use their power of
appointment of agency administrators to direct policymaking in their favored
direction—in short, they found ways in the new bureaucratic structure to attempt ex
post opportunistic behavior. This political strategy has only grown over the years,
and, as the argument goes, bureaucracies have essentially been captured again, this
time by presidential administrations. In fact, it is quite arguable that even congress
has been more and more willing to grant broad powers to presidents to reorganize
and run the administrative state, thus aiding the move to a presidential bureaucracy
(D. Lewis 2003, 9-11).
As we move to the case study of the formation and development of the
Environmental Protection Agency, we will see that battles have indeed been waged,
and that presidents have put immeasurable energy into this strategy of ex post
opportunism. In the case of the EPA, it has been a familiar story that conservative
Republican presidents (and moderate Democrats, for that matter) have attempted to
capture control of the EPA from the environmentalists and scientists and lawyers
24
who inhabit that agency and to essentially prevent regulation of the environment.
The ability of presidents to appoint sympathetic administrators in these new
executive agencies is indeed a weakness in the structural safeguard against capture,
albeit a different kind of capture than the capture originally viewed to be the
problem. But the case study also reveals that these strategies are often derailed not
by the EPA itself, for, as the history of the formation of the new administrative state
in the 60s and 70s shows, the administrative state is simply not designed for
successful agency defiance of executive prerogative. Instead, courts and a steady
stream of litigation have ensured that even this kind of presidential capture of
agencies is a daunting if not impossible task. To be sure, courts were not expected to
play this role. Their involvement in protecting the autonomy of bureaucracies from
executive capture evolved from their role as limiters of bureaucratic autonomy. A
more detailed look at this evolution and the dynamics of bureaucratic autonomy in
the modern administrative state will follow in our examination of the case studies
and then in the concluding discussion.
The Case of the EPA
Having traced bureaucratic development in America in the last section, we
can now move from the general to the specific. This first case study allows us to
further see the complications, oversights, and deficiencies in the principal-agent and
structural politics models. While these theoretical accounts of regulatory dynamics
have a special place in the literature on regulation, it is when we turn to historical
25
cases of development that we can see their deficiencies most clearly. As Harris and
Milkis note,
Work [on regulation] tends to be ahistorical, taking the rationales and
institutions of regulatory decision-making as contextual variables to
be maintained or reformed in order to achieve certain ends. It shows
little concern for historical forces that shaped regulatory policy.
Regulation, though, is more than a given set of laws and rules; it also
entails ideas and institutions that have grown out of particular
historical circumstances. (1989, 18)
In this case study, we will start from the institutional formation of the EPA and will
generally focus on one area of EPA policymaking: air pollution regulation. There
are a variety of reasons for choosing to focus on this one area of policymaking.
First, air pollution regulation is one of the more significant responsibilities of the
EPA, and, as such, makes information easier to come by. Second, air pollution
regulation policy has been the turf for many of the battles over agency autonomy,
especially in recent years. Finally, the EPA and its relationship to the Clean Air Act
provides some of the “least likely case” scenarios for shedding light on bureaucratic
autonomy. Indeed, in many ways, the founding of the EPA, the passing of the Clean
Air Act, and the subsequent history of policymaking is the paradigmatic post-New
Deal agency story. In particular, the strict, clear, and specific rules and deadlines of
the Clean Air Act, the effort to place the EPA squarely within the executive branch
for easy overseeing of the agency, the ability of presidents to appoint loyal
administrators, and the inclusion of private attorney general provisions show that the
EPA was founded with clear concerns about capture in mind and is highly
representative of the general story of mid-twentieth century regulatory
26
reorganization. The idea behind the EPA was creating a controllable yet effective
institution, but certainly not an autonomous one.
Institutional Formation
Though the EPA was formed only in 1970 as part of the general restructuring
of the administrative state, environmental problems and, specifically, pollution had a
long history of regulation in the United States. But like so many regulatory schemes
of the early twentieth century, environmental regulation was run by a complex web
of separate regulatory institutions which were generally not very tough on the
regulated. A happy spirit of cooperation between state and local environmental
groups and business groups pervaded, and both groups had an aversion to the kinds
of non-discretionary, rule-based regulation that we have come to expect out of
administrative agencies today (Moe 1989, 306-308; Bardach and Kagan 1982). It
was not until the environmental movement gained traction in congress in the 60s that
there was much clamoring for a more powerful administrative apparatus. Even then,
the victories for environmentalists were limited in scope. With regard to air
pollution regulation, environmentalists were able to convince politicians to move air
pollution regulation out of the capture-prone state and local agencies to the National
Air Pollution Control Administration (NAPCA), but this body was located in the
Public Health Service (PHS), “whose medical orientation and preference for state-
local cooperation were most unwanted” (Moe 1989, 311-312).
27
After the environmental movement continued to heat up and catch the ears of
leading politicians, the Democratic majority in congress passed the largely symbolic
National Environmental Policy Act (NEPA) in 1969 in an effort to “outflank”
President Nixon on the issue of the environment (McMahon 2006, 19). With the
upcoming 1972 presidential election already on potential candidates’ minds,
cracking down on polluters became a safe issue for Democrats and, to a lesser extent,
Nixon to capitalize on. In particular, Senator Edmund Muskie, “Mr. Environment,”
looked to be a possible candidate for the Democratic presidential nomination, and his
persistent work on the Senate Subcommittee on Air and Water Pollution forced
President Nixon to at least symbolically support environmental causes. But Nixon
also had his own reasons for supporting a reorganization of environmental
regulation: the opportunity to create an administrative structure which would allow
him to wield significant control fit perfectly with his plans to create an
“administrative presidency,” a plan he had been pursuing through his Advisory
Council on Executive Organization, also known as the Ash Council. The result of
this partial confluence of interest was a two-part revolution in air pollution and
environmental regulation. Nixon reorganized the existing environmental regulators
into one group called the Environmental Protection Agency, and congress added the
Clean Air Act of 1970, which created clear air quality standards, deadlines for
enforcement, and clear directions to the fledgling agency. By reorganizing
environmental regulators into a new comprehensive agency and simultaneously
passing legislation with strict standards and deadlines, both Nixon (and his
28
Republican base) and congress (and its Democratic base) got at least part of what
they wanted, but the result was an agency that was fractured and ineffective and,
consequently, not very autonomous (Moe 1989). Though congress and President
Nixon had set out to reorder environmental regulation with institutions that they
could control, the fear of ex post opportunistic behavior and political uncertainty had
led them to create a mess. In general, it was unclear how the EPA would go about
fulfilling its tasks, and this weakness threatened to reduce the new agency to an
ineffectual institution susceptible to capture again.
The Courts Step In
The most important part of the Clean Air Act of 1970 was its requirement of
EPA promulgation of “national, rather than state, ambient air quality standards”
determined with health and public welfare in mind (Vietor 1979, 8). This section of
the act is a clear example of clear statutory directions as control mechanisms: the act
forced the EPA to set standards, required states to “submit by 1972 state
implementation plans (SIPs) adequate to meet primary standards by 1975 and
secondary standards within a ‘reasonable time,’” and allowed for judicial review in
both state and federal courts of the entire process to ensure compliance (Melnick
1983, 29-30). By writing in provisions for citizen suits and judicial review of agency
decisions and/or agency inaction on national ambient air quality standards, congress
did create a potential mechanism for EPA oversight and control. This potential soon
became a reality.
29
An issue that had emerged in congressional debates about the national
ambient air quality standards section of the Clean Air Act—the issue of the
prevention of significant deterioration of air quality—quickly became an issue of
contention between courts and the EPA. Significant deterioration is the idea that air
quality might worsen in an area already exceeding national standards, but it is clear
through congressional debate on the issue that the authors of the Clean Air Act had
every intention of requiring the EPA to prevent significant deterioration in these
areas even though they did not use the specific term significant deterioration (Vietor
1979, 8). Nevertheless, in 1972, the Sierra Club brought a suit asking the courts to
“issue an emergency order restraining the EPA from approving any state plan that
permitted the ‘significant deterioration’ of air quality anywhere in the state,” and the
District Court granted that emergency order (Melnick 1983, 73). The case, Sierra
Club v. Ruckelshaus (1972), was appealed by the EPA all the way to the Supreme
Court, where a 4-4 tie left the District Court’s original ruling intact. In response, the
EPA opened its rulemaking process to the public and presented new regulations
incorporating prevention of significant deterioration, but by this time a precedent for
judicial oversight had been set, and industry and environmental groups challenged
the regulations. Even after congress amended the Clean Air Act in 1977 to be more
explicit about the significant deterioration issue, industry and environmental groups
once again challenged the regulations, forcing the D.C. Circuit Court to overturn “an
array of EPA actions, siding at times with industry and at times with
environmentalists” in Alabama Power v. Costle (1979) (Melnick 1983, 74). An
30
interesting corollary story is the EPA’s change in position from “mild opposition to
strong support” on the significant deterioration issue. So radical was this change that
the EPA “publicly refused to support the Nixon administration’s legislative proposal
to overturn the decision in 1974” just a few years after appealing the Sierra Club
decision through the federal courts (Melnick 1983, 86).
Although the court-induced change of position on the significant
deterioration issue suggests that the seeds of litigation-fostered bureaucratic
autonomy had been planted, the Sierra Club v. Ruckelshaus litigation is more of an
example of the classic mid-twentieth century narrative of court supervision of
bureaucratic deference to elected officials’ wishes. After all, congress seems to have
intended for the prevention of significant deterioration and did change the Clean Air
Act in 1977 to include more explicit provisions. Another case, Natural Resources
Defense Council v. EPA (1974), does much more to show the ways that early
litigation under the Clean Air Act of 1970 created the foundations for a litigation-
fostered bureaucratic autonomy which superseded or transcended the directions of
the elected branches. In that case, the EPA publicly voiced its opposition to a plan
supported by the House, the Nixon administration, and the Federal Energy
Administration to make coal-burning power plants comply with Clean Air Act
requirements by pollutant dispersion instead of implementing available but
expensive technology to actually lower emissions. Coming at a time of worry about
the Arab oil embargo of 1973, the EPA was essentially alone in its intent to stay true
to the original intention of the Clean Air Act. But the courts quickly came to the
31
rescue: the Fifth Circuit Court of Appeals “ruled that the EPA could allow polluters
to substitute dispersion for emission reductions only when technological controls
were ‘unavailable’” (Melnick 1983, 114). Even though the ruling was technically
against the EPA, “[the EPA] was far from displeased with the outcome” and it
eventually publicly announced its opposition to the administration’s plans to
overturn the ruling. There is good reason to believe that, in this case at the very
least, the EPA actually colluded with its opposition to ensure that the litigation
would go against the elected branches’ plan to promote dispersion (Melnick 1983,
114).
The court battles of the early years of the EPA were important on many
levels. For one, they indicated that courts would not shirk their congressionally
determined institutional role as overseers of the new regulatory agency—the Sierra
Club and NRDC cases were just a small sample of the total number of cases, and
indeed the vague yet insistent demands placed on the EPA by the courts guaranteed a
continuing legal dialogue between the EPA and the courts. The virtual guarantee of
continuing court oversight and the inevitable interweaving of policy and legal issues
created the necessity of the organizational capacity to deal with litigation. Every bit
as important as the institutional specifications created by congress and the president
in the formative year of 1970 are the ongoing evolutions of the various
organizational units that compose the larger whole. The fact that many of the units
handling the dirty work of the EPA are legal units is a testament to the importance of
these early litigation battles. Most of the assistant administrators who head the air
32
program office of the EPA have been environmental lawyers (some even for the
NRDC), and they oversee such units as the Office of Enforcement, which is
populated by serious and uncompromising environmental lawyers, and the Office of
General Counsel, which hires young, idealistic environmental lawyers to defend the
agency from lawsuits (Melnick 1983, 39-41). As Carpenter (2001) noted about turn-
of-century bureaucratic agencies, political differentiation from the policy preferences
of the elected branches is a key prerequisite for bureaucratic autonomy. In the case
of the EPA, the establishment of regular patterns of judicial interaction necessitated
the staffing of environmental lawyers, and the staffing of environmental lawyers has
created political differentiation from the elected branches in the middle, or mezzo,
level of bureaucratic organization. Despite the compartmentalization of the EPA,
recent interviews suggest that a mission of environmental protection has a solid
foundation throughout the EPA (McMahon 2006). Former EPA Clean Air attorney
John Walke estimates that fewer than 10 percent of the career civil servants at the
EPA are Republican, and the result is a “huge differentiation” from the political
branches in an era dominated by Republican presidents (J. Walke, personal
interview, February 28, 2008). Moreover, this mission has become fused with a
distinctive litigation and court compliance based culture (O’Leary 1993, 164-170).
The Reagan Years and Beyond
After a decade of institutional growth and development, the EPA came upon
hard times beginning in 1980. The election of Ronald Reagan as President signaled
33
the beginning of a more conservative, anti-regulation ethos in the federal
government, and the EPA and the strict requirements of the Clean Air Act were high
on his priority list for deregulation. Reagan took aggressive action to usurp control
of the bureaucracy by implementing four major strategic steps:
careful screening of all appointees to environmental and other
agencies to ensure compliance with [his] ideological agenda; tight
policy coordination through cabinet councils and White House staff;
deep cuts in the budgets of environmental agencies and programs; and
an enhanced form of regulatory oversight to eliminate or revise
regulations considered burdensome by industry. (Vig 2000, 102)
The most documented strategy was the political appointment of conservative, even
anti-environment, administrators to the EPA and the Department of the Interior.
EPA administrator Anne Gorsuch and Secretary of Interior James Watt were “overtly
hostile to the mission of their agencies” (Vig 2000, 102). Gorsuch used her powers
of hiring to try to overtake the EPA by hiring Republican staffers, and her
domineering and overtly political administrative style created a significant backlash
among the long-tenured staffers. One administrator recalled that Gorsuch’s
reorganization schemes left regional attorneys in the enforcement offices in “a
position where they didn’t know who the hell they worked for. They couldn’t even
tell what the procedures were from day to day,” and needless to say, the confusion
spawned “intense resentment from the enforcement staff. [The agency’s political
appointees’] motives were distrusted, their enforcement policies were disliked, and
the professional competency of some was questioned” (Mintz 1995, 49-50).
Consequently many of the midlevel staffers and lawyers began to feed information to
congress about the disorder and intentional debilitation under Gorsuch’s command
34
(Mintz 1995, 50-51). Though these extreme examples of administrative presidency
subsided after opposition to Gorsuch forced Reagan to replace her with former
administrator William Ruckelshaus (a much more environmentally friendly
administrator), presidents since Reagan have been more stealthy and strategic in their
attempts to control the EPA and the regulatory state, mostly because congress has
been traditionally wary of major changes in regulatory politics, probably because of
institutional inertia as much as anything. Despite the somewhat more supportive
Clinton administration, the EPA has remained scarred by the general push to the
right in the last quarter of the twentieth century—it is perennially underfunded, and
even presidents like Clinton (who was moderately pro-environment) have sought to
use methods of the administrative presidency model to influence the EPA’s
regulatory policy (Vig 2000). That the administrative presidency model has never
died is clearly demonstrated by the resurgence of aggressive manipulation during the
tenure of George W. Bush. Like Reagan, Bush has installed generally pro-industry
administrators in most agencies having anything to do with the environment and has
generally attempted to derail the mild progress made on air pollution and global
climate change by the Clinton administration (Devine 2004). This should come as
no surprise: scholars have long noted that American government and, in particular,
the bureaucratic state are structured to promote strong incentives for aggressive
executive management (Moe 1985).
But the EPA has actively resisted or been shielded from the control
mechanisms and reorganization schemes of even the most meddling presidents over
35
the years, and this has occurred largely because of the deeply ingrained involvement
of courts and litigation as part of the pervading agency ethos and strategy. The early
years of the EPA/Clean Air Act solidified the role of courts, agency lawyers, and
environmental litigation groups, and that role has continued to adapt to the new
attempts at bureaucratic control emanating from the elected branches. As we saw
with lawyers and staffers in the Office of Enforcement Counsel during the Gorsuch
years, the entrenched legal staff that had emerged in the early years of the EPA used
its authority to make a public appeal about the agency’s autonomy and the
Republican threat to it. Indeed, one of the lasting legacies of early legal battles
between the EPA and the courts was the latter’s efforts to ensure that the agency’s
rulemaking processes and enforcement policies would be transparent enough to
ensure that capture had not occurred (Bryner 1987, 96-97; McSpadden 2000, 147-
148), and when Gorsuch attempted to capture the EPA for the Reagan
administration, the public transparency safeguard brought the public into the debate
and ultimately led to her resignation.
Meanwhile, the litigation never stopped. Indeed, courts in the 1970s had
ensured that suits would arrive in a steady stream by consciously adopting the view
that agency rulemaking and enforcement should be a highly transparent and
adversarial process (McSpadden 2000, 148) and by significantly relaxing the
requirements for standing to sue in the 1970s in the cases of Sierra Club v. Morton
(1972), United States v. Students Challenging Regulatory Agency Procedures
(1973), and Duke Power Company v. Carolina Environmental Study Group (1978)
36
(Harris and Milkis 1989, 242). Though the Gorsuch years saw substantial reductions
in the number of agency-initiated legal enforcement claims, 70-80 percent in 1981
(Mintz 1995, 49), nothing stood in the way of the courts deciding cases brought by
environmental litigation groups under the authority of the citizen suit provisions of
the National Environmental Protection Act and the Clean Air Act and the newly
liberalized standing jurisprudence. Environmental groups like the Natural Resources
Defense Council, Sierra Club, and Environmental Defense Fund responded to the
attempted hijacking of the EPA by using the EPA’s own files to initiate litigation
against violators that the agency decided not to pursue (McSpadden 2000, 149), a
practice that one can imagine the disgruntled environmental lawyers in the EPA had
no problem aiding. For instance, environmental groups brought thirty-five lawsuits,
eleven of which were specifically against decisions of non-enforcement made by
Gorsuch’s hijacked EPA (Harris and Milkis 1989, 263-264). The growth of
litigation was not decidedly pro-environment either: most of the cases filed during
the early 1980s were brought by industry groups challenging EPA regulations, but
since courts tended to side with both pro-environment and anti-regulation litigants
about equally (Wenner 1984, 182-189), the rise in suits simply might have had the
ironic effect of making EPA policymaking thoroughly public, legalistic, and
adversarial instead of administrative and hierarchal (as Reagan and Gorsuch would
have preferred). This is plainly observable in the most important Clean Air Act case
of the period (and arguably the most important administrative law case of all time):
Chevron v. Natural Resources Defense Counsel (1984). In short, Chevron involved
37
a challenge to the EPA’s authority to weaken a rule under the Clean Air Act. The
Supreme Court ultimately upheld EPA’s interpretation and set up a two-part test for
judicial deference to agency interpretation. The test first asks whether congress
unambiguously indicated its wishes regarding a statutory directive, and second, if the
agency’s action is based on a permissible reading of the statutory directive (Sunstein
2006, 190-191). Although the Court upheld the action of the Reagan-influenced
political administrators at the EPA in this particular case, the long-term implications
of Chevron have been far less favorable to presidents looking to steer agencies. As
Cass Sunstein notes, the application of Chevron in concrete cases has grown
increasingly complex, even adding a “step zero” level of review beyond the original
two steps and ensuring that disputes are reviewed on a case-by-case (and, hence,
probably subconsciously non-deferent) basis (2006, 247-248). In short, although
environmental groups and career civil servants in the EPA took some blows during
the Gorsuch/Reagan years, they were able to weather the storm and, more
importantly, keep legalistic avenues for agency enforcement open.
The Republican Forces Align, and the Agency Responds
Skeptical readers may justifiably wonder whether courts were only successful
in their autonomy-fostering role because the elected branches were not ever united.
The professional, often liberal and pro-environment staffers at the EPA have almost
always benefited from the political cover not only of the courts, but also of at least
one of the elected branches (usually congress). The early years of the Bush
38
administration brought most of the pieces of government into the hands of
Republicans, and the Bush administration was, consequently, quite aggressive on
environmental policy change.
The assault on entrenched EPA policies began almost immediately, led by
Vice-President Dick Cheney, who combined a conservative ideology with extremely
effective administrative skills. Cheney and his pro-industry “energy task force” used
their considerable executive authority to try to derail many of the EPA’s
longstanding policies and to prevent the EPA from acting on new crises (Becker and
Gellman 2007; Devine 2004, 130-149). We will focus on two such instances: the
attempt to undermine the New Source Review (NSR) policy, which had long been a
staple of the Clean Air Act implementation, and the attempt to prevent the EPA from
regulating greenhouse gases as part of a strategy to curb the effects of global
warming. On both of these issues, the Bush administration has been tireless in its
efforts to usurp control of the EPA from career civil servants who are deeply wedded
to both NSR and an effective response to the threat of global warming, and on both
of these issues, courts have used their authority, originally developed in the early
years, to promote the EPA’s autonomy.
A bit of background information is required on the issue of NSR. In the
1970s, congress created New Source Performance Standards (NSPS) and Prevention
of Significant Deterioration (PSD) to guide the EPA in its regulation of air pollution.
Both of these programs were largely meant to ensure that stationary sources of air
pollution (mainly old coal power plants) would not become worse polluters as they
39
got older, and to ensure that, when they were replaced or revitalized, they used the
best available technology (Environmental Defense v. Duke Energy [2007], 1).
Throughout the decades and especially during the Clinton years, the EPA had
developed relatively normalized understandings of the precise requirements of these
programs, and the understandings were generally regarded as tough on the energy
industry. But when the Bush administration came into office in 2001, industry
seized the opportunity to work with sympathetic executives to “streamline” (which is
simply a euphemism for “dismantle”) NSR and PSD (Hansen 2007; Devine 2004,
130-149). At first, the strategy employed by the Bush administration was to stop the
spat of NSR enforcement proceedings that had been initiated in the waning years of
the Clinton administration. The strategy drew the ire of numerous high level EPA
staffers. Eric Schaeffer, the Director of the Office of Regulatory Enforcement at the
EPA at the time, said, “Most of the projects our cases targeted involved big
expansion projects that pushed emission increases many times over the limits
allowed by law,” and John Walke, an attorney for the EPA, expressed disbelief that
industry was challenging these enforcement efforts, exclaiming, “People like me and
others at EPA looked at [the power companies] as if they were delusional” (qtd. in
Devine 2004, 135). Even Bush-appointed EPA administrator Christine Todd
Whitman defended the enforcement proceedings, claiming that the Bush
administration’s strategy would “undercut the ongoing Clinton-era lawsuits—many
of which had merit” (Becker and Gellman 2007). In the end, the administration took
credit for the settlement of many of these cases, but the cases were probably only
40
settled because of “the career civil servants at the Department of Justice and EPA
who, despite the anti-NSR emanations from the White House, have persisted in
enforcing the law” and because of the work of Eric Schaeffer’s Office of Regulatory
Enforcement, where attorneys worked 70-hour weeks to develop cases in
anticipation of a hostile Bush administration (Devine 2004, 144). Overall, the Bush
administration’s efforts to derail enforcement were only marginally successful.
Feeling the moment of opportunity slip away, the Bush administration
decided to change strategy, ultimately producing rules which dismantled NSR in
2003 and significantly cutting pending enforcement cases (Devine 2004, 145). The
administration’s and industry’s strategy ultimately led to Whitman’s resignation and
to her replacement by Michael Leavitt, a more reliable industry advocate (Becker
and Gellman 2007). Under Leavitt, the Bush administration and industry advocates
successfully pushed through a 2003 overhaul of NSR which softened the regulatory
requirements of NSR and exempted companies from NSR “whenever upgrades to
their equipment amounted to less than 20 percent of the replacement cost of the
equipment,” effectively making “perennial repairs of old equipment a more attractive
alternative in many cases than its outright replacement” (Janofsky 2006). Despite
this radical change in NSR policy, the D.C. Circuit Court of appeals struck down the
revisions in an opinion joined by both Democratic and Republican judges in the case
New York v. Environmental Protection Agency (2006).
The battle over NSR and PSD did not end there. One pending NSR/PSD
enforcement case, Environmental Defense v. Duke Energy (2007), concerned highly
41
technical issues of statutory interpretation, but was nonetheless crucial in the
insulation of the EPA from the Bush administration. The case involved Duke
Energy, one of the nation’s largest utility companies, and their modification of 29 of
their power plants without acquiring PSD permits from the EPA according to the
Clean Air Act’s provisions. The dispute hinged on the definition of “modification,”
Duke Energy arguing that congress had intended PSD to use the same definition as
the very clear one for New Sources Performance Standards, namely that a
modification meant a change that “would increase the rate of discharge of pollutants
measured in kilograms per hour” (Environmental Defense v. Duke Energy [2007], 5).
The EPA had long used a slightly different definition for PSD, defining modification
as an increase in annual emissions compared with the average of the previous two
years (Environmental Defense v. Duke Energy [2007], 5). So when Duke Energy
modified its plants without a permit and increased annual emissions, the EPA and
several environmental groups brought a lawsuit against the company. Duke Energy
pointed out that, because they had increased hours of operation in addition to making
modifications, the rate of discharge of pollutants per kilogram hour had not
increased. At the District Court level and the 4
th
Circuit Court of Appeals, Duke
Energy won the case on the grounds that congress had intended for the definition of
modification to be the same under the NSPS program and PSD program, and since
the Clean Air Act clearly defined modification on the hourly standard for the NSPS
program, the logical conclusion was that companies need not seek PSD permits if, in
the process of modification, there was no hourly increase in the volume of pollutants
42
emitted (Environmental Defense v. Duke Energy [2007], 7). In October of 2005,
between the 4
th
Circuit ruling and the ultimate appeal to the U.S. Supreme Court, the
Bush administration showed support for Duke Energy’s position by using the EPA
leadership to propose a formal rule change to NSR which would “allow utilities to
sidestep the Clean Air Act’s New Source Review permit program if they can project
a plant’s emissions will not increase on an hourly basis as a result of modifications at
the facility,” but the rule change was postponed while the litigation was pending
(Hansen 2007). On April 2, 2007, the Supreme Court issued a unanimous opinion
overturning the 4
th
Circuit’s decision in what commentators hailed as a huge victory
for environmental advocates. Justice David Souter wrote the opinion of the court,
and noted that nothing in the Clean Air Act could be construed as precluding agency
discretion to promulgate different definitions of modification in different programs.
Relying on another case of statutory interpretation which established that words in
the same statute cannot necessarily be assumed to mean the same thing, Robinson v.
Shell Oil Co. (1997), Souter argued,
It is true that the Clean Air Act did not merely repeat the term
“modification” or the same definition of that word in its NSPS and
PSD sections; the PSD language referred back to the section defining
“modification” for NSPS purposes. But that did not matter in
Robinson, and we do not see the distinction as making any difference
here. Nothing in the text or the legislative history of the technical
amendments that added the cross-reference to NSPS suggests that
Congress had details of regulatory implementation in mind when it
imposed PSD requirements on modified sources…. (Environmental
Defense v. Duke Energy [2007], 11)
Environmental Defense v. Duke Energy can be interpreted as just one more case in a
lineage of case law promoting administrative agency discretion. In Chevron v.
43
Natural Resources Defense Council, the Supreme Court had reinforced the idea that
agency implementations of vague statutory requirements are to receive deference
from reviewing courts assuming that the implementation is based on a permissible
reading of the statutory commands. But when viewed in conjunction with events
immediately following the Duke Energy decision, Duke Energy must be seen as
court protection of the EPA’s NSR regime, not as abdication. Immediately after the
Duke Energy decision, the EPA, led on by the Bush administration, revived its
proposed revisions of NSR which would have established the hourly emissions test
rule across the board, even over PSD, thus rendering the Duke Energy case moot
(Hansen 2007). Environmental groups mobilized for a fight, and not surprisingly,
the fight remained a court battle. Finally, in early May, the Supreme Court denied
certiorari in EPA v. New York (2007), an appeal of the 2006 D.C. Circuit Court of
Appeals case that had nixed the Bush administration’s proposed rule changes for
NSR when they had first emerged in 2003 (“Supreme Court declines…” 2007).
Though a decision to deny certiorari is not technically taken as a statement on the
merits of any case, it was clear that a majority of justices were satisfied with NSR.
Ultimately, after years of litigation and attempted changes to the program, NSR
remains essentially the same relatively environmentally friendly program that it was
at the close of the Clinton administration.
On other fronts of the Clean Air Act battle, the Supreme Court has used its
power proactively to protect the civil servants of the EPA from the Bush
administration’s attempts to scale back air pollution regulation. The rising level of
44
carbon dioxide, largely driven by power plant and vehicle emissions, has made
global warming a particularly important issue under the Clean Air Act. As a matter
of fact, the EPA had long considered promulgating policy to deal with this growing
threat, even during the George H.W. Bush administration (Monastersky 1989, 183).
Nevertheless, when the George W. Bush administration and the EPA leadership
declined to begin regulating after a petition by several environmental groups and
states, the issue of global warming and the EPA’s role in dealing with it became an
issue for the courts to review. The case Massachusetts v. EPA (2007) first went to
the D.C. Circuit Court of Appeals, where EPA’s decision not to regulate was upheld,
and was subsequently brought to the Supreme Court (Massachusetts v. EPA [2007],
11-12). In a 5-4 decision, the Court reversed the Circuit Court ruling and awarded a
major victory to environmental advocates (Barnes and Eilperin 2007). Writing for
the majority, Justice Stevens argued that “refusals to promulgate rules
are…susceptible to judicial review, though such review is ‘extremely limited’ and
‘highly deferential’” (Massachusetts v. EPA [2007], 25), but on the merits of the
case, the majority decided that carbon dioxide was a pollutant under the broad
definition of the Clean Air Act and that the reasons the EPA had given for denying
the petition were not enough to justify the traditional deference given to agency
decision-making. Most commentators noticed that, much like in the Duke Energy
decision issued on the very same day, the Court made sure to pay dues to Chevron v.
NRDC and its prescription of judicial deference to agency discretion. But in
Massachusetts v. EPA, the Court followed its restatement of the administrative law
45
with what could hardly be called a deferential review: instead, they forced EPA to
“demonstrate that [they] could not form a reasoned scientific judgment as to whether
greenhouse gases contribute to global warming,” a generally high standard given the
wealth of evidence that had been amassed over the years (Watts and Wildermuth
2007, 14). The noticeably demanding judicial review suggests that agencies like the
EPA, though they theoretically and jurisprudentially enjoy vast administrative
discretion in rulemaking, are actually susceptible to exacting requirements of
scientific and policy analysis—the kind that only experts can really provide. Viewed
together, the Duke Energy case and Massachusetts v. EPA are a coherent restatement
of the state of administrative law: in the latter, the EPA had exceeded its
discretionary authority by ignoring scientific and policy expertise, and in the former,
the EPA acted within its zone of discretionary authority by leaving NSR as it was
and as scientific experts advised. Indeed, the thesis under examination here—that
courts often act to protect the autonomy of career civil servants and experts in
executive agencies in the face of threats by outside actors such as the president—
seems bolstered by this combination of cases and their aftermath. After the Court
issued its opinion in Massachusetts v. EPA, the EPA did not take immediate action,
so California, the only state allowed to regulate the environment in a manner
exceeding the national standards set by the EPA (provided it receives a waiver to do
so), began to develop a policy response to the global warming situation on its own.
California’s law regulated automobile emissions, and the law survived a federal
court review (Bensinger 2007) only to be denied a waiver by Stephen L. Johnson, the
46
new EPA administrator and loyal Bush appointee (Duncan 2008). Johnson’s
decision enraged many EPA staffers who believed that the scientific evidence for
global warming was overwhelming and that the EPA leadership was acting in an
overtly political manner. Shortly after the waiver denial, sources inside and outside
the agency went public with this displeasure with the administration’s approach to
the global warming problem in general and with the denial of the waiver in
particular: one staffer noted that “California met every criteria…on the merits. The
same critieria we have used for the last 40 years on all the other waivers. We told
[Johnson] that. All the briefings we have given him laid out the facts” (qtd. in
Wilson 2007). Like so many administrators before him, Johnson willingly created a
rift between himself and the technical, scientific, and legal staffers at the EPA, and as
in most cases before, the result has been an influx of litigation (from 16 states) that
Johnson will likely lose (Wilson 2007; Wilson and Simon 2007; Hansen 2008).
Indeed, legal analysts have argued that Johnson’s decision to deny the waiver must
pass several different legal tests: it must be proven that “California’s request was
arbitrary and capricious,” that “state standards and enforcement would present an
unreasonable risk to public health,” and that “the state doesn’t need such standards to
meet compelling and extraordinary conditions” (Clayton and Wood 2008). Even if
Massachusetts v. EPA has not technically forced agency action on the issue of global
warming yet, it certainly has catalyzed and intensified the conflict between political
appointees and career staffers within the EPA, and now that that conflict has been
47
made public, it certainly makes litigation easier for those looking to stop the Bush
administration’s lollygagging on the issue.
As important as these court cases would be by themselves, it is also crucial to
understand the response these cases have elicited deep within the EPA. Eric
Schaeffer, the former head of the Office of Regulatory Enforcement during the
Clinton and George W. Bush administrations, reports that the professional staff of
the EPA is “definitely feeling better after the recent court decisions” (E. Schaeffer,
personal interview, February 15, 2008). Indeed, Schaeffer suggests that internal
debate between the scientists and lawyers at the EPA and the politically appointed
staff are common, and that over time, scientists and lawyers overcome their initial
reticence to work against their political bosses. When they do, they frequently feed
information to interest groups and litigants who are challenging agency action or
inaction, and when this tactic is successful (as it has been recently), it only
encourages more circumvention of the political staff and more direct and public
clashes (E. Schaeffer, personal interview, February 15, 2008). They can and do
combine this subversive technique with “slow walking,” which can create the delay
necessary to prepare legal challenges to new rules or policies (J. Walke, personal
interview, February 28, 2008). In short, the professional staff, thoroughly socialized
into a legalistic and adversarial system, know precisely who to turn to for help when
the going gets tough—the courts.
48
Discussion
Our examination of the EPA’s responses to various environmental issues
under the Clean Air Act has revealed much of interest. It is worth mentioning that
the few cases I have reviewed are just the tip of the iceberg: courts often contributed
to bureaucratic autonomy on issues like fine particle pollution and airborne
emissions standards (Hansen 2005; Eilperin 2006) and, recently, on mercury
emissions (Barringer 2008). A whole slew of Clean Air Act cases have been heard
by appellate courts during the Bush administration’s tenure (see Appendix A), and
though there were successful challenges under more environmentally friendly
administrations, the evidence clearly shows that the courts are striking down the
Bush administration’s rules at a much higher rate (J. Walke, personal interview,
February 28, 2008). Indeed, as one professor noted after the recent mercury
emissions ruling, “it does seem like the E.P.A. is on a bit of a roll with the courts”
(qtd. in Barringer 2008). It is worth noting that this “roll” is not a partisan one since
the courts striking down Bush administration sponsored rules are not known as
bastions of liberalism—the mercury ruling and New York v. EPA ruling were both
joined by Judge Janice Rogers Brown, a Republican on the D.C. Circuit Court of
Appeals, and some of the most insistent judges (in particular, Reagan appointed
Judge David Sentelle) have been Republicans (E. Schaeffer, personal interview,
February 15, 2008). The trends documented here suggest that this is a deeply rooted
development that goes well beyond any kind of partisan game.
49
Of primary importance for the theory of this paper is the changing role of the
courts vis-à-vis the EPA. Courts were originally only one part of a larger toolkit
meant to ensure that agencies like the EPA would follow the wishes of the elected
branches and not fall into some kind of capture. But after courts established an
integral role in the agency decision review process, the threat to agency functioning
increasingly came from the president, and the courts have responded by changing
their role accordingly. The original arrangement of power resulting from the “new
administrative law” of the 60s and 70s set the courts in charge of the control of
bureaucratic complexes, and more often than not, this meant that the courts would
exercise significant and sometimes unanticipated control over these bureaucracies
and their regulatory policy, often incurring the resentment of both liberals and
conservatives who argued that the courts were filled with “judicial activists” who
usurped policymaking power by either stifling agencies or micro-managing policy
details (Melnick 1983, 9-13). In short, according to Richard Stewart,
Faced with the seemingly intractable problem of agency discretion,
courts have changed the focus of judicial review (in the process
expanding and transforming traditional procedural devices) so that its
dominant purpose is no longer the prevention of unauthorized
intrusions on private autonomy, but the assurance of fair
representation for all affected interests in the exercise of the
legislative power delegated to agencies. (qtd. in Melnick 1983, 12)
As we have seen, over time even this evolution evolved into something else. Courts
have since simultaneously expanded the legal foundations of discretion of agencies
(thus seemingly opening the door to easier presidential meddling) and also tightened
the requirements for transparent professional and scientific rulemaking (thus
50
augmenting the strength of career civil servants, scientists, and lawyers within the
EPA and engendering organizational capacities to deal with the exacting
requirements of the litigious and adversarial norm). The result has been the
development of a litigation-fostered regime of bureaucratic autonomy.
Such a finding is important in two ways. First, it suggests that principal-
agent models have made a grave mistake in discounting any systematic role for
courts. Courts have clearly contributed to the evolution of the dynamics of
bureaucratic control, and yet the literatures on principal-agent models and the
politics of structural choice have generally downplayed the role of courts in these
dynamics. Thus, this case gives us reason to believe that the traditional models need
to be revisited and the role of courts in fostering bureaucratic autonomy and
transcendence of a simple principal-agent relationship taken seriously. Second, the
development traced in this chapter is a classic example of some of the key concepts
in the literature on American political development.
51
Chapter Three
Military Lawyers, Domestic Courts, and Military Tribunals
The second case study in this thesis is more circumscribed in scope. Part of
the reason for this is that detention and trial of enemy combatants is a more unique
case of litigation-fostered bureaucratic autonomy. Whereas the EPA was established
as part of a vast regulatory reorganization, the development of the military justice
system in general, and of military tribunals in particular, has been ad hoc and
idiosyncratic. That this case is more narrow and unique is not necessarily a defect:
though the EPA developed its autonomy in an ironic shift of historical and political
pressures, the military tribunals case reveals that similar dynamics are occurring in a
very different venue. In case study terminology, the two case studies in this paper
are “most different” cases, and to the extent that they reveal similar processes, they
simply show how pervasive and deeply rooted the mechanisms and dynamics of
litigation-fostered bureaucratic autonomy are.
The Foundations of Military Tribunals
In the midst of World War II the FBI apprehended eight German “saboteurs”
after one of them decided to turn himself in. Originally, it was “assumed that the
men would be arraigned before a district judge and tried in civil court” (Fisher 2003,
3). Because no acts of sabotage had actually been committed and because the
maximum penalty for a conviction on a charge of sabotage was a thirty-year
52
imprisonment, President Roosevelt, with the advice of his Attorney General, issued
Proclamation 2561 to establish a military tribunal for these eight “suspects” (Fisher
2003, 4-6). The case of the Nazi saboteurs eventually reached the Supreme Court in
the case Ex parte Quirin (1942), but the Court upheld the unilateral action of
President Roosevelt, and the accused detainees were quickly tried in a due-process
deficient tribunal and executed (Fisher 2003, 19).
The story of the Nazi saboteurs is hardly an isolated instance of presidential
power over military operations in general and over military tribunals in particular.
During the Civil War there was Abraham Lincoln’s use of military tribunals and
Chief Justice Roger Taney’s ill-fated attempt to restrain Lincoln in the case Ex parte
Merryman (1861) (Rehnquist 1998, 36; Fisher 2005, 55-56; Farber 18-19). The
history of military tribunals has been the history of presidential power and
management. The Bush administration’s foray into military tribunal formation has
sometimes been argued to be just the latest chapter in this long saga, but an equally
plausible interpretation holds that the degree of frustration of presidential will in this
instance is unprecedented in the history of military tribunal policymaking. As we
will see in the case study offered here, there is good reason to believe that the cause
of the frustration of the Bush administration’s military tribunal policy is the rise of
litigation-fostered bureaucratic autonomy at the Department of Defense, and in
particular, in the military justice wing of the DOD. Much like in the case of the
EPA, courts and litigation-based culture in agencies have created the need for
organizational capacity which has had an insulating effect for the military justice
53
community, and has created the networking necessary to bring issues in dispute with
the so-called “commander-in-chief” into a public, adversarial forum where autonomy
may freely develop.
The Development of the Military Justice Bureaucracy
Though military tribunals have certainly been placed under the jurisdiction of
the Uniform Code of Military Justice and hence under the jurisdiction of the military
justice system, military tribunals are generally a rare occurrence. As we shall see,
most of the development of the military justice system and its professional staffers
occurred around a more familiar type of military justice issue—court-martial.
As late as World War I the military justice system was still operating under
the same general Articles of War that had emerged in early decades of the republic,
and these rules created an institutional ethos that some believed was “reactionary and
monolithic” (Generous 1973, 9). But under the leadership of a few entrepreneurial
administrators and congressmen who sought to “divorce the court-martial from the
commanding officer,” create a place for “lawyers, civilianlike rules of procedure and
evidence” and institute a complex system of appellate review to filter out whatever
remnants of past attitudes still remained,” new articles of war were proposed to
professionalize the military justice bureaucracy (Generous 1973, 9). Though they
failed to pass a bill at their ideal preference point, they managed to pass a
compromise that ended up being the 1920 Articles of War, which, though limited in
54
scope, did create the foundations of a highly rationalized system of military justice
(Generous 1973, 9-10).
After World War II, it became increasingly apparent that the military justice
system was failing to uphold modern expectations of justice. In addition to the
sordid dealings in the military tribunal cases Ex parte Quirin and In re Yamashita
(1946), a series of investigations uncovered serious deficiencies in the court-martial
system. For one, allegations of discrimination had become increasingly disturbing.
The result was a spat of legislation pushing the military justice system into even
more professionalized routines and rules. For instance, the Elston Act of 1948
“provided for greatly increased participation by lawyers at all stages and in all roles,”
beat civilian courts to the right to counsel by providing that “the legal qualifications
of the defense counsel must be at least equal to those of the prosecutor and that both
should be lawyers certified by the JAG,” and, most importantly, created an Army
Judge Advocate General Corps who were explicitly charged with administering
military justice and who were in many ways siphoned off from the rest of the
military. The act also established a Court of Military Appeals (Generous 1973, 22-
26). Even the Elston Act had its critics, who mostly targeted its application only to
the Army and who wanted a more coherent cross-branch set of rules. The result was
the Uniform Code of Military Justice (UCMJ) passed in 1951, under which, in the
words of the Court of Military Appeals ten years after its passing,
“Members of the legal profession within the military establishment
are made primarily responsible for the elimination of the abuses
formerly affecting military justice, and are relied upon for the
establishment of a court-martial system truly judicial in viewpoint,
55
and administered in accordance with established American concepts
of jurisprudence, under the guidance of a civilian tribunal serving as
the court of last resort.” (qtd. in Generous 1973, 52)
Indeed, several aspects of the UCMJ are worth mentioning. Because the drafters of
the UCMJ were extremely concerned about inappropriate “command influence,”
they ended up providing for the inclusion of a lawyer whose role was to
independently oversee the process from pre-trial hearing to final decision and created
a Court of Military Appeals which was run by civilians (Generous 1973, 51).
The new military justice system was clearly designed to be comprehensive;
civilian courts had traditionally maintained a “hands-off policy” regarding military
justice ever since a case in the 19
th
century called Dynes v. Hoover (1857), and when
the civilian courts did enter the debate, they usually did so to reinforce the status quo
(Generous 1973, 165-173). Indeed, the clear division of the military justice system
and the civil justice system can be traced back to the founding of the republic, and
even in practice the Supreme Court “consistently deferred to this unique system
designed to respect the unique demands of warfare and of the role of the military”
(Sulmasy and Yoo 2007, 1837). It is clear that there was a “belief of the drafters of
the UCMJ that the federal courts, particularly the Supreme Court, would continue
their traditional hands-off policy” (Generous 1973, 173), but that traditional barrier
has been overcome to a certain extent, and military lawyers, military courts, and
civilian courts have become more accustomed to working with each other over time
(Generous 1973, 184; Sulmasy and Yoo 2007).
56
Overall, the progressive development of the military justice system has been
rather dynamic, and it has undoubtedly contributed to the professionalization of
military lawyers and internalization of procedures, to differentiation from the
dominant military ethos, and to greater interaction with civilian courts and civilian
notions of justice, especially during and after the war in Vietnam: indeed, “the
growth of the role of JAGs has been remarkable in the past thirty years, even more so
in the past decade. It has essentially gone unregulated” (Sulmasy and Yoo 2007,
1844). If there is any doubt about the extent of these developments, we will see
when we turn to an examination of the Bush administration’s attempt to remake
military tribunal procedures (an act usually quite easy for presidents in the past—e.g.
Ex parte Quirin and Ex parte Merryman) that the groundwork laid throughout the
twentieth century has led to a significant amount of litigation-fostered bureaucratic
autonomy. When the institutionalized and professionalized military lawyers are
threatened, they have recourse to civilian courts which have been likely to step in to
help.
The Bush Administration and Military Tribunals
Almost immediately after President Bush issued his order establishing a
baseline set of procedures for trying detainees captured in the war on terror, there
was substantial criticism of many of the procedures and a mad rush for influence in
tweaking them. Members of congress from both sides of the aisle were not consulted
and only learned of the plans after the story was reported in newspapers (Fisher
57
2005, 172). Murmurs of dissatisfaction with the Bush plans came not only from the
usual suspects—civil liberties groups and moderate to liberal congress people—but
also from pockets of the Bush administration itself. In particular, officials in the
State Department (including Secretary of State Colin Powell), numerous military
lawyers, and career attorneys in the Judge Advocate General offices raised serious
concerns about the lack of both consultation and congressional approval of plans for
military tribunals (Fisher 2005, 173-174). In the very early stages, the development
of the military order and the procedures for tribunals were “drafted by a small group
of ideologues in the Vice President’s Office.” When the military order was finally
issued, it “stunned [Secretary of State] Powell; the national security adviser,
Condoleeza Rice; the highest-ranking lawyer in the CIA; and many judge advocate
generals, or JAGs, the top lawyers in the military services.” The Chief Navy JAG
complained that he and other JAGs were “marginalized…. They didn’t want to hear
from us” (qtd. in Ball 2007, 52). Throughout the twentieth century, military lawyers
had moved the Uniform Code of Military Justice “into line with the due-process
standards of the federal courts, and senior military lawyers were proud and protective
of their system” (Golden 2004, 7). Several of the military lawyers assigned to the
detainees objected to the new procedures and to the appeals process even though it is
“highly unusual for military lawyers to publicly challenge the procedures adopted for
military trials” (Fisher 2005, 185). And there is reason to believe that these lawyers’
objections stemmed more from principled concerns than from obligations to defend
their clients: one, Maj. Michael Mori, believed that the tribunals had been
58
programmed to produce convictions, and he raised concerns that the lack of due
process in these tribunals would give other hostile nations precedent to treat U.S.
captives in a similarly troubling manner. Another, Lt. Cmdr. Charles Swift, “filed a
petition in federal court saying that the tribunals are illegal under U.S. and
international law” and argued that Bush lacked statutory authority for his plan and
that “the Constitution guarantees civilian court review over any proceeding in the
military court system” (Fisher 2005, 185-186). Despite these concerns, whereas
military lawyers had been “actively involved in supervising interrogations in the Iraq
war in 1991,” military lawyers and their concerns were “largely excluded” from
consultation, and the Bush plan looked much the same as it did in the original order
(Fisher 2005, 202). In essence, Bush had seemingly managed to begin interrogations
and tribunals without any substantive changes to his plan and without congressional
authorization.
On the torture debate, as well, military lawyers proved to be a major nuisance
for the administration. Beginning in 2003, a group of JAGs drew up alternative
recommendations for interrogation methods and stated concerns with the
administration’s novel procedures:
The common thread among our recommendations is concern for
service members. OLC does not represent the services; thus,
understandably, concern for service members is not reflected in their
opinion. Notably, their opinion is silent on the UCMJ and foreign
views of international law. The Working Group [must present] the
services’ concerns that the authorization of aggressive counter-
resistance techniques by service members will adversely impact the
following: a. Treatment of U.S. service members by Captors and
Compliance with international law; b. Criminal and Civil Liability of
DOD military and civilian personnel in Domestic, Foreign, and
59
International Forums; c. U.S. and International Public Support and
respect of U.S. armed forces; d. Pride, Discipline, and Self-Respect
within the U.S. armed forces; e. Human Intelligence Exploitation.
(qtd. in Ball 2007, 68)
Similarly, Maj. Gen. Jack L. Rives, deputy JAG for the Air Force, complained that
“the use of [these] techniques simply is not the way U.S. armed forces have operated
in recent history” and that the new policies are “contrary to military training” (qtd. in
Ball 2007, 69). As these quotations clearly demonstrate, there was a growing schism
between high level political appointees and military lawyers on interrogation policy.
Indeed, the way that these JAGs referred to the armed services suggested a well-
developed notion of the armed services as semi-autonomous and as having interests
of their own apart from those of the administration. As we shall see later, this is
quite an important development.
As it turns out, tribunals for most of the detainees were indefinitely delayed.
Some detainees were charged in civilian courts, but many were simply “designated
‘enemy combatant’ and held incommunicado without access to an attorney” in a
“Kafkaesque sort of purgatory” (Fisher 2005, 220-221; Golden 2004, 1). Delay
became the administration’s answer to increasing calls for reconsideration of its
procedures. The answer to this new strategy was to turn to the courts, and it was
JAGs who drove this process by going “in secret to private attorneys to urge them to
bring suit on behalf of detainees held at Guantanamo Bay” and then joining in the
suits in federal civilian courts (Sulmasy and Yoo 2007, 1833; Yaroshefsky).
Although cases were filed in lower courts around the nation, three cases are of
particular importance since they ultimately made their way to the Supreme Court:
60
Hamdi v. Rumsfeld (2004), Padilla v. Rumsfeld (2004), and Rasul v. Bush (2004).
The petitions for certiorari in Hamdi and Rasul were granted in October of 2003, and
it was not long before amicus curiae briefs were filed by military lawyers, retired
JAGs, and other experts on the law of war (Fisher 2005, 185-186; Ball 2007, 90-
108). On June 28, 2004, the Supreme Court released its opinions for all three cases.
In Hamdi, the Court ruled nearly unanimously (8-1) that U.S. citizens captured
abroad had a constitutional right to challenge their classification as an “enemy
combatant” before a neutral decision-maker (Yin 2007, 118; Ball 2007, 118). In
Padilla, the Court opted not to reach the question of whether the administration was
authorized to detain Padilla, instead deciding on jurisdictional grounds that Padilla
had filed in the wrong court (Fisher 2005, 237). Both Hamdi and Padilla were U.S.
citizens detained within the U.S., and the difference between the two cases was that
Hamdi had been apprehended abroad and Padilla had been apprehended in Chicago.
Rasul differed from both of them in that it was brought to the courts on behalf of
non-U.S. citizens detained at Guantanamo Bay in Cuba. This difference mattered
tremendously since a 1950 Supreme Court case called Johnson v. Eisentrager (1950)
had established that “no court had authority to extend the writ of habeas corpus to
aliens held outside the sovereign territory of the United States” (Fisher 2005, 239).
Despite the precedent, a six-person majority ruled against the administration.
Writing for the majority, Justice Stevens read Eisentrager liberally and concluded
that nothing “categorically excludes aliens detained in military custody outside the
United States from the ‘privilege of litigation’ in U.S. courts” (qtd. in Fisher 2005,
61
248). After Rasul, the District of Columbia Circuit Court of Appeals ruled in Al
Odah v. U.S. (2004) that detainees were legally entitled to counsel in their habeas
battles (Yaroshefsky, 8).
Taken together, these cases marked a turning point in the battle over military
tribunals. Up to this point, critics within the Bush administration had been almost
entirely ignored whenever they challenged the policies generated by the Office of
Legal Counsel and Vice-President Cheney’s inner circle of conservative ideologues.
Though this trend of exclusion continued in the months immediately following the
Supreme Court cases (Lewis 2004), compromises and rewriting of some of the most
controversial provisions of the Bush procedures did eventually occur (Golden and
Schmitt 2005). One senior military lawyer optimistically recounted that “the results
may not be very different, but the discussions have changed…and there are more
discussions” (Golden and Schmitt 2005). In addition, the administration did respond
to the Court’s decisions by permitting lawyers to meet with detainees (thus
addressing one of the primary complaints of those within the military bureaucracy),
and by setting up Combat Status Review Tribunals (CSRTs) which, although widely
thought to be a “sham,” purportedly gave detainees a chance to challenge their
detention (Fisher 2005, 249-250). These Combat Status Review Tribunals have
come under serious fire and have recently been targeted by waves of litigation
filtering through the lower courts. For instance, the courts have been flooded with
around 150 appeals of CSRT decisions to date, and the D.C. Circuit Court of
Appeals gave a major boost to these efforts when it ruled on July 20, 2007 that the
62
Pentagon would have to “come up with considerably more information about
detainees than it had planned to offer in court when it defended CSRT findings” in
the cases Bismullah v. Gates (2007) and Parhat v. Gates (2007) (Denniston 2007a).
Despite many of these changes from 2004-2005, military lawyers and critics
of the Bush administration still clamored for greater due process rights and greater
protection against torture for alien detainees. The product of this clamoring was the
Supreme Court’s decision in Hamdan v. Rumsfeld (2006). Perhaps the most
important aspect of this case is that it probably would not have even occurred were it
not for the efforts of Lieutenant Commander Charles Swift, a member of the Navy
Judge Advocate General Corps, who “violated the terms of his appointment” by
acting as a liaison with civilian attorneys to file a writ of habeas corpus under the
authority of Rasul v. Bush and by going public with Hamdan’s case (Yaroshefsky,
9). Although the case itself is a complex decision relying on abstruse arguments
about statutory interpretation (as are the decisions in most of these cases), a five-
member majority including Justices Stevens, Kennedy, Souter, Breyer, and Ginsburg
argued, “Contrary to the Government’s assertion, however, even Quirin did not view
the authorization as a sweeping mandate for the President to ‘invoke military
commissions when he deems them necessary’” (Hamdan v. Rumsfeld [2006], 29).
By saying this, the Court established that military tribunals must be explicitly
established by Congress. Building on this argument, the Court then claimed that
nothing in the Authorization for the Use of Military Force or the Detainee Treatment
Act could be read as altering the Uniform Code of Military Justice (UCMJ) to allow
63
for anything besides “a general Presidential authority to convene military
commissions in circumstances where justified under the ‘Constitution and the laws,’
including the law of war” (Hamdan v. Rumsfeld [2006], 29-30). Since the tribunals
set up by the Bush administration and the charges against Hamdan differed from the
UCMJ and from the law of war as codified by the Geneva Convention Common
Article 3, the Court ruled that the tribunal system was illegal (Tushnet). However, in
a concurring opinion Justice Breyer suggested that “nothing prevents the President
from returning to Congress to seek the authority he believes necessary.” As it turns
out, that is just what the Bush administration did, and the result was the Military
Commissions Act (MCA).
Though it is arguable that the MCA mostly recreated the Bush
administration’s plans (Yin 2007, 130-131; Dorf 2007; Franck 2007; Tushnet), a
detailed look at the time between Hamdan and the MCA reveals that, in fact, the
Court once again inspired significant consultation with military lawyers which
resulted in practical changes in detainee policy. In the months after Hamdan, Bush
advanced several new plans for tribunals, but top military lawyers again dissented en
masse. In a Senate hearing, military lawyers voiced their concerns about the new
plan’s evidentiary rules, process of appeals, and implications for treatment of U.S.
soldiers captured abroad (Sulmasy and Yoo 2007, 1832). Military lawyers found
allies in Republican Senators Lindsey Graham (a military judge himself), John
McCain, and John Warner (Smith 2006). These three senators eventually entered
into negotiations with the Bush administration, all the while being fed information by
64
military lawyers. The result was, understandably, a compromise: the MCA passed
with a habeas corpus suspending provision. However, the senators (and the military
lawyers aiding them) managed to make some significant changes to the tribunal
plans: language was incorporated binding the President to observe the human rights
obligations in Geneva Conventions Common Article 3 (something military lawyers
had fought for since the original military order authorizing tribunals), and the act
adopted “a stronger prohibition on use of testimony obtained by torture of a
witness,” a greater right to “ ‘examine and respond to’ the evidence,” and “broader
discovery rights” (Katyal 2006, 97-98). All of these were major victories for
military lawyers who had asked the administration for these changes since 2001 (see
Appendix B).
It is also important to note that even now the courts are still inextricably
interwoven in detainee policymaking. The Supreme Court rarely reconsiders
petitions to hear cases after rejecting them, but that is just what the Court did when it
decided to hear two cases—Boumediene v. Bush (2007) and Al Odah v. U.S.
(2007)—which raise questions about the constitutionality of the MCA’s habeas
corpus suspension (Denniston 2007b). Although these cases have not been decided
yet, their effect is already being felt at some of the lower courts where judges have
often refused to hear the administration’s motions to dismiss pending the decisions
(Denniston 2007c).
65
Discussion
The foregoing case study, like the study of the EPA, reveals that courts have
become inextricably interwoven in bureaucratic politics. In this case, we see that
mid-twentieth century revisions to the military justice system created an institution
with its own distinctive norms, patterns of behavior, and organizational capacities,
and that, over time, civilian courts have developed relations with that system which
have evolved into an autonomy-protecting function. Indeed, the case study shows
that civilian courts have recently overcome their traditional deference to the
decisions of military courts and the Department of Defense directly because of the
calls of professionals within the bureaucracy for it to do so. Though this case might
be interpreted as a self-referential case—that is, of course we would expect
judicialization of the military justice system—the move of civilian courts to assert
greater prerogative to review military courts’ decisions is a clear departure from
normal protocol.
In the first great attempt by a president to meddle with the military justice
system since World War II, the extent of these dynamics of bureaucratic autonomy is
made quite apparent. Even in a time when both the president and congress are
willing to make major changes on a very popular issue of law and order in the war on
terror, the military justice system has resisted reform by allying with civilian courts.
Once again, the principal-agent model of bureaucratic control is revealed to be too
simplistic and to have underestimated the extent to which judicial review can
66
complicate things by giving a voice to professionals in a bureaucracy (Sulmasy and
Yoo 2007).
In addition, though the metaphor of capture was never used in debates about
the military justice system, the idea of inappropriate command influence was a
central concern in the formative moments of the military justice system. Civilian
court review and a variety of other institutional checks on the potential for
unchecked behavior by the military system reflected a pervasive fear that the military
justice system could not be trusted. Over time, we have seen that these same
institutional checks have evolved to serve as institutional checks on political
encroachment by presidents. Even at a time when theories of executive power over
war-making are prominent, the courts have generally been able to protect the military
justice system from major revision.
67
Conclusion
If we ignore for a moment that the military justice system, though
undoubtedly a part of the administrative or executive apparatus, is not, technically
speaking, a regulatory agency, these case studies echo what socio-legal scholars have
been saying for quite a while about the regulatory state. Robert Kagan has noted that
the modern American policy/regulatory regime is distinctively legalistic and
adversarial and that bureaucratic rules are “often enmeshed in political controversy
and conflict, as rival interests and politicians battle over regulatory appointments and
strive to lock their policy preferences into law” (2001, 187). Driven by
fragmentation of political institutions, uncertainty, modern exigencies and social
problems, and plenty of legal professionals and activists, the modern American
policy/regulatory regime has its roots in the idea that contestation benefits everyone
(Kagan 2001; Barnes 1997). The case studies in this thesis reinforce these general
claims by showing how fear of regulatory capture or fear of inappropriate command
influence drove politicians to program in a role for adversarial litigation and court
review, but these case studies also take this understanding of the modern
bureaucratic state one step further by uniting this literature with the literature on
principal-agent models, the politics of structural choice, and bureaucratic autonomy.
These latter branches of the literature have unfortunately not considered the role of
courts in the dynamics of bureaucratic autonomy and/or control, and the former
socio-legal and courts literature has not generally focused on the dynamics of
68
bureaucratic autonomy. The case studies offered here make it clear that—no matter
what one might think about the evidence I have pulled to support the larger
hypothesis that courts have been successful in protecting bureaucratic autonomy and
promoting apolitical, professionalized rulemaking—courts are an important actor in
the rulemaking process and, at the very least, are significant in the dynamics of
bureaucratic control.
A complementary finding is that the role of courts is not static. In both cases,
courts and adversarial rulemaking and implementation were programmed into
organizational structures in an attempt to constrain bureaucratic agencies and ensure
smooth political control of these administrative structures. But in both cases, the
fostering of bureaucratic autonomy occurred only as these original functions were
subjected to new social forces. The best explanation for this kind of change can be
found in the literature on institutional change in the concepts of conversion and
layering. When “barriers to authoritative change are high but obstacles to internal
adaptation are low,” the situation is ripe for conversion of behavior of current
institutions from their original purpose, and when “barriers to authoritative change
are low while barriers to internal adaptation are high,” layering of new institutions or
policies on top of older ones is likely (Barnes 2008). As we have seen, courts were
originally designated as overseers of the administrative state, put in place to ensure
that agencies remained accountable to the elected branches. No law or directive
explicitly changed the purpose of the courts in this schema; instead, the new role of
the courts in bureaucratic politics emerged through internal adaptation and evolution.
69
But these case studies also reveal that the process is driven by the layering of new
policy initiatives by the elected branches which can cause unanticipated growth of
bureaucratic capacity. By passing the Clean Air Act and articulating standards in
subsequent amendments, the elected branches actually catalyzed organizational
responses in the EPA and spurred on the conversion from judicial oversight to
litigation-fostered bureaucratic autonomy. And when new political administrations
attempt to layer new interpretations of these crucial statutes on top of old
interpretations, they are frequently surprised to see that internal adaptations to older
bureaucratic regimes are highly resistant to the merely formal changes they are
attempting to promulgate. Indeed, one of the fundamental points of this thesis is
that we cannot fully appreciate the administrative state or even begin to understand
its effect on daily life until we realize that the present arrangement of power is
simply the confluence of past political order subjected to new social developments.
As some scholars doing work in American political development have noticed, “at
any given moment, the different rules, arrangements, and timetables put in place by
changes negotiated at various points in the past will be found to impose themselves
on the actors of the present and to affect their efforts to negotiate changes of their
own” (Orren and Skowronek 2004, 11). Orren and Skowronek’s idea of
“intercurrence” as a method of understanding the link between change and continuity
in American politics is a useful tool when trying to understand the administrative
state—both where it came from and where it is going.
70
Moreover, using the concept of intercurrence to understand the evolution of
the modern administrative state helps answer one of the more challenging critiques
of the kind of process-tracing research that this thesis has engaged in: that is, the
problem of endogeneity. Once we understand that the present order is a unique
result of past orders overlapping with present social pressures, we realize that clear
directional hypotheses are actually overly simplistic accounts of a very complex
world that is better described by thick description and process tracing. Indeed, “in a
nutshell: endogeneity is a feature of APD research, not a malady” (Orren and
Skowronek 2004, 188). The cases analyzed in this thesis demonstrate the
importance of this approach. Standard rational choice accounts, principal-agent
models, or other more traditional political science approaches to the study of
bureaucracy and/or courts would most likely miss the extraordinary and deeply
ironic development of litigation-fostered bureaucratic autonomy because they seek to
suspend time and deny the existence of intercurrent social, political, and historical
forces.
Embracing complexity need not mean giving up the search for patterns
(Burnham 1994), and the cases selected in this study have been selected because they
allow us to begin to isolate litigation-fostered bureaucratic autonomy as a coherent
trend across two cases which are both least likely cases for litigation-fostered
bureaucratic autonomy and which differ on the key explanatory variable of other
accounts of bureaucratic autonomy, balance of technical expertise. Because of the
variation on these key factors, we can begin to hypothesize that, under given
71
conditions which are relatively common in bureaucratic politics, courts will have a
major impact on the relative autonomy of agencies vis-à-vis the elected branches. In
fact, both case studies offered here support very similar patterns of development:
first, distinctively American cultural factors and worries about similar problems of
some form of “capture” of administrative bodies drove actors to institutionalize a
role for adversarial contestation and court oversight; second, courts cemented their
role in the rulemaking process by establishing ample precedent; third, courts
responded to new social forces (the rise of the politics of deregulation and the
administrative presidency) by utilizing the substantial amount of political capital
they had amassed over the years to protect institutionalized and politically
differentiated interests in various sectors of the administrative state. The dynamics
and mechanisms of litigation-fostered autonomy, as identified in this study, are thus
a combination of structural politics approaches with judicialization theories and path
dependency theories where courts are understood to be institutionally hardwired to
deal with policy issues in a “virtuous circle” in which each round in a “game” further
entrenches a normative and institutional structure which increases the power of the
courts to deal with future disputes (Stone Sweet 1999, 158). This process is
primarily driven by “increasing returns and path dependence,” meaning that the
courts find “positive feedback” and incentives to continue down a previously chosen
path after each round of decision-making (Stone Sweet 1999, 158; Pierson 2000,
253; Pierson 2004, 22). The study has also found that this spiral effect of judicial
power both causes and is fed by the development of institutional capacities—both
72
scientific/managerial (Carpenter 2001) and legal (Edelman and Suchman 1997)—to
deal with the adversarial nature of administrative rulemaking. Though the
mechanisms identified here are complex, they are not mere chaos: they are
predictable patterns of development and conversion, given easily identifiable social,
political, historical, and institutional facts. Of course, more work needs to be done to
substantiate these claims, but these case studies are valuable as a theory-building
exercise, a key component of any research agenda.
The data and analysis in this paper have centered on the complex of legal
actors—agency lawyers and interest groups—surrounding agency operation. It has
not given much systematic attention to the question of the role of judges in the new
dynamics of bureaucratic autonomy. Litigation, or even the mere threat of it, can be
important in its own right without the need for any kind of pattern of adjudication,
but discovery of a pattern of adjudication would certainly strengthen the model of
bureaucratic politics offered here and would shed light on debates about judicial
behavior which have long interested public law scholars. As the project develops, it
is worth examining the role of judges and courts in the dynamics of bureaucratic
autonomy. In addition to the obvious possibility that judges do not support
bureaucratic autonomy, we can tentatively hypothesize three modes of judicial
behavior which would promote bureaucratic autonomy to varying degrees. First,
judges might simply decide to defend agencies from encroachment based on a
partisan calculation—that is, by determining whether voting to protect bureaucratic
autonomy helps support partisan preferences on a case-by-case basis (call this the
73
“partisan model”). Second, judges might simply have stumbled into an autonomy
fostering role by the vicissitudes of fate—that is, by an unplanned response to the
institutionalization of legal structures documented in this paper (call this the
“judicialization model”). A third model might suggest that judges have internalized
a critical distinction between expertise and politics (a distinction deeply woven into
the history of the Progressive era and the 20
th
century) and have adjudicated cases
according to this distinction regardless of partisan inclination (call this the
“professional/political model”). As we have seen, the frequently confusing opinions
of usually political judges such as Janice Rogers Brown and others on the D.C.
Circuit suggest that the latter two models might have more validity than the first.
Indeed, as D.C. District Court Judge Patricia Wald once wrote, “A large proportion
of our cases (particularly administrative law cases) have no apparent ideology to
support or reject at all….For my part, I cannot even imagine having personal feelings
about the appropriate regulatory standards for ‘retrofitted cell-burners’ as opposed to
‘wall-fired electric utility boilers’…”(Wald 1999, 237). However, it will have to be
left to future research to further explore these tentative hypotheses since it will
require data very different from that collected in this paper. If completed, this future
research on the role of judges will help us answer a critical question: that is, if
bureaucratic autonomy is indeed growing, what is the balance of agency? Who is
driving the process? Though the story of the accretion of bureaucratic autonomy
seems institutional and sociological, it might also be driven by the behavior of judges
as well, and perhaps even by interaction between these variables.
74
If future research substantiates my tentative hypothesis that courts and judges
(in addition to parties to the litigation) have gradually internalized a belief in the
appropriation of expertise and politics to different spheres of the state, this project
may also have implications for debates within political science about the role of
courts in our state. One of the currents in the APD literature on the role of courts in
politics—one that is gaining serious momentum—is what is called “regime politics
studies” (Barnes 2007). Stemming from a Robert Dahl article which argued that “the
policy views dominant on the Court are never for long out of line with the policy
views dominant among the lawmaking majorities of the United States” (1957, 285),
regime politics studies generally “explore how other powerful political actors use the
Court to further their interests, revealing a complex landscape of inter-branch
relations even when the policy preferences of key actors align” (Barnes 2007, 31).
This is about where the agreement ends—regime politics theorists have identified a
variety of functions of courts within dominant lawmaking regimes. For instance,
Mark Graber has argued that the elected branches outsource potentially divisive
issues such as abortion, slavery, and antitrust regulation to the politically
unaccountable courts, thus avoiding an electoral backlash (1993). Howard Gillman
shows how latent or dwindling political coalitions use their power of political
appointment of judges and justices to entrench like-minded jurists in a politically
insulated position for years to come (2002). Many scholars have also shown how
courts are active in cooperative inter-branch policymaking (Powe 2000; Frymer
2003).
75
Despite their diversity, regime politics studies make fairly standard
assumptions about American politics. They tend to assume that there is such a thing
as a coherent governing coalition. Furthermore, they tend to “view political time in
terms of fluid eras or periods in American history characterized by shifting coalitions
that seek to advance their agendas instrumentally under evolving understandings of
the meaning of preferences and the rules of the game” (Barnes 2007, 31).
If courts have indeed internalized a deeply rooted distinction between
expertise and politics, we may have uncovered features of the modern American
state which are not easily explained by regime politics theories. In particular, the
assumption that any one period can be understood in terms of a dominant lawmaking
coalition is revealed to be a very problematic assumption, at least insofar as regime
politics theories try to explain modern American politics. In general, regime politics
theories have been very good at explaining the loose networks and ironic
mechanisms by which the different branches of our constitutional system interact and
cooperate to further the baseline agreements of any particular period, but they have
done less to acknowledge the importance of the rise of the administrative state as a
unique development with systematic ramifications.
The complex exigencies of the twentieth century have compelled political
branches to abdicate responsibility for whole areas of public policy to a constellation
of bureaucratic entities which have the professional capacity and the continuity
necessary to deal with problems that are bigger and more permanent than any one
administration or any one regime. As those studying the political control of the
76
bureaucracy have rightly argued, the elected branches are forced to deal with
conflicting demands—they must delegate policymaking responsibility to
professionals at the bureaucratic and administrative level, but they also hope to retain
at least some power over them as well. Top-down principal-agent models assume
that it is possible to fulfill both of these tasks, but this thesis has shown that, looking
from the bottom up (that is, from the institutions to patterns of behavior to the
political landscape), the administrative state is actually a uniquely self-determined
actor in the modern American state. The various sectors of the administrative state
are a political actor in our system as much as congress or presidents. Moreover, they
are differentiated and separated from electoral concerns (thanks in part to
institutional structure, professionalization, and, as I have argued here, court
insulation) enough that they make conflict with the elected branches inevitable. This
schism within the state is plainly evident in the way that both presidents and
congress have declared war by building up their own administrative divisions which
themselves often become relatively autonomous and thwart the will of elected
officials (Hart 1995; Rourke 1987). What started as a theoretical dichotomy between
politics and administration in the work of Max Weber and Woodrow Wilson (Rabin
and Bowman 1984) has in fact become an institutional reality. The tension between
the elected branches (which may be conceptualized as a loosely interlocking regime)
and the administrative apparatuses that have sprung up throughout this century is
indeed a natural tension.
77
Relating this natural tension to the regime politics literature, one can easily
see that this complicates the idea of a coherent lawmaking coalition. Before the rise
of the administrative state (both its nascent stage and the more highly refined form
now) the kind of institutionalized and natural conflict that emerges between
professionals and politicians simply did not exist. The political branches were
somewhat differentiated, but courts, congress, and presidents were fundamentally
political institutions. Needless to say, this deep similarity between the players in this
constitutional order made the idea of a coherent regime a real possibility, and regime
politics studies of past historical moments have effectively shown that the concept of
regimes is a useful heuristic for understanding the policymaking dynamics of these
eras. But if conflict is endemic in the modern era simply because of the deeply
rooted institutional legacies of both the elective side of government and the
professionalized side, then understanding the modern era of American governance
requires a slightly different narrative than has heretofore been offered. Especially
when one considers the role of courts in the regime politics literature, it becomes
apparent that the courts are no longer only servants of a dominant lawmaking
regime—they are now mediators of the inevitable and natural conflict between two
fundamentally operationally different faces of government. We have now seen how
that role of mediator has played out in two case studies. Whether or not this role of
the courts applies to other sectors of public policy will have to be left to future
research, but because we have taken care in selecting cases, we can be relatively
78
confident that there is something to the concept of litigation-fostered bureaucratic
autonomy.
79
Bibliography
Ball, H. (2007). Bush, the Detainees, and the Constitution: The Battle Over
Presidential Power in the War on Terror. Lawrence: University Press of
Kansas.
Bardach, E. & Kagan, R.A. (1982). Going By the Book: The Problem of
Regulatory Unreasonableness. Philadelphia: Temple University Press.
Barnes, J. (1997). Bankrupt Bargain? Bankruptcy Reform and the Politics of
Adversarial Legalism. Journal of Law and Politics, 13(4), 893-935.
Barnes, J. (2007). Bringing the Courts Back In: Interbranch Perspectives on the
Role of Courts in American Politics and Policy Making. Annual Review of
Political Science, 10, 25-43.
Barnes, J. (2008). Courts and the Puzzle of Institutional Stability and Change:
Administrative Drift and Innovation in the Case of Asbestos. Forthcoming
Political Research Quarterly.
Barnes, R. & Eilperin, J. (2007, April 3). High court faults EPA inaction on
emissions; critics of Bush stance on warming claim victory. The Washington
Post, pp. A01.
Barringer, F. (2008, February 9). Appellate panel rejects E.P.A. emission limits.
The New York Times.
Becker, J. & Gellman, B. (2007, June 27). Leaving no tracks. The Washington
Post, pp. A01.
Bensinger, K. (2007, December 13). California emissions law upheld. Los Angeles
Times, Part C, pp. 1)
Bryner, G.C. (1987). Bureaucratic Discretion: Law and Policy in Federal
Regulatory Agencies. New York: Pergamon Press.
Burnham, W.D. (1994). Pattern Recognition and “Doing” Political History: Art,
Science, or Bootless Enterprise? In L.C. Dodd and C. Jillson (Eds.), The
Dynamics of American Politics: Approaches and Interpretations (59-82).
Boulder, CO: Westview Press.
80
Carpenter, D.P. (2001). The Forging of Bureaucratic Autonomy: Reputations,
Networks, and Policy Innovation in Executive Agencies, 1862-1928.
Princeton: Princeton University Press.
Clayton, M. & Wood, D.B. (2008, January 4). California’s data challenges EPA.
The Christian Science Monitor, pp. 2.
Dahl, R. (1957). Decision-Making in a Democracy: The Supreme Court as a
National Policy-Maker. Journal of Public Law, 6, 279-295.
Denniston, L. (2007a, October 12). Government Considers Re-Doing Detainee
Cases. Message posted to http://www.scotusblog.com.
Denniston, L. (2007b, June 29). Court Switches, Will Hear Detainee Cases.
Message posted to http://www.scotusblog.com.
Denniston, L. (2007c, July 6). Fallout From Boumediene Order Begins. Message
posted to http://www.scotusblog.com.
Devine, R.S. (2004). Bush Versus the Environment. New York: Anchor Books.
Dorf. M.C. (2007). The Orwellian Military Commissions Act of 2006. Journal of
International Criminal Justice, 5(1), 10-18.
Duncan, A. (2008, January 7). California, 15 other states sue EPA over GHG
regulations for cars, trucks. Inside Energy, pp. 5.
Edelman, L.B. & Suchman, M.C. (1997). The Legal Environments of
Organizations. Annual Review of Sociology, 23, 479-515.
Eilperin, J. (2006, April 4). EPA faces internal outcry on airborne emissions plan.
The Washington Post, Section A, pp. 4.
Farber, D. (2003). Lincoln’s Constitution. Chicago: University of Chicago Press.
Fisher, L. (2003). Nazi Saboteurs on Trial: A Military Tribunal and American Law.
Lawrence: University Press of Kansas.
Fisher, L. (2005). Military Tribunals and Presidential Power: American
Revolution to the War on Terrorism. Lawrence: University Press of Kansas.
Franck, T.M. (2007). Hamdan v. Rumsfeld: Presidential Power in Wartime.
International Journal of Constitutional Law, 5(2), 380-388.
81
Frymer, P. (2003). Acting When Elected Officials Won’t: Federal Courts and Civil
Rights Enforcement in U.S. Labor Relations, 1935-85. American Political
Science Review, 97(3), 483-499.
Generous, W.T. (1973). Swords and Scales: The Development of the Uniform Code
of Military Justice. Port Washington, N.Y.: Kennikat Press.
Gerring, J. (2004). What Is a Case Study and What Is It Good for? American
Political Science Review, 98(2), 341-354.
Gillman, H. (2002). How Political Parties Can Use the Courts to Advance Their
Agendas: Federal Courts in the United Stats, 1875-1891. American Political
Science Review, 96(3), 511-524.
Golden, T. (2004, October 24). After Terror, a Secret Rewriting of Military Law.
The New York Times.
Golden, T., & Schmitt, E. (2005, November 2). Detainee Policy Sharply Divides
Bush Officials. The New York Times.
Graber, M. (1993). The NonMajoritarian Difficulty: Legislative Deference to the
Judiciary. Studies in American Political Development, 7, 35-73.
Hacker, J. (2004). Privatizing Risk Without Privatizing the Welfare State: The
Hidden Politics of Social Retrenchment in the United States. American
Political Science Review, 98(2), 243-260.
Hansen, B. (2005, December 26). EPA bucks own scientists in posing new rules
for fine-particle pollution. Inside Energy, pp.4.
Hansen, B. (2007, April 9). EPA to proceed on NSR rule despite court decision.
Inside Energy, pp. 1.
Hansen, B. (2008, January 7). Court sets key dates in lawsuit to force EPA
regulation of utilities’ CO2 emissions. Electric Utility Week, pp. 9.
Harris, R.A. & Milkis, S.M. (1989). The Politics of Regulatory Change: A Tale of
Two Agencies. New York: Oxford University Press.
Hart, J. (1995). The Presidential Branch: From Washington to Clinton. (2
nd
ed.)
Chatham, NJ: Chatham House.
Heclo, H. (1975). OMB and the Presidency. Public Interest, 75, 80-98.
82
Hill, L.B. (1991). Who Governs the American Administrative State? A
Bureaucratic-Centered Image of Governance. Journal of Public
Administration Research and Theory, 1(3), 261-294.
Huber, J.D. & Shipan, C.R. (2002). Deliberate Discretion? The Institutional
Foundations of Bureaucratic Autonomy. New York: Cambridge University
Press.
Janofsky, M. (2006, March 18). Judges Overturn Bush Bid to Ease Pollution Rules.
The New York Times.
Kagan, E. (2001). Presidential Administration. Harvard Law Review, 114(8),
2245-2385.
Kagan, R.A. (2001). Adversarial Legalism: The American Way of Law.
Cambridge, MA: Harvard University Press.
Kagan, R.A. (2004). American Courts and the Policy Dialogue: The Role of
Adversarial Legalism. In M.C. Miller & J. Barnes (Eds.), Making Policy,
Making Law: An Interbranch Perspective (13-34). Washington, D.C.:
Georgetown University Press.
Katyal, N. (2006). Hamdan v. Rumsfeld: The Legal Academy Goes to Practice.
Harvard Law Review, 120(65), 66-123.
Knott, J.H., & Miller, G.J. (1987). Reforming Bureaucracy: The Politics of
Institutional Choice. Englewood Cliffs, NJ: Prentice-Hall.
Krent, H.J. "From a Unitary to a Unilateral Presidency." Boston University Law
Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=1055901
Lewis, D.E. (2003). Presidents and the Politics of Agency Design: Political
Insulation in the United States Government Bureaucracy, 1946-1997.
Stanford: Stanford University Press.
Lewis, N.A. (2004, October 31). Disagreement Over Detainees’ Legal Rights
Simmers. The New York Times.
Lindblom, C.E. (1979). Still Muddling, Not Yet Through. Public Administration
Review, 39(6), 517-526.
McCubbins, M.D. (1985). The Legislative Design of Regulatory Structure.
American Journal of Political Science, 29(4), 721-748.
83
McCubbins, M.D., Noll, R.G., & Weingast, B.R. (1987). Administrative Procedures
as Instruments of Political Control. Journal of Law, Economics, and
Organization, 3(2), 243-277.
McCubbins, M.D., Noll, R.G., & Weingast, B.R. (1989). Structure and Process,
Politics and Policy: Administrative Arrangements and the Political Control
of Agencies. Virginia Law Review, 75, 431.
McMahon, R. (2006). The Environmental Protection Agency: Structuring
Motivation in a Green Bureaucracy. Portland: Sussex Acadmic Press.
McSpadden, L. (2000). Environmental Policy in the Courts. In N.J. Vig & M.E.
Kraft (Eds.), Environmental Policy (145-164). Washington, D.C.: CQ Press.
Melnick, R.S. (1983). Regulation and the Courts: The Case of the Clean Air Act.
Washington, D.C.: The Brookings Institution.
Melnick, R.S. (1992). Administrative Law and Bureaucratic Reality.
Administrative Law Review, 44, 245-259.
Melnick, R.S. (2004). Courts and Agencies. In J. Barnes (Ed.), Making Policy,
Making Law: An Interbranch Perspective (89-104). Washington, D.C.:
Georgetown University Press.
Mintz, J.A. (1995). Enforcement at the EPA: High Stakes and Hard Choices.
Austin: University of Texas Press.
Moe, T. M. (1985). The Politicized Presidency. In J.E. Chubb & P.E. Peterson
(Eds.), The New Direction in American Politics (235-271). Washington,
D.C.: The Brookings Institution.
Moe, T.M. (1989). The Politics of Bureaucratic Structure. In J.E. Chubb & P.E.
Peterson (Eds.), Can the Government Govern? Washington, D.C.: The
Brookings Institution.
Monastersky, R. (1989). EPA Offers Options to Slow Global Warming. Science
News, 135(12), 183.
Nathan, R.P. (1975). The Plot That Failed: Nixon and the Administrative
Presidency. New York: John Wiley & Sons.
O’Leary, R. (1993). Environmental Change: Federal Courts and the EPA.
Philadelphia: Temple University Press.
84
Orren, K. & Skowronek, S. (2004). The Search for American Political
Development. New York: Cambridge University Press.
Pierson, P. (2000). Increasing Returns, Path Dependence, and the Study of Politics.
American Political Science Review, 94(2), 251-267.
Pierson, P. (2004). Politics in Time: History, Institutions, and Social Analysis.
Princeton: Princeton University Press.
Powe, L.A. (2000). The Warren Court and American Politics. Cambridge:
Belknap.
Pressman, J.L. & Wildavksy, A. (1973). Implementation: How Great Expectations
in Washington are Dashed in Oakland. Berkeley: University of California
Press.
Quirk, P.J. (1981). Industry Influence in Federal Regulatory Agencies. Princeton:
Princeton University Press.
Rabin, J. & Bowman, J.S. (1984). Politics and Administration: Woodrow Wilson
and American Public Administration. New York: Marcel Dekker, Inc.
Randall, R. (1979). Presidential Power versus Bureaucratic Intransigence: The
Influence of the Nixon Administration on Welfare Policy. American
Political Science Review, 73, 795-810.
Rehnquist, W. (1998). All the Laws But One: Civil Liberties in Wartime. New
York: Alfred A. Knopf.
Rourke, F.E. (1987). Bureaucracy in the American Constitutional Order. Political
Science Quarterly, 102, 217-232.
Sabatier, P.A. (1986). Top-Down and Bottom-Up Approaches to Implementation
Research: a Critical Analysis and Suggested Synthesis. Journal of Public
Policy, 6(1), 22-47.
Sanders, E. (1990). State Theory and American Political Development. Studies in
Law, Politics, and Society, 10, 93-99.
Skocpol, T. (1992). Protecting Soldiers and Mothers: The Political Origins of
Social Policy in the United States. Cambridge, MA: Harvard University
Press.
85
Skowronek, S. (1982). Building a New American State: The Expansion of National
Administrative Capacities, 1877-1920. New York: Cambridge University
Press.
Smith, J. (2006, August 3). Top Military Lawyers Oppose Plans for Special Courts.
The Washington Post.
Stone Sweet, A. (1999). Judicialization and the Construction of Governance.
Comparative Political Studies, 32(2), 147-184.
Sulmasy, G. & Yoo, J. (2007). Challenges to Civilian Control of the Military: A
Rational Choice Approach to the War on Terror. UCLA Law Review, 54,
1815-1845.
Sunstein, C.R. (1983). Deregulation and the Hard-Look Doctrine. Supreme Court
Review, 1983, 177-213.
Sunstein, C.R. (2006). Chevron Step Zero. Virginia Law Review, 92(2), 187-249.
Supreme Court declines to hear EPA appeal of adverse ruling on controversial “20%
rule.” (2007, May 7). Electric Utility Week, pp. 11.
Tushnet, M. (2007). The Political Constitution of Emergency Powers: Some
Lessons from Hamdan. (Forthcoming). Retrieved November 23, 2007 from
http://digitalcommons.law.umaryland.edu/schmooze_papers/73.
Vietor, R.H.K. (1979). The Evolution of Public Environmental Policy: The Case of
"Non-Significant Deterioration." Environmental Review, 3(2), 2-18.
Vig, N.J. (2000). Presidential Leadership and the Environment: From Reagan to
Clinton. In N.J. Vig & M.E. Kraft (Eds.), Environmental Policy (98-120).
Washington, D.C.: CQ Press.
Wald, P.M. (1999). A Response to Tiller and Cross. Columbia Law Review,
99(235), 235-261.
Warshaw, S.A. (1995). White House Control of Domestic Policy Making: The
Reagan Years. Public Administration Review, 55(3), 247-253.
Waterman, R.W. & Meier, K.J. (1998). Principal-Agent Models: An Expansion?
Journal of Public Administration Research and Theory, 8(2), 173-202.
86
Watts, K.A. & Wildermuth, A.J. (2007). Massachusetts v. EPA: Breaking New
Ground on Issues Other Than Global Warming. Northwestern University
Law Review Colloquy, 102, 1-17.
Wenner, L.M. (1982). The Environmental Decade in Court. Bloomington: Indiana
University Press.
Wilson, J. (2007, December 21). EPA chief is said to have ignored staff. Los
Angeles Times, Part A, pp. 30.
Wilson, J. & Simon, R. (2008, January 24). EPA staff finds emissions threat. Los
Angeles Times, Part A, pp. 12.
Wood, B.D. & Waterman, R.W. (1991). The Dynamics of Political Control of the
Bureaucracy. American Political Science Review, 85(3), 801-828.
Yaroshefsky, E. Military Lawyering at the Edge of the Rule of Law at Guantanamo:
Should Lawyers Be Permitted to Violate the Law? Forthcoming Hofstra Law
Review
Yin, T. (2007). Tom and Jerry (and Spike): A Metaphor for Hamdan V. Rumsfeld,
The President, the Court and Congress in the War on Terrorism. Tulsa Law
Review, 42, (forthcoming).
Cases Cited
Alabama Power v. Costle, 606 F.2d 1068 (D.C. Cir. 1979)
Al Odah v. U.S., 346 F. Supp. 2d 1 (D.D.C. 2004)
Al Odah v. U.S., 127 S. Ct. 3067 (2007)
Bismullah v. Gates, 501 F.3d 178 (D.C. Cir. 2007)
Boumediene v. Bush, 127 S. Ct. 3078 (2007)
Chevron v. NRDC, 467 U.S. 837 (1984)
Duke Power Company v. Carolina Environmental Study Group, 438 U.S. 59 (1978)
Dynes v. Hoover, 61 U.S. 65 (1857)
Environmental Defense v. Duke Energy, 549 U.S. ___ (2007)
EPA v. New York, 127 S. Ct. 2127
Ex parte Merryman, 17 F. Cas. 144 (1861)
Ex parte Quirin, 317 U.S. 1 (1942)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
In re Yamashita, 327 U.S. 1 (1946)
Johnson v. Eisentrager, 339 U.S. 763 (1950)
87
Massachusetts v. EPA, 549 U.S. ___ (2007)
New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006)
NRDC v. EPA, 489 F.2d 390 (5
th
Cir. 1974)
Padilla v. Rumsfeld, 542 U.S. 426 (2004)
Parhat v. Gates, 2007 U.S. App. LEXIS 2626 (D.C. Cir. 2007)
Rasul v. Bush, 542 U.S. 466 (2004)
Robinson v. Shell Oil, 519 U.S. 337 (1997)
Sierra Club v. Morton, 405 U.S. 727 (1972)
Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972)
U.S. v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973)
88
Appendices
Appendix A: Notable Clean Air Act Cases During the Bush Administration
Case Ruling
Massachusetts v. EPA, 549
U.S. ___ (2007)
The Court ruled that the Clean Air Act mandated
regulation of CO2 as an air pollutant, and denied the
EPA’s other, nonscientific reasons for refusing to
regulate CO2.
Environmental Defense v.
Duke Energy 549 U.S. ___
(2007)
The Court ruled against a challenge to a leftover
Clinton-era EPA rule (one opposed by the Bush
administration), thus upholding EPA’s discretion to
interpret the word modification differently in different
contexts of the Clean Air Act. The decision thus
upheld EPA’s discretion to enact more stringent
prevention of significant deterioration rules as it saw
fit.
Northeast Maryland Waste
Disposal Authority v. EPA,
353 F.3d 936 (D.C. Cir.
2004)
The court remanded EPA municipal waste combustor
regulations which it ruled violated the standards of the
Clean Air Act.
Mossville Environmental
Action Now v. EPA, 370
F.3d 1232 (D.C. Circ.
2004)
The court ruled that EPA’s designation of vinyl
chloride as a surrogate for all pollutants at polyvinyl
chloride plants was a violation of the Clean Air Act’s
requirement of individualized standards for all
pollutants.
New York v. EPA, 413 F.3d
3 (D.C. Cir. 2005)
The court ruled that EPA’s New Source Review rules,
which allowed the EPA to determine whether
emissions had increased without a determination of
actual emissions, were in violation of the Clean Air
Act.
New York v. EPA, 443 F.3d
880 (D.C. Cir. 2006)
The court ruled that EPA’s New Source Review rule
which exempted plants whose modifications were less
than 20 percent of the value of the plant was in
violation of the Clean Air Act. The decision is famous
for its suggestion that EPA’s policy would make sense
only in a “Humpty Dumpty world.”
SCAQMD v. EPA, 472
F.3d 882 (D.C. Cir. 2006)
The court vacated portions of an EPA rule
implementing the Clean Air Act’s health-based air
quality standard for ground-level ozone (or smog),
holding that EPA had unlawfully evaded more
protective and prescriptive measures intended by
Congress to govern areas that fail to meet the ozone
standard.
Sierra Club v. EPA, 479 The court vacated hazardous air pollution standards for
89
F.3d 875 (D.C. Cir. 2007) brick and ceramic kilns based on EPA’s failure to heed
statutory requirement for minimum stringency. They
concluded that EPA’s emissions standards violated
both the plain language of Clean Air Act as well as
two previous D.C. Circuit decisions interpreting the
same statutory provision.
Natural Resources Defense
Counsel v. EPA, 489 F.3d
1250 (D.C. Cir. 2007)
The court vacated two EPA rules covering hazardous
air pollutants from commercial/industrial boilers and
solid waste incinerators, respectively. The court found
that EPA’s rules had adopted an unlawfully narrow
definition of solid waste incinerator that substantially
reduced the number of waste combustors subject to
more protective Clean Air Act emissions standards.
Natural Resources Defense
Counsel v. EPA, 489 F.3d
1364 (D.C. Cir. 2007)
The court found that EPA lacked the authority to
exempt a “low risk” subcategory of plywood and
composite wood product manufacturing facilities from
Clean Air Act standards limiting emissions of
hazardous air pollutants and vacated the relevant
standards.
New Jersey v. EPA, No.
05-1097 (2008)
The court struck down two EPA regulations
concerning mercury emissions from coal- and oil-fired
power plants, saying that the agency unlawfully
reversed a Clinton-era agency decision to subject such
power plants to the Clean Air Act's stringent maximum
achievable control technology program for hazardous
air pollutants. The Bush EPA instead developed a plan
that would regulate only mercury from coal plants, and
would do so using a nationwide cap-and-trade scheme
that ultimately would have achieved less pollution
reductions and taken far longer to achieve them.
According to the court, the plain language of the Clean
Air Act prohibits EPA from reversing itself as it had
done, without first making certain public health
findings that the agency had not even attempted to
make. The court rejected EPA's attempts to argue that
the Act's language was inapplicable, saying: EPA’s
“explanation deploys the logic of the Queen of Hearts,
substituting EPA’s desires for the plain text of section
112(c)(9).” This marked the second time the D.C.
Circuit referenced a Lewis Carroll character in a Clean
Air Act ruling against this administration’s EPA, this
time from “Alice in Wonderland.”
Source: Summaries courtesy of John Walke
90
Appendix B: Notable Military Tribunal Cases During the Bush Administration
Case Ruling
Boumediene v. Bush, 127 S.
Ct. 3078 (2007) and Al Odah
v. U.S., 127 S. Ct. 3067
(2007)
After initially denying certiorari, the Supreme Court
made a rare move by reconsidering and accepting
these cases. They are collectively expected to
answer the question of whether the Military
Commissions Act’s habeas corpus stripping
provision is constitutional.
Hamdan v. Rumsfeld, 548
U.S. 557 (2006)
The Court struck down President Bush’s military
tribunal policy on the grounds that it lacked
congressional approval and on the grounds that it
violated Geneva Conventions Common Article 3.
After the decision, Bush sought congressional
approval, and after a long dialogue with military
lawyers and senators, the parties agreed to a
substantially modified version of the Military
Commissions Act.
Rasul v. Bush, 542 U.S. 466
(2004)
The Court ruled that Guantanamo Bay qualified as
United States territory enough to trigger the
protection of the writ of habeas corpus for prisoners
detained there.
Hamdi v. Rumsfeld, 542 U.S.
507 (2004)
The Court ruled that detainees in the war on terror
are entitled to challenge their detention in front of a
neutral decision-maker.
Bismullah v. Gates, 501 F.3d
178 (D.C. Cir. 2007)
Ruling against the Department of Defense, the D.C.
Circuit Court of Appeals required the government to
release substantially more classified information in
review of Combatant Status Review Tribunal
decisions. The case is currently being appealed to
the Supreme Court (Gates v. Bismullah [07-1054]).
Abstract (if available)
Abstract
This thesis examines two cases air pollution regulation in the Environmental Protection Agency and military tribunal policy in the Department of Defense in an attempt to better understand bureaucratic politics in the modern era. The central claim is that modern bureaucratic agencies, while under significant pressure from congress, the president, and his political appointees to support the elected branches policy priorities, are frequently shielded from presidential and congressional usurpations. They are thus protected because of their internalization of and instrumental use of adversarial legal recourses, a mechanism I call litigation-fostered bureaucratic autonomy. It is hypothesized that litigation-fostered bureaucratic autonomy emerges from a conversion of the original place of courts as instruments of bureaucratic control. The main contributions of the thesis are its challenges to the literatures on bureaucratic control (principal-agent models), bureaucratic autonomy, and adversarial legalism. The argument is that all of these literatures have underestimated and/or misunderstood the complex use of litigation in agency rulemaking. The primary purpose of the paper is concept-building, not comprehensive analysis, but the paper finishes with a discussion of the next steps in the larger project and a reflection on possible applications of the project to other debates within political science, namely the debates on judicial behavior and regime politics.
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Walters, Daniel Evan
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Core Title
The new dynamics of bureaucratic autonomy: courts, litigation, and agencies in the modern American state
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College of Letters, Arts and Sciences
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Master of Arts
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Politics
Publication Date
04/03/2008
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