The Yale Law Journal

November 2019

Constraint Through Independence

Administrative LawLabor and Employment Law

abstract. A tide of skepticism of the administrative state has been rising among members of the judiciary and the academy. Uncomfortable with the ways doctrines like Chevron and Auer seem to leave bureaucrats unchecked, pressure has been building to cut back on deference to agencies’ legal interpretations. Similarly, these “anti-administrativists,” as those skeptical of the current regime have been called, have advocated for striking down statutory regimes granting independence to certain bureaucratic actors, such as administrative law judges (ALJs), who are partially insulated from the President’s removal power. Underlying both of these prongs of the “anti-administrativist” program is the idea that the federal judiciary needs to be doing more to constrain the exercise of administrative force by unaccountable regulatory bodies.

Taking as given the need for greater judicial constraints on the administrative state, this Note argues that the two-pronged program of the anti-administrativists, challenging deference and ALJ independence, is both incomplete and counterproductive. It is incomplete because, while focusing intently on issues of statutory interpretation, it has ignored an entire hemisphere of agency decision- making and judicial review: fact-finding. It is counterproductive because it fails to appreciate the way in which—on a system level—independence, fact-finding, and legal interpretation interact.

Tightening the tourniquet around legal deference creates incentives for agencies to obscure their policy-making in fact-finding, a hemisphere where judicial review is significantly less effective. As this Note shows using a novel empirical study of nearly three hundred holdings, judicial review of agency fact-finding is dependent on the identification of “red flags” in the administrative record, that is, of evidence of factual manipulation. Independent ALJs, who generate the initial administrative record, are critical in planting those red flags and, as a result, essential for effective judicial review. Exploring these institutional dynamics in the context of both labor and financial regulation, this Note reveals the importance of the counterintuitive observation that judicial review depends on deference and bureaucratic independence.

author. Daniel B. Listwa and Lydia K. Fuller each earned a J.D. from Yale Law School in 2019. We would like to thank Jerry Mashaw for inspiring this project and guiding its development; William N. Eskridge, Jr., and Jonathan R. Macey for their invaluable feedback on earlier drafts; Amy Semet, James Brudney, Robert A. Katzmann, and Steven G. Calabresi for their insightful conversations; Sarah Kellner and Joseph Scovitch for their support and patience; and the editors of the Yale Law Journal, especially Thomas Hopson, Briana M. Clark, and Ela A. Leshem, for their thoughtful assistance in developing and editing this Note.