Executive Action: Its History, its Dilemmas, and its Potential Remedies

Abstract

Concerns about the rule of law in the modern administrative state can be fully understood only in their historical context. After the Norman Conquest, the national government of England was controlled entirely by the king, although the nobility exercised substantial powers within their assigned areas. The king subsequently created two institutions, the common law courts and the legislature (Parliament), in part to extend his control over the nobles. These institutions gradually acquired independent power and reduced the authority of the monarchy. They did not do so, however, by imposing controls, or standards of behavior, on the king's executive authority. Rather, they reduced his authority, taking command of one field after another. In the process of defining and justifying their newly developed roles, the courts and the legislature established procedures and decision-making standards for their own actions that embodied the rule of law. Thus we, as heirs to English legal and constitutional thought, know how to impose the rule of law on judicial and administrative action. But we have not inherited any standards for executive action; our historical experience teaches us how to limit its scope but not how to control its content. The Administrative Procedure Act reflects this historical and cultural lacuna. It contains elaborate standards for adjudication, modeled on judicial procedure, and at least rudimentary standards for rulemaking, modeled on legislative procedure. But it provides no standards for executive action, and in fact, does not even recognize such action as a category. We know it now as informal adjudication, an obvious misnomer that does not appear in the language of the Act, but has been concocted by observers based on the Act's implicit structure. This introductory essay attempts to unify the incisive and illuminating discussion that the articles in this symposium provide about our lack of standards for executive action. Pretrial diversion agreements (Arlen), executive waivers (Price), guidances (Epstein) and the control exercised by Presidential signing statements (Rodriguez, Stiglitz & Weingast) are all examples of a general category of executive action (DeMuth) that raises rule of law concerns due to this lack of standards. After describing the problem, and setting it in its historical context, the essay ends by considering substantive standards (rationality), supervisory institutions (the ombudsperson) and procedural mechanisms (a revised Administrative Procedure Act) that might be employed to impose legal standards on this essential but troublesome mode of public governance.