Robert W. Adler, Unfunded Mandates and Fiscal Federalism: A Critique, 50 Vanderbilt L. Rev. 1137 (1997). The term "unfunded federal mandates" is used to challenge federal obligations imposed on states and localities without accompanying funding. In this article, Professor Adler critiques the fiscal, legal and policy arguments against unfunded federal mandates, and asks whether the concept is independently useful to the nation's debate about federalism. Following a brief history of the unfunded federal mandates debate, the author analyzes the term and its component parts, and concludes that the phrase has been used to challenge actions that are not properly "unfunded", "federal", or "mandates". Next, Professor Adler asserts that past empirical studies overstated the costs of federal mandates to states and cities, that those costs are more than offset by federal aid, and therefore that states and cities remain net beneficiaries in intergovernmental fiscal relations. The legal analysis argues that, for most purposes, the degree of funding attached to federal programs is not relevant to their validity on Tenth Amendment grounds. Last, the author challenges the presumption that unfunded federal mandates are "bad" on normative grounds, rather than neutral policy choices about what level of government should decide and pay for various aspects of public policy. Professor Adler concludes that the mandate concept provides little independent utility to the ongoing debate about federalism. Because elected officials can weigh the costs and benefits of individual mandates in the context of overall federal tax, spending and regulatory policy, while federal judges are limited to discrete challenges to individual programs, the analysis supports the view that the political branches are better equipped than the judiciary to decide important issues of federalism.

Thomas J. Byrne, The Continuing Confusion Over Chevron: Can the Nondelegation Doctrine Provide a (Partial) Solution? 30 Suff. L. Rev. 715 (1997). Part I of Mr. Byrne's Article surveys the history of American administrative law in an attempt to discern the fundamental aims of administration and the principles that are generally regarded as legitimating delegation of legislative authority. Part II describes the development of the standards of judicial review that courts utilized in the consideration of administrative agencies' interpretations of statutory provisions before the Chevron decision. This section first describes two lines of precedent and discusses the apparent conflict between them. It then explores the possibility that there really is an underlying unity to these two precedential lines, concluding that there is, indeed, an analytical unity. Part III discusses the Chevron opinion and analyzes the chimerical nature of its alleged resolution of the doctrinal confusion that courts confronted when reviewing administrative agency decisions. Further, this section describes how the Chevron standard of review has ultimately failed due to its inability to provide principled guidance to the lower courts or even to sustain consistent interpretation and application of the Chevron doctrine in the Supreme Court. This Article concludes with a discussion of the nondelegation doctrine in the context of the political theory underlying the American system of government. Byrne argues that the representative nature of the American system is often undermined by the actual, rather than professed, nature of judicial review of agency action. Finally, this Article calls for a reinvigoration of the nondelegation doctrine and offers some concrete principles for its application.

Steven P. Croley and William Funk, The Federal Advisory Committee Act and Good Government, 14 Yale J. on Reg. 451 (1997). Issues concerning the Federal Advisory Committee Act (FACA), which governs agency solicitation of policy advice from outside groups, have arisen with greater frequency in recent years. This is true in part as a result of regulatory initiatives that aim to include larger numbers of interested parties in regulatory decisionmaking processes. In this Article, Professors Croley and Funk first provide an overview of the history and basic structure of the FACA, and then consider the many legal questions surrounding the Act's purpose, scope, interpretation, and implementation. Along the way, they consider whether and how the FACA advances good-government goals such as openness and administrative efficiency. Their analysis is guided by the results of a survey of agency "advisory committee management officers," through which they sought to gather agencies' own views of the FACA's administration, as well as by contacts with the General Services Administration's Committee Management Secretariat, the agency which supervises all advisory-committee activities, and other agency personnel. Professor Croley and Funk conclude with a set of concrete recommendations for Congress, the White House, the courts, the GSA, and agencies that use federal advisory committees.

Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1 (1997). Recent efforts at regulatory reinvention have consisted mostly of attempts to constrain agency discretion through the imposition of judicial, congressional, or executive oversight of agency activity. In this article, Professor Jody Freeman argues that these reform efforts do not respond to the most serious weaknesses of rule making, implementation, and enforcement, many of which are the result of an adversarial administrative decision-making process driven by the theory and practice of interest representation. Professor Freeman proposes a model of collaborative governance as an alternative to the model of interest representation, arguing that the assumptions that inform interest representation limit its explanatory capacity and normative appeal. Collaborative governance requires problem solving, broad participation, provisional solutions, the sharing of regulatory responsibility across the public-private divide, and a flexible, engaged agency. Using examples from health and safety and environmental regulation at the OSHA and EPA, Professor Freeman illustrates how regulatory negotiation and the EPA's Project XL embody elements of a collaborative model. She then explains why, despite their premise, these experiments fall short of the collaborative ideal. Professor Freeman next describes the most common objections to such "cooperative," "coregulatory," or "reflexive" processes--that they undermine legitimacy by reducing accountability and subdelegate public responsibilities to private parties--and explains that the typical response to such concern, which is to constrain agency discretion, itself frustrates the collaborative impulse. While collaboration may require greater deference to agency decision-making at a minimum, Professor Freeman argues that the pursuit of collaboration requires a willingness to transcend traditional debates about agency discretion and to experiment with non-traditional forms of accountability.

David A. Herrman, Comment, To Delegate or Not to Delegate -- That is Preemption: The Lack of Political Accountability In Administrative Preemption Defies Federalism Constraints On Government Power, 28 Pacific L. J. 1157 (1997). Mr. Herrman's Comment addresses the problems that exist when administrative agencies, staffed with unelected and unaccountable bureaucrats, preempt state law while sidestepping the procedural safeguards implicit in our federal system. Specifically, this Comment points out that one of the main reasons administrative preemption is able to avoid federalism restraints is because Congress blurs its own responsibility for controversial lawmaking by delegating this responsibility away. This practice manipulates voter perception of governmental accountability upon elected lawmakers. Therefore, agency officials promulgate powerful regulations without subjecting themselves to political repercussions.

Michael Herz, The Legislative Veto in Times of Political Reversal: Chadha and the 104th Congress, 14 Const. Comment. 319 (1997). Professor Herz believes that the greatest impact from the Supreme Court's decision in INS v. Chadha was felt more than a decade later, in the absence of a legislative veto from the Contract With America Advancement Act of 1996. The Act provides for congressional review of agency rulemaking by a "joint resolution of disapproval," instead of a legislative veto, which is precluded by Chadha. The "joint resolution of disapproval" requires approval by both houses and presentment to the President, and applies to all major rules by all agencies. Herz observes that the arguments for and against the legislative veto, and the meta-arguments about styles of constitutional interpretation and the role of the courts, are now old friends. It is against this backdrop that he reconsiders Chadha in light of the transformation of the national political scene worked by the 1992 and 1994 election. Using the example of the 104th Congress's failed regulatory reform proposals, his article imagines how the legislative veto would operate if wielded by today's Congress against rulemaking proposals from today's agencies. This discussion shows that the veto can undermine rather than preserve the Constitution's basic allocation of authority. After decades of almost uninterrupted Republican control of the White House and Democratic control of Congress, 1994 saw the election of an aggressive Congress controlled by what for decades had been the minority party, but still with significant policy divergences between House and Senate, close on the heels of a change of party in the White House. This alignment highlights the fear that the legislative veto would be used in ways inconsistent with decisions made by a prior Congress -- in other words, to alter rather than to preserve the status quo, and to do so in a way that Congress could not do through constitutionally prescribed procedures.

Lars Noah, Administrative Arm-Twisting in the Shadow of the Congressional Delegations of Authority, 1997 Wis. L. Rev. 873. In this Article, Professor Noah addresses the use of informal mechanisms used by agencies to evade the substantive limitations on their delegated authority. He first describes the variety of "arm-twisting" techniques available to federal regulators interested in indirectly pursuing ends that they could not impose directly, in contexts ranging from licensing and government contracting to product recalls and settlements of enforcement actions by consent decree. After drawing parallels to the unconstitutional conditions doctrine, Professor Noah suggests a range of potential constraints to minimize the risks associated with this exercise of largely unchecked discretion.

Lars Noah, The FDA's New Policy on Guidelines: Having Your Cake and Eating It Too, 47 Cath. U. L. Rev. 113 (1997). This article evaluates one agency's recent effort to disclaim any further binding effect for formal advisory opinions and guidelines. Professor Noah argues that assurances provided to regulated entities about the reliability of official advice serve valuable purposes for both the industry and the agency, and he discounts claims that non-estoppel principles and other legal constraints prevent this relatively benign use of interpretive rules and policy statements.

Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va. L. Rev. 1717 (1997). Since the early 1970's, the United States Court of Appeals for the District of Columbia Circuit has played a central role in the development of environmental law, but commentators have criticized the D.C. Circuit's politicization and have maintained that judges simply vote according to their policy preferences. Critics argue that Republican appointed judges vote for laxer environmental regulation, and Democratic appointed judges vote for more stringent regulation. Since no systematic study exists on this issue, Professor Revesz seeks to fill the void with this Article. His Article expresses concern with the impact that a judge's ideology, using as a proxy the views generally held by the party of the appointing President, has on judicial decisionmaking. Revesz's study has three central conclusions. First, ideology significantly influences judicial decisionmaking on the D.C. Circuit. This conclusion is generally consistent with the existing literature but is derived through analysis that avoids some serious methodological pitfalls of earlier studies. Second, ideological voting is more prevalent in cases, such as those raising procedural challenges, that are less likely to be reviewed by the United States Supreme Court. Third, a judge's vote (not just the panel outcome) is greatly affected by the identity of the other judges sitting on the panel; in fact, the party affiliation of the other judges on the panel has a greater bearing on a judge's vote than his or her own affiliation. The last two conclusions emerge from studying variables that had not been the subject of prior empirical analysis. He believes the existing empirical literature presents a distorted picture by paying no attention to the impact on a judge's vote of either the nature of the legal question presented to the court or the identity of his or her colleagues. Perhaps Professor Revesz's most significant observation is that judges generally vote consistently with their ideological preferences only when they sit with at least one other judge of the same political party. Professor Revesz believes that failing to control for such panel composition effects leads to a substantial underestimation of the frequency of ideological voting.

Jim Rossi, Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, 92 Northwestern U. L. Rev. 173 (1997). In this article, Professor Rossi addresses the institutional implications of mass participation for agency governance under different political-theoretic models of agency governance, particularly deliberative democracy. Focusing on the implications of mass participation on public participants and institutional decisionmakers under various models, Professor Rossi discusses how participation may have adverse impacts on the quality of agency decisionmaking in the contexts of citizen suit provisions, the Environmental Impact Statement under the National Environmental Policy Act, and sunshine laws. The adverse impacts he describes in these contexts include the impairment of agency agenda setting, information overload, delay, strategic process manipulation, and disincentives for collegial decisionmaking. His analysis concludes that deliberative democracy makes explicit a tradeoff between participation and deliberation and thus suggests de-emphasizing mass participation in administrative law theory and reforms as a way of making agency governance more democratic.

Jonathan R. Siegel, Suing the President: Nonstatutory Review Revisited, 97 Colum. L. Rev. 1612 (1997). Professor Siegel's article was prompted by the Supreme Court's recent determinations that the President of the United States is not an "agency" within the meaning of the Administrative Procedure Act and that his actions are not subject to review under that statute. The Court has traditionally held that a federal court may not entertain a suit seeking an injunction directed at the President. The Court's cases raise the question of whether courts can provide any relief for persons injured when the President acts unlawfully. Professor Siegel answers this question by considering a venerable, but now little-known method of judicial control over executive action, called "nonstatutory review." Courts used this form of suit to review executive branch behavior long before the APA existed. The nonstatutory review action avoids the sovereign immunity of the United States by making the fictional assumption that a suit against a government officer, alleging unlawful official behavior, is not a suit against the government. Professor Siegel's examination of the history of nonstatutory review reveals that the President, like other federal officials, should be subject to suits concerning his official conduct. It demonstrates that the courts have traditionally taken a leading role in the creation of remedies against unlawful government action; courts need not wait for Congress to create statutory remedies. Finally, Professor Siegel uses the history of nonstatutory review to provide an instructive look at the use of fictions as a method of legal development.

David B. Spence, Administrative Law And Agency Policy-making: Rethinking The Positive Theory of Political Control, 14 Yale J. on Reg. 407 (1997). In the last decade, positive political theory (PPT) models of agency policy-making have emphasized the tools politicians can use to control or influence agency decisions. These models are, in part, a reaction to earlier economic and other models of agency policy-making which emphasized the agency losses attendant to the delegation of decision-making authority to agencies by politicians. The more recent PPT works contend that politicians use the tools of ex post and ex ante control to overcome some of the agency problems associated with delegation (such as the inability to foresee the issues the agency will face), in part by enlisting interest groups in the battle to control agencies. These recent PPT models of political control do a good job of illustrating how and why politicians try to influence agency policy-making; but they overstate politicians' ability to do so, for two reasons. First, commonly-employed methodological assumptions in positive models tend to obscure the most important impediments to political control. Second, the antecedents to the current PPT literature posed a false dichotomy between agency autonomy and good government, one which some positive theorists seem to continue to accept, at least implicitly. This article examines these positive and normative biases in the PPT literature on the political control of agencies, and argues that PPT policy models which abandon these assumptions will do a better job of describing the agency policy-making process and accommodating the fact of agency autonomy in the policy process.

Jeffrey S. Wolfe and Lisa B. Proszek, Interaction Dynamics in Federal Administrative Decision Making: The Role of the Inquisitorial Judge and the Adversarial Lawyer, 33 Tulsa L. J. 293 (1997). This article expresses disfavor with current inquisitorial system of proceedings in Social Security disability hearings. This system bears little resemblance to the traditions of Anglo-American jurisprudence. For example, as mandated by the federal courts, the Administrative Law Judge has the affirmative duty to develop the administrative record. Regulations place the burden upon the claimant to demonstrate entitlement to benefits, but an equal burden is placed upon the Commissioner when denying benefits to show that the individual can perform in the work force. The problem is that the Commissioner is unrepresented by counsel in the hearing. The task of eliciting such evidence falls to the ALJ, who must cull from the evidentiary record pertinent facts upon which to base his or her inquiry of the vocational expert. An inquiry is undertaken by the judge, subject to cross examination by the claimants lawyer. The courts have described this process as a sort of judicial schizophrenia, i.e. Social Security Administration ALJs wear the "dual hats" of investigator and adjudicator. The article addresses the various parameters that govern the scheme, such as: a single party system, a single decision-maker, a non-adversarial system, and a system required to demonstrate traditional notions of fair play and substantial justice encompassing modern concepts of due process. The authors suggest solutions for returning the system to its adversarial roots; that is, in returning the judge to her jurisprudentially passive role.

Symposium: Presidential Power in the Twenty-First Century, 47 Case W.

Res. L. Rev. 1213-1670 (1997). Introduction by Michael Gerhardt; Theodore Lowi, President v. Congress: what the two-party duopoly has done to the American separation of powers; PANEL I: WAR POWERS AND FOREIGN AFFAIRS: Louis Fisher, Sidestepping Congress: presidents acting under the UN and NATO; Peter Shane, Learning McNamara's Lessons: how the War Powers Resolution advances the rule of law; Jonathan Entin, The dog that rarely barks: why the courts won't resolve the War Powers Debate; John McGinnis, The spontaneous order of war powers; PANEL II: THE APPOINTMENT POWER: Jeffrey Tulis, Constitutional abdication: the Senate, the President, and appointments to the Supreme Court; Michael Gerhardt, Putting presidential performance in the federal appointments process in perspective; Yvette Barksdale, Advise and consent; Ronald Kahn, Presidential power and the appointment process: structuralism, legal scholarship, and the new historical institutionalism; PANEL III: THE REMOVAL POWER: Steven Calabresi and Christopher S. Yoo, The unitary executive during the first half-century; Martin Flaherty, Relearning founding lessons: the removal power and joint accountability; Jonathan Entin, Synecdoche and the Presidency: the removal power as symbol; PANEL IV: THE BUDGET: Neal Devins, In search of the lost chord: reflections on the 1996 Item Veto Act; Michael Fitts, The foibles of formalism: applying a political "transaction cost" analysis to separation of powers; Lawrence Lessig, Lessons from a line item veto law.