STATEMENT OF PROFESSOR GARY J. EDLES
FELLOW IN ADMINISTRATIVE LAW
General Counsel,
Administrative Conference of the
before the Subcommittee on Commercial and Administrative Law
House Committee on the Judiciary
on the
Reauthorization of
the Administrative Conference of the
Mr. Chairman,
members of the subcommittee. I want to
applaud the subcommittee’s decision to hold theses hearings and I hope that they
will lead to the long‑overdue reauthorization and funding of the
Administrative Conference of the
The Need for an Administrative
Conference
I strongly believe there is a need for the reauthorization of an Administrative Conference and that ACUS is “very good value for money.” Despite the presence of a written Constitution and a government-wide procedural statute (the APA), the federal administrative process, by design and evolution, is characterized by a considerable degree of procedural flexibility and agency discretion. Given that flexibility and discretion, some form of independent oversight entity is needed to help ensure that the process is effective, accountable, and, perhaps most important, fair to our citizens. ACUS successfully played a key oversight role in the past and I believe such an institution is still needed.
As a practical matter, there are no other entities that can play the unique role that ACUS played. The courts are ill suited to perform a meaningful role as supervisor of the details of agency operations. Very few agency actions, even those that significantly affect members of the public, turn into litigated cases, in part because they are not amenable to judicial remedy or the average citizen simply can’t afford the cost of litigation. So, many agency procedures and practices don’t find their way into the courts. And the best a court can do in any event is to correct a problem in the case before it. The courts are simply not set up to be pro-active in proposing systematic change.
Likewise, Congress cannot be expected to oversee the minutiae of agency operations and procedures. Congressional oversight of administrative agencies has always been episodic. Congress, quite frankly, has many more fundamental issues on its plate. For example, Title II of Public Law 104-121, the Small Business Regulatory Enforcement Fairness Act of 1996, gave Congress an opportunity to review agency regulations before they became effective and enact legislation to prevent them from going into effect. But the provision is limited to rulemaking initiatives, which make up only a portion of overall agency activity. Moreover, agencies place several thousand regulatory actions in the Federal Register annually, but Congress has historically managed to enact only 150-200 bills each year. As a consequence, to my knowledge, Congress has used its rulemaking review power only once since the statute was enacted. Congess, in short, rarely involves itself in the type of procedural particulars that ACUS regularly examined.
It is doubtful that centralized review by the President, or even his senior deputies, can effectively oversee the finer points of the regulatory process. Although presidential review is theoretically possible, my colleague, Professor Thomas Sargentich, has suggested several factors that necessarily limit the President’s power as a practical matter: the multitude of issues flowing through agencies daily, the severely limited resources of executive oversight, and the variety of control relationships that exist in the administrative system.
Nor can agencies be expected to devote their time and energy to critical self‑examination. In an era when resources are scarce and must be channeled into accomplishing the numerous tasks assigned to them by Congress, agencies can devote very little time to reflection unless pressed to do so by outside political pressure.
Individual scholars or ad hoc advisory groups can study agency practices and procedures to some degree. Indeed, the Section of Administrative Law and Regulatory Practice of the American Bar Association has done an excellent job of picking up some of the slack after ACUS was abolished. But the details of day-to-day administrative procedure are often arcane and typically agency-specific, so they rarely attract the attention of academic scholars, who prefer to devote their time and energy to doctrinal or policy issues that have a larger audience. Moreover, neither academic researchers nor ad hoc advisory groups have the time or incentive to pursue research or recommendations to the implementation phase, particularly where such phase can last a decade or more.
A permanent, independent body such as ACUS also melds the expertise and perspectives of the government agencies, the private sector, including, importantly, the practicing bar, and members of the judiciary and the academic community. The participation of senior government officials – especially career civil servants – brings a unique form of expertise and experience. Agency officials are typically thoroughly familiar with the intimate workings of their own agencies. That expertise is essential to effective procedural reform. But agency officials can also have a stake in existing procedures that they administer or may even have created. And I have always found it surprising how unfamiliar agency officials often are with the experience of sister agencies. So sensible oversight requires the bringing together of expertise from numerous agencies across the government.
The participation of non-government members is crucial. It helps ensure that recommendations reflect the problems and perspectives of those who must actually deal with government and have experienced the frustration of trying to work their way through the bureaucracy or perceive government procedures as unfair. Judges lend their perspectives as generalist experts in fair procedure and reviewers who examine administrative action when it is challenged in court. Participation by members of the academic community helps guarantee that studies are thorough and doctrinal elements are not ignored.
Finally, a
permanent institution allows a career staff to develop expertise in the areas
of administrative law and government organization and process and devote time
and resources to implementing recommendations.
Judging from the number of telephone calls or e-mails I received at my
Over 40 years ago, federal Court of Appeals Judge E. Barrett Prettyman, reporting on behalf of the temporary Administrative Conferences created by President Kennedy, summarized ACUS’ value as follows:
The heavy pressures of Government to discharge immediate responsibilities may at times rob administrators of the time needed for consideration of procedures. Imperfections in method . . . may acquire the protective coloration of familiarity, and the demands of the daily job may lessen the will to achieve change.
The committees of Congress, suitably concerned as they are with matters of substantive policy, can only sporadically occupy themselves with the details of methodological and organizational problems . . .. Nor do we think that hope of major accomplishment lies in occasional studies by groups external to the Government . . .. The current need is for continuous attention to somewhat technical problems, rather than for public enlightenment concerning a few dark areas that cry for dramatic reforms. A discontinuous commission . . . is unlikely to have great impact upon the day-to-day functioning of the Federal agencies. Letter from Judge E. Barrett Prettyman to President John F. Kennedy (Dec. 17, 1962), Legislative History of ACUS (on file, ACUS Collection, American University Washington College of Law Library),
Those reasons
help explain why other countries with significant administrative systems have
permanent oversight bodies. For example,
Need for
The need for a genuinely nonpartisan and independent advisory body has been recognized throughout ACUS’ history. A Republican President, Dwight Eisenhower, established the first Administrative Conference on a temporary basis in 1953. A Democratic President, John Kennedy, created a second temporary Conference in 1961. Apart from their numerous proposals for specific improvements in agency procedures, both temporary groups strongly endorsed the need for a permanent institution. Congress agreed, and created what was designed to be a permanent institution in 1964 with passage of the Administrative Conference Act.
A separate, independent institution serves to maintain both objectivity and the appearance of objectivity. From its earliest days, ACUS had a bylaw providing that each member participated “according to his own views and not necessarily as a representative of any agency or other group or organization.” It is doubtful, for example, that federal judges would have, or could have, participated in an institution that was not genuinely independent of an incumbent political administration. So ACUS would have lost the valuable insights of numerous federal judges, such as Justice Breyer, if it were seen as closely allied to the President, irrespective of which party was in power. Although the ACUS Chairman and staff were careful not to lock horns unnecessarily with an incumbent administration, ACUS’ recommendations at times parted company with the official view of the President or particular departments or agencies of government. I think that committees of Congress especially appreciated that when ACUS provided its advice, it was not doing so simply as a spokesperson for a current administration.
As part of its independence, Congress needs to ensure that ACUS has some funds for independent research. Over the years, ACUS affected major alterations in the federal administrative process. It recognized the need to develop fundamental changes in the process of the entire government. But it also examined the need for improvements in the organization and procedures of individual agencies. Its studies almost always focused on empirical inquiry, although they did not ignore doctrinal elements. During the period when I served as ACUS’ General Counsel, from 1987 to 1995, agency-specific studies were conducted at the request of several agencies, often with the financial support of the requesting agency. Congress encouraged this approach in an effort to make ACUS more self-sustaining. Although ACUS was always receptive to conducting studies on behalf of agencies interested in self-examination, a number of us were concerned about excessive reliance on funds from other agencies to sponsor projects. I would emphasize that no agency was ever able to influence ACUS’ recommendations despite having requested or underwritten a study. Still, I believe that excessive reliance on agency funds can undermine public confidence in the objectivity of ACUS’ research. Equally important, too much reliance on agency funding introduces instability in the research program because areas that need examination may not get it for lack of outside funding and a constant flow of funds from other agencies can never be assured. In my judgment, some independent research budget is essential.
Structure and
Any revitalized ACUS should remain essentially advisory. From time to time during ACUS’ history, elements within ACUS or its supporters urged that it be given authority to compel, rather than merely recommend, action by agencies. In my view, that’s a bad idea. Such expansion of its authority will compromise ACUS’ ability to achieve actual reform. Much of its success stemmed from its ability to enlist an agency’s support even when that agency was the subject of study. Numerous agencies actively solicited ACUS’ help. And, in most cases, agencies adopted ACUS’ recommendations. Any change from advisory to mandatory powers would alter ACUS’ relationship with its member agencies from that of an impartial adviser to that of a policeman or potential adversary and compromise its ultimate ability to effect change. Nonetheless, I do believe that ACUS should undertake to bring to the attention of Congress or the President whether, and to what extent, its recommendations have been adopted. Providing Congress and the President with impartial advice, including a status report on agency implementation of ACUS recommendations, is not inconsistent with ACUS’ advisory mission.
Given the changing complexion of regulatory problems, and the recognized public dissatisfaction with government regulation, but the apparent lack of consensus on how to reform it, I think a revitalized ACUS should examine whether there are institutional elements that bear on regulatory failure. During my tenure, ACUS had economists among its members, such as OMB Director James Miller, and I think a revitalized ACUS would benefit from a membership that also included public administrators.
A revived ACUS can be smaller than the 101-member Assembly. Such a large group provided broad representation of interests but, at times, frustrated efficient operation. As with any organization, not all members were equally active. Senior political officials from the government, in particular, often had schedule conflicts that compromised their participation. These scheduling conflicts also intermittently led to quorum problems. So the work typically fell to a smaller group of active members. As long as the balance between government and private interests is retained, and all cabinet departments and a fair representation of other agencies are included, fewer than 101 individuals could accomplish ACUS’ statutory mission.
Reform of entrenched administrative practices and attacking bureaucratic inertia takes time and perseverance. One of ACUS’ strengths was its ability to see its ideas through from concept, to design, to implementation. So, in reauthorizing ACUS, Congress needs to ensure an ongoing role for a permanent, career staff.
However, the permanent staff might be a bit smaller than the 24 employees that made up the Office of the Chairman during the high water mark of ACUS’ activities. While a small corps of permanent employees is essential, there is no reason why employees temporarily assigned from other agencies could not supplement the permanent staff. The existing statute permits this arrangement and, over the years, ACUS had an active “visiting executive” program that allowed a number of highly talented government employees to join the ACUS staff for temporary periods while remaining on their home agency’s payroll. A new ACUS could also augment its operations without an additional outlay of funds through an affiliation with a law school or school of public administration, whose students and faculty could assist in, or supplement, the conduct of research, the coordination of peer review for oversight of projects, and the drafting and implementation of recommendations.
ACUS’ budget was tiny by governmental standards – only $1.8 million when it was eliminated in 1995. Even ACUS’ critics acknowledged that its abolition had no meaningful effect on the overall federal budget. Perhaps more importantly, ACUS’ budget was also small relative to its mission – it was the only agency with exclusive responsibility for improving administrative justice in federal programs that, at the time, affected about $500 billion of the gross domestic product and involved government departments and agencies that adjudicated more cases that the federal courts. Indeed, the amount of money saved by both the government and the private sector from ACUS’ seminal work in the area of alternative dispute resolution, standing alone, far exceeded its annual budget. Given inflation since 1995, I think that ACUS could operate successfully at the outset on a modest budget in the $2-3 million range.
In summary, though, I think that the precise size and organizational structure of a new ACUS is much less significant than the political recognition that some entity needs to be available to police the inner recesses of the administrative process, and that ACUS is the best available option. It provides, as Justice Scalia pointed out, “a unique combination of scholarship and practical know-how, of private-sector insights and career‑government expertise.” Its essential purpose today would be the same as when it was originally created – to identify the causes of government inefficiency, ineffectiveness, delay and unfairness, recommend ways to change things, and pursue those recommendations to fruition.
Emoluments Clause Issue
As part of the reauthorization process, I urge the committee to clarify the uncertainty that exists over a rather technical issue, namely the applicability of the Emoluments Clause of the U.S. Constitution to non‑government members of ACUS. The uncertainty arises because of a 1993 opinion by the Office of Legal Counsel, Department of Justice (OLC), and ACUS’ inability to have the matter resolved before it went out of business in 1995. Congress should make clear that, in its view, ACUS’ members from outside the federal government who serve part-time, are unpaid for their services, and are explicitly required by the statute to be chosen for their expertise do not, simply because of such service, hold an “Office of Profit or Trust” within the meaning of the Emoluments Clause. Rather, they should be treated like members of any other federal advisory committee. Absent resolution of the issue by Congress, the status of ACUS’ non‑government members will remain in doubt and the ability of a revitalized ACUS to attract the most distinguished individuals from the private sector will be seriously compromised.
As you may know,
the Emoluments Clause provides that “no Person holding any Office of Profit or
Trust . . . shall, without the Consent of the Congress, accept . . . any
present, Emolument, Office, or Title, of any kind whatever, from any King,
Prince, or foreign State.”
On
The matter has been partially – but, unfortunately, not fully – resolved in the years since 1993 because OLC has retreated from its original determination. Immediately on the heels of its October, 1993 ACUS opinion, OLC, at the behest of the Department of State, reconsidered and revised its underlying view regarding the applicability of the Emoluments Clause to unpaid members of advisory committees. On March 1, 1994, in an unpublished letter to State Department Legal Adviser Conrad Harper from OLC Assistant Attorney General Walter Dellinger, subsequently cited in Applicability of 18 U.S.C. § 219 to Representative Members of Federal Advisory Committees, 1999 OLC LEXIS 11 (1999), OLC determined that “not every member of an advisory committee necessarily occupies an ‘Office of Profit or Trust’ under the [Emoluments] Clause.” Later in 1994, OLC modified its view regarding advisory committee members from the academic community. It determined that while foreign public institutions, such as universities, were presumptively instrumentalities of a foreign state for Emoluments Clause purposes, individuals did not come within the Emoluments Clause if the foreign academic institutions with which they had a relationship are independent of the foreign government when making employment decisions. See Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13 (1994). In 1996, OLC publicly rejected what it now characterized as its previous “sweeping and unqualified view” that federal advisory committee members hold offices of profit or trust and were thereby subject to the Emoluments Clause. It went on to conclude that members of the State Department’s Advisory Committee on International Economic Policy do not occupy an “Office of Profit or Trust” within the meaning of the Emoluments Clause. See Letter Opinion for the Deputy Legal Advisor, Department of State, The Advisory Committee on International Economic Policy, 1996 OLC LEXIS 63 (1996).
Unfortunately, the 1994 unpublished letter to Conrad Harper at the Department of State has not, to my knowledge at least, been made public. When I learned of its existence, long after ACUS had been abolished, I requested from OLC and the Department of State both a copy of the letter and any underlying documents from the State Department to OLC that might help illuminate OLC’s new rationale. Because I was now a member of the academic community, I had to make my request pursuant to the Freedom of Information Act. My FOIA requests were denied by both agencies. So the bases for OLC’s 1994 change of heart, and the factors that influenced it, are, as best I can tell, still not publicly known.
OLC did issue a brief, two paragraph, published opinion on the subject in 1996. However, in that opinion OLC simply pointed to various factors that took members of the State Department’s Advisory Committee on International Economic Policy out from under the Emoluments Clause. OLC pointed out that the members of that advisory committee met only occasionally, served without compensation, took no oath, and did not have access to classified information. OLC further indicated that the State Department committee was purely advisory, was not a creature of statute, and discharged no substantive statutory responsibilities. Beyond noting these factors, however, OLC failed to set out in any principled way which of these seemingly key characteristics, or combination of them, would render other advisory committee members subject to, or not subject to, the Emoluments Clause. For example, is the mere fact that Congress created the advisory committee by statute sufficient, by itself, to render advisory committee members subject to the Clause? If so, why is that so, and are the other factors thus either irrelevant or surplusage insofar as OLC’s analysis is concerned? In the circumstances, OLC’s view on the applicability of the Emoluments Clause to prospective ACUS members cannot be determined. Nonetheless, if rigidly or individually applied, the fact that the Conference is created by statute, that the membership as a whole is technically responsible for the Conference’s activities, and that, through its Chairman and permanent career staff, it performs statutory duties other than making recommendations, could be seen to subject the non‑government members to the Emoluments Clause. So Congress needs to declare its intent that ACUS’ non‑government members be treated in the same way as members of other advisory committees and indicate that it is aware of the OLC opinion but does not believe that the Emoluments Clause should be a barrier to service by ACUS’ academic members or individuals in large law firms as long as the non‑government members do not, themselves, represent foreign governments. This is plainly within Congress’ constitutional capacity to do.
I would point out that, apart from ACUS’ statutory
creation, none of the other factors noted as relevant in OLC’s 1996 opinion
apply to non‑government ACUS members.
Non-government members meet only occasionally, serve without compensation,
do not have access to classified information, and are not required to take an
oath. They perform purely an advisory
role akin to that performed by advisory committee members throughout
government. The job of the Assembly of
the Conference, made up of its entire membership, is to study issues of
administrative procedure and adopt recommendations for improvement. See 5 U.S.C. §595(a), setting out the
Assembly’s statutory responsibilities.
Although the Assembly technically “has ultimate authority over all
activities of the Conference,” its functions are necessarily confined by the
specific administrative and executive powers conferred expressly on the
Chairman and the Council in 5 U.S.C. § 595(b) and (c). And, as a practical matter, during my term of
office at least, the Assembly and its non-government members (apart from the 5
non-government members of the Council) did not perform any functions that were
not related to their advisory responsibilities.
In short, the Assembly, meeting twice a year in Plenary Session, and
through its committees on an irregular basis at other times, was entirely a
recommending or advisory body.
ACUS’ statutory footing or its other statutory
responsibilities do not alter the advisory role of its non-government members. Although ACUS is both a statutorily created
federal agency and an advisory committee, its non-government members
participate only in its advisory functions.
The statute created the position of Conference Chairman as its chief
executive. He or she is a full‑time
federal employee who, along with the professional staff, conducts ACUS’
day-to-day activities. The Chairman and
staff ensure implementation of ACUS recommendations and the accomplishment of
any statutory assignments given to ACUS by Congress. They serve as a clearinghouse for government
agencies on administrative process issues.
In other words, to the extent that ACUS as an agency performs tasks that
might be considered to be non‑advisory, these tasks fall within the
purview of the Chairman and staff, who, as federal officials, are clearly
subject to the Emoluments Clause.
ACUS’ 40-year history testifies to the fact that
Congress has always known about – and, indeed, has endorsed and
statutorily required – the appointment of distinguished law professors, lawyers
in private practice, and other experts as non‑government members. There were two temporary Conferences, neither
of which was established by statute – the first created by President Eisenhower
in 1953, the second established by President Kennedy in 1961. They were made up of law professors, lawyers
in private practice, and other experts, with a federal judge as chairman. Those
Temporary Conferences were explicitly the model for the statutorily established
Conference created by Congress in the Administrative Conference Act of 1964,
P.L. 88‑499. Indeed, in section
593(b)(6) of Title 5 Congress expressly required that non‑government
members shall be chosen to “provide broad representation of the views of
private citizens and utilize diverse experience. The members shall be members of the
practicing bar, scholars in the field of administrative law or government, or
others specially informed by knowledge and experience with respect to Federal
administrative procedure.” Establishment
of ACUS by statute worked no change in the basic advisory role of its non‑government
members. An Administrative Conference
rooted in a statute, as recommended by both temporary Conferences, was intended
solely to give the advisory body permanent status. In my opinion, if anything, ACUS’ statutory
underpinning, and Congress’ express articulation of membership qualifications,
manifests de facto congressional
consent to any Emoluments Clause issue that a statutory foundation, standing
alone, might be seen to pose.
But I recognize that the 1993 OLC opinion will
complicate and compromise ACUS’ ability to attract the most distinguished
individuals from the private sector. So
Congress should eliminate any ambiguity by amending the statute as part of the
reauthorization process. There is no
drawback in doing so. The Assembly, and
its committees, have always operated, and must continue to operate, pursuant to
the openness requirements of the Federal Advisory Committee Act, 5 U.S.C.
Appendix, as do other federal advisory committees. Non‑government members must comply with
pertinent Office of Government Ethics disclosure requirements. So I recommend that Congress make two
statutory modifications. First, it should
delete the second sentence of section 595 that confers on the Assembly
“ultimate authority over all activities of the Conference.” This will eliminate any technical argument
that the Assembly plays a role in the administrative operation of the agency. Second, it should add a final sentence to
section 593(c) to provide explicitly that “Members of the Conference from
outside the Federal Government do not, by virtue of their appointment, hold an
“Office of Profit or Trust” within the meaning of Article I, §9,
cl. 8 of the U.S. Constitution.” At a
minimum, Congress should make clear in the legislative history that, in
reauthorizing ACUS, it fully anticipates, and consents to, membership by
individuals who are members of the practicing Bar, scholars in the field of
administrative law or government, or other experts in federal administrative
procedure irrespective of any highly attenuated relationship with a foreign
entity of the type OLC found to implicate the Emoluments Clause.
I appreciate the opportunity to participate in the
subcommittee’s hearings and I sincerely hope that they are the beginning of a
process that leads to the reauthorization, re‑creation, and funding of
the Administrative Conference.