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Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives Nina A University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2003 Agency Burrowing: Entrenching Policies and Personnel before a New President Arrives Nina A. Mendelson University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/212 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Administrative Law Commons, Law and Politics Commons, and the President/ Executive Department Commons Recommended Citation Mendelson, Nina A. "Agency Burrowing: Entrenching Policies and Personnel before a New President Arrives." N. Y. U. L. Rev. 78, no. 2 (2003): 557-666. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. AGENCY BURROWING: ENTRENCHING POLICIES AND PERSONNEL BEFORE A NEW PRESIDENT ARRIVES NINA A. MENDELSON* This Article examines executive branch agency actions concluded just before a new President takes office, such as "midnight" rulemaking and late-term hiring and pro- motion, which Professor Mendelson collectively refers to as "agency burrowing." Congress, the media, and some commentators have portrayed such activities as un- savory power grabs that undermine the President-elect's ability to direct the func- tions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic respon- siveness of agencies, agency accountability, and the "rule of law." A fuller analysis of burrowing also suggests the need for a more nuanced approach to President- centered theories of the administrative state. Maximum presidential oversight may be insufficient to ensure agency accountability and democratic responsiveness. In- stead of focusing centrally on a formal President-agency relationship, we may wish to give greater attention to more functional means of ensuring agency legitimacy such as monitoring, focused public dialogue on issues before agencies, and agency development of self-limiting rules. Copyright © 2003 by Nina A. Mendelson. As of May 2004, this work will be licensed under the Creative Commons Attribution-NoDerivs-NonCommercial License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nd-nc/l.O/ or send a letter to Crea- tive Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA. * Assistant Professor, University of Michigan Law School. J.D., 1989, Yale Law School. I am very grateful to a number of former and current federal agency officials who allowed me to interview them anonymously for this Article and whom I have occasionally quoted. They include political appointees, including some confirmed by the Senate, and career civil servants that have served in senior policymaking positions. Collectively, the interviewees have worked under both Republican and Democratic Presidents and in sev- eral federal agencies, including the Executive Office of the President, the Environmental Protection Agency (EPA), and the Departments of Housing and Urban Development, In- terior, Justice, and Treasury. I am also greatly indebted to Steven Croley, Becky Eisenberg, Daniel Halberstam, Don Herzog, Robert Howse, Kyle Logue, Jeff Lehman, Deborah Malamud, Jerry Mashaw, Riyaz Kanji, Sallyanne Payton, Richard Primus, Terry Sandalow, and Peter Westen for val- uable comments and discussion, and to Matt Andelman, Joshua Doan, Peter Nemerovski, Christian Richeson, and Gregg Severson for cheerful and thorough research assistance. I also appreciate the generous research support of the University of Michigan Law School's Cook Fund. This Article is dedicated with admiration to John C. Cruden, Esq., Deputy Assistant Attorney General for Environment and Natural Resources, a civil servant truly committed to the public interest and a talented and inspiring manager. Although John was not one of those I spoke with about this project, it was his chance comment that started me thinking about the issue. 557 HeinOnline -- 78 N.Y.U. L. Rev. 557 2003 Imaged with the Permission of N.Y.U. School of Law NEW YORK UNIVERSITY LAW REVIEW [Vol. 78:557 I. THE BURROWING PHENOMENON ........................ 559 II. THE PRESIDENT AND EXECUTIVE BRANCH A G ENCIES ............................................... 569 A. Concerns About Agency Discretion ................. 569 B. Agencies, Legitimacy, and the President............. 577 1. Conceptions of Democracy in the Agency Context ......................................... 578 2. The Administrative State as the Agent of an Elected President................................ 579 3. Agency-Centered Conceptions of Legitimacy in the Administrative State ......................... 585 III. A NORMATIVE ASSESSMENT OF AGENCY B URROW ING ............................................ 588 A. Policy Burrowing and Its Costs ..................... 589 1. CharacteristicPolicy Entrenchment Actions ..... 589 2. The Costs of Policy Entrenchment .............. 599 B. Personnel Burrowing and Its Costs .................. 606 1. CharacteristicPersonnel Entrenchment Actions.. 606 2. The Costs of Personnel Entrenchment ........... 610 C. Salutary Effects of Burrowing ....................... 616 1. Contributions to the Legitimacy of Agency D ecisionmaking ................................. 616 a. Policy Burrowing as a Creator of Public Dialogue: The Roadless Areas Rule as a C ase Study ................................. 619 b. Creation of a Public Policy Dialogue and Information "Benchmarks" ................ 628 c. Personnel Burrowing's Benefits for Internal Agency Deliberation ........................ 641 2. Contributions to Agency Accountability ......... 647 a. Improved M onitoring ....................... 648 b. Greater Policy Transparency and Stability Through Creation of Administrative Lim iting R ules .............................. 652 3. Policy Entrenchment Other Than Rulemaking .. 657 IV. SOME CONCLUDING OBSERVATIONS ON BURROWING... 660 A. Evaluating Policy and Personnel Burrowing......... 660 B. Revising the Focus on Presidential Control .......... 663 HeinOnline -- 78 N.Y.U. L. Rev. 558 2003 Imaged with the Permission of N.Y.U. School of Law May 2003] AGENCY BURROWING I THE BURROWING PHENOMENON 1952, PRESIDENT HARRY TRUMAN: "He'll sit right here.., and he'll say do this, do that!! And nothing will happen. Poor Ike-it won't be a bit like the Army. "1 DECEMBER 2000, QUESTION FROM WHITE HOUSE PRESS CONFER- ENCE: "Do you think [President Clinton's] decision to switch the [presidential limousine] license plates [to the new District of Colum- bia 'Taxation without Representation'plates] should be seen as one in a series of actions the President is taking to try to tie the hands of [President Bush, given his lack of support for D.C. statehood]?" (Laughter.) ANSWER FROM WHITE HOUSE PRESS SECRETARY JAKE SIEWERT: "This is a decision that's made on the President's own views about D.C. and its statehood. But, obviously, we're not tying the hands of anyone. Screwdrivers are a dime a dozen. "2 JANUARY 20, 2001, WASHINGTON POST: "Even before he was sworn in, George W. Bush went out of his way to show that reports of his disdain for this city were right true. Yesterday, he said that the Taxa- tion Without Representation license plates . .[on] the presidential 3 limousine would be removed, pronto." Towards the end of every presidential administration, bureaucrats joke about "burrowing" into the government and "leaving alligator eggs." They are referring to actions taken just before the President ends her term of office. Since there is no impending election, the 4 President may feel relatively unhampered. I Margaret Truman, Harry S. Truman 551-52 (1973) (internal quotations omitted). 2 Office of the Press Secretary: Press Briefing by Jake Siewert, M2 Presswire, Dec. 27, 2000, LEXIS, Nexis Library, M2 Presswire File. 3 Marc Fisher, Inaugural Events Washed Over by Feelings of Unease, Wash. Post, Jan. 20, 2001, at B1. 4 See, e.g., Keith Schneider, Environment Gets a Flurry of Final Acts, N.Y. Times, Jan. 16, 1993, at AI ("Leaders of environmental, industrial and property rights groups.., noted that the election results had freed Mr. Bush and his deputies from any lingering political ramifications caused by the decisions."); see also Jack M. Beermann, Presidential Power in Transition 21 (Boston Univ. Sch. of Law, Working Paper Series, Public Law & Legal The- ory Working Paper No. 02-20, 2002), http://ssrn.com/abstract=349560 (noting that transi- tion-period actions could be characterized either as democratic insult or as President rising above narrow interests). Implicitly-or explicitly-these actions declare that until January 20, the President is still the President, with all the accompanying prerogatives of the office, including the authority and responsibility to set policy. See, e.g., William S. Morrow, Jr., Midnight Regulations: Natural Order or Disorderly Governance, Admin. & Reg. L. News, Spring 2001, at 3, 18 ("[T]he nation expects its chief executive to continue working up until the last day, just as Congress does." (paraphrasing Sally Katzen, former Office of Manage- ment and Budget (OMB) Acting Deputy Director under President Clinton)); George
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