The Internationalization of Agency Actions
U.S. agencies routinely base their domestic regulations on international considerations, such as the benefits of coordinating U.S. and foreign standards or the foreign policy advantages of a particular policy. I refer to this phenomenon as the internationalization of agency actions. This Article examines what the internationalization of agency actions means for agency decision-making processes, institutional design, and legal doctrine. It creates a stylized model of how agencies determine whether to coordinate their standards with foreign regulations. Among other institutional design findings, it shows that court opinions that reduce the stringency of judicial review when agencies implement internationally coordinated standards make such coordination more likely to occur, but they simultaneously deprive the executive of bargaining power because U.S. agencies cannot credibly threaten that any coordinated agreement must align more closely with U.S. values or else risk being overturned in U.S. courts. This Article also develops a taxonomy of international factors relied on by agencies and applies that taxonomy to help clarify the doctrinal issue of whether and when agencies can use international factors to justify their actions in court. This taxonomical approach shows how the Supreme Court’s opinion in Massachusetts v. EPA can reasonably be read to allow agencies to invoke a far broader range of foreign policy rationales than some prevailing views suggest.
Ordinary Administrative Law as Constitutional Common Law
Last term, in Federal Communications Commission (FCC) v. Fox Television Stations, the Supreme Court expressly refused to link ordinary administrative law to constitutional concerns, insisting that whether an agency action is “arbitrary and capricious” and whether it is unconstitutional are separate questions. In this article, I argue that Fox is wrong. The Court’s protestations aside, constitutional law and ordinary administrative law are inextricably linked, with the result that a fair amount of ordinary administrative law qualifies as what Henry Monaghan famously termed constitutional common law. Its doctrines and requirements are constitutionally informed but rarely constitutionally mandated, with Congress and agencies enjoying broad power to alter specific administrative mechanisms notwithstanding their constitutional aspect.Recognizing the interrelationship between constitutional law and ordinary administrative law is important both for the ongoing debate over the legitimacy of constitutional common law and for proper appreciation of the role administrative agencies can play in our constitutional order. Underlying many attacks on constitutional common law is a view of constitutional law as having a narrow and determinate scope, but the interwoven relationship between ordinary law and constitutional law in the administrative law context suggests this view of constitutional law is a false one. In addition, seeking to enforce constitutional norms through ordinary administrative law better accords with constitutional principles than efforts to segregate out the two and is likely to prove less intrusive to the policymaking prerogatives of the political branches. As a result, the better critique is not the extent to which constitutional common law surfaces in administrative contexts, but rather the lack of transparency that accompanies it.
Drug Testing in Public Agencies: Are Personnel Directors Doing Things Right?
The results of a survey of 300 public agencies personnel directors are reported. The report describes the drug and alcohol testing policies and procedures now used by these respondents. The implications of the survey results are evaluated in terms of critical issues of personnel management practice and public policy: (1) the protection of employees' constitutional rights, (2) the public's right to an effective public service, and (3) management's need to reduce liability risks and to increase program effectiveness.