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.
What Factors Can an Agency Consider in Making a Decision?
In State Farm, the Supreme Court said that an agency decision is arbitrary and capricious if the agency did not consider adequately a relevant factor or did consider an impermissible factor. The Court did not indicate how courts should distinguish among three categories of potential decision making factors: mandatory, discretionary but permissible, and impermissible. Until 2007, the case law in both the D.C. Circuit and the Supreme Court addressed these questions in sensible ways. In particular, both courts held consistently that congressional silence with respect to a logically relevant factor rendered the factor a permissible factor that an agency could consider in its discretion. Two poorly-reasoned majority opinions issued in five-to-four decisions handed down in 2007 can be interpreted to overrule that long line of cases and to hold that congressional silence should be interpreted to render a logically relevant factor impermissible. In this article, I argue that: (1) the internally inconsistent 2007 opinions should not be interpreted in that manner; (2) the Court should issue another opinion soon in which it clarifies this aspect of its problematic 2007 opinions; and,(3) more broadly, the Court should take doctrine more seriously as one means of counteracting the powerful tendency of each Justice to ignore, discount, or distort doctrine to allow the Justice to vote in accordance with his or her ideological preferences.
The Role of Human Rights in EU-US Bilateral Relations
This report aims to analyse the different dimensions and levels of EU-US relations, to survey the instruments the EU uses in this relation and to provide some recommendations for future EU actions. It provides an overview of the main similarities and differences between the EU and the US regarding human rights, and measures the influence of the EU on the state and practice of human rights in the United States. Likewise, this report analyses how the United States may affect human rights in the EU and its Member States, notably in light of US policies that are strongly criticized by the EU from a human rights-based perspective.