Internal Administrative Law
Gillian E. Metzger* & Kevin M. Stack**
For years, administrative law has been identified as the external review of agency action, primarily by courts. Following in the footsteps of pioneering administrative law scholars, a growing body of recent scholarship has begun to attend to the role of internal norms and structures in controlling agency action. This Article offers a conceptual and historical account of these internal forces as internal administrative law. Internal administrative law consists of the internal directives, guidance, and organizational forms through which agencies structure the discretion of their employees and presidents control the workings of the executive branch. It is the critical means for shaping the discretion of officials and ensuring accountability within agencies. Internal administrative law’s binding status in structuring agency decision marks it as a form of law.
This Article’s project is one of recovery more than invention. The decade-long debate culminating in enactment of the Administrative Procedure Act (APA) reflected consistent recognition of internal controls’ contributions to agency accountability. Despite this history, judicial enforcement of the APA undermined internal administrative law and constrained its content by treating the agency’s articulation of internal norms that bind agency actors as triggering external judicial enforcement. At the same time, expanded White House control has made internal administrative law more centralized. Given the importance of internal administrative law to agency accountability and administrative legitimacy, the time has come for more sustained engagement with the idea of internal administrative law and measures to foster its development.
*Stanley H. Fuld Professor of Law, Columbia Law School.
**Professor of Law, Vanderbilt University Law School. The genesis for this project was a chapter forthcoming in a tribute to Jerry Mashaw. See Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law Before and After the APA, in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw 163–87 (Nicholas R. Parrillo ed., 2017). For comments and suggestions on earlier drafts we are grateful to Jessica Bulman-Pozen, Peter Cane, Ronald Levin, Jerry Mashaw, Nicholas Parrillo, Miriam Seifter, and Peter Strauss, as well as audience members at conferences and workshops at Columbia, Drexel, Fordham, Yale, and Universities of Colorado, Miami, North Carolina, Virginia, and Wisconsin law schools. Many thanks to the editors and staff at the Michigan Law Review for their excellent editorial assistance, and to Columbia librarian Dana Neacsu for help tracking down historical materials.