Administrative law scholars tend to think big: They talk in terms of the federal government and its countless, acronym-heavy agencies (the SEC, FDA, EEOC, EPA, GSA, NOAA, FCC, CDC, DEA, etc.), they examine the decisions of circuit and appeals court decisions, and they discuss the legislative wrangling of Congress. But what about law at the more granular, local level? What do these scholars have to say about the management of our towns, cities, and counties? Surprisingly, very little.
Professor Nestor Davidson, by contrast, has much to say about administrative law at the local government level. He views the city school district and neighborhood policing frameworks as equally deserving of serious study as the Department of Education and the FBI. His careful analyses of these admittedly smaller, though no less important, entities reveal interesting insights into their structure.
A scholar of property, land use, and local government law, Professor Davidson serves as Fordham Law’s associate dean for academic affairs and the faculty co-director of the Urban Law Center. Before his academic career, he practiced with the firm of Latham and Watkins, focusing on commercial real estate and affordable housing, and served as special counsel and principal deputy general counsel at the U.S. Department of Housing and Urban Development. He earned his A.B. from Harvard College and his J.D. from Columbia Law School. After law school, he clerked for Judge David S. Tatel of the U.S. Court of Appeals for the District of Columbia Circuit and Justice David H. Souter of the Supreme Court of the United States.
In this excerpt of “Localist Administrative Law” 126 Yale Law Journal 564 (2017), Davidson argues that by looking microscopically at legal structures closer to home, interested parties can shape a more locally oriented administrative jurisprudence, with a surprisingly big impact.
In the waning days of Mayor Michael Bloomberg’s administration, the New York City Department of Health and Mental Hygiene promulgated a regulation that would have limited sales based on the portion size of so-called “sugary” drinks.[1] Before the portion-limit regulation could take effect, however, the New York state courts invalidated it on grounds seemingly familiar to any scholar of administrative law: separation of powers and the nondelegation doctrine.[2]
What is distinctive about this controversy is not that the judiciary found that an administrative agency had overstepped its bounds; that much is relatively banal, although not without its problems in this particular case. It is, rather, that the relevant agency promulgating the rule at issue was part of a local government.
In legal scholarship, administrative law is almost always synonymous with federal administrative law. The institutional frameworks, doctrinal questions, and theoretical concerns that drive the voluminous literature on administrative law almost exclusively take the alphabet soup of federal executive-branch agencies, acting pursuant to statutes enacted by Congress and overseen by Article III courts, as the reigning paradigm. The preoccupations and prescriptions of mainstream administrative law accordingly flow from this institutional and regulatory context.
This myopic federal focus obscures a massive, submerged, and surprisingly vibrant domain of administration that exists at the local-government level. Nested within the tens of thousands of cities, suburbs, towns, and counties that span the country is a vast panoply of local agencies with significant front-line regulatory responsibility. These agencies work in policy domains as varied as economic regulation, public health, land use, policing, environmental protection, education, public benefits, and consumer welfare. It is no exaggeration that almost every area of local governance operates through myriad zoning boards, education departments, police commissions, motor vehicle bureaus, social-service agencies, and similar institutions. If, as the introduction to a leading casebook on local-government law puts it, three core relationships have traditionally defined the field—those “between cities and higher levels of government, between neighboring cities, and between cities and the people who live within their boundaries,”[3] then local administration represents a crucial fourth relationship—between and among institutions within local governments.
When one turns the lens on the metaphorical microscope, what does local administration actually look like? It is difficult to generalize, given the number and variety of local agencies, but several themes emerge. First, as noted, local agencies reflect the breadth of the work of local governments. Agencies are involved in the delivery of core local services, such as education, policing, and sanitation, often the functions most closely identified with local governments. But it is easy to forget that local governments also exercise significant regulatory authority, delegated from the state government or under “home rule.” Local agencies, for example, set the rules and oversee the functioning of many aspects of the built environment—through zoning, subdivision rules, building and housing codes, and similar statutory regimes. They also regulate significant aspects of local economies, including wage and hour rules, workplace conditions, and antidiscrimination requirements. And an increasingly important aspect of local regulation involves the environment. Much of local agencies’ work across policy areas happens through licensing, but local agencies also engage in traditional direct regulation.
If this is what local agencies do, what can be discerned about the legal and institutional contexts in which they operate? Local agencies are not simply junior-league counterparts to federal agencies. While there are some local governments—particularly in larger cities such as New York—that have surface resemblance to the federal three-branch paradigm, most have distinctly different structures. For example, many local governments have little or no formal separation of powers, with lawmaking authority often vested in a unified legislative-executive body. The “mayor” in these jurisdictions, if there is one, is just another council member. Even for those local governments that have a recognizable independent chief executive, that executive’s ability to directly oversee agencies is often circumscribed. And many local agencies are subject to quite limited electoral accountability, reporting to the state or entirely lacking a relevant, direct electoral mechanism of any sort.
While some local agencies, moreover, are well-staffed and operate as formally as any federal agency, local administration tends to work more informally. Indeed, the precise procedural requirements binding local agencies are often surprisingly murky.[4] Local agencies also often operate at the edge of a blurry line between governmental action and public participation. Community engagement in zoning regulation, school board decisions, police review commissions, and other examples of the blending of public and private underscore the breadth of citizen participation in local agency work that is uncommon at the federal level. And local-government functions can be entirely privatized, including some administration. All of these variations inform this Article’s first aim—providing a descriptive foundation to understand the nature and work of local administration.
These features of local agency context and practice [can]shape a new, distinctly localist administrative jurisprudence. Courts—and it is mostly state courts that review local agency action—engage in judicial review across a variety of contexts, from statutory interpretation, to substantive agency policymaking, to policing the bounds of procedural regularity. When they do, they should attend to four particularly salient aspects of the local context.
First, rather than importing federal—or even state— administrative law norms wholesale, courts should be clear-eyed about the doctrinal implications of local governmental structure and the complex nature of delegated authority for local agencies. Courts should consider, for example, whether limits on executive oversight militate against deference, or whether the absence of separation of powers in a local government might change the nature of the nondelegation doctrine. Similarly, the fact that many local agencies have two layers of oversight—by their local and state government—may mitigate concerns about capture, corruption, and faithless agents. In these and many other ways, the details of local governmental structure matter for judicial review.
Second, courts should be sensitive to the contexts for formality and informality in the work of local agencies. In most instances, as with the approach that courts take when scaling deference in reviewing federal administration, formality should be accorded judicial respect. Where an agency has acted through legislatively prescribed procedure or adopted careful processes of its own, with substantial evidence when appropriate, that should merit deference, all other things being equal. On the other hand, more so than at the federal level, there are contexts where the relative informality of local practice, particularly to the extent that such informality reflects community involvement, may be consistent with norms of considered judgment.
Third, courts should be attentive to the role of private parties and the community in local administration. The scope of private involvement—both within traditionally governmental entities and through privatization—can be a rationale for the kind of vigorous nondelegation doctrine seen in local administrative law (by stark contrast to federal law). But the porous line between public and private at the local level can also weigh in favor of a more pragmatic approach to nondelegation, so long as that approach is undertaken with appropriate caution.
Finally, reviewing courts should take a nuanced view of local agency expertise. In some contexts, this is as straightforward as crediting local technical experts, as with the New York City Department of Health and Mental Hygiene, a nationally recognized leader in public health. In other contexts, however, agencies serve less as a repository of technical expertise and more of a mediating body to channel local input and knowledge. This is still valuable expertise, but of a different sort than the kind of scientific or industry-specific knowledge with which courts credit federal agencies.
Beyond jurisprudence, … the intersection of localism and administration has deep relevance for the literature in each domain. For scholars of local-government law, focusing on the work of agencies adds a layer of institutional depth to long-standing debates balancing local authority, community, democracy, and experimentalism against concerns about parochialism and exclusion. For administrative law scholars, adding an understanding of local administration to debates that are largely focused on the federal level complicates questions of the institutional predicates for administrative legitimacy, but also holds promise for developing a more coherent administrative law across the entire range of our vertical federalist system.
Notes
1. 24 Rules of the City of N.Y. § 81.53 (2013), invalidated by N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 16 N.E.3d 538 (N.Y. 2014).
2. See Hispanic Chambers of Commerce, 16 N.E.3d at 549.
3. Gerald E. Frug, Richard T. Ford & David J. Barron, Local Government Law: Cases and Materials vi (5th ed. 2010).
4. Many local agencies are not bound by state Administrative Procedure Acts, although that does not mean that they are entirely free from procedural constraints. As a result, local agencies have been a particular flashpoint for due process concerns. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970); Londoner v. City & Cty. of Denver, 210 U.S. 373 (1908).
