Administrative Law's Unavailing Duties

Through a novel empirical approach, this Article shows that legal doctrine does not determine whether federal courts provide remedies when agencies fail to enforce a statutory duty. Plaintiffs are most likely to succeed against the government when litigating statutory procedures located within agency-specific statutes and which raise major policy questions in immigration, healthcare, Native American rights, public housing, the environment, or labor. Others are more likely to lose against the government: plaintiffs litigating statutory violations involving procedures not specific to an agency, but which apply to officers and agencies throughout the bureaucracy. These cases involve duties governing ethics, transparency, recordkeeping, or whistleblower protections (what I call “government accountability” procedures). The results challenge a 50-year scholarly consensus for theorizing about how Congress controls the administrative state. That consensus, which I call the interest group model, states that rather than conduct aggressive, public hearings to control the bureaucracy, Congress prefers to conduct oversight by creating duties within statutes that grant interested parties the ability to seek judicial redress when agencies drift from congressional preferences. The model has been adopted by legal experts, including now-Justice Elena Kagan, to explain how courts oversee the administrative state. And yet, as I show, courts do not provide remedies for violations of government accountability procedures. I theorize that litigating groups, rather than doctrine, motivate the outcomes of judicial behavior in these cases and I contend that the more an interest group can move an issue from a policy focus to a legal one, the more likely courts will entertain a remedy. At the same time, however, I take seriously the prospect that interest groups can rely on Congress to remedy bureaucratic harm. In articulating a “new oversight,” I map out how interested parties who litigate against the bureaucracy can view the congressional oversight process as a remedial channel to procedural violations by regulators.