A Local Lens on Administrative Law

Font Size:

Scholar brings the focus of administrative law to the level of municipal government.

Font Size:

Scholars have long debated the principles of U.S. administrative law, but these discussions have focused almost exclusively on federal law. How well do these principles apply at the local level?

Despite the abundance of administrative law scholarship, basic questions about the oversight of local administration remain conspicuously unaddressed, argues Maria Ponomarenko of the University of Minnesota Law School in a recent paper.

Ponomarenko tackles this gap in the literature, arguing that local agencies respond differently to procedural and substantive constraints than do federal agencies. Compared to the federal system, Ponomarenko explains, local substantive judicial review provides greater value than procedural requirements.

At the local level of government, agencies handle much of the work of governing. In cities such as Seattle, Chicago, and New York, agencies issue thousands of regulations on a broad range of issues. Even in relatively small towns, administrative agencies regulate everything from tanning salons to youth athletics.

Defining a local agency, however, poses no easy task. Some agencies, like their federal counterparts, are created by a legislative body and situated within a municipality’s “executive branch,” with agency heads appointed by the mayor and subject to mayoral removal. Other entities lack the “separation between legislative and executive powers” that is distinctive of federal agencies. For example, a city council may directly appoint agency heads, and a county board of supervisors may both legislate and oversee administrative officials.

In addition, unlike in the federal government, local agencies often cannot adopt binding rules. Instead, regulations are adopted by non-agency entities, including legislative bodies and city councils. Regardless, agencies exercise significant interpretive discretion in executing regulations.

Local governments also tend to feature hybrid agencies created by both state and local law. For example, in Georgia, state law mandates county health boards, but counties appoint board members and assign functions to the boards.

Furthermore, procedural requirements for local agencies—which are based primarily on local law—can vary widely. Federal constitutional requirements provide a baseline for local agency adjudication; for over a century, the U.S. Supreme Court has held that when local governments’ policymaking impacts private rights, they must afford affected citizens “at least a rudimentary opportunity to be heard before a final decision is made.” Still, much variation exists across municipalities’ requirements for local rulemaking.

Although a few states have state administrative procedure acts that govern local rulemaking, local law typically determines rulemaking procedures for municipal agencies. Although a few large cities have adopted administrative procedure acts of their own, most municipalities subject only specific agencies to procedural requirements—or do not specify procedures at all.

Comparing two large East Coast cities provides an example of the dramatic variations in local agency procedures. In New York City, agencies must post proposed regulations on a rulemaking website 30 days in advance of their proposed adoption date and accept comments. But in Massachusetts, health boards can adopt regulations after providing only 10 days’ notice in a newspaper, without soliciting any public input.

Substantive constraints on local agencies also demonstrate much variation. State laws often authorize judicial review of local agencies and define applicable standards of review. Even when state statutes do not explicitly apply to local agencies, some state courts have held that they do. In other states, courts simply review agency decisions under the state constitution’s substantive due process clause.

The standard of review applied by courts can range from an arbitrary and capricious standard—similar to federal “hard look” review, which requires agencies to provide detailed explanations for their decisions—to a more-deferential “rational basis” test, which courts have applied when reviewing federal legislation.

Given the diversity of local administrative structures, Ponomarenko argues that local administrative law principles should vary too. Using federal administrative scholarship as a roadmap, Ponomarenko explains that substantive and procedural constraints operate differently at the local versus federal level.

Ponomarenko maintains that substantive judicial review provides greater benefits to local agencies than to federal agencies. At the federal level, scholars have emphasized the complexity of agency decision-making, which can require substantial expertise to evaluate. But local agencies’ decisions—which may relate to zoning, transportation, or public health—involve far less expertise, so courts have less reason to defer to agencies based on their technical expertise.

In addition, Ponomarenko explains that requiring agencies to provide reasons for their decisions has greater importance at the local level. Federal administrative scholars have criticized reason-giving requirements as leading to performative “lawyering-up,” where attorneys craft justifications simply to survive judicial scrutiny. Since local agencies have fewer legal resources, policymakers themselves would need to explain their rationales, encouraging greater deliberation. Ponomarenko argues that this could tangibly increase the quality of policymaking, given the informal nature of most local agency processes.

On the other hand, Ponomarenko argues that procedural requirements have fewer benefits for local agencies. Granted, a lack of procedures can damage the perceived legitimacy of agencies, but robust procedures may not improve the quality of local agency decisions either.

Empirical evidence suggests that citizens are more likely to participate in local government in smaller jurisdictions, but overall participation in local agency procedures remains low. Even if procedural rulemaking requirements increase participation, these procedures are unlikely to generate new technical information that could ultimately improve local policies. Instead, Ponomarenko explains that members of the general public tend to provide only political information, presenting opinions without additional reasons or evidence to inform agencies.

Given that local agencies can benefit more from substantive than procedural constraints, Ponomarenko advocates “hard look” review of local agency decision-making. She rejects the principle of deferring to agency decisions produced by more robust procedures.

Ultimately, recognizing what she sees as a vast need for more scholarship on the local administrative state, Ponomarenko presents her arguments as a preliminary framework for evaluating constraints on local agencies.