How Courts Impact Federal Administrative Behavior by Robert J. Hume

Author:Robert J. Hume [Hume, Robert J.]
Language: eng
Format: epub
Tags: Public Policy, Public Affairs & Administration, Judicial Branch, Political Science, American Government, General
ISBN: 9781135838133
Google: qluRAgAAQBAJ
Goodreads: 17525953
Publisher: Routledge
Published: 2009-05-07T00:00:00+00:00

HOW COURTS IMPACT POLICY CHANGE

Judges can influence the amount of policy change that agencies enact by making clear in their opinions what they expect agencies to do and what the consequences of noncompliance are likely to be. When opinion language leaves agencies little room to maneuver, administrators might change their policies to avoid sanctions and maintain favorable relationships with judges. “Agencies get reputations in court,” explained one respondent when describing why his agency tended to comply with adverse decisions. “Are we winning fewer cases than we did in the past? Are we losing the presumption of a favorable ruling?” The costs of noncompliance are likely to outweigh any benefits agencies might receive from maintaining policies that judges have ordered them to revise. “You do not waste your credibility in the courts by doing stupid things,” said another respondent. “After a while you hurt your chances with the courts.”

Judges can make clear that they expect agencies to enact major policy change by reversing agency policies instead of choosing more permissive mandates such as vacatures or remands. Judges can also emphasize substantive errors that administrators have committed, basing decisions on interpretations of federal statutes or provisions of the constitution instead of procedural matters. Administrators know that they are likely to fall out of favor with courts if they make cosmetic changes to their policies or refuse to enact policy change when judges are clear in their opinions that maintaining the status quo is unacceptable.

Another way that judges can influence the amount of policy change that agencies enact is by showing how committed they are to the outcomes they are defending. Judges who cite large quantities of evidence in their opinions signal that they strongly favor the outcomes and are unlikely to abandon their positions in future cases. Administrators who refuse to change their policies can find themselves losing in court a second time and perhaps facing sanctions. Even if agencies do not appear before the same panels again, the fact that the opinions are well defended implies that the results might be supported by other judges. Rather than devote resources to hopeless litigation, administrators might simply revise their policies.

Considerations of the costs and benefits of policy change are not the only reasons that administrators are likely to change their policies when judges are clear about their expectations. Administrators who take seriously their missions to serve the public interest might also decide to be responsive to courts. When judges use substantive groundings or back their decisions with large amounts of evidence, administrators are open to considering whether the judges are right on the merits. As one respondent put it, “We ask ourselves if we can respond to the Court of Appeals in a way that does the right thing.” Policy change can better serve constituents if administrators are persuaded judges have identified substantive problems that they should address.

Accommodating a court’s preferences also serves constituents by avoiding protracted legal fights, especially when judges are clear that they are likely to decide other matters similarly in the future.

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