“Administrative Sabotage” and the Ontario Human Rights Tribunal

Recently, Professor David Noll (Rutgers Law) posted a fascinating article called “Administrative Sabotage” on SSRN, forthcoming in the Michigan Law Review. You can view the article here, and Professor Noll wrote a fascinating thread outlining its main arguments. The abstract:

Government can sabotage itself. From the president’s choice of agency heads to agency budgets, regulations, and litigating positions, presidents and their appointees have undermined the very programs they administer. But why would an agency try to put itself out of business? And how can agencies that are subject to an array of political and legal checks succeed in sabotaging statutory programs?

This Article offers an account of the “what, why, and how” of administrative sabotage that answers those questions. It contends that sabotage reflects a distinct mode of agency action that is more permanent, more destructive, and more democratically illegitimate than other more-studied forms of maladministration. In contrast to an agency that shirks its statutory duties or drifts away from Congress’s policy goals, one engaged in sabotage aims deliberately to kill or nullify a program it administers. Agencies sabotage because presidents ask them to. Facing pressure to dismantle statutory programs in an environment where securing legislation from Congress is difficult and politically costly, presidents pursue retrenchment through the administrative state.

[…]

Professor Noll’s paper is a significant contribution, relevant outside of the United States. In fact, as I have written about previously (see Mark Mancini, “The Political Problem with the Administrative State” (2020) 2 Journal of Commonwealth Law 55) the Ford government’s treatment of the Ontario Human Rights Tribunal (OHRT) is a classic example of a government legitimately delaying appointments to stymie the practice of the administrative justice system. Professor Noll has now provided the theoretical and linguistic tools for us to understand this phenomenon in administrative government, even for us in Canada.

***

Noll’s focus is “the sabotage of statutory programs by agencies that administer them” [7]. In this, Noll’s project fits in a rich tradition of public administration scholarship that has studied the various ways in which bureaucrats can undermine policy objectives set by their enabling statutes, through mal -administration, “shirking” or drifting, or sabotage. Sabotage can be defined as bureaucratic action that “deliberately undermines policy objectives of the superiors” (see John Brehm & Scott Gates, Working, Shirking and Sabotage: Bureaucratic Response to a Democratic Republic, at 21).  Sabotage “involves a specific stance on the part of the agency toward the program it administers” and the stance “seeks to eliminate a program [the agency] administers” [8]. Sabotage is thus different from other bureaucratic phenomena, in that it involves a deliberate and intentional sacking from within of the agency’s ability to fulfill its delegated mandate [7]. A classic basic example of sabotage that Noll points out—and that I address in my paper on the OHRT—is “non-appointments”—failing to appoint agency heads, or other important positions, as the case may have it [30].

Administrative sabotage, in either Canada or the United States, is a destructive practice that undermines the legislative choice to delegate to agencies. As Noll says: “Rather than use delegated authority to enforce and elaborate statutory policy, an agency uses that authority to undermine the program it administers. In structural terms, this use of delegated authority is at odds with the principle of legislative supremacy” [10]. Once a legislature has delegated power to an agency, it is a condition of the delegation that the power be exercised according to the enabling statute. Agencies and politicians that fail to live up to these delegated terms—and worse, agencies and politicians that actively undermine them—act inconsistently with the power they have been given. Moreover, they act undemocratically—they undermine the legislative plan & bargain containing the conditions governing the administrative action.

Complicating this conventional picture is the emergence of theories of executive control over the administrative state and the desirability of political control as a constitutional matter. The unitary executive theory in the US, for example, generally holds that all executive power is placed in a President, and it therefore follows that the “executive”—including executive administrative agencies—must be controlled by the President (see, for the nuances, Seila Law). In Canada, we have a parliamentary system, but the gist is similar in at least some respects. Legislatures provide powers to executives and administrative decision-makers to make decisions. Legislatures also structure the relationship between the executive and the administrative state, creating and controlling powers of appointment, for example (see the classic example in Saskatchewan Federation of Labour, 2013 SKCA 61). A strong executive power advocate may claim that that the executive can lawfully engage in sabotage by appointing people who wish to undermine the agency itself. It can do so because the executive is the representative of the people, and thus is the politically legitimate actor, in contradistinction to unaccountable administrators.

In the US, the Trump administration furnished many examples of administrative sabotage, and it mooted the defense of the practice. A prominent example included Mick Mulvaney and the Consumer Financial Protection Bureau (the CFPB). The CFPB is in charge of imposing a variety of consumer financial laws. Mick Mulvaney, appointed the head of the CFPB, had previously indicated that he supported abolishing the CFPB [3]. Of course, by itself this is neither here nor there. But once Mulvaney became the head of the agency, on the conventional picture, he had no discretion to undermine the legislative bargain simply because he disagreed with it in principled. Yet he did so: he “declined to request money to fund the Bureau’s operations; installed “Policy Associate Directors” to shadow bureau chiefs protected by the civil service laws; rescinded, stayed, or delayed major rules on payday lending, overdraft fees, and student loan servicing…” [3]. Mulvaney justified these practices by appealing to the adage of “elections have consequences” [11].

Noll’s paper also explores the various reforms that might be adopted to stop sabotage. Noll shows how courts and Congress have been largely unable to control sabotage. Presidents and courts that have a reflexively anti-administrativist agenda may, in fact, be incentivized to exacerbate and permit administrative sabotage. But as a practical matter, there is another issue: many instances of “administrative sabotage” are simply not amenable to judicial review: “it is simple to invent technocratic explanations for agency actions designed to undermine a statutory program…”, and as such, there are evidential hurdles [13-14]. Noll suggests that specific statutory reforms that might shed light on the question, the goal of these reforms being that the statutory schemes are designed to prevent sabotage—“policymakers should not assume that programs will be administered in good-faith” [50]. Noll suggests statutory appointment qualifications consistent with the Constitution; and, notably for our purposes, endorses the proposition that broad statutory delegations (the norm since the New Deal) encourage sabotage [54].

***

There is much in Noll’s piece to recommend it to Canadians, but I want to focus on just two points: (1) Noll’s conclusions about delegated power; and (2) the case of the OHRT, arguably an example of Noll’s sabotage.

As noted above, and since the New Deal, scholars have argued—and sometimes assumed—that broad delegations of statutory power are desirable. So the old case goes, legislatures simply do not have the time and expertise to consider all the factors when legislating; and particularly in complex fields of regulation, it makes sense to delegate power to so-called expert agencies. As a descriptive matter, this is likely true, and for that reason, it makes sense for legislatures to “trade-off” political control for expertise (as Epstein & O’Halloran once put it).  But this does not speak to the degree to which this should happen. As I wrote in my article on the matter [94], and as Noll essentially argues:

The real problem with executive discretion, then, is not that it abridges independence; but that it has a potential of being misused to undermine the limitations on statutory power that arise in the context of a delegating statute. The goal should be to cabin executive discretion tightly so that it, necessarily, cannot undermine delegated legislative power. Broad delegations, on this understanding, should be avoided.

The point is that the solution to sabotage starts not with depending on the good-faith of administrators (as a previous generation of pro-administrativist scholars did), or depending on the political control exercised by an executive actor (who may have incentives to permit sabotage). Instead, it starts with the legislature slightly increasing the cost of legislating by keeping the possibility of sabotage in mind when legislating, and using its powers to put meaningful limits on delegated powers.

This raises an important point about independence. To simplify, in Canada, the independence of administrative decision-making is parasitic on the degree to which a statute permits that independence (famously, see Ocean Port). Statutes can either liberate or constrict executive control over the administrative state. One way for executives to control so-called “independent” tribunals is for the legislature to vest an appointment power in the executive. Assuming this power is exercised according to the terms of the statute, there is no constitutional objection; while independence of administrative decision-making may be a good in some cases, it is not self-evidently legally required (though see the reading of the caselaw suggested by Ron Ellis in his text, Unjust By Design). And political control by elected actors is desirable in a system of responsible government.

But again, this is only true to an extent. Sabotage is quite different from an executive exercising lawfully delegated powers of control; it is a situation where an executive or agency head may intentionally choose to exercise power it does not have to undermine the power it has been granted. The sin of omission here is not that the executive is simply choosing not to exercise delegated power; it is that the executive is actively using its position to undermine the entire statutory bargain setting up the agency.

And this is exactly what happened in the case of the Ontario Human Rights Tribunal. As late as January 2021, observers argued that “…Ontario’s human rights enforcement system has become dysfunctional” in part because “The final resolution of a claim can now take years for individuals who have experienced discrimination.” The cause of this delay: few of the human rights adjudicators whose tenure is at-pleasure have been replaced. I previously studied this phenomenon as an example of a situation where an executive was failing to implement delegated statutory power. Indeed, the relevant legislation delegates power to the Cabinet, who “shall” make appointments to the tribunal [my paper, at 82]. By failing to do so, the government created grist for the mill of its critics, who asserted—not unreasonably—that the government was intentionally starving the tribunal and delaying the resolution of claims.

The failure here is traceable, ultimately, to the legislature—though the executive undermining of delegated power is the evil to which the legislature should have turned its mind. The legislature enacted the tribunal, and it can rescind its powers tomorrow. But executives do not have that authority, which is why sabotage is undesirable. So, in the OHRT case, by failing to impose timelimits for appointments and a minimum number of members, the legislation grants easily-abused delegated appointment power to the executive. So, as Noll suggests, it was the breadth of delegated power that created the conditions for sabotage.

Canadians should pay close attention to Noll’s article. While there are obvious differences between the Canadian and American administrative states, the phenomenon of sabotage is likely a common evil.

Author: Mark Mancini

I am a PhD student at Allard Law (University of British Columbia). I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I also clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in: the law of judicial review, the law governing prisons, and statutory interpretation.

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