American history has witnessed recurrent conflict between the judiciary and the executive or legislative branches of our government.' The conflict generates heated passions perhaps because it involves both significant struggles for power and fundamental views about the rule of law. New opportunities for conflict have arisen as the number of administrative agencies has grown. In the last decade, administrative agencies and the courts have engaged in a continuing controversy over whether agencies must follow lower court precedents. Although the controversy has touched a number of agencies at least peripherally, the National Labor Relations Board (NLRB or Board) and the Social Security Administration (SSA) have figured most prominently in the battle. Both agencies on occasion have announced explicitly their intention to disregard judicial precedent, even in cases that arise within the same judicial territory.
The NLRB's actions have provoked repeated, angry outbursts from the courts but little detailed analysis, on either a doctrinal or a theoretical level. The SSA has drawn wider attention because the agency's actions were part of a controversial program designed to terminate the benefits of persons who were receiving Social Security disability payments. Several lawsuits explicitly challenged the agency's nonacquiescence in judicial precedent' The press at-tacked the SSA's behavior, which drew the predictable counterattacks.' The attention drawn to nonacquiescence in this context,however, has not produced a thorough understanding of the problem.
This Article will analyze the phenomenon of administrative agency nonacquiescence. Section II defines different types of non-acquiescence, surveys current agency practices, and examines the judicial response to various forms of nonacquiescence. Section III identifies the causes of nonacquiescence and the effects of thepractice on litigants and agencies. Section IV analyzes four doctrinal approaches to nonacquiescence and demonstrates that the doctrines do not resolve the nonacquiescence problem because of unresolved fundamental underlying value conflicts between judicial and agency perspectives. Section V then reviews four possible responses to nonacquiescence and the issues that litigants and decision makers who face nonacquiescence must address. The Article concludes that no permanent solution to the problem of nonacquiescence can be expected in light of the unresolved value choices identified in section IV. Greater awareness and knowledge concerning the problem, however, may lead to more desirable provisional solutions.
Nonacquiescence: Outlaw Agencies, Imperial Courts, and the Perils of Pluralism,
39 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol39/iss3/2