William & Mary Bill of Rights Journal
Among the creative contributions that the late Charles H. Koch, Jr., made to administrative law thinking was his exploration of the present and potential role of administrative judges as policymakers. Charles stood in firm opposition to recent trends that, in his view, had served to strengthen the policymaking role of administrative judges at the expense of agency heads. He insisted that ultimate control over the policy direction of a program should rest with the officials who have been appointed to administer that program. While adhering to this baseline, however, Charles gravitated over time toward a nuanced view that sought to define an affirmative role for administrative judges in the policymaking process. He suggested, for example, that these judges could be helpful to agencies by initiating proposals for new directions and by building records that would enable agencies to appraise those proposals. In this sense, he argued, administrative judges could work in collaboration with, rather than at cross-purposes with, the agencies to which they are answerable.
This memorial essay aims to review Charles’s analysis of this generally neglected topic and to contribute a few additional insights to the discussion. After examining the background issue of where ultimate policy control should rest, the essay describes and evaluates several of Charles’s ideas for refinement of the role of administrative judges as policymakers. In addition, the essay takes up related questions regarding agencies’ use of regulations and guidance documents to circumscribe the policy choices that administrative judges make.