The Administrative Shallow State

In matters as varied as designing school lunch programs and waging war, over 1,000 committees whose members come from the private and nonprofit sectors help shape federal policy. Separate from the government, these advisory committees make up a “shallow state” that helps to counterbalance the “deep state” of career civil servants, two legal scholars argue.

Brian D. Feinstein of the University of Pennsylvania and Daniel J. Hemel of the University of Chicago Law School claim that the shallow state helps legitimate the administrative state by bolstering its responsiveness to election results. The shallow state also helps to gather and synthesize information, which may contribute to better policymaking overall.

According to Feinstein and Hemel, committee membership within the shallow state “ebbs and flows with the political tides,” whereas agencies tend to develop entrenched career staffs that lean politically left or right.

The apparent rigidity of the deep state is partly attributable to a federal merit system protecting civil servants from being fired. No such system exists to protect advisory committee members, who must be reappointed periodically and whom agency heads may fire at will.

According to Feinstein and Hemel, new administrations avail themselves of the shallow state’s flexibility by convening committees of “ideological allies,” especially at agencies with whom the administration is politically at odds. Indeed, Feinstein and Hemel’s research suggests that Democratic Presidents are more likely to lean on advisory committees at agencies with relatively conservative careerists, and Republican Presidents tend to rely on committees at agencies with more liberal staffs.

To support these findings, Feinstein and Hemel offer a descriptive account of a committee formed under the Obama Administration to advise U.S. Immigration and Customs Enforcement (ICE) on its use of detention facilities for families. Because ICE is housed within the U.S. Department of Homeland Security—where staff tend to lean politically conservative—the context was ripe for committee formation under the comparatively liberal Administration.

In line with the shallow-state theory, the Obama Administration did not empanel a single member to the committee who Feinstein and Hemel could connect to the Republican Party. Instead, a committee of ideological allies to the Obama Administration dueled with ICE careerists over policy, eventually recommending the abolition of family detentions except in extreme cases. Feinstein and Hemel observe that, just weeks after the committee finalized these recommendations, then-candidate Donald J. Trump was pronounced the winner of the 2016 presidential election.

The Trump Administration promptly rejected the committee’s recommendations in favor of “an explicit policy of family detention.” Hemel and Feinstein also note that the Trump Administration declined to convene a single committee meeting before allowing the committee’s charter to expire—presumably hatching plans directly with ICE instead.

Feinstein and Hemel argue that these developments align with their theory of the shallow state but also demonstrate the shallow state’s limitations. Lacking authority to issue rules, the advice that federal advisory committees give is just that.

Committee advice, however, has practical, political, and legal consequences. For example, Feinstein and Hemel’s findings suggest that advisory committees allow Presidents to exert greater control over agency action. In particular, Feinstein and Hemel argue that advisory committees provide presidentially appointed agency heads with a second stream of information and analysis—the first being from careerists whose views may be divergent—from which to craft policy.

By creating ideologically sympathetic expert committees, Presidents can address “what is arguably the central challenge in public administration: the tradeoff between expertise and responsiveness” to electoral politics. The shallow state may therefore offer comfort to critics of the deep state who worry that the bureaucrats handling agency operations lack sufficient voter accountability.

Feinstein and Hemel also note that some courts have relied on findings from the shallow state when reviewing agency action for legality. They urge courts to take the fact of committee and careerist consensus on policy as evidence that an agency’s decision-making was sound.

The shallow state framework that Feinstein and Hemel propose differs from other scholarly accounts of federal advisory committees.

One account is that committees exist as a way for the U.S. Congress to exert control over the administrative state. According to this theory, Congress “stacks” advisory committee “decks” with sympathetic members who will push their policy objectives onto agencies. But this theory is incomplete, Feinstein and Hemel argue, because only about half of these committees are congressionally created. Moreover, agencies often have significant leeway in appointing committee members, such that a committee’s deck may not be stacked to Congress’s liking for very long.

The second group of theories that Feinstein and Hemel discuss are normative theories about how advisory committee activities should affect judicial review. Specifically, some theorists argue that under certain conditions, committee conclusions of fact should bind the courts. Feinstein and Hemel find these theories inadequate as organizing frameworks for understanding advisory committees because they do not describe the actual state of affairs.

Proponents of a third account suggest that advisory committees are merely a front for political accountability. For example, some scholars argue that statutory requirements about committee transparency prevent members from offering their candid views, thereby discouraging presidential reliance on those views. But Feinstein and Hemel argue that governing statutes do not prevent Presidents from relying on advisory committees, especially when the President is politically at odds with a given agency.

A fourth and final theory that Feinstein and Hemel discuss and ultimately reject is that agencies use advisory committees to advance their own objectives. This theory contradicts Feinstein and Hemel’s central point that advisory committees exist as a shallow state crafted by the White House to inject electoral accountability into the administrative state. Feinstein and Hemel support their theory with research findings that the ideological leanings of advisory committee members tend to match that of the sitting President rather than the corresponding agency’s careerists.

Regardless of the theoretical underpinnings of the shallow state, its role in shaping American policy should not be discounted. When a committee recommended increasing gender integration in the military in the early 1990s, the U.S. Department of Defense adopted the recommendations within days. Advisory committees have also influenced air and water quality standards, as well as drug and medical device premarket approvals.

Feinstein and Hemel conclude that, given the shallow state’s effect on federal policy and role in bringing electoral accountability to the administrative state, the shallow state “deserves a place on conceptual maps of federal administration.”