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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Can (and should) we take policymaking accountability to the four corners of the earth?
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Thursday, January 20, 2022
Can (and should) we take policymaking accountability to the four corners of the earth?
Guest Blogger
For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021). Mariana Mota Prado In Democracy and Executive Power, Susan Rose-Ackerman provides a detailed analysis of delegation of
rulemaking powers to executive officials. While it is not possible for
legislatures to oversee all the complexities of the mammoth state apparatus
that governs our societies today, she argues that the lack of accountability of
these policymaking processes within the executive branch is an issue that needs
to be addressed. Rose-Ackerman analyzes four countries (France, Germany, US,
and UK) to ask what institutional arrangements secure (or could secure) an
accountable process of administrative rulemaking. The careful selection not
only reflect some of the countries that Rose-Ackerman has been studying for
decades, but it also serves a very important methodological purpose: it allows
for a comparison of two types of political systems, parliamentary (UK and
Germany) and presidential (US and France); and of two types of legal systems, common
law (UK and US) and civil law (Germany and France). Based on this comparative analysis of
executive rulemaking, she makes a positive (descriptive) and a normative claim.
The positive claim is a political economy story: parliamentary systems lack the
incentives that exist in presidential systems for legislatures to keep the
executive in check. The normative claim is that the political dimensions of executive
rulemaking need to be accountable. Yet, executive rulemaking is not purely
political: these processes also involve and often require expertise. For this
reason, Rose-Ackerman pushes for “more constructive forms of political
accountability that also recognize the importance of technocratic analysis” (p.
146). Her proposal points to transparency, public consultation and reason
giving as the three pillars that can address the democratic deficit in
executive rulemaking in many countries today. Despite being centered around these four
countries, Rose-Ackerman’s claim is broader in scope, as she announces in the
introduction: “the difficulties that have arisen in my case-study countries are
repeated throughout the world and can provide insights that may be applicable
elsewhere” (p. 9). In line with this ambition, in the concluding chapter (Chapter
8) she discusses how the book’s “perspective is relevant elsewhere, especially
to countries making a transition to democracy and to middle-income countries
whose governments are seeking a stronger system of public law.” (p. 244). This blogpost
engages with this broader ambition, both to commend the book’s careful and
constructive analysis in this regard, but also to pinpoint a few issues that seem
to merit further attention. 1.
Policy diffusion and the
role of international actors As an experienced comparativist,
Rose-Ackerman is aware of the complexities of transplanting legal arrangements
that seem to work in one country (such as the notice and comment process
adopted in the United States) to different socio-political-legal environments. Indeed,
in Chapter 8 she addresses these challenges heads on. For instance, many
countries lack a strong civil society, i.e. individuals and organizations that
are able and willing to participate in consultative processes. Citing Hungary
and Poland as examples, Rose-Ackerman acknowledges that in such societies “even
if the law did require consultation, those provisions may not have had much
impact” (p. 257). The solution, according to her, is to experiment with
different forms of participation. More specifically, as she discusses
extensively in Chapter 6, rather than looking at the American Administrative
Procedure Act (APA) as a model, countries should take some positive features of
the United States’ experience as a guide (e.g. adopt open-ended opportunities
for individuals and organizations to express their views, rather than excluding
certain stakeholders from the process). In the particular case of middle-income
countries, she suggests that horizontal learning may play a role. For instance,
countries with an authoritarian past and weak civil societies may look for
successful experiments in other transitional democracies (such as Brazil’s
participatory budgeting) for potentially promising ideas to test in their own
jurisdictions (p. 257). While experimentation and horizontal
learning are
embraced by academics in the development community, in practice many
countries still find themselves being pressured to adopt blueprints imposed by
multilateral development agencies. In the 1990s, the process of transplanting
U.S.- style independent regulatory agencies around the world as part of a
package of neoliberal economic reforms, known as the Washington Consensus,
brought a
wealth of empirical evidence about the pitfalls of legal transplants. More
recently, Regulatory Impact Assessment (RIA) has had the same fate. As
Rose-Ackerman describes in Chapter 5, “Cost-benefit analysis, and especially,
regulatory impact assessment (RIA) has spread throughout the world, including
to all my case study countries.” (p. 138) This has happened despite the fact
that both CBAs and RIAs have serious limitations carefully outlined in the
book. Therefore, when the European Commission and the OECD supported RIAs to
promote “better regulation” (and pushed the UK, Germany and France to implement
them), according to Rose-Ackerman, they set “in motion a bandwagon that needs
to be subject to critical scrutiny before it acquires the status of
conventional wisdom” (p. 141). International actors have, therefore,
influenced the diffusion of RIAs across the world. This raises an interesting set
of political economy question: why so much enthusiasm for RIAs in multilateral
and supranational institutions? Could these actors help promote public
consultation as well? How does the international actors’ influence interact
with the domestic system of incentives (e.g. the presidential versus
parliamentary systems) mapped by Rose-Ackerman in her descriptive analysis? From a normative standpoint, Rose-Ackerman provides
a comprehensive and rather compelling set of reasons not to embrace RIAs as
blueprints (or any kind of one size fits all arrangement). However, this type
of academic critique does not seem to stop multilateral and supranational
institutions from proposing legal transplants to regulatory agencies around the
world with complete disregard for the context and sector in which these
agencies are operating. The concern with uncritical support for blueprints is
particularly pressing for middle-income countries. For example, due to pressure
from OECD and helped by loans of the Inter-American Development Bank, Brazil
has embraced RIAs since 2007 through the PRO-REG (Programme for the
Strengthening of the Institutional Capacity for Regulatory Management). In a regulatory
environment characterized by “weak
institutional leadership, low efficiency, and limited technical capability”
it is no surprise that RIAs
have not thrived. Rose-Ackerman has already
asked whether international actors can play a constructive role in
anti-corruption policy. There seems to be room to ask the same question in
the diffusion process of administrative law mechanisms, such as RIAs and public
consultations. 2.
Public consultation in
hyper-presidential systems Legal transplants also raise concerns about
unintended consequences. In Chapter 8, citing her previous co-authored
work on the topic, Rose-Ackerman acknowledges the difficulties of keeping
the President accountable in hyper-presidentialist systems (which are, as the
name suggests, political regimes in which there is a high concentration of
power in the President). She also highlights that such difficulties are
compounded when strong Presidents are combined with weak legislatures that may
be amenable to patronage or corruption, as appears to be the case in Argentina,
Brazil and the Philippines. Rose-Ackerman acknowledges that in such systems
there is very little incentive for either the executive or the legislature to
implement accountability mechanisms, or to enforce them (pp. 246-252). While
Rose-Ackerman fully recognizes the potential challenges to make public
consultations effective in hyper-presidential systems (and discusses the
possible strategies to overcome them), she seems to pay little attention to the
fact that consultation processes may not only fail to work but can also do
damage in these systems by further entrenching unaccountable executive power. How? The President can use executive
orders/decrees to regulate the details of policymaking norms and consultation
processes to advance their own agenda. Again, Brazil provides a concrete example. In
2019, the Brazilian Congress passed a statute requiring all regulatory agencies to conduct RIAs and public
consultations. This seems very much in line with Rose-Ackerman’s proposal,
until one takes a closer look at what followed. In 2020, the President enacted
an executive order (Decreto
10.411/20) under the guise of regulating the RIAs required by the statute. The
executive order advanced the President’s agenda to reduce “red tape” by not
requiring RIAs if agencies are reducing obligations and requirements with the
aim to decrease regulatory costs (art. 4, VII). This seems to be a strategic use of RIAs: adoption to
satisfy international pressure (see previous section), but with exemptions to
satisfy Presidential preferences. Regarding
public consultation, curiously, the executive order leaves the process largely
in the hands of the regulatory agencies. This may seem puzzling if one assumes
that the President could have strategically designed the consultation process
so as to enhance their control over independent regulators. However, the level
of Presidential influence over Brazilian regulatory agencies is already
significant, despite the fact that their institutional design mimics the one of
American independent regulatory agencies (due to a series of mechanisms that I
have discussed here). Moreover, the
Congressional statute allows the Ministry of Economy to create an independent
RIA report, which can be
considered another form of Presidential control over independent regulators (since
the Brazilian Minister of the Economy is appointed by the President and serves
at pleasure). Rose-Ackerman devotes an entire chapter
(Chapter 4) to discuss the ambiguous place of independent regulators in
executive rulemaking. On the one hand, independence can reduce political
accountability because these agencies are not subordinated to the president. On
the other hand, insulation from political influence is touted as a mechanism to
guarantee that decisions are primarily guided by expertise, not by short-term electoral
interests. Rose-Ackerman argues that “public hearings and consultation, along
with published reasons are especially important in bodies with some degree of
independence” (p. 119). While a consultation process imposed by the legislature
and enforced by courts can indeed be salutary to keep these agencies in check, a
process designed and controlled by the President can undermine the (sometimes
already fragile) institutional guarantees of independence of these regulators.
Perhaps we could rely on courts to curtail Presidential attempts to control
regulatory agencies with unjustified demands, as we saw in the
United States. However, this requires an independent and well-equipped
judiciary, which is
not always present in middle income economies. In summary, in hyper-presidential systems,
the President’s rulemaking powers are so vast that the executive branch can “take
over” the process of public consultation by manipulating its design and implementation,
not only to reduce its effectiveness as an accountability mechanism, but also
to further augment the scope of Presidential power. 3.
Expertise versus politics
in democratic backsliding Consultation processes can also damage
already fragile democracies. Many countries have recently experienced a process
of democratic backsliding,
where elected leaders use legal tools to undermine the rule of law and the
democratic system incrementally and gradually. Kim Scheppele
has written on this blog about the topic, pointing to leaders who use
formalist interpretations of statutory provisions to advance these attacks on
democracy, while claiming to be acting within the limits of the law. Scheppele
calls this autocratic
legalism. This phenomenon presents yet another set of
challenges to public consultation, as elected leaders can use public
consultations processes to undermine the technical legitimacy of rulemaking, in
the name of “true” democracy. Again, Brazil provides an illustrative
example. On December 16, 2021, a Brazilian regulatory agency, ANVISA (the
counterpart of the United State’s Food and Drug Administration) approved the
use of the Pfizer vaccines for children aged 5 to 11 years old. The President – who has taken an anti-vaccine
stance throughout the pandemic – publicly criticized
the decision, suggesting that there was no scientific basis for the authorization
and that the agency was favouring undisclosed interests. The President’s
statements were followed
by death threats to ANVISA commissioners who had made the decision. The
government then announced that the Minister of Health was going to start a
public consultation on the vaccination of children: citizens were invited
to express their opinions online from December 23, 2021 to January 2, 2022.
While the Minister does not have the power to revoke the approval of the
vaccines, it has the power to decide whether to include the vaccine in the national
vaccination program (i.e. make it available in Brazil’s public health care
system). The Minister could also decide to impose regulatory obstacles that
would make it hard to get the vaccine, especially for poor and less educated
families (such as requiring complex paperwork as proof of parents’ consent, and/or
requiring a medical prescription as a condition to obtain the vaccine). This is a textbook example of autocratic
legalism. The executive branch is not only legally authorized to conduct public
consultations, but also claims that they are valuable tools to guarantee the
accountability of executive rulemaking. Yet, the Minister of Health has not
resorted to this tool at any point during the pandemic. As Adami
and Pereira Neto point out, this public consultation was only announced
after the
Brazilian Supreme Court asked the government for an explanation as to why they
were considering not including the vaccine in the national vaccination program.
The public consultation therefore helped the government delay providing an
explanation to the Supreme Court and postpone implementing the policy. When
faced with questions about the purpose of the consultation, the Minister of
Health responded: “This
is a tool of democracy, it widens the discussion on the topic and it will bring
more ease for parents so they can take their children to immunize against
COVID-19.” This example shows that the risks of
adopting public consultation provisions in fragile democracies are not simply a
sheer lack of compliance with the law. There is a greater risk of governments
using public consultation processes to challenge the legitimacy of technocratic
decisions, in the name of democracy. Again, courts may be able to resist this
kind of abusive statutory interpretation, if they are willing and able to engage
in a discussion about the types of executive decisions that may be in
accordance with the letter, but not with the spirit of the law. This, in turn,
requires not only an independent and functional judiciary, but also a rather
sophisticated one. Conclusion The three points raised in this blogpost all
seem to converge to one pressing question: should countries that lack robust
institutions (strong legislatures, independent and sophisticated judiciaries
and technically competent regulatory agencies) adopt public consultation mechanisms?
On the one hand, as Rose-Ackerman argues, public consultation could increase
transparency and perhaps create opportunities for further reforms. On the other
hand, as the examples presented earlier suggest, public consultation could at
best further entrench dysfunctional institutional arrangements, and at worst help
accelerate ongoing processes of institutional (especially democratic) decay.
This creates a
paradox: countries that could benefit the most from public consultation are
perhaps the ones least able to make good use of them. While my concrete examples come primarily
from Brazil (which is the system I am most familiar with), similarly to
Rose-Ackerman I believe these insights may be relevant to other jurisdictions
as well, especially middle-income countries and those facing democratic
backsliding. While these questions are outside the scope of the book, they are
largely a response to Rose-Ackerman’s plea in the introduction: “I urge others
to take up my invitation to engage in broader comparative work that takes
seriously both democratic values and the distinctive features of each
political, economic and social system” (p. 5). The fact that the book inspired
the questions raised here is a testament to the quality and insightfulness of
the comparative analysis offered by Rose-Ackerman, who continues instigating
and inspiring comparative administrative law scholars around the world. Mariana Mota Prado is Professor of Law
and William C. Graham Chair in International Law and Development at the
University of Toronto, Canada. Email: mariana.prado@utoronto.ca.
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