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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 Democratic Oversight in Democracy and Executive Power
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Wednesday, January 26, 2022
Democratic Oversight in Democracy and Executive Power
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). Jeff King Democracy and Executive Power is an elegant and readable book, on a topic that is both important
and neglected – accountability for executive rule-making in the modern
state. I admire and agree with a lot in this book,
whose principal conclusions and recommendations are detailed and summarised in
the final chapter (esp at pp.266ff). It
affirms the necessity of executive rule-making (or what I will call delegated
or secondary legislation) because primary legislation ‘cannot resolve all the
important policy issues…’ (p.15). And it
rightly criticises the separation of powers idea as inapt in the modern
administrative state . It is also right in identifying that there is a
democratic deficit at issue in the process of delegated law-making. The
question is what is to be done? In this comment I
will focus on the role of independence from elected branches. On this issue,
and perhaps unsurprisingly given my background as a UK and Commonwealth
constitutional lawyer, I depart from the tenor of some passages in the book. I
would favour stronger legislative oversight and continued location of
regulation-making powers in ministerial hands.
It is unsurprising because secondary legislation is mostly made by Government
in the UK and most important instruments are laid before Parliament for
scrutiny and quite often approval. By
contrast, Rose-Ackerman considers it debateable but largely true that the
rule-making process should ordinarily be at arms-length from the elected
branches (p.269): ‘Independence from
both the core executive and the legislature, constrained by judicial oversight,
is a pragmatic response to certain kinds of regulatory challenges in the modern
state.’ But the challenge is not in the main the need for administrative
expertise. It is rather ‘the value of insulating regulators from day-to-day
political imperatives and from the ministry that makes economic decisions part
owner of the firm, even after privatization.’ (p.269). The first thing to
notice comparatively is that the emphasis in the US system is and always was
regulatory agencies. So too in this
book where the question in the main is ‘is
the agency meant to be independent of the industry it regulates, of the rest of
government, or of both?’ (p.88). But that
is not the main focus of the importance of delegated law-making in the UK and
many other countries. Enormously
important aspects of public health, social and education policy are effected
through delegated powers/executive rules that are in the main not forms of
commercial regulation. Much of it is neither market-based or technocratic in
character (neither for that matter is much commercial regulation), and it
requires or would benefit from having the political authority of an elected
law-maker behind the bureaucrat who is required to write the rules. We can take the
response to Covid-19 as a relevant, if not typical example. Public health
interventions almost everywhere worldwide were set out in regulations rather
than statutes. (See generally, Jeff King and Octavio L.M. Ferraz (General Eds),
The Oxford Compendium of
National Legal Responses to Covid-19 (Oxford University Press, 2021
(with updates)). Due to urgency, technical complexity, and frequent amendment,
primary legislation was not feasible for delivering any more than a delegated
powers framework. Yet it was essential for the public that political
responsibility was present, exercised, and accountable for the shape of those
regulations. The political opposition
needed, ideally, to be able to either haul ministers before legislatures to
discuss what responsibility those ministers should exercise, or debate what
approach should be taken. Whether or not
Covid-19 was exceptional in this regard, much of delegated law-making has an
analogous if more politically workaday character. Many of these require the
drafters to take a position on reasonably important policy questions. Empirical studies of the UK process suggest
that while the authors do not routinely take things to ministers for sign-off,
they often do, and when they don’t they seek to anticipate ministerial
views. As Edward Page put it in his
detailed study of 47 non-controversial instruments, ‘securing ministers’ approval
is generally neither a formality nor a battle.’ (Governing by Numbers:
Delegated Legislation and Everyday Policymaking (Hart Publishing, 2001)
p.101 and ch.5 generally). The argument that
ministerial control is inappropriate can only sound if the true basis for
judgment should be technocratic and non-partisan. With privatised industry, there is a
debateable case for arguing that market-based principles should apply; more
contentiously for independent central banking (for discussion see Paul Tucker’s
book Unelected Power (Princeton University Press, 2018). But as
Rose-Ackerman rightly acknowledges, one ‘should not force [Cost Benefit
Analysis] to perform tasks for which it is, in principle, not suited.’ (p.144). Much of UK secondary legislation is in that
category. In the UK and in some other
countries that see a democratic accountability problem, the solution mooted by
most commentators is how to improve and strengthen parliamentary scrutiny of
the process, not to make it more remote.
This is the basis for a long-running line of work by the UK’s Hansard Society, which is
currently running a high-level Delegated Legislation Review. I will not defend whether parliamentary
review is impactful and could be moreso in the UK. The existing studies suggest
it is impactful, if sometimes anaemic, and advocates of reform are united in
thinking it needs strengthening rather than abandonment. In Rose-Ackerman’s
study, by contrast, the idea of closer political scrutiny is treated with
caution. When considering the
potentially beneficial role for ‘even weak legislative oversight’ (an oblique
reference to the UK system it seems) she adds ‘[r]ecall, however, my earlier
criticism that legislative vetoes undermine the purpose of delegation in the
first place.’ It is noteworthy that
James Landis himself seemed less sceptical.
He suggested exploring the option of borrowing techniques used in the UK
such as that a regulation would commence after the passage of some time unless
negatived by the legislature, or that it would not come into force unless and
until affirmed by the legislature (James Landis, The Administrative Process (Yale
University Press, 1938) (ch.2)).
Rose-Ackerman’s view at times seems superficially closer to the majority
view expressed by the Supreme Court in INS v Chadha, 462 U.S. 919, which
found that a legislative veto over an agency decision was an unconstitutional
violation of the separation of powers.
Whether that judgment was essentially right as a matter of legal
doctrine I will leave to others. But I think the conceptual understanding of
the separation of powers underlying it was deeply wrong (for reasons that
underly the careful analysis in Stephen Breyer, The Legislative Veto after
Chadha, 72 GEO. L. J. 785 (1984) (esp 791). That view is not
advocated strongly by Rose-Ackerman, who is more sceptical of formalism and
mindful of reasonable constitutional variation. But in the main, her solutions
to the democratic deficit lie elsewhere.
And as with the US model itself, they lie chiefly with more
participation on the one hand, and more robust judicial review on the
other. These are what one does not find
in the UK, German and French models.
While participation and review have their merits, I also see both
strategies as problematic if chosen in preference to better parliamentary
scrutiny. It might sound
surprising to object to increased transparency and participation in the
rule-making process. The problem as I see them are both demand and supply
side. In the contexts I’m familiar with,
there is an absence of demand for it as a generalised process in formal regulation
making. Consultation does take place in
the UK rule-making context and is often led by civil servants: Page, Governing
by Numbers, ch.7. It does have the feel of a classic British ‘tap on the
shoulder’ or ‘good chaps’ process that is unformalised, unregulated, and
pragmatic. However, I have not heard much complaint that the outcomes
are systematically unfair, biased or in great need of reform. In lingo with transatlantic purchase, it
appears that ‘it ain’t broke.’ Of course,
consultation is vital. The question is whether a practice of wide open
published submissions and published Government responses is actually better
than a focused session with industry, social partners (i.e. unions, civil
society groups) and other stakeholders, together with a more open process for
major initiatives. With very important regulations the latter course is often
done - at least the policy is consulted on in advance of the draft regulation.
The recent consultation on mandatory vaccination in the National Health
Service, for instance, had 35,000 responses, as detailed in the Government’s
published response. The supply-side
issue with formalising and mainstreaming such a process is that it would
probably slow down a lot of regulation that is, frankly, just not that
controversial for anyone. Looking to the
more politically sensitive ones, we face a different issue. If you remove the decision-making power from
ministers and civil servants and grant it to an independent agency, then the
overall weight of submissions one way or another should carry an important
influence. But deep pockets will skew
the weight of the submissions, especially where they matter, because money
walks. (The book does deal admirably with empirical studies on these questions
in ch.6, but the evidence is variable in some cases and the risks are, putting
the point at its lowest, very serious).
If by contrast you render more participative a process whose final
decision still ultimately rests with ministers, then it is not clear whether it
becomes a form of ‘letting people have their say’ before they get on with the
original plan. One answer to the
suggestion that a minister can let people have a say and then ignore it, is to
ensure, via judicial review, that views are not ignored. That is why
consultation and participation is to be understood, in Rose-Ackerman’s
analysis, alongside a practice in which ‘the courts can review not just the
administrative acceptance of outside input but also the extent to which
government agencies actually take it into account.’ (p.271). With caveats aside, I accept and agree that
judicial review can be a good vehicle for giving more power to the
marginalised. The question really is whether this is the role it actually does,
will or can play in a given context. The most Panglossian appraisal of
the evidence in the US is that it is divided on this question. It seemed not long ago to be accepted that
notice-and-comment rulemaking together with hard look review ossified the
rule-making process, favouring wealthy entities. In the last decade or so, there has been
dissent from this view and the question is in play again. Rose-Ackerman reviews
the debate in chapter 6, and rejects the ossification thesis. But the debate
isn’t quite over (See Jerry L. Mashaw & David L. Harfst, From Command
and Control to Collaboration and Deference: The Transformation of Auto Safety
Regulation, 34 Yale J. on Reg. 167 (2017), as well as work by Sydney
Shapiro and colleagues). That the debate exists in the first place, with
troubling case studies, is itself telling, because the consequences are
massively significant. Once an alternative
regime is chosen, it cannot easily be rolled back. As an illustration
we can take the recent US Supreme Court judgment in which a rule mandating
either vaccination or testing in workplaces with more than 100 employees was
struck down by the Court. Whether or not the judgment was right on the merits,
I was struck by a passage in which the Court comments on the use of a provision
of the Occupational Health and Safety Act that allowed emergency law-making
outside the notice-and-comment rule-making procedure. It could be used where ‘employees are exposed to
grave danger from exposure to substances or agents’ and an emergency measure is
needed to address it. The Court observes
at p.3 that ‘[p]rior to the emergence of COVID–19, the Secretary had used this
power just nine times before (and never to issue a
rule as broad as this one). Of those nine
emergency rules, six were challenged in court,
and only one of those was upheld in full.’ (National Federation of
Independent Business v. OSHA 95 U.S. ____, 3 (2022). After this judgment, make that six out of ten
(or eleven) attempts to use the power surviving judicial scrutiny. Whatever way the scholarly debate on
ossification trends, this story would be told in no other legal system I am
familiar with. It could never happen in the UK and no one would want it to. Any
account of the combined role of notice-and-comment and robust judicial review should
be careful to not habilitate a theory that could produce such an outcome. And
this leaves aside, as it shouldn’t, the insidious if not direct impact of money
walking on judicial appointments through well-funded and connected groups like
the US Federalist Society and the UK’s Judicial Power Project. But of course we can’t assume
that the (reformed) UK or German models of accountability would function
elsewhere. But we should still note, in
line with Neil Komesar’s work, that institutions tend to move together. It will
be rare that the elected branches are dysfunctional but the bureaucracy
transparent and free of corruption. What
will be required in any national context is for law-makers and constitutional
reformers to study different systems and see what items on the menu of
accountability for executive law-making fit their traditions and demand and
supply-side constraints. Rose-Ackerman’s
book is simply the best general comparative examination of that menu of
options, paired with incisive and informed commentary that is refracted against
a lifetime of comparative study of both the administrative state and of corruption.
I am confident that in the final analysis we agree on much more than the differences
detailed above might suggest. It is essential reading for that necessary
comparative exercise. Jeff
King is a Professor of Law at the Faculty of Laws, University College London. You can reach him by e-mail at jeff.king@ucl.ac.uk.
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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |