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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 Susan Rose-Ackerman’s Democracy and Executive Power: A view from France
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Sunday, January 23, 2022
Susan Rose-Ackerman’s Democracy and Executive Power: A view from France
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). Thomas Perroud Susan Rose-Ackerman’s journey into the labyrinth of executive policymaking accountability
includes our joint article comparing the French and US cases. Building on our
earlier collaboration and her recently published book, I reflect here on the French case and comment on Susan’s
policy recommendations. The book should encourage European scholars to think about the lack of
democratic input into the rulemaking process inside the executive. Indeed, the
major lesson of the book lies in the gap that separates Europe from the United
States as regards participation in rule-making. The line is clear: in the three
European countries under study (France, Germany, the UK), mandatory
participation arose as a result of EU ]environmental law and a pan-European
convention dealing participation in environmental matters (the Aarhus
Convention). In other words,
there is no administrative law principle equivalent to the notice-and-comment
procedure in these countries (or even in the EU for that matter). This is a
puzzle that makes one want to understand the reasons for the difference. For
France, Susan highlights the fact that our culture very much believes that the
administration represents the general interest. The cultural power of the
administration in France, imbued with the idea of public service, is extremely
strong. It chokes civil society, which is certainly not as well entrenched as
it is in the US. How else could one explain that
France also stands apart from the other countries that Susan studies as having
absolutely no issue with independent agencies? One even learns reading Susan’s
book that there exists a democratic principle in the German Basic Law, and
that, comparatively, such a principle is absent from the French constitution.
There is one exception, however: the Constitutional Council was wary of too
much delegation of rule-making power to these newly created independent
agencies in the 80s and, therefore, established that the rule-making authority
awarded to them could only be limited. The French society and political parties were
pretty much indifferent to this new form of administration. Recently, however, signs
of unhappiness with such agencies appeared. President Macron refused to renew
the mandate of the president of the Competition Authority. Rumor has it that
the President blames her for not talking enough with him on the decisions made
by the Authority. Other such signs could be added to the list, showing that the
current political atmosphere may not be as welcoming to this form of
administration as it once was. At any rate, even if critiques have appeared,
the model is not challenged. And, I repeat, these agencies, in France, do not
abide by any notice-and-comment procedure. My point about the French system reflecting
anti-parliamentarism can also be proven by studying impact assessment. Impact
assessment in France is required for draft legislation, as Susan explains,
whereas, in the US, the White House requires it for administrative rules. I am
not opposed to this feature of French public law. However, the result is very
poor: the quality of legislative impact assessments in France is not consistent
withthe original intent. It is also interesting to understand the politics
behind such tools. Whereas, in the United States, cost-benefit analysis (CBA) is
criticized for havingan anti-regulatory tilt, in France the original intent of
such analyses has more an anti-parliament bias. The Conseil d’Etat, a big
promoter of the tool, sought to limit “legislative inflation”. The rhetoric of
inflation is addressed to the administration in the US and to the Parliament in
France. It is made by politicians in the US, by the high civil service in
France. Because the Conseil d’Etat never carried out a thorough analysis of the
capacities of ministries to produce proper impact assessments (IAs), and also
because the ministries’ resources for research have been curtailed in recent
years, IAs are never useful policy documents and do not promote good practices. In sum, if one were to draw up a
scale of policymaking accountability between the countries under study in
Susan’s study, I think France would be at the bottom. That’s why I completely
agree with Susan’s reform agenda, and believe that its adoption would be
especially important for France. She highlights seven
elements: 1. Procedures for issuing rules that balance
competence and democratic values; 2. Better civil-service training and integrity; 3. laws that facilitate the establishment and
accountability of civil-society groups; 4. Balanced oversight of independent agencies and
quasi-private regulatory bodies; 5. Experimentation with alternative routes to
public participation in rulemaking; 6. Judicial review of the democratic efficacy of
the administrative process, supported by standing for non-governmental advocacy
groups; and 7. Improved legislative capacity to evaluate
delegated authority. I would like to comment on items
2, 3 and 6. The training of the civil service in France is bifurcated . There
is a divide in the high civil service between the “corps techniques”
(engineers) and the “corps généralistes” coming from ENA, the higher national school
of administration). The first group has the technical knowledge to perform CBAs
(Fran’e's most prominent economists come from engineering), but they are not at
the centre of the policymaking process. ENA is the French School of government
but does not provide much training in policy analysis. The French situation is
therefore paradoxical and the poor quality of IAs could be explained by a
struggle inside the high civil service for the control over policymaking
expertise. Integrity has also become a
thorny question. Conflicts of interests in the high civil service have become deeply
structural. Earlier this year a new legal provision explains the mechanism at
play very well. The statute was called Loi du 25 mai 2021 pour une sécurité globale préservant
les libertés. The
statute privatized some policing functions but also contained a provision that drew
my attention: the provision allowed retired policemen who moved to private sector
jobs as guardians to keep their pension. So the civil service is incentivized
towards more privatization. And, actually, privatizations have proven very
lucrative for all the civil servants able to move into positions in the public
companies with salary increases. A journalist has just published a book detailing damning examples that could
undermine the integrity of the French public service. He published an earlier book detailing appaling practices in the Conseil
d’Etat. Another journalist has entitled his book on the privatization of public
assets by civil servants, Predation. The way out is not easy to design but clearly
more transparency and accountability would help undermine the grip the high
civil service has in France on policymaking. I completely agree with Susan
that laws should facilitate the establishment and accountability of civil-society
groups. This is especially true for France. The foreign reader should be aware
that the French civil society is very weak. Why is that? First of all, the
State, as well aslocal governments, are too much involved in the financing of
the press (through subsidies on press deliveries) and of major associations.
Civil society depends on the State, which explains its lack of an adversarial
posture towards politicians. Second, we have a very weak tradition of
philanthropy. For instance, the nongovernmental organization (NGO) financing
the action against the police on racial profiling was the OpenSociety Institute…
in other words, a US billionaire is
helping to preserve liberties in France. Third, we have no system of class
action lawsuits that would fund weakly organized interests in society. The
opposition towards class actions is very old and, up to now, no workable system
has been put in place… Finally, some words on judicial
review. Standing for NGOs has never been a complex question in France. It was
accepted at the beginning of the 20th century by the Conseil d’Etat. The
permissive standing doctrine, however, came with a price. In some case, the
Conseil d’Etat imposed its policies on the country through cases brought by
NGOs. Some cases allowed the courts to oppose municipal socialism instituted by
democratically elected governments. Susan
focuses on “judicial review of the democratic efficacy of the administrative
process”, but judicial review does not inevitably have that effect. There has been an interesting
development recently. The Conseil d’Etat held in a 2018 case that litigants could no longer raise procedural
irregularities in a collateral attack to an administrative decision. The recent
case law therefore undermines judicial checks on the administrative process. Susan’s reform agenda would be a
very welcome improvement to the French administrative law. I can only hope it comes true.
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