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.