Do Administrative Rulemaking Procedures Matter? Response to the Balkinization Symposium on 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). 

Susan Rose-Ackerman

I am very grateful to Jack Balkin and to the seven participants in the symposium on Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France. The symposium coincides with the book’s publication in London, following its October publication in the US. The aim is to generate an informed debate about the value of public consultation and reason-giving in justifying executive policymaking in representative democracies. In engaging with different dimensions of my work, I hope that the blog posts will encourage administrative law and constitutional scholars in the US and beyond to ask how my arguments might or might not apply both to internal debates in my case study countries and to other legal and political systems as well.

The blog posts engage with the differing executive policymaking processes in my case study countries and provide critical perspectives on my defense of strong public engagement in administrative rulemaking. They assess my arguments in the light of other contemporary scholars, including the work of the bloggers themselves. They direct readers to important work by Margin Cohn, Blake Emerson, Jerry Mashaw, Edward Page, Eberhard Schmidt Aßmann, and Paul Tucker and to Frank Goodnow’s comparative administrative law treatise from 1893.

Fundamental questions engage the participants: Do administrative rulemaking procedures matter to the justifications for executive branch policymaking? Even if they do matter, are they worth the time and trouble needed to implement them in practice? As Peter Strauss aptly remarks, I am seeking a difficult compromise between efficiency, transparency, participation, and accountability—one that cannot satisfy any of these ideals its pure form. My comparative exercise looks across several well-established systems of executive rulemaking to isolate their strengths and weakness and to suggest ways forward.

My cases are all representative democracies that delegate policymaking power to the executive, guided and constrained by the language of statutes and constitutions. I assume, and my commentators accept the premise, that a modern regulatory-welfare state cannot function effectively without delegation to the executive, including specialized expert agencies. But the technical expertise of public officials is not sufficient. I argue that in a democracy the application of specialized knowledge to policy ought to require outreach to citizens and civil society groups, as well as to those who are directly affected. Even executive officials who can trace their political authority back to the voters--presidents, prime ministers, and their appointees—ought to be accountable to citizens as they implement public policies, not just at election time.

In seeking to understand four different systems of public law, I have developed a framework for assessing the ways in which each country deals with the issues that arise when policymaking occurs in executive bodies. To do so, as Matthias Ruffert points out, comparative law must wrestle with the problem of translation. I use the word “accountability” in my book’s title, but other languages, including French and German, tend to use a literal translation of that term to refer to honest and competent financial accounts -- the preserve of accountants. My commentators understand its broader meaning as a reference to the obligation of public officials to justify their actions to citizens, not just as financially correct, but also as effective policy responses. As a second example, the term “agency” in Europe refers to the national regulatory bodies that resulted from European Union policies. To some extent, these agencies resemble independent regulatory bodies in the US, but Americans use the term “agency” more broadly to refer to such bodies as the Environmental Protection Agency, inside the core executive.

My commentators have sufficient comparative experience of their own not to fall into such misunderstandings. Rather, they engage with the practical problem of how to legitimate rulemaking procedures in polities with millions or hundreds of millions of voters. Some citizens will be directly affected through impacts on their property and human rights. Others will have policy views and/or information relevant to understanding the impact of a policy on the citizenry. Administrative rulemaking procedures should include invitations for both types of civil society input, as a necessary condition for policy delegation. These procedures leave the ultimate policy choices in the hands of those with political accountability and subject matter expertise, but require them both to consult broadly and to supply public reasons for rules with the force of law.

As Liz Fisher points out, my comparative study is “thin” in the sense that I do not take account of all the complex details of case law and doctrine. She used “thin” in a descriptive, not a critical sense, and she defends my approach as one route into the study of public law. She is correct that I have tried to capture the basic legal and constitutional structures of the four cases and to analyze how each system operates in practice without getting lost in minutiae. I include lots of case-specific details, but I have tried to retain a fundamental anchor in the underlying cross-country differences. Although I articulate these differences, I do not believe that they should be accepted as historically determined and unchangeable. My goal is to encourage national-level debates over executive policymaking accountability and to put the issue of public consultation and reason-giving on the table for discussion.

The US Administrative Procedure Act (APA) articulates one route to rulemaking legitimacy. It mandates that the body issuing the rule, whether a core executive department or an independent agency, must follow certain procedures focused on public legitimacy that do not mimic judicial courtroom practice. These are public notice, a hearing process not limited to those whom the agency selects, and a public statement of reasons. Judicial review concentrates on enforcing these procedural requirements – as well as assuring the regulation’s consistency with the implementing statute and the Constitution. Of course, in practice, there is much to criticize about the operation of the APA process, and presidents and cabinet members often manage to avoid or undermine its demands. Nevertheless, it establishes a minimal set of conditions that seek democratic accountability through procedural requirements. In other words, democratic accountability depends not just on the chain of legitimacy from officials to elected presidents and legislators to the voters. Given the weaknesses of the so-called “chain”, participants are involved in the APA rulemaking process, not just as holders of individual rights but also as democratic citizens.

My concern with the citizen’s role in informing executive policymaking has a special salience for Germany and France as members of the European Union. For them, establishing the democratic legitimacy of rulemaking procedures is made more difficult by the shift of much regulatory policymaking to the EU level. As Peter Strauss observes, European administrative law scholars have drafted a proposed EU administrative law code that would include a notice-and-comment process for executive rulemaking. However, Member States and the European Parliament have little incentive to enact such a code, and the Commission -- the EU’s bureaucracy -- expresses mixed feelings for procedural reforms, especially if subject to judicial review. To me, such a code would be a particularly important locus for public accountability, given other democratic deficits in the EU structure of governance.

Turning back to the country cases that are my book’s focus, several of my commentators point to the difficulty of putting my ideals into practice given the political incentives of those with executive and legislative power at the country level.

One form of skepticism is John Ferejohn’s argument that substance rather than procedure is the root of political legitimacy and that legally required public participation can be undermined and manipulated by those with executive power – allowing them to escape accountability in real-world settings. I agree that this will happen in some cases, but to me, that result does not undermine the basic argument for legally required consultations during executive rulemaking. The APA, importantly, includes some safeguards against bias by refusing to give the public body the power to limit who may post comments and by requiring a public statement of reasons when it issues a rule. As I discuss in my book, the APA’s provisions have important weaknesses, especially the lack of a requirement for outreach beyond a notice in the Federal Register. Nevertheless, they set a minimum standard for public input.

Thomas Perroud, my co-author on much of the work that lies behind my discussion of the French case, strongly supports my normative argument but expresses pessimism about the likelihood that France will adopt the relevant reforms. Part of the problem is the weakness of the French legislature relative to the president. However, also fundamental are weaknesses in civil service’s training and career incentives. These critiques may seem misguided to those who view the French civil service as a model of professionalism based on an ethic of public service. Perroud, however, has an insider’s perspective. He emphasizes “the grip of the high civil service on policymaking” and worries that a weak civil society is unlikely to provide a strong counterweight, even if invited to participate. At present, when president organize broad consultations, they are unlikely to provide much balance to their policy priorities.

Drawing on the case of Brazil, Mariana Prado expresses concern for the way a chief executive can undermine even legal consultation requirements. She shows how a powerful president can use public consultations, even those required by law, to undermine the technocratic policy choices of nominally independent agencies. She applies Kim Scheppele’s concept of “autocratic legalism” to show how a powerful president (or in Scheppele’s case, the Hungarian prime minister) can use consultative processes to delay and undermine the recommendations of expert bodies. A consultation mandate, standing alone, is subject to manipulation by those with political power. An independent and competent judiciary is a necessary check. However, as the Vermont Yankee case has taught US administrative lawyers and as Perroud shows for the French case, courts may not support procedural challenges to administrative decisions. One lesson of Prado’s post is that cross-country borrowing needs to be done with care and with an awareness of how partial reforms can go wrong.

Matthias Ruffert refers to his own participation in a multi-year effort to reform German public law, including the reform of rulemaking procedures. In Germany, as in my other European cases, the main cases of public involvement concern public-planning decisions -- for example, the location of highways and high-tension power lines, the rebuilding of a railway station, or, in the past, the construction of nuclear power plants. As Ruffert points out, such public involvement has a mixed record, sometimes excessive, other times insufficient or biased. Furthermore, such input is not generally required for the promulgations of rules with the force of law (Rechtsverordnungen), which some characterize as political activities beyond the reach of administrative law. Consultation frequently occurs in practice, but its adequacy is not subject to judicial review. The environment is a partial exception, but the relevant environmental treaty dealing with the civil society access to executive decision-making mainly concerns project-level decisions. It enhances the consultation rights of civil society organizations for such decisions but has little to say about rulemaking.

Jeff King, a British academic, well-informed about the US case and deeply involved in a study of national responses to Covid-19, shares my basic interest in limiting the democratic deficit of executive procedures that produce rules with the force of law. In critiquing my recommendations, however, he accepts the so-called “ossification” hypothesis concerning American practices that emphasizes the time and trouble characteristic of the notice-and-comment process. To the extent this objection is valid, it suggests the need to reform, not abolish, these procedures. Indeed, King is himself a leading reformer in the UK, joining other commentators who urge that the Houses of Parliament should do a better job of reviewing proposed rules, called Statutory Instruments (SIs). Such review already occurs for many SIs and involves both the Lords and Commons. Jeff urges that these processes should be strengthened. This is a worthy goal, but there are several structural features that its advocates need to surmount. The most important is the British parliamentary system itself -- which implies that a majority of the Commons organizes the government and populates the cabinet. That fact casts doubt on the ability of the Commons to provide independent review. In addition, if the House of Lords has a role in the review of SIs, it must overcome its lack of democratic legitimacy as an appointive and hereditary body. Nevertheless, reformers may well develop plausible responses to these critiques and come up with ideas that might be transferable to the US. However, given the US separation of powers with two elected houses, intensive Congressional review would produce a deeply serious problem of ossification—not just delay, but deadlock. The Chadha case, holding that legislative vetoes of executive regulations are unconstitutional, of course, limits statutory options, but it has the salutatory effect of giving Congress the incentive to consider the benefits and costs of delegation at the drafting stage.

In spite of the lack of general procedural requirements for executive rulemaking, all three European governments engage in public consultations over broad policies at their own initiative. These processes may have lessons for those who seek legal reforms in executive rulemaking procedures, but so long as they merely reflect the political priorities of the incumbents, they will have limited impact. They pose the special danger of political manipulation emphasized by Perroud and Prado.  Whatever the weaknesses of the US notice and comment process, at least, it creates a legal framework for rulemaking that is required even when the executive would prefer to avoid its strictures.

American reformers must also confront other fundamental issues: How should agencies engage in outreach to engage concerned civil-society groups, including lowering the costs of participation? How can use of technocratic experts be reconciled with public input that may be heartfelt but lack a strong knowledge base? When should the executive be able to avoid the notice-and-comment process by invoking exceptions or my using policy tools that do not have the force of law, such as executive orders or memoranda? How should the rulemaking process proceed when many program beneficiaries do not know that they will be beneficiaries at the time of the rulemaking?

My aim in writing this book was to generate an informed debate about the relationship between executive power and legitimacy in representative democracies. I focus on four countries, but they are important exemplars of alternative routes to public involvement in executive policymaking. Borrowing can never be a routine and uncritical affair, but the study of different systems can help reformers in one location to understand the range of options and come up with new ideas. I am very grateful to my commentators for engaging in precisely this debate – and encouraging others to join in, including scholars from other parts of the world that confront the same fundamental problems.

Susan Rose-Ackerman is the Henry R. Luce Professor of Law and Political Science, Emeritus, and Professorial Lecturer, Yale Law School, Her email is susan.rose-ackerman@yale.edu.