The Tensions Surrounding Executive Rulemaking in Four Western Democracies

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). 

Peter Strauss

Susan Rose-Ackerman’s “Democracy and Executive Power,” is a magisterial work about executive creation and implementation in four western democracies, two presidential and two parliamentary, of public policy initiatives undertaken within statutory frameworks framing these executive tasks. Thus, its focus is on the process Americans call rulemaking (known in other systems as secondary or subsidiary legislation), the executive development of regulations to implement statutory directive.  This process is a universal necessity of governance in this complex and interdependent world. Yet it is equally necessary that it be undertaken by unelected bureaucrats, with the result, all too evident in contemporary American debates, that serious questions can be raised about its legitimacy in the face of the public’s claims for its participation and the actors’ accountability.  That is, as her title reflects, the central issue is answering the claims of democracy in relation to these actions. Legislators act after generally public debate, on public votes for which the electorate can hold them responsible.

Prof. Rose-Ackerman develops model after thoughtful and persuasive model, reflecting her background in economics and her deep understanding of executive policymaking. She is quite taken by the American process of notice-and-comment rulemaking, with its significant provisions for the public’s knowledge in advance of proposals to be acted upon, for public input then into the agency’s deliberative processes, for explanation much fuller than legislatures provide of agency reasoning in adopting a regulation, and for judicial controls considerably more demanding than apply to statutes. And she is chary, as am I, of the steady development of presidential controls tending to render the process more opaque and more subject to political capture in ways the electorate cannot well control.  The processes she finds in England, France and Germany generally lack our bureaucratic processes, but have elements – in France, for example, the training, discipline and traditions of its civil service – that tend to promote regularity compensating for issues of transparency, participation, and accountability.  Still, her general thrust is for the kinds of agency-level processes we enjoy.

The inclusion of France and Germany in her analyses gives this book broader appeal to the growing audience for comparative administrative law – a discipline for which, in the English-speaking world, Prof. Rose-Ackerman has been a charter member – than Professor Margit Cohn’s equally recent A Theory of the Executive Branch: Tension and Legality.  (A few months ago Cohn’s book was the subject of a series like this one, hosted by Adminlawblog.org, a Wordpress site focused on common-law jurisdictions.)  A Theory of the Executive Branch addresses the same issues as Prof. Rose-Ackerman in seeking to develop a general theory of executive action in a democratic context.  But she does this largely by comparing UK and US institutions. Prof. Peter Cane’s contribution to the series on Cohn’s book questioned whether her data set was “far too small to accommodate her aspiration to generality,” and focused “on her more specific claim that there is sufficient similarity between the US and UK systems to generate a general theory.”  He found this “unconvincing” given the very different relationships between the executive and the bureaucracy, and in the concept of judicial power, in the two systems.[1] By adding the German and French approaches Prof. Rose-Ackerman so well understands, “Democracy and Executive Power” effectively meets this critique, greatly enriching our understandings of its important themes.  Perhaps one could wish that other world democracies had been included; these issues are common to all.  In particular, attention to the draft administrative law code prepared for the European Union by the RENEUAL group of European administrative law scholars might have strengthened the argument for moving, generally, toward notice-and-comment processes for executive policy-making; the RENEUAL draft’s recommended processes striking resemble the American model.  There is, then, more work that could be done; yet this book is a remarkable, strong effort to tackle a first-order set of governmental, democratic problems.

 Problem solved? Reading “Democracy and Executive Power” brought to mind Prof. Rose-Ackerman’s colleague Jerry Mashaw’s remarkable analyses of social security adjudications.  Prof. Mashaw identified three models by which the propriety of those adjudications might be assessed, each stressing particular values that would be compromised by the alternatives: first, bureaucratic rationality, that might be styled efficiency, in which costs are contained and errors in granting and denying claims are evenly distributed and tightly bunched; second, reliance on the judgment and service commitments of professionals – doctors, in that particular case -- taking care to avoid the possible costs of disrespecting the profession’s integrity; and finally, moral judgment, stressing fairness to the claimant and respect for her perspectives and dignity.

"If these hypotheses are correct,” he wrote, “then it may also follow that the best system of administrative adjudication may be the one most open to criticism.  A compromise that seeks to preserve the values and to respond at once to the insights of all of these conceptions of justice will, from the perspective of each separate conception, appear incoherent and unjust.  The best system of administrative adjudication that can be devised may fall tragically short of our inconsistent ideals."[2]

These words have long been for me, the most powerful evocation of administrative adjudication’s dilemmas.  And “Democracy and Executive Power,”, throughout, brings similar wisdom to the issues of executive policy-making procedure, as the needs for efficiency, transparency, participation and accountability collide. Her models, too, collide, and I am tempted to end these comments by remarking that

"If her hypotheses are correct, then it may also follow that the best system of administrative rulemaking may be the one most open to criticism.  A compromise that seeks to preserve the values and to respond at once to the insights of all of these conceptions will, from the perspective of each separate conception, appear incoherent and unjust.  The best system of administrative rulemaking that can be devised may fall tragically short of our inconsistent ideals."