Regulating the Regulators: The American Administrative State in Crisis

• In Event: US Law & Courts: Courts & Judging Mini-Conference: Lower & Administrative Courts

Abstract

The standard narrative among political scientists and legal scholars alike has been that the structure of federal administrative law, manifest most notably in the Administrative Procedure Act of 1946, has been fundamentally procedural and neutral (Sunstein and Vermeule 2020; Stewart 1975. That is, choices by regulatory agencies about policy outcomes are matters of some measure of administrative discretion, the measure being principally established by statute, and that the work of administrative law as applied by courts is to ensure that agencies act within certain procedural boundaries. This veneer of neutrality has been increasingly difficult to maintain, however, since the early days of administrative law in the 1930s and continuing for the next many decades. From the vantage point of political science, both ancient and modern, we know that even ostensibly neutral rules have substantive consequences. Knowing this, it is not credible to believe that designers of administrative structures and procedures would be agnostic as to policy outcomes, nor ignorant that certain procedures could and would do have substantive results. This is not to say that more neutrality is an unworthy objective, or that the aspiration of neutrality in the construction of the administrative process is chimerical or no more than manipulative.

In the important work by McNollgast (1995, 1989,1987), the connection among structure, process, and policy is described as robust, and is unpacked through theoretical and empirical analysis. The takeways from McNollgast and other work in this vein are both positive and normative: The main positive point is that a coherent picture of administrative law requires us to see the connection between Congressional choice over procedures and agency choice over outcome. The procedural content of administrative law should not blind us to the strategic dimensions of legislative-agency relations and administrative performance. The normative lesson is that if we push for prescriptions that try to arrest these connections and promote greater neutrality, we should do so with a careful recognition of both the equilibrium effects of such proposals and also the unintentional consequences of one or another reform.

In our paper, we build upon this analytical framework to describe the evolution of contemporary administrative law. In broad relief, we show how Congress and agencies reach a political accommodation of interest and of function, this in order to fulfill important strategic goals. The contours of administrative agency choice – what we might call usefully the space of administrative discretion – will reflect this accommodation, and we can model and describe an equilibrium in which agency/legislative objectives are realized. Further, we describe, looking at some of the key Supreme Court cases of the modern (1970’s-present) era how the courts reinforce this accommodation. While we do not undertake a theory of judicial behavior to accompany the depiction of agency/legislative motivated goals, we do describe some of the key ways in which judicial outcomes – looking at what they decide and how they decide – support and, in other instances, disrupt the equilibrium created through this political accommodation.

Authors

• Barry R. Weingast, Stanford University

• Daniel B. Rodriguez, Northwestern University