Notice & Comment

Ad Law Reading Room: Allison M. Whelan, “Executive Capture of Agency Decisionmaking”

Welcome to the Ad Law Reading Room, a new series here at Notice and Comment that will highlight recent scholarship in administrative law and related fields. Today’s article is “Executive Capture of Agency Decisionmaking” by Professor Allison M. Whelan, which was recently published by the Vanderbilt Law Review and posted to SSRN. Here is the abstract:

The scientific credibility of the administrative state is under siege in the United States, risking distressful public health harms and even deaths. This Article addresses one component of this attack—executive interference in agency scientific decisionmaking. It offers a new conceptual framework, “internal agency capture,” and policy prescription for addressing excessive overreach and interference by the executive branch in the scientific decisionmaking of federal agencies. The Article’s critiques and analysis toggle a timeline that reflects recent history and that urges forward-thinking approaches to respond to executive overreach in agency scientific decisionmaking. Taking the Trump Administration and other presidencies as test cases, it scrutinizes who should control, or alternatively advance or limit, an agency’s scientific decisions, which are distinct from its policymaking decisions. With its “internal agency capture” framework and the COVID-19 pandemic as its backdrop, the Article illustrates the phenomenon of excessive executive overreach at work in the scientific decisionmaking of the U.S. Food and Drug Administration (“FDA”), glaringly reflected in the Agency’s decisions on reproductive medicines and protocols to respond to the pandemic. This Article demonstrates that covert internal capture can mislead the public, pose serious risks to individual and public health, undermine the arm’s-length neutrality and objectivity of agencies, and result in lasting consequences for agency legitimacy and reputation.

The Article considers existing methods to oversee and provide a check on internal agency capture and describes the limitations of these approaches. It offers a novel solution, the creation of a new and independent Scientific Integrity Office, which would address many of these limitations and promote the important values of accountability, credibility, and public trust.

The relationship between political control and bureaucratic expertise in agency decisionmaking has been a perennial concern among administrative law scholars. This article contributes a rich discussion of recent patterns of decisionmaking at the Food and Drug Administration and a number of critiques and policy prescriptions informed by the FDA’s experience. Whelan finds evidence that political actors within the executive branch have exerted significant influence not only over FDA’s value-laden policy choices but also with respect to what are ostensibly purely scientific judgments. What’s more, such influence has often operated outside of the public eye. To combat what she terms “internal agency capture,” Whelan provocatively advocates the creation of a “Scientific Integrity Office,” a kind of roving overseer charged with uncovering and correcting political interference with agencies’ scientific decisions. Check it out!

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