*This is the seventh post in a symposium on William Araiza’s Rebuilding Expertise: Creating Effective and Trustworthy Regulation in an Age of Doubt. All posts from this symposium can be found here.
Bill Araiza’s stellar new book Rebuilding Expertise offers a thoughtful program for reform of contemporary administrative law. With his trademark clear prose and fair-minded analysis, Araiza offers an engaging overview of important recent developments in administrative law. He argues, in essence, that federal administrative governance at present is overly politicized and should be rebalanced in favor of expertise. Although I share Araiza’s general concern and agree with much of his analysis, I am sadly uncertain how well some of his proposals will work under current political conditions.
In framing his argument, Araiza correctly identifies the central dilemma for administrative law: it must balance political value-judgments with impartial expertise in crafting policy. Although Araiza recognizes throughout that administrative policymaking must give both politics and expertise their due, he argues that the politics/expertise balance has gotten badly out of whack in federal administration since about the 1970s. Through centralized OIRA review, greater political vetting of nominees, and changes in judicial doctrine, among other things, presidents have taken greater control over federal administration. The end result has been excessive politicization, which in turn has fostered greater distrust of federal governance. Araiza’s remedy is to recalibrate the balance back towards expertise.
Although Araiza acknowledges the problems of polarization and public distrust that complicate contemporary governance—indeed, they form part of the book’s motivation—I nonetheless wondered how well his proposals, particularly those relating to judicial review, would mitigate these difficulties. In Araiza’s understanding, “expertise” encompasses not just an agency’s capacity for sound scientific or technical analysis, but also its regulatory know-how—its “practical wisdom” about the “actual craft of regulating.” Refocusing regulatory policy on expertise in this sense strikes me as a feasible and compelling goal in areas like, say, aircraft safety that are matters of broad consensus.
Yet applying this orientation in the most politically salient areas seems more difficult. In areas that lack broad consensus—areas like energy policy, net neutrality, the pandemic response, and financial regulation, to say nothing of immigration and national security—politics is inevitably central because the key regulatory questions involve value-judgments about which Americans are sharply divided.
Should the United States pursue decarbonization or fossil-fuel abundance? What burdens on movement and association are appropriate to slow disease spread during a pandemic? Should the government allow price-discrimination by internet service providers or not? On these and many other divisive questions, agency expertise in Araiza’s broad sense should properly inform judgments about the costs and benefits of any policy, as well as choices about regulatory design. But different Americans, and thus different administrations, will inevitably weight the relevant concerns differently. In consequence, absent clearer statutory direction, agencies will likely pursue markedly different policies over time, and public perceptions of those policies’ soundness and of any judicial decisions reviewing them are likely to be highly divergent and polarized.
Within this environment, greater reliance on expertise may improve the quality of agency decision-making, but it cannot provide a way out of this bind, because expertise ultimately relates primarily to agencies’ choice of means rather than their choice of ends. Some efforts to boost expert involvement could even prove counter-productive.
For example, Araiza argues that courts should encourage greater reliance on agency expertise by ratcheting up or down the intensity of reasonableness review based on the degree to which their internal deliberative process excluded or included staff experts. Though aimed at encouraging inclusion of expertise in policy-making, this proposal would require courts to make a threshold assessment of agency process that Araiza himself recognizes is likely to be slippery and subjective. “[J]udicially workable standards distinguishing between acceptable and unacceptable procedures simply don’t exist when the procedural questions are as nuanced as these,” he writes. For that reason, Araiza opposes direct review of agency procedures, advocating modulated scrutiny of regulations’ substantive reasonableness instead. Yet given the indeterminacy of judgments about agency process, even when applied indirectly through substantive review, Araiza’s proposed approach could end up functioning much like the newly revived “major questions doctrine” that Araiza critiques elsewhere in the book: it could provide courts with grounds for invalidating some disfavored policies while upholding favored ones, producing public cynicism about the impartiality of both courts and agencies.
More generally, current political alignments complicate any effort to produce broader trust in government by expanding the role of expertise in policy-making. Over the same fifty-year period that Araiza examines in the book, the two major political parties have polarized, and in recent years the character of their division has shifted to make expertise itself a central fault-line. While the Democrats have become less of a labor party and more of a professional-class party, the Republicans have become less the party of big business and more the party of populist anti-elitism. This divide has given a new edge to administrative-law controversies because it makes expertise itself a divisive rather than unifying concept. If one side will reflexively “trust the experts” because it assumes the experts share its values, the other will often suspect that debatable value-choices are being smuggled into ostensibly neutral applications of expertise.
Araiza, again, recognizes these background challenges and hopes that good government will be its own best advertisement, particularly if agencies enhance public participation through a number of thoughtful mechanisms he addresses in the book’s final chapter. That hope may well be sound in the many areas of regulation supported by broad consensus, and it is possible that maintaining effective and competent government in those areas will help build greater trust in the federal government as a whole, producing what Araiza calls a “virtuous circle.” To my mind, however, in the areas of most acute conflict, the best administrative law can do is to embrace what I have called “symmetric” principles: rules that are relatively clear and objective and provide equivalent limits and opportunities to policy-makers with opposite political preferences. Araiza’s more hopeful vision of administrative law’s potential may have to await more stable politics.
Zachary Price is a Professor at the University of California College of the Law, San Francisco (formerly UC Hastings College of the Law).