Notice & Comment

Expertise Redux, by Michael Herz

*This is the sixth 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.

The relationship between expertise and theories of administrative governance has had its ups and downs. The two were strangers for the first century or century and a half of the nation’s existence. Then came those thrilling days of the early 20th century, when, with the Progressive movement doing the matchmaking, expertise swept administrative law off its feet. This was no mere infatuation—the bond only grew stronger over ensuing decades. Ah, the New Deal. What happy times. In those halcyon days, agencies were confronted with technocratic problems that had right and wrong answers; and, because they had expertise, they knew the answers. As Richard Stewart has written, “persons subject to the administrator’s control [we]re no more liable to his arbitrary will than are patients remitted to the care of a skilled doctor.”[1]

But it was not to last. Ever fickle, administrative law theorists tossed expertise aside as a cadger and a fraud, turning instead to dalliances with interest-group pluralism, Madisonian republicanism, presidentialism, cost-benefit analysis. Some, urging a ferocious nondelegation doctrine and/or the deconstruction of the administrative state, propose abstinence or spinsterhood. No more wayward partners leading administration down the primrose path.

Now comes William Araiza not to bury expertise but to praise it. Agencies, he insists, really do possess genuine expertise. That expertise should be acknowledged, nurtured, and empowered. But the endorsement is constrained. Araiza is keenly aware that not all agency decisions turn on expertise. His basic point, to which I am wholly sympathetic, is that the baby has gone out with the bathwater – that there has been an over-reaction to the bad old days when uncritical invocations of expertise covered a multitude of sins.

I think Araiza is essentially correct. He develops the case with nuance, erudition, and clarity. The book is a very welcome addition to the literature; it should and will be widely read. 

It also forces hard questions about the boundaries of expertise’s proper sphere. Araiza handles most of these, well, expertly. But the link he makes between expert regulation and his second fundamental concern–public trust in government–seems to be more assertion than proof. I am more convinced by the Araiza’s general defense of expertise than his claim that acknowledging and relying on regulatory expertise will enhance public trust.

Consider the book’s cover (yes, the cover). We read the title: Rebuilding Expertise. The subtitle then focuses us on regulatory agencies in particular: Creating Effective and Trustworthy Regulation in an Age of Doubt. These dozen words are accompanied by four photographs. Each illustrates an expert, and trusted, government at work: the Hoover Dam, a space launch, CDC headquarters, and a generic photograph of test-tubes and an eye-dropper (presumably groundbreaking government-funded scientific research). 

The photos point to impressive government accomplishments by people with generally unchallenged expertise working within government entities that, at least relatively speaking, enjoy high levels of trust. But there is a tension between the text and the photos, for the latter, and the agencies behind them, have (almost) nothing to do with government regulation.

Now, perhaps the problem is that regulating agencies are just not that photogenic. If I were picking photos for my book jacket, the Hoover Dam would beat the Federal Register every time. Still, EPA’s headquarters are more impressive than the CDC’s, so why didn’t it make the cut? Well, because EPA is not Everyone’s Preferred Agency. Rather EPA is continually infuriating or disappointing people, either because it is doing too much or because it is doing too little. Such is the regulator’s lot.

As a generalization the agencies Americans trust most are those that provide services, not those that regulate. In poll after poll, the most trusted federal agency is the Postal Service. A recent Gallup poll found 74% of respondents viewed USPS as performing an excellent or good job, and only 8% described the public mail service as operating poorly. Even more strikingly, the Pew Research Service survey found that 91% of respondents have a favorable view of the Postal Service. Given the level of despair a trip to the post office can engender, that is a remarkable statistic. In both surveys, the Postal Service led all other agencies. Michael Lewis’s The Fifth Risk, which pops up in Araiza’s footnotes, is another example. That book is a paean to government competence; it wants everyone to know how much great but unheralded work career civil servants are doing. But if you blink you will miss the two pages where regulation is even mentioned between its covers.

This is consistent with how the federal government presents itself to and interacts with the public. In general, agencies focus on members of the public not as citizens but as customers. President Obama set this tone in EO 13571, Streamlining Service Delivery and Improving Customer Service; President Biden took up the mantle in his EO on Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government. The latter seeks to “build trust” not by carrying out regulatory functions in expert fashion, but saving individuals time and “deliver[ing] the level of service that the public expects and deserves.” And the consultants seem to agree that the way to build trust in the government is in delivering services competently and with humanity.

All of which is to say that the project of developing trust in government through expert regulation may be a sideshow at best and doomed at worst. The effects will be swamped by individual customer experiences; regulation is often invisible; when it is visible it is most visible to the losers, not the winners; fluctuations from changes of administration will undercut the claim to expertise.

These concerns are most salient with regard to the book’s final chapter, which has the same title as the book itself except “expertise” is replaced with “trust.” One would hope, and Araiza asserts, that “expertise” and “trust” are connected. Araiza predicts that “rebuild[ing] the government’s capacity for expert decision-making” will in turn improve the decisions agencies make; the public in turn will notice and appreciate that improvement and come to place greater trust in the government. [206] The phrase “virtuous circle” shows up more than once [e.g. 17, 206, 207]. Perhaps. But for the reasons given above I am not so sure.  

In any event, this final chapter is primarily not about agency expertise but about public participation in the process of rulemaking. Having staked so much on agency expertise in chapters 1-9, Araiza has a challenge when he gets to chapter 10, for expertise is exactly what members of the general public lack. Indeed, the (too) strong objection would be to say that if White House involvement in rulemaking is problematic because the agency knows more than the President or folks in the EOP, see chapter 5 (“Curbing Political Control”), letting members of the general public in on the game is even more worse. (One reason that this is too strong a claim is that public commentators lack the influence or control of the White House.) I am not sure Araiza fully succeeds in squaring his commitment to agency expertise and his commitment to robust public participation in rulemaking. But he makes an impressive effort, acknowledging the deep shortcomings of simply eliminating barriers to access by putting everything online; arguing that effective participation may need to be moderated and, as Cynthia Farina has taught us, designed to elicit participation of those with “situated knowledge”; entertaining citizen juries and other creative alternatives to comments on an NPRM; and stressing that the most important input the general public might have is not at the proposed rule stage but with regard to agenda-setting and determining agency priorities. But chapter 10 is thus an argument for not relying exclusively on experts, and in turn undercuts the link between expertise and trust.

That said, chapter 10 is a nice place to end both the book and this appreciation of it. The chapter reminds us that expertise is an essential but incomplete component of effective regulation. Defining the proper role of lay input to rulemaking requires identifying the (relatively narrow) boundaries of lay expertise on the one hand, and the boundaries of the sorts of questions to which technical expertise is relevant, on the other. That is what this wise book does repeatedly through its pages.

Michael Herz is the Arthur Kaplan Professor of Law at the Cardozo School of Law.

[1] Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1678 (1975).

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