*This is the second 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 role of politics and expertise is one of the defining tensions in administrative law. My students learn that there are HBO people who believe that rulemaking should be a deliberative process, and that agencies should exercise independent and reasoned judgment regarding the best ways to implement their statutory authority to promote the public good. There are also Sierra Club people who believe that agency rulemaking is a political process that should be constrained only by the agency’s legal obligation to justify its decisions with evidence in the record. Many students of administrative law believe there should be a middle ground where politics and expertise both have legitimate roles to play in effective regulation and where they are properly balanced against one another. In Rebuilding Expertise: Creating Effective and Trustworthy Regulation in an Age of Doubt, Bill Araiza has written what may be the definitive book that articulates and defends this middle view.
The tension between politics and expertise raises difficult questions about the appropriate role of “political reasons” in agency decision-making. While State Farm suggests that agencies should justify their policy choices based on technocratic considerations, some scholars have argued that agencies should receive credit during judicial review for openly relying on certain political considerations, including the preferences or priorities of the sitting president. Indeed, the logic of political control theories of administrative legitimacy would suggest that the president should generally be able to dictate an agency’s policy choices, and that voters should simply elect someone else if they are unhappy with regulatory decision-making. I have previously criticized this view on empirical and normative grounds and argued that political reasons should play a significantly more limited role in agency decision-making based on principles of deliberative democracy. Araiza, for his part, strikes a middle ground and suggests an expertise-reinforcing approach to judicial review that would incentivize creation of “internal agency processes that guarantee experts’ relative freedom to create and disseminate information and inclusion in the agency’s deliberations, while recognizing the agency head’s ultimate authority to reach the final decision, even one heavily influenced by politics.” Araiza’s approach would establish a presumption in the agency’s favor if it could demonstrate “that it both gave its experts appropriate latitude regarding information generation and dissemination, and conducted an inclusive decision-making process,” even if the final decision was politically motivated. A court would review the agency’s decision more skeptically in the absence of such a showing. Araiza makes clear that his proposal “allows room for politically based decisions, as long as those political rationales are disclosed and the action is at least minimally reasonable.”
After providing my own more restrictive take on the proper role of political reasons in agency decision-making, I conducted a research project with Michael Sant’Ambrogio for ACUS that examined existing and best practices for public engagement with agency rulemaking. We found that agencies already make use of many of the existing tools for engaging the public with their rulemaking activities, but those practices are ad hoc and unsystematic. We also found that efforts to solicit meaningful input from interested members of the public, unaffiliated experts, and citizens with situated knowledge of the regulatory issues are generally more beneficial during the early stages of rulemaking when agencies set their agendas and evaluate regulatory alternatives than during the public notice-and-comment period when the agency’s position is more likely to be set in stone. We therefore proposed a set of reforms that could help to democratize rule development. Araiza productively builds upon this work in arguing that agencies should provide more opportunities for public participation in rulemaking and recognizing that such input is most valuable during the early stages of the process, partly because agenda-setting focuses primarily on value choices regarding the best use of limited societal resources, and therefore turns more heavily on politically grounded considerations than on technical or regulatory expertise.
My review of Araiza’s insightful book helped me to see for the first time how these two lines of research may be intimately connected. I’d like to propose that we think about treating elected representatives as a relevant constituency for public engagement efforts by administrative agencies. Members of Congress and the president, by definition, represent a significant segment of the public. By seeking targeted input from a bipartisan group of legislators and the president (or designated members of their respective staffs), agencies could potentially obtain meaningful feedback from a relatively balanced and representative slice of the American people. Serious concerns that these efforts may be undermined by today’s polarized political environment could be addressed by concerted actions by agencies to focus their recruitment efforts on members of the Problem Solvers Caucus or other lawmakers who would be committed to treating participants with different views respectfully and being open to persuasion. Agencies could thus affirmatively target these public engagement efforts at a diverse and reasonably open-minded set of elected officials in an effort to ensure that all the relevant interests and perspectives are reflected in the resulting deliberations. And this would provide agencies with transparent and structured opportunities to consider and respond in a reasoned fashion to relevant political reasons when they make their policy decisions.
One significant advantage of this proposal is that agencies could use the existing tools for public engagement that Sant’Ambrogio and I identified to consult with elected officials during the early stages of rulemaking. For example, agencies could conduct focus groups or host listening sessions with elected officials prior to setting their agendas or selecting regulatory alternatives. They could also empanel “political juries” or organize deliberative polls where elected representatives could make nonbinding recommendations to agency officials after engaging in reasoned deliberation regarding the relevant issues. Such efforts could be conducted early in the rulemaking process when informed feedback from interested members of the public (or their elected representatives) is most useful and effective, and thereby help to democratize rule development. And if elected officials refused to cooperate with these efforts in good faith or presented empty rhetoric or alternative facts, agencies could use their technical and regulatory expertise to call out those elected representatives and explain why their positions are mistaken. This proposal is therefore consistent with Araiza’s broader efforts to insulate agency expertise from political manipulation.
I do not mean to suggest that efforts to solicit meaningful public feedback from elected representatives during the early stages of rulemaking should be a substitute for public engagement efforts with private citizens. Because elected officials would presumably represent the interests and views of many ordinary citizens in these proceedings, however, agencies could focus the remainder of their public engagement efforts on gathering information or feedback from unaffiliated experts, missing stakeholders with situated knowledge of the regulatory issues, and individuals or groups who are politically marginalized or otherwise inadequately represented by mainstream politicians. Focusing the agency’s remaining public engagement efforts on those specific constituencies would help to round out the agency’s deliberative process and make public engagement efforts with private citizens simpler and more cost-effective.
Of course, public engagement with elected representatives would not be the exclusive means for those officials to communicate with agencies or attempt to influence agency policy. Elected officials could still seek to influence or control agency action through other formal or informal means. But public engagement with elected representatives could both increase transparency and send a clear message that agencies are the authoritative decision-makers in rulemaking. Summaries of the deliberative exercises could be included in the administrative record to inform judicial review. And courts could potentially give agencies credit for engaging in a robust deliberative process when they evaluate the validity of final regulations, consistent with Araiza’s proposals.
Public engagement with elected representatives could provide an appropriate place for politics in rulemaking without interfering with—and perhaps even accentuating—agency expertise, while simultaneously allowing agencies to maintain proper control over the decision-making process. The resulting conception and treatment of political reasons in administrative law could lead us to question and potentially reform other existing aspects of the rulemaking process. For instance, OIRA review should potentially be moved to the agenda setting or rule development stage, rather than serving as a vetogate after an agency has already formulated its preferred proposal, as Araiza has suggested. This would make it clear that the agency is seeking OIRA’s input regarding how it should proceed, as opposed to requiring OIRA’s permission.
This package of proposed regulatory reforms is tentative and intended solely as food for thought, and it would certainly require more detailed consideration and elaboration. It could, however, conceivably help to strike an appropriate balance between politics and expertise in agency decision-making and convey the message that rulemaking should be a deliberative process in which agencies exercise independent and reasoned judgment regarding the best ways to implement their statutory mandates to promote the public good. At the end of the day, while I agree with Araiza that political values and expertise both have legitimate roles to play in effective regulation, I am admittedly an HBO person at heart.
Glen Staszewski is a Professor of Law & The A.J. Thomas Faculty Scholar at Michigan State University.