Acknowledging Values in Administration, by Bijal Shah
*This is the third post on a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here.
I am delighted to participate in a symposium on Professor Jed Stiglitz’s new book, The Reasoning State. Stiglitz contends that the administrative state—and in particular, the transfer of authority from Congress to agencies—is justified because the bureaucracy has the ability to “credibly reason.” The resulting monograph is thoughtful, accessible, and anchored in a compelling mix of public administration research and positive political theory.
Stiglitz’s argument turns on the view that agencies are more likely than Congress to engage in credible reasoning to arrive at a policy choice. The legislature, in contrast, faces not only expertise and capacity deficits (per the conventional view), but also political pressures and an attendant lack of public trust that interfere with its ability to credibly reason. In lieu of Congress, agencies should be trusted to engage in the sort of policymaking that creates law, or at least, that expands on the law in ways that are not specified or directed by legislation.
Stiglitz’s claim rests 1) on the existence of a distinction between credible reasoning and the application of expertise, 2) on the understanding that credible reasoning is a more favorable approach to identifying priorities in policymaking than political responsiveness, and 3) on the assumption that agencies are politically-insulated institutions. But the difference between credible reasoning and the mere application of expertise is not clear. In addition, policymaking born of credible reasoning is not necessarily preferable to democratically-accountable administration. And finally, the insulation of agencies from political pressure is no longer a given, if it ever was.
Take the first issue. What is the difference between expertise and credible reasoning? Isn’t the integrity of an agency’s reasoning based primarily in the quality of the expertise it has applied? And if credible reasoning is something more than expert reasoning, then how is it defined?
Perhaps in discourse with the legislature. But Stiglitz might not agree. For instance, he notes the view that the legislature is poorly positioned to respond to new problems, both because it faces pressures to confront them and because it is uniquely untrustworthy as a result of those pressures [P.9-11]. Or maybe the answer to what makes reasoning credible lies in existing statute. As I have argued, the executive branch could improve the quality of agency policymaking by focusing on the details and depth of legislative mandates. But Stiglitz says, “The calibration of what counts as an ‘adequate’ reason for an action is not specified in the APA or any other statute, nor can it be so.” [P.74].
If there is no available guide to what constitutes credible reasoning, how can we ensure that agencies credibly reason? Stiglitz offers full-throated support for proceduralism, and in particular reason-giving, as a primary way to ensure credible reasoning. “The choices that we could not trust in the legislative context,” Stiglitz says, “become choices that we might trust in the administrative context by virtue of the procedural burdens that agencies carry. Those procedures compel agencies to be transparent and, critically, to provide reasons for their actions.” [P.50]. In this vein, Stiglitz notes that procedures are the result of concessions to liberal values in the making of the APA [P.81-82], which is important to reaffirm in light of progressive critiques of proceduralism. From this perspective, fairness and transparency constitute a pathway to credible reasoning.
But procedure is manipulable. Stiglitz himself notes that in immigration and the administration of public welfare programs, agency behavior is far from the “ideal type of the reasoning state.” [P.3, FN.9.] As I argue in a work in progress, both limited procedure and procedural overkill render the results of immigration adjudication unjustifiable. As to the former, reduced process impedes noncitizens’ legitimate access to immigration benefits. As to the latter, labyrinthine national security requirements mire noncitizens in unending, liminal process with little hope for a resolution, of any kind, to their petitions for immigration. In both of these examples, bureaucrats exploit procedure to accomplish their preferred ends.
As to general policymaking, Stiglitz recommends cost-benefit analysis (CBA) [P.20] as a form of structured reason-giving that supports credible reasoning, and argues that deficits in CBA happen only in “policy domains where agencies cannot competently estimate the costs or benefits of a proposed regulation.” “We value human dignity,” Stiglitz remarks, “but it may not be easy to quantify.” [P.276]. The uncertainty of CBA, however, is not necessarily caused by a lack of agency competence or quantitative skills. Rather, CBA requires administrators to make subjective decisions assigning priority to certain costs and benefits (for instance, human dignity) over others.
If credible reasoning is understood to be something more than policymaking based in high-quality expertise, but is neither defined by the legislature, nor guaranteed by process or analysis, then it is administrators themselves who determine whether their reasoning is credible, based on their own values. Stiglitz dismisses the importance of values to bureaucratic judgment at the end of his book, arguing that “the focus should be on information.” “Even the most apparently ministerial tasks,” he notes, “will at times touch on values.” [P.294]. But that is perhaps the point. Values guide administrators as to how to weigh the importance of competing information in order to achieve a particular purpose.
Take the second concern noted at the beginning of this post. Is policy resulting from credible reasoning superior to politically-responsive policymaking? Is it better for priorities to be set by an insulated administrative body rather than by a democratic organ? Perhaps, given the dangers of legislative capture [P.9]. But agencies can be captured too [P.50], possibly in lockstep with growth in their policymaking authority. As Stiglitz notes “special interests [have] adapted in predictable ways—their efforts at subversion [have] shifted from the classical forum of the legislature to administrative bodies, wherein substantial discretion now reside[s].” [P.89].
In any case, why shouldn’t majoritarian interests define the outcomes of policymaking, instead of credible reasoning? At a moment in which conservative minorities are obstructing majoritarianism, perhaps there should be a turn toward policymaking that is democratically accountable. And Stiglitz suggests as much, remarking that “in simple policy areas, such as abortion or gun control, electoral accountability functions well, and such policies ought to be left to the electoral domain” [P.293], notwithstanding that policies in these arenas also benefit from scientific knowledge, statistical analysis, and other expertise. (The inability of Congress to represent and act on majoritarian preferences in these contexts is a problem for another post.)
Finally, point number three: are agencies inherently more trustworthy than the legislature, as a result of their relative independence from politics? Stiglitz argues that the motivation for transferring policymaking authority from Congress to the legislature “is a problem of trust in democratic organs, a problem that reasoning bodies help to ameliorate.” [P.243] Setting aside the argument that the bureaucracy is suspicious to the public precisely because it is comprised of unelected officials, it is worth noting that many agencies are also political bodies, especially in light of the President’s ever-increasing control over insulated actors like independent agency heads and administrative adjudicators. As Stiglitz observes, “removal authority introduces an element of uncertainty and distrust into the regulatory process.” [P.289].
Perhaps all is not lost as to the politicization of agencies. As I have shown, there are mechanisms, such as intra-executive branch litigation, that hold promise for staving off a wholly unitary executive. For now, much of the administrative state remains insulated, if only by virtue of the expansive discretion granted to agencies by statute. The bigger concern, perhaps, is the misuse of this discretion by a vast, not to mention “self-interested and parochial” [P.18] bureaucracy. Administrative discretion is guided by values. I suggest that these values might include anti-racist, critical norms and accessibility principles that, while preferably not reflective of political interests alone, nonetheless are not left to administrators to define autonomously.
Bijal Shah is an Associate Professor of Law and Provost Faculty Fellow at Boston College Law School.