The question of how political actors can overcome the principal-agent problem and “control” bureaucratic decisions has long fascinated political scientists. In 1987, Matthew McCubbins, Roger Noll, and Barry Weingast (often referred to as “McNollgast”) put forth an argument regarding the use of procedures by legislatures to constrain bureaucratic behavior. They maintained that by requiring agencies to go through procedures when making policy decisions, Congress was creating an environment that constrained those decisions and maximized the likelihood that they would be made the way that those in Congress (in the “enacting coalition”) would prefer. As Rachel Potter says in her new book, “Rulemaking procedures are typically cast as a way to constrain bureaucratic behavior.”
The McNollgast argument generated an entire sub-literature on when and whether procedures were effective in constraining bureaucratic behavior. One of the most significant criticisms of the power of procedures was that after putting procedures in place, the enacting coalition faded from the scene as they left office. This left future officeholders, the “existing coalition” in control of the procedures; and therefore in control of whether and how they could be used to influence bureaucrats. (I found empirical support for this argument in state regulation of child care centers.
Professor Potter adds to the argument that existing coalitions control procedures by effectively broadening the definition of “existing coalition” to include bureaucrats who engage in what she calls “procedural politicking.” Not only are enacting coalitions bequeathing future political officeholders who may have directly opposing views to their own with procedural controls, they are also bequeathing these controls to bureaucrats who likely have their own set of preferences. So is the question of who can use procedures to influence policy a battle between bureaucrats and their political overseers, with enacting coalitions gone and forgotten?
Two or three years ago, I would have answered an enthusiastic yes to that question. But along with upending so many areas of discourse in law and political science, the Trump Administration may have given us cause to relook at the power of procedures. Repeatedly the administration has found itself thwarted by judicial decisions in its pursuit of policy goals. And the most frequent reason that courts have stymied the executive branch is that the administration has failed to follow those procedures.
The Supreme Court stopped the Census Bureau from adding a question to the 2020 Census on citizenship because the bureau had not given a “reasoned explanation” for its decision. Trump Administration attempts to indefinitely delay Obama Administration regulations have regularly been struck down for not meeting the requirements of the Administrative Procedure Act (APA). Numerous plaintiffs have cited the Trump Administration’s failures to conduct required cost-benefit analysis in lawsuits designed to overturn Trump agency actions.
Over the past two and a half years, procedures have played a significant role in the fate of the Trump Administration’s “deconstruction of the administrative state.” The Trump Administration has repeatedly failed to follow required procedures either in letter or in spirt when attempting to promulgate many of its preferred policies. As a result, these policies have been overturned often denying or at least postponing the (largely) deregulatory goals of the Trump Administration. Somewhere the enacting coalitions that put these procedures in place are enjoying a chuckle.
This doesn’t mean that Professor Potter or others (including myself) were wrong that there procedures were limited in their ability to affect future decisions. Most procedures are designed with some flexibility. Agencies should allow sixty days for public comment but there are cases when they don’t have to. The benefits of a regulation should justify the costs but what does “justify” actually mean? Professor Potter provides many other examples of procedural flexibility that bureaucrats take advantage of. Their political overseers do the same.
But even the most flexible procedures have their hard limits. It is those limits that the Trump Administration has found itself running up against. Agencies can forgo public comment in some circumstances but not all circumstances. Agencies can be creative when assessing the benefits and costs of their regulations, but they have to assess those benefits and costs, and they can’t ignore bedrock economic principles in doing so.
Ironically, there is one group that the Trump Administration could have enlisted to help them navigate the procedural maze of repealing regulations. That group, the bureaucracy as chronicled in Professor Potter’s book, is extremely adept at utilizing procedures. While they may use those procedures to achieve their own goals, the ethos of serving the presidency is also present throughout the executive branch. It is not hard to envision a world where the Trump Administration enlisted the bureaucracy in its efforts to deregulate and the result was an existing coalition that used procedures effectively to achieve many of the administration’s goals.
Instead they declared war on the “deep state.” Instead of cultivating bureaucratic allies, they have been hamstrung by requirements to solicit public comment, analyze benefits and costs, and a series of other obligations put in place by enacting coalitions that were intended to make regulatory change a challenge. For those of us that have cast doubt on the effectiveness of procedures as means of controlling policy outcomes, it is an important lesson that under some circumstances such procedures can constrain future coalitions.
Stuart Shapiro is a Professor and the Associate Dean of Faculty at the Bloustein School of Planning and Public Policy at Rutgers University.
This post is part of a symposium reviewing Bending the Rules: Procedural Politicking in the Bureaucracy, a new book by Dr. Rachel A. Potter, Assistant Professor of Politics at the University of Virginia. All of the posts can be read here.