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Agencies, Courts, and Public Accountability

Are agencies or courts more accountable when they make policy decisions? Professor David Bernstein discusses the constraints that each entity faces when making decisions, and the impetus behind their choices. He argues that neither courts nor agencies ultimately have much accountability to the public although agencies might be held accountable to whichever political party happens to be in power. https://youtube.com/watch?v=u3SoiHsAzV8


Proponents of administrative constitutionalism in the sense of encouraging agencies to be active participants in creating constitutional norms, tend to believe or argue that administrative agencies are more publicly accountable because they are part of the executive branch. Of course, the President is democratically elected, unlike the courts, with the judges appointed to lifetime positions and that they have to go through the notice and comment period where they get public comment before they pass their regulations, where of course judges do not ask for public comment before issuing their rulings. And all of that is true, so far as it goes. On the other hand, though, agencies often regulate in ways that are not especially transparent. They do so through so-called guidance rather than issuing formal regulation. They do so just by sort of informally talking to the regulated industries and working out sort of informal arrangements. Judges are constrained by, to a significant extent, by existing precedent, and by the fact that they have to articulate how their judgements comport or don't comport with those precedents, whereas agencies often shift policy dramatically simply based on who the new political appointees are. And this has become, I think, an increasing problem, in American life, that every time a new President from a different party gets elected, policy could shift 180 degrees. We've seen that, from Obama to Trump and then to Biden - immigration policy, labor law policy, civil rights policy, environmental policy, all sorts of things will just do a 180 a dramatic turn. And each side is not really trying to appeal to the broad public and say, hey, we're democratically accountable, let's figure out what the consensus is. Instead agencies have become captured by the factions of each party that care about the relevant policies. So if environmental policy is being done in a democratic administration, it will be dominated by the concerns of environmental activists and organizations that support environmental regulations and global warming and climate change activists and so forth. And then when a Republican comes in, the same agency will be dominated by political appointees who are more skeptical of climate change and of the efficacy of regulations and economic efficiency of regulations, in that regard, that will be more inclined to use market oriented mechanisms of regulating the environment, will be less inclined to impose regulations in general and especially regulations that have less than concrete scientific evidence behind them. And we just shift the policies dramatically. And I think what has happened is that the agencies, at least the more controversial agencies, are not so much accountable to the public as a whole, but they are, again, accountable to the faction of whichever political party happens to be empowered that's especially concerned with that issue. So we wind up having, rather than the development of legal norms and also legal rules and also quasi constitutional norms that develop over time and reflect broad agency wisdom as mediated by public policy and public opinion, we have massive instability in agency policy that is essentially reflective of the most ideological members on that issue of each party.

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