• Video

Pros and Cons of Agency Rulemaking

When and why would it be a good thing for agencies to make rules? Professor Michael Greve discusses the benefits and drawbacks of governing by agency. Agencies can move faster than Congress and have more expertise on issues. On the other hand, agencies are not democratically elected and they don’t always consider rules in the larger context that Congress has to take into consideration. https://youtube.com/watch?v=qvred0lFAJc


One question is whether rule making that looks suspiciously like law making by agency, whether and to what extent that is constitutional. There's also a debate in the law reviews, in the political science literature about the question to which it's desirable to vest those kinds of functions in agencies, and to have Congress delegate relatively broad control over rule making and broad discretion in that area to agencies. So on the one hand is an argument that this is undemocratic, that Congress is much better situated to sort of reflect the sentiment of the broad community. That it is our elected agent and that it would produce unaccountability and a dangerous lack of democratic control if Congress could, willy-nilly delegate that power to somebody else. There is an argument on the other side, and it runs like this. The reason why you want agency decision making, are two, one is the agency's relative expertise. Relative that is to say to Congress and the other one is the need for prompt and speedy adjustments. I'm a little bit skeptical of the expertise argument, and would refashion it in some way. Congress has all the expertise or could collect all the expertise at once in the world. It could have a legislative staff, it could ramp up its own staffing. It could hold hearings. It could collect any expertise from anywhere it wants. What Congress cannot so easily do is have specialization. And that is the advantage these agencies offer. The flip side of that is maybe the flip side agency expertise is tunnel vision. They see only one thing. Whereas Congress is compelled to look at a broader picture, and then there's the argument for relatively rapid adjustments. Congress is just too slow, and there's some good sense in why Congress cannot really realistically be expected to make all these minute decisions for itself. There's a further argument to be had, and it's this: rule making as it now proceeds in the federal court, not necessarily under the APA, but under administrative common law as it has been developed by the court is a rather involved and cumbersome and complicated process, but it may be more accountable in some ways, than congressional lawmaking. So the agency has to produce a record. It has to hold hearings. It has to demonstrate that it made a decision, not on some arbitrary factor, but on recent deliberation, none of that you get from Congress. And the flip side to that argument is that, look, you ask yourself, accountable to whom, right? So the agencies are surrounded by a bunch of interested parties, stakeholders. The upside is that these people know what they're doing and what they're talking about. The downside is that they all have the same professional perspective so that produces or may produce, tunnel vision and the other institution to which the agencies are beholden and accountable is the President of the United States. And by extension, the White House and the question you have to ask yourself then to the extent that you believe the accountability arguments for in favor of agency decision making - are you comfortable with that with an arrangement under which agencies act to behest, and beck and call of the president, checked only by some of these interest group constellations that swirl around them and little else.

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