Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives
Nina A. Mendelson
University of Michigan Law School
New York University Law Review, Vol. 78
This paper examines executive branch agency actions that seek to entrench people or policies just before a new president takes office, such as midnight rulemaking and late-term hiring and promotion. Congress and the media have portrayed such activities as amounting to unsavory power grabs. More specifically, late-term entrenchment appears aimed at undermining the newly-elected president's potential control. That seems to raise particular concerns, given recent reliance in commentary upon presidential control of agencies as a source both of democratic credentials and of accountability. The implication seems to be that agency burrowing is antidemocratic and more generally undermines the legitimacy of the adminstrative state.
The paper argues, however, that despite its costs for the incoming president, agency burrowing should not be dismissed out-of-hand. For example, the use of rulemaking to entrench policy can result in agencies more often publicly developing decision criteria that are binding, enhancing agency accountability and the "rule of law." Moreover, late-term rulemaking can effectively place an issue on the public agenda and crystallize the issue for public debate. That public debate can in turn inform the ultimate agency decision, making it more democratically responsive. The presence of entrenched personnel also may ensure that agency decisionmakers consider a fuller range of electoral views; such personnel also may monitor others in the agency for abuse or misconduct.
Informed by this analysis, the paper argues for a more nuanced approach to agency burrowing, as well as for a more nuanced approach to assessing presidential contributions to the administrative state's legitimacy. Maximum presidential oversight may be insufficient to assure agency accountability and democratic responsiveness. Rather than focusing centrally on a formal president-agency relationship, we may wish to give greater attention to more functional means of assuring agency legitimacy, such as encouraging greater monitoring; more public dialogue on issues before agencies; and more administrative commitments to decision criteria. Investing in these mechanisms may be worthwhile even if it comes with a cost to presidential control.
Number of Pages in PDF File: 101
JEL Classification: K10, K23Accepted Paper Series
Date posted: November 8, 2002
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