Fomenting Authoritarianism Through Rules About Rulemaking

In The Frontiers of Public Law (Hart, Forthcoming)

14 Pages Posted: 17 Jun 2018 Last revised: 13 Aug 2019

Date Written: June 1, 2018

Abstract

In recent years, the President of the Unites States has assumed increasing power. Among other things, the President now makes decisions that federal administrative agencies previously would have made. This trend is not new, but it has reached a new height in the current administration. Some of the reasons for this development are obvious: the Congress’s lawmaking ability has atrophied, and technology and the media encourage the President to take credit for federal policy decisions. Just as Congress’s inaction contributes to this trend, so too does agency inaction. When agencies cannot make or change policy in a timely and efficient manner, the President is more inclined to do it himself.

Agency rulemaking has become extremely resource-intensive making them increasingly unable to respond to changing circumstances in a timely fashion. That is due in part to requirements imposed by the Congress, the President, and the courts. Though well-intentioned, the judicial rules about rulemaking are particularly problematic. Many of those rules conflict with the Administrative Procedure Act (APA), the primary statute governing federal agency procedure and judicial review. That conflict is of great concern because the passage of the APA in 1946 marked a significant moment in deliberative democracy: after years of debate among the Congress, the Executive Branch, and the public, Congress passed the APA unanimously, and the President signed it into law. The APA balanced multiple values, concerns, and variables. When the courts to disturb that balance, they raise exceptional separation-of-powers and political-accountability concerns.

The judicial rules governing agency rulemaking also are problematic because they have unanticipated consequences. Of the three branches of the U.S. government, the courts are the least capable of considering various positions and proposals and predicting which approach to administrative policymaking will be most effective. Thus, their rules seeking to enhance transparency, accountability, and public participation in administrative processes yield other results as well. Among other things, the courts’ rules about rulemaking have fomented the growth of authoritarianism by making agency rulemaking more difficult.

Changing times require changing policy. Congress’s policymaking ability, however, is severely compromised, and federal agencies are overburdened by procedural requirements. Thus, the President has stepped into the policymaking breach. The courts should recognize their role in the changing power structure of the U.S. government and adhere to the careful balance achieved in the APA. They should require agencies to adhere to the APA’s requirements without overburdening them.

Suggested Citation

Kovacs, Kathryn E., Fomenting Authoritarianism Through Rules About Rulemaking (June 1, 2018). In The Frontiers of Public Law (Hart, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3189081 or http://dx.doi.org/10.2139/ssrn.3189081

Kathryn E. Kovacs (Contact Author)

Rutgers Law School ( email )

Camden, NJ
United States

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