The New Normal: Regulatory Dysfunction as Policymaking

Abstract

Scholars often presume that administrative dysfunction is a deviation from the norm of regularity in administrative law. This presumption is reinforced by courts who defer to agencies on the basis of a legal fiction of idealized regularity. In reality, irregularities and dysfunction are common in policymaking. They are not bugs, but features of the administrative state. This is especially true in immigration law, where deference to political branches is common and national security is interwoven into the discussion of borders. Sometimes, as with national emergencies, political influence is unavoidable and urges the expeditious relaxation of usual regulatory processes. At other times, however, the framing of a problem as a national emergency is a pretextual justification to pursue a pre-determined policy goal that may not be otherwise attainable or attractive through regular processes; a striking example of bad faith governance. The consequences of irregular policymaking can be dangerous, especially when they rise to the level of dysfunction and then become normalized in agency policymaking.

Building on an emerging scholarship on internal administrative law, this Article looks inside agencies to expose the phenomenon of regulatory dysfunction in policymaking. It describes the structural characteristics and logics associated with irregular policymaking and explains how the exploitation of such irregularities can lead to dysfunction. It then provides a typology of agency responses to irregularities ranging from bureaucratic legalism to bureaucratic rationality. It concludes by assessing the consequences of dysfunctional policymaking for administrative law and scholarship, showing where it makes a difference to flip the starting presumption of regularity. While predictable, the normalization of dysfunctional irregularity is worrisome. This Article seeks to shift the discourse around administrative policymaking by injecting some realism about what is, and what should be, the new normal.

Keywords: Administrative Law, Policy, Immigration, Asylum, COVID-19, Environment