Arguments related to agency political accountability
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| Five Pillars of the Administrative State |
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| Agency dynamics |
| • Agency dynamics • Timeline • Court cases • Arguments for and against • Reform proposals • Scholarly work |
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| • Nondelegation • Judicial deference • Executive control of agencies • Procedural rights |
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Agency dynamics is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Agency dynamics is a term used to refer to the structure and function of administrative agencies. While the majority of agencies are housed under the executive branch, others are established as independent federal agencies or are housed under the legislative or judicial branches. These structural variations impact agency oversight as well as agency interactions across branches. This pillar also involves understanding the nuts and bolts of agency functions, including rulemaking and adjudication proceedings.
This page examines the main arguments that have been advanced regarding the political accountability of agencies. While some arguments claim that agencies are accountable to the executive and legislative branches, others contend that agencies operate outside the scope of political control.
This page features the following arguments concerning the political accountability of agencies:
Argument: Agencies are accountable to the executive and legislative branches[edit]
Agencies are overseen by the elected executive, according to this argument, and report to the elected members of the legislature. Though agency actors themselves are not directly elected, their oversight by the political branches holds them accountable.
Claim: The U.S. Supreme Court recognized the political accountability of agencies[edit]
The U.S. Supreme Court, according to this claim, held in the 1984 case Chevron v. Natural Resources Defense Council that although agencies are not directly accountable to the people, they are accountable to the elected executive as part of the executive branch.
- Administrative law scholars Kent Barnett, Christina Boyd, and Christopher Walker described this claim in their 2018 law review article "Administrative Law's Political Dynamics." The authors summarized the U.S. Supreme Court's holding in Chevron that agencies are politically accountable.
- "Another key rationale the Court has proffered for its delegation theory of Chevron deference concerns political accountability. As the Chevron Court itself noted, 'Judges are not experts in the field, and are not part of either political branch of the Government.' Agencies, by contrast, are part of a political branch (the executive) and report back to another political branch (the legislature). 'While agencies are not directly accountable to the people,' the Chevron Court explained:
- [T]he Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities."[1]
Argument: Agencies engage in constitutional interpretation without oversight by the political branches[edit]
This argument contends that agencies are able to interpret the Constitution—a responsibility vested in the judicial branch—without oversight by the political branches.
Claim: Shadow administrative constitutionalism allows agencies to create internal constitutions without political oversight[edit]
This claim suggests that agencies practice shadow administrative constitutionalism, which allows them to create internal norms and procedures that equate to internal agency constitutions without oversight by the political branches.
- Administrative law scholar David Bernstein illustrated this claim in his 2020 law review article "'Administrative Constitutionalism:' Considering the Role of Agency Decisionmaking in American Constitutional Development." Bernstein claimed that shadow administrative constitutionalism allows agencies to formulate their own internal constitutions that govern procedural rights without public oversight.
- "The most capacious, and perhaps most problematic, version of administrative constitutionalism involves what one scholar calls 'shadow administrative constitutionalism'—'a process of agency-norm entrepreneurship and entrenchment that occurs without public consultation, deliberation, and accountability.' Agencies, in other words, create internal rules and norms that create a baseline of citizen rights, and thus function as the equivalent of an internal agency constitution. The rules and norms, however, are almost the entirely the creation of the agency itself, adopted with little if any transparency or noticeable influence from the formal Constitution, judicial precedent, or extant statutes."[2]
- Bernstein further claimed that shadow administrative constitutionalism allows agencies to exercise lawmaking power to amend statutes without democratic legitimacy.
- "[S]hadow administrative constitutionalism, which effect allows agencies to simply make up internal constitutional rules based on values held within the agency--[is] more troubling. For one thing, there is reason to doubt the notion that autonomous administrative agency action has the sort of democratic legitimacy that the most vocal advocates claim it does. No one elected those in charge of agency-decision-making, and it’s far from clear why unelected government officials whose official constitutional role is to enforce the law should get to decide whether and how to amend or update statutes. Moreover, regardless of democratic legitimacy, an agency decision to sua sponte update or amend a law without a new statute being passed by Congress and signed by the president lacks constitutional legitimacy."[2]
Argument: Agencies operate outside of the bounds of political control[edit]
Agencies, according to this argument, operate autonomously with limited oversight from the political branches.
Claim: Agencies effectively operate with autonomy free from oversight by the political branches[edit]
This claim suggests that Congress' limited agency oversight and the judicial branch's deference to agency decisionmaking have resulted in relative autonomy for agencies.
- Bernstein claimed that day-to-day agency operations are largely free from political oversight.
- "While in theory agencies are under the supervision of the incumbent president and his political appointees, the day-to-day operation of agencies is largely free from presidential control. Despite its oversight responsibilities, Congress also exercises limited control over agencies. Most agency decisions, especially informal ones such as “regulatory guidance” that do not have the official force of law, are never subject to judicial review. When agency decisions are subject to judicial review, courts generally defer to the agency. In short, administrative agencies have a fair amount of autonomy, both to soundly fulfill their statutory missions and to undertake legally creative and at times legally dubious measures related to those missions."[2]
Argument: Independent agencies are politically accountable[edit]
This argument contends that independent agencies are politically accountable because their structure is the result of political compromise.
Claim: Independent agencies are the result of political compromise[edit]
This claim suggests that the political compromises that result in the formation of independent agencies are a testament to their political accountability.
- Administrative law scholars David E. Lewis and Jennifer L. Selin illustrated this claim in their law review article "Political Control and the Forms of Agency Independence." The authors claimed that the structure of independent agencies honors political compromise while ensuring that the political branches do not intervene in agency decisionmaking.
- "Yet, Congress and the President have chosen at different times to design agencies that are insulated from political control. Scholars explain independent agencies as bodies of seasoned experts charged with administering the law in important policy areas.9 However, choices of insulation are not always based upon high-minded efforts associated with quasi-legislative or quasi-judicial activities. Indeed, sometimes the only way a legislative deal gets made to enact a new policy is when legislators agree to create a new insulated agency to implement the policy.10 In a less rosy version of the politics of agency design, opponents of a new proposed policy insist on provisions in the new law that privilege some interests over others and limit the ability of political actors to intervene."[3]
Argument: Independent agencies are unconstitutionally insulated from control by the elected executive[edit]
Independent agencies, according to this argument, are unconstitutionally insulated from control by the elected executive due to the cause-removal protections for agency heads. Moreover, this argument claims that independent agencies are further insulated through their exemption from regulatory review by the Office of Information and Regulatory Affairs (OIRA).
Claim: Cause-removal protections prevent the executive from controlling independent agencies[edit]
This claim suggests that the cause-removal protections that guard independent agency heads against arbitrary removal by the elected executive prevent the executive from overseeing agencies' execution of the law.
- Administrative law scholar Alden Abbott described this claim in his 2017 report "White House Review of Independent Agency Rulemaking: An Essential Element of Badly Needed Regulatory Reform." Abbott claimed that cause-removal protections prevent the executive from overseeing the actions of independent agencies.
- "From the New Deal era on, the Supreme Court has sanctioned the creation of independent agencies, which operate as a fourth branch of government. Among other things, these independent agencies execute various laws (communications, banking, securities) by investigating and prosecuting alleged lawbreakers. “For cause” restrictions on removal (statutory restrictions requiring a reason for removal [of agency leaders by the president]) and a tradition of independence make it difficult, if not impossible, for the president to ensure that these agencies faithfully execute the law."[4]
Claim: Independent agencies evade political accountability by circumventing OIRA review[edit]
The significant regulations promulgated by independent agencies are not subject to OIRA review. This exception, according to this claim, prevents the elected executive from effectively overseeing independent agency rulemaking.
- A March 2020 letter from Republican senators to President Donald Trump claimed that OIRA review of independent agency regulations would improve transparency and increase political accountability.
- "We write to thank you for your leadership in reducing the regulatory burden faced by U.S. businesses. Many businesses have shared that the regulatory pause has provided the certainty to invest and hire additional employees. However, we are concerned that a growing number of regulations are being promulgated by independent agencies, which are not required to undergo a thorough and rigorous review by the Office of Information and Regulatory Affairs (OIRA). Accordingly, we believe that OIRA should review the significant regulatory actions of independent regulatory agencies to increase the transparency and accountability of the regulatory process. Although these agencies have been created with certain protections designed to insulate them from the political process, they are not a fourth branch of government that is exempt from Congressional and Executive oversight."[5]
See also[edit]
External links[edit]
Footnotes[edit]
- ↑ Vanderbilt Law Review, "Administrative Law’s Political Dynamics," October 2018
- ↑ 2.0 2.1 2.2 Social Philosophy and Policy, "“Administrative Constitutionalism:” Considering the Role of Agency Decisionmaking in American Constitutional Development," May 2020
- ↑ The George Washington Law Review, "Political Control and the Forms of Agency Independence," accessed December 15, 2020
- ↑ The Heritage Foundation, "White House Review of Independent Agency Rulemaking: An Essential Element of Badly Needed Regulatory Reform," December 22, 2017
- ↑ Yale Journal on Regulation, "Republican Senators Call on OIRA to Review Independent Agencies’ Significant Regulatory Actions," March 9, 2020
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