Volume 21

Assessing Visions of Democracy in Regulatory Policymaking

by Shoba Sivaprasad Wadhia & Christopher J. Walker

Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the field of administrative law has simi-larly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

In our contribution to this Ensuring Democratic Accountability in the Administrative State Symposium, we make a modest intervention to suggest that visions of democracy in administrative law need to better take into account that presidents pursue major policymaking through modes of regulatory action beyond notice-and-comment rulemaking. They include interim final rulemaking, subregulatory agency guidance, executive orders and other presidential directives, formal agency adjudication, and informal adjudication and orders. These other modes of regulatory policymaking are far less democratically accountable, in terms of leveraging agency and public expertise and engaging stakeholders and issues in a public and transparent manner. As such, we argue that presidents should embrace notice-and-comment rulemaking as the default regulatory mode when it comes to making major policies through administrative action. We conclude, moreover, that notice-and-comment rulemaking, even when done well, is no panacea for democratic accountability. Congress needs to play its proper role in modern governance when it comes to questions of deep economic, moral, and political significance.

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