Administrative Law, the Common Law, and the US Presidential System: The Republican Party Assault on Regulation

“If REINS and RAA become law, the contrast with the common law parliamentary systems will be immense. I have argued for increased transparency, public participation, and reason-giving for the rulemaking processes in parliamentary systems.[2] The goal of these recommendations is to increase the democratic legitimacy of delegation consistent with the practical necessity of shifting some policymaking to the executive and to independent agencies. Of course, any procedures take time and resources, but the goal is to legitimize, not stymie, executive policymaking. Some argue that even the existing US system “ossifies” rulemaking. [3] I think that claim is overblown, but it will become accurate if REINS and RAA become law. My own view is that American notice and comment requirements, overseen by the judiciary, strike a reasonable balance between democratic accountability and policymaking discretion. Both the restrictive Republican agenda, on the one hand, and the broad delegation permitted in many parliamentary systems, on the other, risk swinging too far. The former makes expertise-based policymaking increasingly difficult. The latter, risks excluding the voices of citizens from fundamental policy choices, or, as with the Brexit referendum, encouraging choices that are not based on a thoughtful balancing of the options.”

Administrative Law in the Common Law World

Most “common law” countries are parliamentary democracies, often with a history of British colonialism. The United States is an exception— a presidential system with a separation of powers between the legislature and the executive. In the United States the powerful role of case-by-case adjudication in both public law and private law reflects the common law tradition.  However, US administrative law is distinct from the public law of parliamentary systems. Its regulatory statutes go beyond substantive delegations to the executive and also mandate rulemaking procedures inside cabinet departments and independent agencies. These procedures, most importantly the notice and comment provisions of the Administrative Procedure Act § 553, aim to increase the transparency and public accountability of regulatory policymaking. They do not primarily protect individual rights against state overreaching; rather they are tied to the democratic legitimacy of the modern regulatory state.

As Stefanie Egidy, James Fowkes and I argue in a recent

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