Assessing Visions of Democracy in Regulatory Policymaking

24 Pages Posted: 14 Mar 2023 Last revised: 28 Feb 2024

See all articles by Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

The Pennsylvania State University (University Park) – Penn State Law

Christopher J. Walker

University of Michigan Law School

Date Written: March 10, 2023

Abstract

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 similarly 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.

Keywords: regulation, policymaking, immigration, rulemaking, accountability

Suggested Citation

Wadhia, Shoba Sivaprasad and Walker, Christopher J., Assessing Visions of Democracy in Regulatory Policymaking (March 10, 2023). Georgetown Journal of Law & Public Policy, Vol. 21, pp. 389-412, 2023, U of Michigan Public Law Research Paper No. 24-003, Penn State Law Research Paper No. 8-2023, Available at SSRN: https://ssrn.com/abstract=4384659 or http://dx.doi.org/10.2139/ssrn.4384659

Shoba Sivaprasad Wadhia

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

Christopher J. Walker (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

HOME PAGE: http://www.chrisjwalker.com

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