24 research outputs found
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Does Separation of Powers Promote Stability and Moderation?
It is often asserted that separation of legislative powers tends to make legislation both more moderate (because concessions to all veto players are needed to secure enactment) and less frequent (because sufficient concessions are sometimes infeasible). The formal analysis in this paper shows this claim to be incomplete, and sometimes incorrect. Although greater separation of powers makes legislation more difficult to enact, it also makes legislation, once enacted, more difficult to repeal. Attenuating the threat of repeal means that when one faction has sufficient power to push through extreme policies, it is more likely to do so than would be the case if legislative power were more concentrated. These two effects cut in opposite directions, and it is difficult to say, as a general matter, which will predominate. Indeed, increasing the fragmentation of legislative power may sometimes increase both the expected frequency and the expected extremism of legislative enactments
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Optimal Political Control of the Bureaucracy
It is widely believed that insulating an administrative agency from the influence of elected officials, whatever its other benefits or justifications, reduces the agency's responsiveness to the preferences of political majorities. This Article argues, to the contrary, that a moderate degree of bureaucratic insulation from political control alleviates rather than exacerbates the countermajoritarian problems inherent in bureaucratic policymaking. An elected politician, though responsive to majoritarian preferences, will almost always deviate from the majority in one direction or the other. Therefore, even if the average policy position of a given elected official tends to track the policy views of the median voter in the electorate, the average divergence between the preferences of that official and the median voter in the electorate is generally greater than zero. Forcing the politically responsive official to share power with a partially insulated bureaucracy can reduce the variance in policy outcomes. because bureaucratic insulation creates a kind of compensatory inertia that mutes the significance of variation in the elected official's policy preferences. Up to a point, the median voter's benefit from this reduction in outcome variance outweighs the costs associated with biasing the expected outcome away from the median voter's ideal policy
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The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs
This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balancing of interests, in which the damage to constitutional values is weighed against the strength of the government’s interest in the challenged policy, more effectively than alternative approaches. When the government has better information than the reviewing court about the effect of the challenged policy on constitutionally relevant interests, heightened enactment costs act as a kind of screening device: if the government would still enact a given policy in the face of substantial additional enactment costs, the probability that the policy serves significant government interests is likely to be higher. This Article first develops the theoretical argument as to how (and under what conditions) doctrines that manipulate legislative enactment costs may be more effective tools for judicial implementation of the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests. The Article further contends that the federal judiciary already has the capacity to fashion doctrines that function in this way, and indeed current doctrine influences legislative enactment costs more than has generally been appreciated
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Judicial Review as a Response to Political Posturing
We use an agency model to analyze the impact of judicial review on the incentives of elected leaders to “posture” by enacting bold but ill-advised policies. We find that judicial review may exacerbate posturing by rescuing leaders from the consequences of unwise policies, but may also discourage posturing by alerting voters to unjustified government action. We further find that judges will defer to the decision of elected leaders unless posturing is sufficiently likely. We then show how judicial review affects voter welfare, both through its effect on policy choice and through its effect on the efficacy of the electoral process in selecting leaders. We also analyze how the desirability of judicial review is affected by characteristics of the leaders and the judges
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Seminole Rock's Domain
In carrying out their duties, federal administrative agencies must often interpret statutes and regulations that are not entirely clear. Sometimes an agency’s interpretation of an ambiguous legal text may not seem like the best or most natural interpretation of that text. Nonetheless, a staple of modern federal administrative law doctrine is the principle of judicial deference to administrative interpretations of both congressional statutes and agency regulations. The seminal case on judicial deference to reasonable agency statutory interpretations is, of course, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. In the context of administrative interpretations of the agency’s own regulations, the leading authority is the Supreme Court’s 1945 decision in Bowles v. Seminole Rock & Sand Co., which held that an agency’s construction of its own regulation should be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” More recent Supreme Court cases—including Thomas Jefferson University v. Shalala and Auer v. Robbins—have reaffirmed the Seminole Rock principle of judicial deference to an agency’s reasonable construction of its own regulations.
Although Chevron deference and Seminole Rock deference are closely related, there has been much more thorough exploration of the theoretical underpinnings and practical consequences of Chevron. This has not eliminated doubt or disagreement about the nature, validity, or wisdom of Chevron deference, but a consensus has gradually emerged that Chevron is grounded in a presumption (likely a legal fiction) about congressional intent. That presumption is in turn grounded in a set of pragmatic considerations—most notably expertise, accountability, and uniformity—that are thought to favor administrative over judicial construction. Furthermore, in part because of the self-conscious and sophisticated reflection on Chevron’s justifications, courts and commentators have become increasingly attentive to questions regarding the proper scope and limits of what Professors Merrill and Hickman have described as “Chevron’s domain.” Although Chevron was widely seen as replacing an open-ended, multifactor inquiry with a more rule-like framework, a strain in the doctrine and commentary has long suggested that the case for Chevron deference is not equally strong in all contexts, and indeed such deference might sometimes be inappropriate.
This view reached its apotheosis in United States v. Mead Corp., in which the Supreme Court held that some agency statutory interpretations—particularly those contained in interpretive rules, informal orders, or other pronouncements issued without extensive procedures—were presumptively not entitled to Chevron deference. Such interpretations fall outside Chevron’s domain, and therefore receive at most a measure of judicial respect, pursuant to the Court’s 1944 decision in Skidmore v. Swift & Co. Although Mead and much subsequent commentary emphasized procedural formality as the key consideration marking the boundaries of Chevron’s domain, other strands of the doctrine have suggested that something less than full Chevron deference might be appropriate when, for example, several agencies share interpretive authority over the same statute, when an agency’s interpretation of a statutory provision has been inconsistent over time, or when the interpretive question is unusually fundamental or important. The academic literature is rife with proposals for further refinements to Chevron’s domain, as well as defenses and criticisms of the limits the Court has already developed.
By contrast, courts and commentators have paid less attention to analogous questions regarding Seminole Rock’s domain. Indeed, Seminole Rock has attracted less attention and discussion than Chevron in general, and the discussion that does exist has tended to focus on wholesale critiques or defenses of Seminole Rock, rather than questions regarding possible limits on the set of administrative interpretations that qualify for such deference. Yet this is starting to change: emerging strands of both the academic literature and the caselaw have begun to take seriously, and to grapple with, questions regarding Seminole Rock’s proper scope. This trend has accelerated in the wake of Mead. Indeed, post-Mead circuit court cases have sent mixed signals regarding the effect of that decision on Seminole Rock deference. This Article builds on prior work by posing—and suggesting some preliminary answers to—the question of whether there ought to be limits to Seminole Rock’s domain, comparable (though perhaps not identical) to the limits that have been advocated, and in some cases recognized, for Chevron’s domain.
We have three objectives in this Article: the first is descriptive, the second analytic, and the third prescriptive. Our descriptive objective is to provide a succinct summary of the state of the current doctrine regarding the limits—or lack thereof—on Seminole Rock’s domain. Our analytic objective is to develop a taxonomy of the considerations that courts might plausibly use to develop midlevel doctrinal rules or presumptions that would limit Seminole Rock’s domain, and to assess the costs and benefits of these different doctrinal possibilities. Our prescriptive objective is to advocate—tentatively—a subset of these possible rules. Of these three objectives, the analytic objective is paramount. More important than any particular doctrinal change, is the development of a more sophisticated framework for thinking about issues of Seminole Rock’s domain, so that these issues and problems can be confronted squarely and explicitly
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Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System
Interest group pluralism presumes that public policy outcomes are determined principally through a contest for influence among organized pressure groups. Most interest groups, however, do not represent themselves in this process. Rather, they rely on professional lobbyists for representation, information, and advice. These lobbyists are agents with their own interests, and these interests may not align perfectly with those of their clients. This essay outlines this principal-agent problem and sketches its possible implications for policy outcomes. In particular, we hypothesize that the lobbyist-client agency problem may bias policy in favor of small homogeneous groups, may exacerbate status quo bias and lead to excessive attention to symbolic issues, may promote expansive delegations to administrative agencies, and may impede systematic reforms to the policy-making process
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Chevron Has Only One Step
Chevron, U.S.A. v. Natural Resources Defense Council lays out a two-step process that courts must follow when they review a federal agency's construction of a federal statute. We argue that Chevron, rightly understood, has only one step. The single question is whether the agency's construction is permissible as a matter of statutory interpretation. The two Chevron steps both ask this question, just in different ways, and are thus mutually convertible: any opinion written in terms of one step can be written, without loss of content, in terms of the other step. Chevron's artificial division of a unitary inquiry causes material confusion among commentators and courts, and has no benefits; administrative law should jettison the two-step framework
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Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design
This Article explores how the separation of powers affects voters’ electoral strategies, and how this interaction influences the performance of different institutional arrangements. We show that when one political agent, such as the President, acts unilaterally, voters are likely to respond asymmetrically to policy successes and failures in order to offset the risk that the President may be biased or “captured” by special interest groups. When political agents act in concert — such as when the President seeks congressional authorization for a policy initiative — voters prefer a more refined strategy, with less acute asymmetries between political rewards and punishments. Our analysis has positive and normative implications. First, it suggests that presidents do not always prefer to operate with as little congressional interference as possible. Second, it provides a rationalist account for “responsibility shifting” by elected officials — behavior that is usually thought to derive from voter confusion or irrationality. Third, it suggests that separation of powers does not necessarily induce “gridlock” or otherwise reduce the likelihood of policy change. Fourth, it suggests that although separation of powers enhances the efficacy of the electoral constraint on politicians, voter welfare is higher when separation of powers is “optional” rather than mandatory, as when the President may seek congressional authorization for policy initiatives but is not required to do so