6 - The Risks of Expertise: Political Administration and Expert Groupthink

Summary

For a final case study in the management of political risks, I turn to the administrative state. Here the relevant law is only partly constitutional in the strict sense. The eighteenth-century origins of America’s written constitution implies that constitutional text is often silent on crucial questions about the administrative state, which is largely a creation of the late nineteenth and twentieth centuries. Even where the written constitution does speak to the relevant issues, its pronouncements are obscure, even Delphic, and must be elicited through controversial methods of interpretation. Thus the law structuring and governing the administrative state stems in large part from quasi-constitutional framework statutes, especially the Administrative Procedure Act of 1946 (APA).

Here too, however, political risk management is central to the enterprise, and the contrast between precautionary and mature regulation of political risks is central to the analysis. In the face of countervailing political risks and competing political forces, the administrative state struggles to find a modus vivendi, let alone an optimum. At the level of theory, law, democracy, and expertise all have their claims. At the level of concrete politics, competing institutions and interest groups buffet the administrative agencies. Within a field of perpetual conflict structured by congressional statutes and the oversight of congressional committees, on the one hand, and presidential policies and White House oversight, on the other, agencies make decisions of law, policy, and scientific fact or causation. The third leg of this triad is critical; given the complexity of the issues that agencies decide, facts and causation are routinely difficult and contested, and agencies are either permitted or required to base their decisions on the views of expert, panels or experts on the agency’s own internal staff.