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The Quest for Legitimacy in American Administrative Law

Published online by Cambridge University Press:  04 July 2014

Marshall J. Breger
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Abstract

In the United States, administrative law suffers from a perceived lack of legitimacy largely due to a lack of democratic accountability or what some have called a democratic deficit. These misgivings stem, in part, from a deep-seated American distrust of bureaucracy. This Article examines how the quest for legitimacy has led practitioners (and theorists) of administrative law to undertake four interrelated projects: the Accountability Project, the Rationality Project, the Transparency Project, and the Participatory Project all designed to create a substitute or shadow form of democratic legitimacy.

Through an examination of these projects, I clarify how they try to address the democratic deficit, and whether they effectively do so. Specifically, this article investigates the impact of judicial review, informal rule-making, increased access to information, and public participation as efforts to meet the legitimacy challenge. Moreover, it disputes the contention that the pursuit of democratic legitimacy is less consequential for administrative law than the need for bureaucratic rationality, by illustrating that bureaucratic rationality is but one component of a larger scheme intended to serve as a functional substitute for legitimacy. At bottom, because Americans do not share the fondness for the technocratic model displayed by many other legal systems, legitimacy projects have an enduring place in American administrative law.

Type
Research Article
Information
Israel Law Review , Volume 40 , Issue 1 , Spring 2007 , pp. 72 - 118
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007

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Footnotes

*

Professor of Law Columbus School of Law, Catholic University of America. This is a revised and expanded version of a lecture delivered at the Fulbright Israel/USIEF 50th Anniversary Symposium, the Hebrew University, Jerusalem, Jan 29-30, 2006. Some portions of this paper are drawn from A Short Tour of American Administrative Law, published in 2 Estudis En Memoria de Professor Doutor Antonio Marques Dos Santos 759-779 (2005). My thanks to Linda C. Bailey and Sandra Safro for their research assistance and Jeffrey Lubbers, Heather Elliott, and Peter B. Rutledge for their careful review of the manuscript.

References

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12 Id. at 156.

13 Id. at 159.

14 Kahan, Dan M., Slovic, Paul Braman, Donald, & Gastil, John, Fear of Democracy: A Cultural Evaluation of Sunstein on Risk, 119 Harv. L. Rev. 1071 (2006)Google Scholar. Kahan et al., supra note 2.

15 See Slovic, Paul, Flynn, James, Mertz, C.K., Poumadere, Marc, & Mays, Claire, Nuclear Power and the Public: A Comparative Study of Risk Perception in France and the United States, in Cross-Cultural Risk Perception: A Survey of Empirical Studies 87–89 (Renn, O. & Rohrmann, B. eds., 2000)Google Scholar. This cultural difference is said to explain the significant divergence between American and French regulatory policy on nuclear power and why 78-80% of energy production in France is nuclear despite findings that suggest the French perception of risks associated with nuclear power is as high or higher than Americans. Id. at 57; see also Uranium Information Centre Ltd., Nuclear Power in France: Briefing Paper 28, August 2006, available at http://www.uic.com.au/nip28.htm (last visited March 3, 2007).

16 See Reitz, John C., Political Economy as a Major Architectural Principle of Public Law, 75 Tul. L. Rev. 1121, 1128 (2001)Google Scholar. See also Suleiman, Ezra N., Politics, Power and Bureaucracy in France—The Administrative Elite 17–19 (1974)Google Scholar. Although the sweeping decentralization reforms brought about by the Debre laws in 1982, at 730, codified in the General Code of Territorial Communities (Code Général des Collectivitiés Territoriales), and recently amended by Law No. 2004-809 of August 13, 2004, J.O., August 17, 2004, at 14, 545. This recent modification expands local authority in fields such as economic development, zoning, tourism, vocational training, infrastructure, environmental protection, ports, solid waste, health, education, culture, sports, heritage, performing arts training, and also offers a number of institutional clarifications.

17 Corbett, Anne, Free and Compulsory: Republican Values in French Education, in Education in France: Continuity and Change in the Mitterrand Years 1981-1995 1 (Corbett, Anne & Moon, Bob eds., 1996)Google Scholar. For evidence of the centralization of French education, see also Anderson-Levitt, Kathryn M., Sirota, Regine & Mazurier, Martine, Elementary Education in France, 92 Elementary Sch. J. 343, 343, 345–348 (1968)Google Scholar. However, since approximately 1982 significant steps towards decentralization have been taken. See Florestal, Ketleen & Cooper, Robb, Decentralization of Education: Legal Issues 18–19 (1997)CrossRefGoogle Scholar; Weiler, Hans N., Comparative Perspective on Educational Decentralization: An Exercise in Contradiction?, 12 Educ. Evaluation & Pol'y Analysis 433, 440–41 (1990)Google Scholar; Elzas, Sarah, Unrest in Education in France: Teachers on Strike, Educ. Update Online, July 2003, available at http://www.educationupdate/archives/2003/july03/index.html Google Scholar (last visited July 4, 2006); James, Barry, International Education/A Special Report: France Pushes Decentralization, International Herald Tribune, Feb. 18, 2003, available at http://www.iht.com/articles/2003/02/18/rfrance_ed3_.php Google Scholar (last visited July 4, 2006).

18 Wilson, Woodrow, The Study of Administration, 2 Pol. Sci. Q. 197, 209–210 (1887)CrossRefGoogle Scholar.

19 In a Labor Day Speech, while campaigning in New York, Wilson exhorted:

What I fear, therefore, is a government of experts. God forbid that in a democratic country we should resign the task and give the government over to experts. What are we for if we are to be [scientifically] taken care of by a small number of gentlemen who are the only men who understand the job? Because if we don't understand the job, then we are not a free people. We ought to resign our free institutions and go to school to somebody and find out what it is we are about.

Wilson, W., A Crossroads of Freedom: The 1912 Campaign Speeches of Woodrow Wilson 83 (Davidson, J. ed., 1956)Google Scholar.

20 See Landis, James M., The Administrative Process 23–26 (1938)Google Scholar, depicting the evolution of the need for technologically competent regulatory agencies for the “translation of [New Deal economic] legislation into reality.”

21 MCI v. AT&T, 512 U.S. 218, 235 (1994)(Stevens, J. dissenting); see also Breyer, Stephen, Active Liberty 102–03 (2005)Google Scholar.

22 Pildes, Richard H. & Sunstein, Cass R., Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 40–42 (1995)CrossRefGoogle Scholar.

23 Freedman, James O., Crisis and Legitimacy in the Administrative Process, 27 Stan. L. Rev. 1041, 1068 (1975)CrossRefGoogle Scholar.

24 Id. at 1066.

25 Howard, Philip K., The Death of Common Sense: How Law is Suffocating America (1994)Google Scholar.

26 Id. at 180-81.

27 Id.

28 Id. at 180.

29 Id. at 180-81.

30 Andrews, Edmund L., A Rising Deregulation Wave: Republicans Advance Pro-Business Agenda, Int'l Herald Trib., Jan. 3, 1996, at 12 Google Scholar; see also Rep. Tom DeLay, , DeLay Seeks His “Holy Grail”: Regulatory Reform, Roll Call, Dec. 4, 1995, at 15 Google Scholar.

31 See generally Smith, Loren A., Judicialization: The Twilight of Administrative Law, 1985 Duke L.J. 427, 430, 437–38 (1985)Google Scholar.

32 Regulatory Reform: The Case for Common Sense, An Interview with Philip K. Howard, The Wash. Monthly, Sept. 1995, at 23, 26 Google Scholar (quoting Mr. Howard during an interview concerning his book, The Death of Common Sense).

33 Hahn, Robert W., Regulatory Reform—The Whole Story, Wall St. J., Feb. 27, 1995, at A12 Google Scholar (arguing that current congressional regulatory reform efforts may be largely symbolic and that effective reform will require more substantive changes in the law).

34 Id.

35 Id.; The Next Environmental Threat, N.Y. Times, Feb. 12, 1995, s4, at 14 Google Scholar.

36 See Hearings on the Regulatory Transaction Act of 1995, H.R. 450 Before the Subcomm. On National Economic Growth, Natural Resources and Regulatory Affairs, Comm. On Government Reform & Oversight, 104th Cong., 1st Sess. (Jan. 19, 1995) (opening statement of Congressman David McIntosh stating that “unnecessary regulation has hurt the American people” and calling for a six month moratorium on new federal regulations).

37 Ackerman, Bruce, We the People: Foundations 49–50, 107–08 nn.4–5 (1991)Google Scholar; 2 Ackerman, Bruce, We the People: Transformations 311 (1998)Google Scholar; Ackerman, Bruce, Constitutional Politics/Constitutional Law, 99 Yale L.J. 453, 457–61, 510–15 (1989)CrossRefGoogle Scholar. For a critique, see Klarman, Michael J., Constitutional Fact/ Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 Stan. L. Rev. 759, 766–75 (1992)CrossRefGoogle Scholar.

38 Cass Sunstein distinguishes two strands of regulatory reform in the 1990s, a technocratic and a reactionary strand. Sunstein, Cass, Legislative Foreword: Congress, Constitutional Moments and the Cost-Benefit State, 48 Stan. L. Rev. 247, 270–271 (1998)Google Scholar. The technocratic approach proposes “rationality” techniques to improve the regulatory process. The goal of the reactionary approach “was to stall or eliminate regulation whatever its content—largely with procedural requirements so extensive as to prevent agencies from doing much at all.” Id. at 271.

39 Dorf, Michael C. & Sabel, Charles F., A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267 (1998)CrossRefGoogle Scholar (proposes to permit industry adoption of best practices in exchange for freedom to experiment with alternative regulatory possibilities.)

40 The term originated in the field of securities regulation. In the 1930s, Congress mandated “industry self-regulation through the creation of registered national securities associations… [with the intent of establishing]… a ‘cooperative regulation’… [regime by which such] associations would regulate [their numbers] under the supervision of the SEC.” Jones v. SEC, 115 F.3d 1173, 1179 (4th Cir. 1997) (quoting S. Rep. No. 75-1455, at 3-4; H.R. Rep. No. 75-2307, at 4-5). More recent examples include OSHA's VPP program see U.S. Department of Labor, Occupational Health & Safety Administration, Voluntary Protection Programs, available at http://www.osha.gov/dcsp/vpp/index.html (last visited November 2, 2006); and EPA's Project XL. See U.S. Environmental Protection Agency, Project XL, http://epa.gov/projectxl/file2.htm (last visited November 2, 2006).

41 Lobel, Orly, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342, 352–56 (2004)Google Scholar.

42 Dorf, Michael, After Bureaucracy, 71 U.C.L.A. L. Rev. 1245, 1271 (2004)Google Scholar.

43 For a discussion regarding privatization by means of government contracting, see Freeman, Jody, The Contracting State, 28 Fla. St. U.L. Rev. 155, 169 (2000)Google Scholar, who urges that, through contracting, many government agencies rely on “a private work force to assist them in implementing laws and regulations,” including the provision of services and execution of daily functions.

44 The use of public-private partnerships to tackle significant problems can be found in nearly every area of administrative law. See, e.g., Lipkus, Nathaniel, How to Understand Product Development: Public-Private Partnerships as Vehicles for Innovation in Combating Neglected Disease, 10 Mich. St. J. Med. & Law 385 (2006)Google Scholar (discussing the use of public-private partnerships in drug and vaccine development); Stein, Haley, Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World, 3 Nw. J. Tech. & Intell. Prop. 160, 174–78 (2005)Google Scholar (addressing the potential for public-private partnerships to “balance the need for strong IP protections for business while maintaining developing world access to genetically modified seeds.”); Wade, Cheryl L., Lessons From A Prophet on Vocational Identity- Profit or Philanthropy?, 50 Ala. L. Rev. 115 (1998)Google Scholar (examining the use of public-private partnerships in the management of public schools).

45 Orts, Eric W., Reflexive Environmental Law, 89 N.W. U. L. Rev. 1227, 1232 (1995)Google Scholar. For example, reflexive regulation in the environmental law context means “[w]ith engendering a practice of environmentally responsible management” where businesses impose upon themselves policies which “minimize environmental harms and maximize benefits.”). See also Stewart, Richard B., A New Generation of Environmental Regulation?, 29 Cap. U. L. Rev. 21, 130–34 (2001)Google Scholar.

46 Rosenfeld, Michel, Comparing Constitutional Review by the European Court of Justice and the U.S. Supreme Court, 4 Int'l J. Const. L. 618, 631–32 (2006)Google Scholar; Kostakopoulou, Theodora, Democracy Talk in the European Union: The Need for a Reflexive Approach, 9 Colum. J. Eur. L. 411, 411–12 (2003)Google Scholar (arguing “that the question of democracy in the European Union cannot be addressed adequately without first addressing the suitability of existing models of national democracy for the formation of the European polity, and perhaps without radically transforming these models.”).

47 Lindseth, Peter, Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community, 99 Col. L. Rev. 628, 694 (1999)CrossRefGoogle Scholar.

48 Stewart, Richard B., The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1672 (1975)CrossRefGoogle Scholar (noting that, “With the possible exceptions of military and foreign affairs functions and times of national emergency, the Constitution recognizes no inherent administrative powers over persons and property.”). See id. at 1676 (“Vague, general, or ambiguous statutes create discretion and threaten the legitimacy of agency action.”).

49 This “single global administrative space” is said to be distinct from the traditional domains of international law and domestic administrative law, and is increasingly governed by an emerging “global administrative law” (GAL), which regulates decision-making and rule-making processes in global regulatory administrative systems. See Kingsbury, Benedict, Krisch, Nico & Stewart, Richard B., The Emergence of Global Administrative Law, 68 Law & Contemp. Probs. 15 (2005) available at http://www.law.duke.edu/journals/lcp/ Google Scholar (last visited July 9, 2006). A skeptical “take” on the conceptual underpinnings of the politics and sociology of this project can be found in Anderson, Kenneth & Rieff, David, Global Civil Society: A Skeptical View, in Global Civil Society 2004/2005 26 (2005)Google Scholar.

50 Frug, Gerald E., The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1277, 1284 (1984)CrossRefGoogle Scholar. Bressman, Lisa S., Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 469 (2003)Google Scholar [hereinafter Bressman, Beyond Accountability] (citing Kagan, Elena, Presidential Administration, 114 Harv. L. Rev. 2245, 2253–54 (2001))CrossRefGoogle Scholar, asserts that the various models of the administrative state “did not so much succeed each other as ‘bleed into each other.’” Kagan cites Frug for the premise that the models for mechanisms to approximate democratic legitimacy intermingled chronologically. Id. Bressman goes further, imposing this concept on the models themselves. I do not accept this last formulation, but rather suggest that the models co-exist, independently, within the “legal discourse.” See Bressman, , Beyond Accountability at 469 Google Scholar.

51 8 Co. Rep. 107a, 113 b, 77 Eng. Rep. 638, 646 (C.P. 1610). For a detailed examination of the case, analyzing Bonham in terms of English constitutional theory (rather than statutory construction), see Berger, Raoul, Dr. Bonham's case: Statutory Construction or Constitutional Theory?, 117 U. Pa. L. Rev. 521 (1969)CrossRefGoogle Scholar. A recent appreciation of Bonham as it came to be understood in the United States can be found in Kramer, Larry D., The People Themselves—Popular Constitutionalism and Judicial Review 19–24 (2004)Google Scholar.

52 The matter is best put in Dr. Bonham's case, decided in 1610, supra note 51 In that case, an Act of Parliament during the reign of King Henry VIII had established a medical licensing board, a “college perpetual of physicians and grave men.” Id. at 107b. Bonham had persisted in a medical practice unlicensed by the board. For this unlicensed practice, he was imprisoned for seven days for contempt of the board. Consequently, Bonham brought an action for false imprisonment against the board members. By that tort action, he sought to gain judicial review of the propriety of the board's action against him.

The Court of Common Pleas took the case. In his opinion for the court, Lord Coke found that the licensing board's determination that Bonham was “insufficient and inexpert in the art of medicine” was reviewable. Id. at 110b. Explaining that “they [the board] are not made judges nor a court given them ….” See id. at 118a. Coke wrote that review by a court was essential if Dr. Bonham was to have an “adequate remedy.” See id. at 119a.

53 Casper, Gerhard, Separating Power: Essays on the Founding Period 151 (1997)Google Scholar.

54 Id. at 135 (1997)(citing Decree of August 16-24, 1790, title II, art. 13, 363).

55 Brown, L. Neville & Bell, John S., French Administrative Law 47 (5th ed. 1998)Google Scholar.

56 Lee, Frederic P., The Origins of Judicial Control of Federal Executive Action, 36 Geo. L.J. 287, 295 (1948)Google Scholar.

57 Woodhandler, Ann, Judicial Deference to Administrative Action—A Revisionist History, 43 Admin. L. Rev. 197, 244 (1991)Google Scholar.

58 Decatur v. Paulding, 39 N.Y.U. L. (14 Pet.) 497 (1840).

59 Id. at 516. See also Martin v. Molt, 25 U.S. (12 Wheat.) 19, 32-33 (1827)(stating that statutes conferring discretionary power make the recipient the sole judge of the facts on which such discretion should be exercised).

60 Keim v. United States, 177 U.S. 290,292 (1900) (holding that the removal of a clerk by the Secretary of the Department of the Interior for inefficiency is not reviewable).

61 Kolko, Gabriel, Railroads and Regulation 1877–1916 1 (1st ed. 1965)CrossRefGoogle Scholar.

62 In discussing regulation in Britain, I have relied on three principal sources suggested to me by Gary Edles at the University of Hull. The first is a book by historian Parris, Henry, Government and the Railways in Nineteenth-Century Britain (1965)CrossRefGoogle Scholar. The book is a revised version of Dr. Parris's Ph.D. thesis at the University of Leicester. At the time of writing, he was a Lecturer in Politics at the University of Durham. The second is a book by economist Foster, C.D.. Foster, C.D., Privatization, Public Ownership, and the Regulation of Natural Monopoly 44–52 (1992)Google Scholar. Sir Christopher Foster held a chair at the London School of Economics, was a British civil servant, and is a senior partner of Coopers and Lybrand. At the time of writing during John Major's Administration, he was special advisor to the U.K. Secretary of State for Transport on railway privatization. The third source is an 1886 report by the Senate Committee on Interstate Commerce that preceded passage of the Act to Regulate Commerce of 1887. S. Rep. No 49-46, pt. 1, 54-63 (1886).

63 Id. at 65-66.

64 See, e.g., Interstate Commerce Commission v. Cincinnati, New Orleans and Tex. Pac. Ry. Co., 167 U.S. 479 (1897)(concluding that the ICC's statutory power to determine the reasonableness of rates did not include the power to prescribe rates, and discussing different forms of regulation, by the various states, that pre-dated the creation of the ICC).

65 Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902). A presumption of judicial reviewability of agency action was expressly established in Abbott Laboratories v. Gardner, 387 U.S. 136(1967).

66 Magnetic Healing v. McAnnulty, supra note 65, at 110.

67 Bressman, Lisa, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. Rev. 1657, 1658–59 (2004)Google Scholar [hereinafter Bressman, Judicial Review], argues that it is “erroneous” to believe that “the constitutional structure is committed foremost to promoting political accountability.” I disagree. While there are certainly other important principles supported by our constitutional structure, democratic legitimacy is historically and necessarily the primary area of concern.

68 Breger, Marshall J., Government Accountability in the Twenty-First Century, 57 U. Pitt. L. Rev. 423, 434 (1996)Google Scholar. See also the classic American study on the structuring of discretion Davis, K.C., Discretionary Justice: A Preliminary Inquiry 55–68, 111, 226–27 (1969)Google Scholar, urging different methods of structuring discretionary power, particularly more extensive use of rule making and increased openness in informal processes, in order to combat arbitrariness.

69 5 U.S.C. §§ 551, 553-59, 701-06 (2000).

70 5 U.S.C. § 701 (a)(2000).

71 Consider, as example, Zadvydas v. David, 533 U.S. 678 (2001), where the Supreme Court found that statutory measures enacted to limit a deportable alien's right to habeas corpus could not apply in the absence of a specific statute applying to a post-removal-period detention.

72 Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 678 (1986).

73 Johnson v. Robison, 415 U.S. 361 (1974).

74 Webster v. Doe, 486 U.S. 592 (1988), concerned a man discharged from the CIA after he voluntarily revealed that he was a homosexual, since the agency viewed his sexual preference as a security risk. Since the Director of the CIA had statutory authority to protect intelligence sources and methods from unauthorized disclosure, Doe's discharge depended on the subjective judgment of the director and there was no law to apply. In contrast, the recent case of Tenet v. Doe, 125 S. St. 1230 (2005), concerns two former spies for the United States, no United States citizens, who sued the federal government to enforce its promise to “take care of them” once they came to the United States. The Court found that the United States was insulated from suits based on covert espionage agreements. See also Totten v. United States, 92 U.S. 105 (1876).

75 Webster v. Doe, supra note 74, at 603.

76 Id. at 605 (O'Connor, J., concurring in part and dissenting in part).

77 Id. at 613-14.

78 See Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009-546 (1996). It should be noted that Court has recognized Congress's ability to cut of judicial review entirely in other areas as well. See Johnson v. Robinson, 415 U.S. 361 (1974)(precluding judicial review of certain Veteran's Administration determinations); Morris v. Gressette, 432 U.S. 491 (1997)(finding that the Attorney General's failure to make a timely objection under the Voting Rights Act of 1965 is not subject to judicial review); Block v. Community Nutrition Institute, 467 U.S. 340 (1984)(consumers of dairy products could not obtain judicial review of milk market orders); Webster v. Doe, supra note 74, (holding CIA director's decision to discharge an employee was not subject to judicial review).

79 Such that review of Immigration Judge's continuances were found not to be “mentioned specifically” as committed to agency discretion. See Khan v. Att'y Gen., 2006 U.S. App. LEXIS 12524 (3d Cir. 2006), Sanusi v. Gonzales, 445 F.3d 193 (2d Cir. 2006), Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005), Zafar v. Att'y Gen., 426 F.3d 1330 (11th Cir. 2005), Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir. 2004), Soltane v. U.S. Dep't of Justice, 381 F.3d 143 (3d Cir. 2004), and Spencer Enters., 345 F.3d 683 (9th Cir. 2003)(narrowly interpreting the bar to judicial review created by 8 U.S.C. § 1252(a)(2)(B)(ii)(2000)). But see Yerovich v. Ashcroft, 381 F.3d 990 (10th Cir. 2004), and Samirah v. O'Connell, 335 F.3d 545 (7th Cir. 2003)(interpreting broadly the bar to judicial review created by 8 U.S.C. § 1252(a)(2)(B)(ii)(2000)).

80 See ANA Int'l Inc. v. Way, 393 F.3d 886 (9th Cir. 2004)(interpreting 8 U.S.C. § 1155 as “not entirely discretionary.”) But see Jilin Pharmaceuticals USA Inc. v. Chertoff, 2006 U.S. App. LEXIS 11589 (3d Cir. 2006)(interpreting 8 U.S.C. § 1155 as entirely discretionary).

81 ANA, 393 F.3d at 894.

82 It is noteworthy that the Court has granted certiorari to consider the issue of nonfeasance in the context of an EPA decision not to regulate carbon dioxide and three other “greenhouse gases.” Massachusetts v. EPA, 415 F.3d 50, 56-57 (D.C. Cir. 2005), cert. granted, 126 S. Ct. 2960 (2006).

83 Heckler v. Chaney, 470 U.S. 821 (1995).

84 A similar position was taken in United States v. Bean, 537 U.S. 71 (2002), where the Bureau of Alcohol, Tobacco, and Firearms (ATF) refused to act on an individual's request to be relieved of a statutory bar on firearms ownership by felons. ATF had returned Bean's petition without acting on it because Congress had prohibited expenditure of any funds for processing such applications. A unanimous Court held that judicial review was unavailable under either the specific statute or the APA in the absence of an actual decision on the application.

85 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004).

86 Id. at 63.

87 Id. at 67.

88 Araiza, William D., Administrative Law Discussion Forum: In Praise of a Skeletal APA: Norton v. Utah Southern Wilderness Alliance, Judicial Remedies for Agency Inaction, and the Questionable Value of Amending the APA, 56 Admin. L. Rev. 979, 983 (2004)Google Scholar.

89 U.S. Const, art. III, § 2, cl. 2.

90 These views, of course, differ markedly from the Israeli position which has apparently expanded to a kind of non-Hohfeldian citizens standing, largely eviscerating the concept as an analytical tool. Thus, the Israeli High Court in Ressler v. the Minister of Defense determined that any claim related to government misconduct can be heard directly, through the bagatz procedure, in the Israeli High Court. See HCJ 910/86 Ressler v. the Minister of Defense [1988] 42(2) P.D. 441. See also HCJ 217/80 Segal v. the Minister of Interior [1980] 34(4) P.D. 429, 443 (acknowledging the standing of public petitioners in environmental cases); HCJ 1/81 Shiran v. Israeli Broadcasting Authority [1981] 35 P.D. 365 (acknowledging that emotional injury may be a basis for standing).

This elastic, indeed some might say, promiscuous, approach to standing does more than promote government accountability to a “rule of law” regime, it substitutes the courts for the executive in implementing legal rules.

91 Mashaw, Jerry L., Small Things Like Reasons are Put in a Jar: Reason and Legitimacy in the Administrative State, 70 Fordham L. Rev. 17, 20 (2001)Google Scholar.

92 Id.

93 Id. (citing Nat'l Tire Dealers & Retreaders Ass'n v. Brinegar 491 F.2d 31, 37 (D.C. Cir. 1974)).

94 5 U.S.C. § 553 (2000).

95 Exec. Order No. 12,866 Sec. 6(a)(3)(B)(ii), 58 Fed. Reg. 51,735 (Oct. 4, 1993). A major regulation that likely will “have an annual effect on the economy of $100 million or more,” adversely affects diverse sectors of the economy, creates inconsistencies with other agencies, alters rights of government entitlement holder, or raises “novel legal or policy issues.” See id. Sec. 2 (f)(1)-(4).

96 Strauss, Peter L., From Expertise to Politics: the Transformation of American Rulemaking, 31 Wake Forest L. Rev. 745, 759–60 (1996)Google Scholar.

97 1 Davis Administrative Law Treatise § 6.15, at 283 (Supp. 1970).

98 Seidenfeld, Mark, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1512, 1560 (1992)CrossRefGoogle Scholar.

99 Id.

100 See Kerwin, Cornelius M., Rulemaking: How Government Agencies Write Law and Make Policy 182 (3d ed. 2003)Google Scholar; see infra note 176.

101 United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 251 (2d Cir. 1977).

102 See infra p. 41 and note 185.

103 5 U.S.C. § 706 (2)(A)(2000).

104 I should note that some commentators have suggested that “notice-and-comment rulemaking is to public participation as Japanese Kabuki theatre is to human passions—a highly stylized process for displaying in a formal way the essence of something which in real life takes place in other venues.” Cross, Frank B., Shattering the Fragile Case for Judicial Review of Rulemaking, 85 Va. L. Rev. 1243, 1312 (1999)CrossRefGoogle Scholar.

105 Exec. Order No. 12,866, supra note 95.

106 Id.

107 Regulatory Reform Act, S. 1080, 97th Cong. (1981). [Dr. Ginsberg (DC)].

108 Or so the Supreme Court interpreted the OSHA statute in American Textile Manufacturers Inst. v. Donovan, 452 US 490, 519-20 (1981).

109 See, e.g., Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 471 (2001)(holding that the Clean Air Act bars the Environmental Protection Agency from considering costs of implementation when setting national ambient air quality standards).

110 [C]ourts have often taken the word “reasonable” in a statute to require that burdens be justified by the resulting benefits.” International Union, United Auto., Aerospace & Agric. Implement Workers v. OSHA, 938 F.2d 1310, 1319 (D.C. Cir. 1991)(citing Consolidated Rail Corp. v. ICC, 646 F.2d 642, 648 (D.C. Cir. 1981) for the proposition that safety measures must be reasonable, meaning “that they produce an expected safety benefit commensurate to their cost; and second, that when compared with other possible safety measures, they represent an economical means of achieving the expected safety benefit.”)). In 1994, the D.C. Circuit had the opportunity to revisit International Union I and found that OSHA had conformed with nondelegation doctrine through a supplemental statement of reasons which, in part, “forc[ed] the agency at a minimum to adopt the cheapest standard that will achieve the desired level of safety.” International Union, United Auto., Aero. & Agric. Implement Workers of America, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) See also Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 530 n. 55 (1981 )(citing United Steelworkers of America v. Marshall, 647 F.2d 1189, 1265 (1981)(requiring that cost of standards regulating toxic materials not “threaten[] the competitive stability of an industry.”)); American Petroleum Institute v. OSHA, 581 F.2d 493, 503 (5th Cir. 1978), aff'd, 448 U.S. 607 (1980)(OSHA was found to be obligated to determine if the expected benefits of a new benzene exposure limit had a reasonable relationship to the costs imposed by the standard); see also Sunstein, Cass R., The Cost-Benefit State: The Future of Regulatory Protection 46–48 (2002)Google Scholar.

111 Whitman v. Am Trucking Assr, supra note 109.

112 Some might argue “since Jimmy Carter,” as he required agencies promulgating regulations to engage in “rudimentary cost-effectiveness test[s]” and prepare descriptions of the problems they were addressing, alternative approaches, and “analysis of the potential economic impact of the regulation.” However, “more substantial progress towards regulatory process reform came later [under the Reagan administration] when cost-benefit analyses were mandatory and incorporated into the regulation design process.” See Weidenbaum, Murray, Regulatory Process Reform, 20 Reg. 20–26 (1997)Google Scholar.

113 Exec. Order No. 12,291, Sec. 3 (d), 46 Fed. Reg. 13,193 (Feb. 19, 1981)(Reagan), revoked by Exec. Order No. 12,866, Sec. 6 (a)(3)(B)(ii), 58 Fed. Reg. 51,735 (Oct. 4, 1993) (Clinton).

114 Exec. Order No. 13,258, 67 Fed. Reg. 9,385 (Feb. 28, 2002). In this order, President Bush eliminates the role of the Vice-President from the regulatory review process.

115 Craig, Robin Kundis, The Bush Administration's Use and Abuse of Rulemaking, Part I: The Rise of OIRA, 28(4) Admin & Reg. L. News 8 (2003), available at http://www.abanet.org/adminlaw/news/adlaw_summer03.pdf Google Scholar (last visited March 3, 2007).

116 “Presidential oversight of the regulatory process, though relatively new, has become a permanent part of the institutional design of American government.” Pildes, Richard & Sunstein, Cass, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1 (1995)CrossRefGoogle Scholar. Some commentators have suggested that the goal of OIRA is less ensuring rational administrative activity and more providing ammunition to support an administration's political (often anti-regulatory) policy references. See McGarity, Thomas, Reinventing Rationality 271–91 (1991)CrossRefGoogle Scholar. See also Cooper, Joseph & West, William F., Presidential Power & Republican Government, 50 J. Pol. 864 (1998)CrossRefGoogle Scholar.

117 Memorandum from John D. Graham, OIRA Administrator, to the President's Management Council (Sept. 20 2001), available at http://www.whitehouse.gov/omb/inforeg/oira_review-process.html (last visited March 3, 2007). All agencies must normally respond to prompt letters within thirty days. Id.

118 Office of Management and Budget, OIRA Prompt Letters available at http://www.whitehouse.gov/omb/inforeg/prompt_letter.html (last visited March 3, 2007). The last prompt letter issued was November 16, 2004.

119 See generally Sunstein, Cass, Congress, Constitutional Moments, and the Cost-Benefit State, 48 Stan. L. Rev., 247, 275–82 (1996)CrossRefGoogle Scholar.

120 2 U.S.C. §§ 1501-1571 (2000).

121 Another example is the Safe Drinking Water Act Amendments of 1996, Pub. L. No. 104-182, 110 Stat. 1613 (codified as amended at 42 U.S.C. §§ 300f-300j-15 (2005) and in scattered other sections of the U.S. Code (requiring use of cost-benefit analysis in establishing drinking water standards)).

122 Exec. Order No. 12,866 Sec. 6(a)(3)(B)(ii), 58 Fed. Reg. 51,735 (Oct. 4, 1993).

123 See Graham, John D. & Wiener, John, Risk v. Risk 227 (1995)Google Scholar for a discussion of “constructive ways, through the use of risk tradeoff analysis [(“RTA”)], to make better policies that provide more protection of human health and the environment” and an “outline how RTA should be incorporated into decisionmaking about medical treatment and government regulation (including legislative, administrative, and judicial functions.)” See also Sunstein, Cass R., Precautions Against What? Availability Heuristic and the Cross Cultural Perception, 57 Ala. L. Rev. 75, 85–86 (2005)Google Scholar. Sunstein asserts, “A great deal of evidence suggests the possibility that an expensive regulation can [actually] have adverse effects on life and health.” Id.

124 See Sunstein, Cass, The Cost-Benefit State: The Future of Regulatory Protection 71–87 (2002)Google Scholar.

125 As example, an Environmental Protection Agency cost-benefit analysis of arsenic in drinking water resulted in figures of benefits that ranged between 13 million dollars and 3.4 billion dollars? This is the so-called interdeterminancy problem.

126 See Adler, Matthew D. & Posner, Eric A., Cost Benefit Analysis: Legal Economic, and Philosophical Perspectives 270 (2001)Google Scholar (calling traditional cost-benefit analysis a “failure,” but arguing that properly conceived the principle “is sufficiently accurate in tracking overall well-being and has sufficient other procedural virtues—it is relatively cheap to implement, relatively easy to monitor by oversight bodies, and relatively undemanding of agency expertise”).

127 We should note the cautionary note of Colin Diver that “[t]he leading metaphor for comprehensive rationality is not the spirited debate of the town meeting but the scientist's lonely search for truth.” Diver, Colin S., Policymaking Paradigms in Administrative Law, 95 Harv. L. Rev. 393, 425 (1981)CrossRefGoogle Scholar.

128 Change came with passage of the Freedom of Information Act, 2000, ch. 36 (Eng.). The United Kingdom's legislation is more limited in scope than the United States' Freedom of Information Act for two reasons. The first is that “a public authority [may] refuse a request for example because further information is required to enable it to comply (…); the cost of compliance would exceed ‘the appropriate limit’ (…); the request is ‘vexatious’ or is a repeated request for the same information ….” The second is that a public authority is always in the position of deciding “whether the public interest in disclosure is outweighed by the public interest in concealment.” Phillips, O. Hood at al., Constitutional and Administrative Law 615 (8th ed. 2001)Google Scholar. The authors question “whether the Act with its extensive exemptions will ensure that there is more open government [because] there is plenty of opportunity provided by the Act to foster continued secrecy in government.” Id. at 616. The European Union's Council of Ministers has also made efforts to improve transparency in its proceedings by establishing a rule for the publication of the provisional agendas of meetings in which it would be acting in a legislative capacity. 2000 O.J. (L 009) 22-23.

129 “Consistent with the Act's goal of broad disclosure, these exemptions have been consistently given a narrow compass.” U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989).

130 5 U.S.C. § 552 (2000).

131 5 U.S.C. app. §§ 1-16 (2000).

132 5 U.S.C. § 552(b)(2000).

133 Justice Marshall wrote this quote specifically regarding FOIA. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242-43 (1978)(denying a FOIA request based on NLRB's “longstanding rule against prehearing disclosure of witness statements.”).

134 Letter from James Madison to W.T. Barry (Aug. 4, 1822), in The Complete Madison 337 (Padover, Saul ed. 1953)Google Scholar

135 Perritt, Henry H. Jr., President Clinton's Information Infrastructure Initiative: Community Regained?, 69 Chi-Kent L. Rev. 991, 1011–13 (1994)Google Scholar.

136 E-government includes: e-publication, which is “by far the most important and widespread government use” involving “dissemination or ‘publication’ of information;” e-filing or “online filing of official documents, such as tax returns, corporate and non-profit filings, security interest filings…;” and e-procurement, or “government use of the Internet for buying and selling goods and services.” See Reitz, John C., Section VI: Computers and Law: E-Government, 54 Am. J. Comp. L. 733, 734–35 (2006)CrossRefGoogle Scholar.

137 Federal Register and Code of Federal Regulations, available at http://www.gpoaccess.gov/fr/index.html (last visited March 3, 2007).

138 Id. at 735.

139 See Long v. IRS, 596 F.2d 362 (9th Cir. 1979).

140 Pub. L. 104-231, 110 Stat. 3048 (1996), 5 U.S.C. § 552 (2000).

141 U.S. Dep't of Justice, Freedom of Information Act Guide (2004), available at http://www.usdoj.gov/oip/readingroom.htm (last visited March 3, 2007).

142 Home Box Office, Inc. v. FCC, 567 F.2d 9, 54-55 (D.C. Cir. 1977)(citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971))(requiring disclosure of the full record before the agency at the time a rule is promulgated, stating that where “an agency justifies its actions by reference only to information in the public file while failing to disclose the substance of other relevant information … a reviewing court cannot presume that the agency has acted properly, but must… perforce find [the agency's] actions arbitrary.”).

143 The development of electronic docketing of agency documents also raises knotty problems of privacy, copyright protection, censorship, security concerns as well. See Lubbers, Jeffrey S., The Future of Electronic Rulemaking: A Research Agenda, 27 Admin. & Reg. L. News 6 (Summer 2002)Google Scholar.

144 42 U.S.C. §§ 11001-05; 11021-23; 11041-50(2000).

145 See Papandrea, Mary-Rose, Under Attack: The Public's Right to Know and the War on Terror, B.C. L. Sch. Fac. Papers, 25: 35 (2005)Google Scholar. See Stevens, Gina Marie, Homeland Security Act of 2002: Critical Infrastructure Information Act (Congressional Research Service 2003)Google Scholar; Rotenberg, Marc, Privacy and Secrecy After September 11, 86 Minn. L. Rev. 1115 (2002)Google Scholar; Uhl, Kristen Elizabeth, The Freedom of Information Act Post- 9/11: Balancing the Public's Right to Know, Critical Infrastructure Protection, and Homeland Security, 53 AM. U.L. Rev. 261 (2003)Google Scholar; Beirle, Tom & Bell, Ruth Greenspan, Don't Let “Right to Know” Be a War Casualty, 94 Christian Sci. Monitor 9 (Dec. 2001)Google Scholar; Gidiere, Stephen, Checks, Balances, and FOIA's 40th Anniversary, USA Today, July 5, 2006, at 11A Google Scholar.

146 While I have no knowledge as to any causal relationship, I should note that Israel too has since 1998 accepted in broad terms at least, the transparency principle in its own freedom of information law. Freedom of Information Law 5758-1998, L.S.I. 226, available in English at the Israeli Police website, http://police.gov.il/english/Information_Services/Law/xx_info_law. (last visited February 11, 2007).

147 Some elements in the preceding projects also have “participatory” features, and some approaches partake of multiple projects. This exemplifies the point made supra, at note 50, that the various projects exist at the same time. See also infra text accompanying notes 155-57.

148 Bressman, Beyond Accountability, supra note 50, at 475 (citing Stewart, Richard B., The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1712 (1975)CrossRefGoogle Scholar).

149 Stewart, Richard B., The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1712 (1975)CrossRefGoogle Scholar.

150 Strauss, supra note 96, at 755.

151 See Anderson, Terry H., The Sixties (2nd ed. 2004)Google Scholar; Litwack, Leon F., The Times They Are A-Changing, in The Whole World's Watching: Peace and Social Justice Movements of the 1960s and 1970s 5–8 (2001)Google Scholar.

152 Wolin, Sheldon, The Destructive Sixties and Postmodern Conservatism, in Reassessing the Sixties 129, 132 (Macedo, Stephen ed., 1997)Google Scholar.

153 5 U.S.C. § 553 (b)-(c)(2000).

154 The APA does not tell us how long the public gets to comment. For a discussion of enabling statutes that contain time periods see Lubbers, Jeffrey S., A Guide to Federal Agency Rulemaking, 278–80, 296–98 (4th ed. 2006)Google Scholar. E.O. 12,866, states that the period should “in most cases” be not less than 60 days, however that recommendation is not judicially enforceable. Exec. Order No. 12,866 Sec. 6(a)(1-2)(3) C.F.R. 644 (1993) reprinted as amended in Exec. Order No. 13,258,67 Fed. Reg. 9384 (Feb. 28, 2002).

155 United States v. Garner, 767 F.2d 104, 120 (5th Cir. 1985)(citing 5 U.S.C. § 553 (c)).

156 South Carolina ex rel. Patrick v. Block, 558 F. Supp. 1004, 1015 (D.S.C. 1983)(emphasis added).

157 See Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)(opening standing rules); Clarke v. Sec. Indus. Ass'n, 479 U.S. 388 (1987); United States v. SCRAP, 412 U.S. 669 (1973). In Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966), the D.C. Circuit held that a more inclusive standing requirement could only apply when plaintiffs sought to vindicate the broad public interest, not just private interests.

158 As the American Bar Association Section of Administrative Law and Regulatory Practice states in its Black Letter Statement of Federal Administrative Law, 54 Admin. L. Rev. 1, 31 (2002)Google Scholar, “Agencies engaged in informal rulemaking may provide additional procedures beyond those established by the APA, other applicable statutes, and the agencies' own rules, but courts may not require them to do so.”

159 Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524, 544-49 (1978).

160 Lubbers, Jefferey S., Approaches to Regulatory Reform in the United States: A Response to the Remarks of Professors Levin and Freeman, 83 Wash. U. L.Q. 1893, 1904 n.33Google Scholar (2005)(Negotiated rulemaking remains a source of significant debate. Critics have argued that employing regneg “allows agencies to transfer too much control to private parties,” see Funk, William, When Smoke Gets in Your Eyes: Regulatory Negotiation and the Public Interest—EPA's Woodstove Standards, 18 Envtl. L. 55 (1987)Google Scholar; Rose-Ackerman, Susan Comment, Consensus Versus Incentives: A Skeptical Look at Regulatory Negotiation, 43 Duke L.J. 1206 (1994)CrossRefGoogle Scholar; and Funk, William, Bargaining Toward the New Millennium: Regulatory Negotiation and the Subversion of the Public Interest, 46 Duke L.J. 1351 (1997)CrossRefGoogle Scholar, while Cary Coglianese, has empirically challenged “the basic assumption that regulatory negotiation has produced faster and less litigated rules.” Coglianese, Cary, Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, 46 Duke L.J. 1255 (1997)CrossRefGoogle Scholar; Coglianese, Cary, Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, 9 N.Y.U. Envtl. L.J. 386 (2001)Google Scholar. Conversely, authors of other studies have strenuously defended reg-neg, Harter, Philip J., Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9 N.Y.U. Envtl. L.J. 32 (2000)Google Scholar (inciting a response by Professor Coglianese); Langbein, Laura I. & Kerwin, Cornelius M., Regulatory Negotiation Versus Conventional Rule Making: Claims, Counterclaims, and Empirical Evidence, 10 J. Pub. Admin. Res. & Theory 599 (2000)CrossRefGoogle Scholar (finding that participants felt negotiated rules were superior, and more likely to be implemented, than conventional rules); Freeman, Jody & Langbein, Laura I., Regulatory Negotiation and the Legitimacy Benefit, 9 N.Y.U. Envtl. L.J. 60 (2000)Google Scholar (finding significant legitimacy benefit); Harter, Philip J., A Plumber Responds to the Philosophers: A Comment on Professor Menkel-Meadow's Essay on Deliberative Democracy, 5 Nev. L.J. 379 (2004–2005)Google Scholar. See also Morriss, Andrew P., Yandle, Bruce, & Dorchak, Andrew, Choosing How to Regulate, 29 Harv. Envtl. L. Rev. 179, 195–202 (2005)Google Scholar (finding good arguments on both sides, but generally siding with Coglianese on empirical debate with Harter); Seidenfeld, Mark, Empowering Stakeholders: Limits On Collaboration As The Basis For Flexible Regulation 41 Wm. & Mary L. Rev. 411, 458 (2000)Google Scholar (“The collaborative process is most promising, however, if used as a tool to guide agency discretion, rather than as an alternative mechanism to promulgate regulations backed by the coercive power of the state.”); and Mee, Siobhan Comment, Negotiated Rulemaking and Combined Sewer Overflows (CSOs): Consensus Saves Ossification?, 25 B. C. Envtl. Aff. L. Rev. 213 (1997)Google Scholar (lauding the success of this particular reg-neg).

161 For example when the Federal Highway Administration revised its Manual on Uptown Traffic Control Devices in May 2001, it “delegated authority to a group whose membership was drawn from the American Association of State Highway Officials, the National Association of Country Engineers, the American Public Works Association and other organizations with expertise in the operation of traffic control devices.” Balla, Steven J., Between Commenting and Negotiation: The Contours of Public Participation in Agency Rulemaking, 1 I/S 59, 80 (2004/2005)Google Scholar. Much of this group's work was incorporated into the notices of proposed rulemaking published in the Federal Register.

162 See Regulations.gov: Your Voice in Federal Decision-making, http://www.regulations.gov/fdmspublic/component/main (last visited March 3, 2007).

163 E-Government Act of 2002, Pub. L. 107-347, 116 Stat. 2899. The E-Government Act “fill(s) a gap in the APA, which does not by express terms require the agency to make the comments its (sic) receives during the comment process available to the public.” Reitz, John C., Section VI: Computers and Law: E-Government, 54 Am. J. Comp. L. 733, 744 (2006)CrossRefGoogle Scholar. FirstGov.gov, a “searchable entry point for filing comments in any federal rulemaking proceeding” was introduced by the Clinton Administration in 2000. Reitz, John C., Section VI: Computers and Law: E-Government, 54 Am. J. Comp. L. 733, 744 (2006)CrossRefGoogle Scholar. Lobel, Orly, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342, 360 (2004)Google Scholar. Essentially, the E-Government Act codified FirstGov.gov, and in addition, created a new office within the Office of Management and Budget devoted to these concerns. Conrad, James W. Jr., The Information Quality Act—Antiregulatory Costs of Mythic Proportions?, 12 Kan. J.L. & Pub. Pol'y 521, 527 (2003)Google Scholar. See also E-Government Act of 2002, Pub. L. 107-347, 116 Stat. 2899, 2902-03. This office, the Office of Electronic Government and Technology, is headed by a Chief Information Officer. Its mission is “to shift perspective, move to citizen-centered services and create a real electronic government.” See Office of Electronic Government and Technology, available at http://www.estrategy.gov/flashmain.cfm?action=main (follow “About Us” hyperlink)(last visited July 12, 2006)(quoting Deputy Associate Administrator, Mary Mitchell).

164 Establishment of a New System of Records Notice for the Federal Docket Management System, 70 Fed. Reg. 15,086 (Mar. 24, 2005)Google Scholar.

165 See Papendreou, George, e-Democracy for the European Union, IPTS Report (June 2003)Google Scholar; see Share I/S at n.54. The effort at e-democracy is not limited to the U.S. Spurred by Greece, the EU has promoted an e-democracy initiative in 1994.

166 Fishkin, James S., Deliberative Polling: From Experiment to Community Resource, in The Deliberative Democracy Handbook: Strategies for Effective Civic Engagement in the Twenty-First Century, 68 (2005)Google Scholar; See also Fishkin, James S., The Televised Deliberative Poll: An Experiment in Democracy, 546 Annals 132, 134–37, 140 (1996)Google Scholar; Fishkin, James S., The Case for a National Caucus: Taking Democracy Seriously, Atlantic 16–18 Aug. 1988 Google Scholar; Fishkin, James S., Framework of Analysis and Proposals for Reform: A Symposium on Campaign Finance: Conflicting Ideals of Democracy: Reflections on Reform of the Democratic Process, 18 Hofstra L. Rev. 395, 405–10 (1989)Google Scholar (describing the “National Caucus” concept); Cain, Bruce E., The Internet in the (Dis)Service of Democracy?, 34 Loy. L. Rev. 1005, 1016 (2001)Google Scholar.

167 Fontana, David, Reforming the Administrative Procedure Act: Democracy Index Rulemaking, 74 Fordham L. Rev. 81, 82 (2005)Google Scholar.

168 Id.

169 Lobel, Orly, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342, 360–61 (2004)Google Scholar.

170 Noveck, Beth, The Electronic Revolution in Rulemaking, 53 Emory L.J. 433, 443 (2004)Google Scholar.

171 Id.

172 Pub. L. 93-637, 88 Stat. 2183 (1975), also known as the “Lemon Law.”

173 Id. at Sec. 202 (a), Sec. 18 (h)(1), 88 Stat. 2197-98.

174 Shapiro, Sidney, Pragmatic Administrative Law, Issues in Legal Scholarship: The Reformation of American Administrative Law (2005), available at http://0-www.bepress.com.columbo.law.cua.edu:80/ils/iss6/artl Google Scholar (last visited March 5, 2007).

175 We must recognize some caveats to this paen to participatory values. As Kenneth Ward notes, “weaker interests today (many small businesses, consumer groups) have very little chance of influencing, say, rulemaking in their favor over the wishes of the powerful interests (for example, IBM, General Motors, ITT, AMA), because virtually all the wild cards in the game have already been dealt to the big interest.” Ward, Kenneth F., Administrative Law in the Political System 233 (2004)Google Scholar. Further compounding the problem, “big interests are not only too much for the competitors but too much for the regulatory agencies as well.” Id. at 233.

176 Fracchia, Fabrizio, Administrative Procedures and Democracy: The Italian Experience, 12 Ind. J. Global Legal Stud. 589, 592 (2005)CrossRefGoogle Scholar. Fracchia states, “[s]ome scholars suggest that procedural participation can compensate for this democratic defeat. I do not agree with this view.” Id. at 594.

177 Barak-Erez, Daphne, The Administrative Process as a Domain of Conflicting Interests, 6 Theoretical Inq. L. 193 (2005)Google Scholar; “the decision-making process of the administrative agency in actuality entails a fundamental balancing of conflicting interests, similar to that “intended by the legislature.” Id. at 196.

178 Indeed, we should remember that according to Richard Stewart, “there is no feasible means to ensure that all stakeholders with significant interest are represented in the administrative process ….” The potential gaps in representation are “exacerbated by ‘agency costs’” which are only heightened by greater participation. In the end, these higher costs “would increase the difficulty of equalizing the influence of diffuse interest groups who were now allowed to participate in agency proceedings because of the inherent advantages of focused interest groups in organizing and raising the money necessary for such participation.” See Seidenfeld, Mark, The Quixotic Quest for a Unified Theory of the Administrative State, 6 Issues in Legal Scholarship 2 (2005) available at http://www.bepress.com/ils/iss6/art2/ Google Scholar (last visited November 25, 2006).

179 See Breyer, Stephen, Active Liberty 15–16 (2005)Google Scholar (promoting the concept of “active liberty” defined as “a sharing of a nation's sovereign authority among its people” through political participation.).

180 See Cincinnati, N. O. & T. P. R. Co. v. Interstate Commerce Com., 162 U.S. 184, 196 (1896)(“the findings of the Commission shall be regarded as prima facie evidence”); see also Kentucky & I. Bridge Co. v. Louisville & N. R. Co., 37 F. 567, 612-614 (C.C.D. Ky. 1889)(where the court indicated that facts investigated and reported by the interstate commerce commission were only prima facie evidence in subsequent judicial proceedings, which are considered “original and independent proceeding[s]” that “determine[] the cause de novo”).

181 The high water mark for such deference when it came to rulemaking was Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185 (1935)(quoting Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 209 (1934))(“[I]f any state of facts reasonably can be conceived that would sustain [the order], there is a presumption of the existence of that state of facts, and one who assails [that presumption] must carry the burden of showing … that the action is arbitrary.”).

182 See Gifford, Daniel J., The New Deal Regulatory Model: A History of Criticisms and Refinements, 68 Minn. L. Rev. 299, 306, 1983 Google Scholar (discussing regulatory mechanisms of the new deal era and the deference given to agency administrators); Rabin, Robert L., Legitimacy, Discretion, and the Concept of Rights, 92 Yale L.J. 1174, 1178–80 (1983)CrossRefGoogle Scholar (discussing the new deal era and rise of administrative expertise). See generally Landis, James M., The Administrative Process (1938)Google Scholar (explaining the rise of faith in administrative expertise during the New Deal era).

183 Administrative Procedure Act, 5 U.S.C. § 706(2)(E) (1966). For a history of the APA, see Gellhorn, Walter, The Administrative Procedure Act: The Beginnings, 72 Va. L. Rev. 219 (1986)CrossRefGoogle Scholar (describing the actions that led to the 1946 Administrative Procedure Act).

184 Universal Camera Corp. v. NLRB, 340 U.S. 474,477 (1951). See generally, Neely, Alfred S., Justice Frankfurter, Universal Camera and A Jurisprudence of Judicial Review of Administrative Action, 25 U. Tol. L. Rev. 1 (1994)Google Scholar (reviewing Universal Camera and criticizing Justice Frankfurter's opinion on judicial review of administrative finding of fact).

185 Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402,415 (1971), is credited with refining the hard look doctrine, created by Judge Leventhal in Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971), by requiring “probing, in-depth review” of agency action. See also Nat'l Lime Ass'n v. EPA, 627 F.2d 416, 451 n.126 (D.C. Cir. 1980); Pikes Peak Broad. Co. v. FCC, 422 F.2d 671, 682 (D.C. Cir. 1969)); Colloquy, The Fifth Annual Robert C. Byrd Conference on the Administrative Process: The First Year of Clinton/Gore: Reinventing Government or Refining Reagan/Bush Initiatives?, 8 Admin. L.J. Am. U. 23, 41 (1994)Google Scholar. See also Seidenfeld, Mark, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 Texas L. Rev. 83, 128–29 (1994)Google Scholar (“[T]he ‘hard look’ test … asks the courts to steep themselves in agency policy and the substantive debate framing the issue under consideration to ensure that the agency below gave a ‘hard look’ to all factors relevant to its decision.”).

186 See the text as of the end of 1980, 126 Cong. Rec. S13, 877 (daily ed. Sept. 30, 1980) and as passed by the Senate in an earlier form, 125 Cong. Rec. S12, 145 (daily ed. Sept. 7, 1979). For a discussion of the Bumpers Amendment, see O'Reilly, James T., Deference Makes a Difference: A Study of Impacts of the Bumpers Judicial Review Amendment, 49 U. Cin. L. Rev. 739 (1980)Google Scholar; Levin, Ronald M., Review of “Jurisdictional” Issues Under the Bumpers Amendment, 1983 Duke L.J. 285, 358 (1983)Google Scholar; Farina, Cynthia R., Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452, 473–74 (1989)CrossRefGoogle Scholar.

187 S. 343, 104th Cong. (1995). The history of the Dole bill is succinctly described in Sunstein, Cass, Legislative Foreword: Congress, Constitutional Moments, and the Cost- Benefit State, 48 Stan. L. Rev. 247, 277–282 (1994)Google Scholar.

188 Levin, Ronald M., Scope of Review Legislation: The Lessons of 1995, 31 Wake Forest L. Rev. 647, 655–56 (1996)Google Scholar (citing Regulatory Revisions: Hearings on S. 343 Before the Subcomm. On Admin. Oversight and the Courts of the Senate Judiciary Comm., 104th Cong., 1st Sess. (1995)(statement of George C. Freeman, Jr., & Philip J. Harter, Cochairs, American Bar Association's Working Group on Regulatory Reform)(“This section essentially codifies the ‘hard look’ line of Chevron cases.”)).

189 Id.

190 Id. at 657.

191 Id. (proposing 5 U.S.C. §§ 622-25). These legislative proposals also promote accountability of a different sort by requiring an agency to undertake a review of the rules' efficacy within ten years after promulgation, id. at § 3 (a), and by enacting “look-back” provisions, by which a member of the regulated community can ask or require an agency to review the efficacy of a particular rule at any time, perhaps even when the rule is about to be enforced on that party. See id. at § 4 (a)(including a “look-back” provision as part of the proposed comprehensive Regulatory Reform Act). This ensures that the agency decision does not stray too far from contemporary congressional will. Further, the Dole bill not only allowed for more extensive judicial review of agency actions, it would also have required that proposed agency regulation be brought back to Congress and “laid on the table,” where Congress would have the opportunity to enact a “two-house” veto, clearly constitutional even under Chadha. Id. (proposing U.S.C. § 801). See INS v. Chadha, 454 U.S. 812 (1981).

192 Chevron U.S.A. v. National Resources Defense Council, 467 U.S. 837 (1984).

193 Id. at 842-43.

194 Elliott, E. Donald, Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts, and Agencies in Environmental Law, 16 Vill. Envtl. L. J. 1 (2005)Google Scholar.

195 Id. at 5.

196 See Sunstein, Cass, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2075 (1990)CrossRefGoogle Scholar. The reference, of course, is to Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

197 See Chevron, supra note 192, at 865 (“Perhaps [Congress] consciously desired the Administrator to strike the balance [between conflicting policies] at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so.…”).

198 See id. at 865-66 (1984)(“Judges are not experts in the field, and are not part of either political branch.… While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices.…”).

199 Schacter, Jane S., Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 Harv. L. Rev. 593, 614 (1995)CrossRefGoogle Scholar.

200 Merrill, Thomas W., Judicial Deference to Executive Precedent, 101 Yale L.J. 969, 978 (1992)CrossRefGoogle Scholar (“This new emphasis on democratic theory was important to the doctrinal framework because it supplied the justification for switching the default rule from independent judgment to deference.”). We must remember that while Chevron deference “is not a rule of constitutional law per se, … it is nevertheless presumes an important separation of powers principle.” Tribe, Laurence H., American Constitutional Law 994 (3d ed. 2000)Google Scholar. As Judge Silberman has point out “That is not to say that Chevron is in any sense constitutionally dictated by the separation of powers.” As Justice Scalia has observed, for any given statute, Congress could rebut Chevron's presumption—that ambiguous statutes should be interpreted by the agency rather than the judiciary—by stripping the agency of deference. Silberman, Laurence H., Chevron— Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 824 (1990)Google Scholar.

201 This is not completely accurate because of the Electoral College, see U.S. Const, Amend. XII. For evidence of this, see Bush v. Gore, 531 U.S. 98 (2000).

202 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 190 (2000)(Breyer, J., dissenting).

203 Pierce, Richard J., Democratizing the Administrative State (October 2005)CrossRefGoogle Scholar. GWU Law School Public Law Research Paper No. 173. Abstract available at: http://ssrn.com/abstract=839227 (last visited March 25, 2007).

204 See U.S. Const. Art. III, § 1, cl. 2 (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”).

205 Silberman, supra note 200, at 823. See also Seidenfeld, Mark, A Syncopated Chevron: Emphasizing Reasoned Decision making in Reviewing Agency Interpretations of Statutes, 73 Tex. L. Rev. 83, 97 (1994)Google Scholar (“Chevron implicitly justifies this transfer of responsibility largely on the theory that agencies are more politically accountable than courts.”).

206 Chevron, supra note 192 at 865-66. Indeed, as one commentator has suggested, “[according to Chevron,… it is always better to have an accountable actor make policy than a non-accountable one. A court, as grand enforcer of democratic norms, must surrender and reassign its own interpretive authority to a body perceived to have a better democratic pedigree.” Schacter, supra note 199, at 617. In contrast, Marc Seidenfeld argues that Chevron resolves the accountability problem by implementing a form of interest group pluralism. Seidenfeld “views the democratic process as a competition between various interest groups for government- provided benefits.” Seidenfeld, supra note 178, at 97. Indeed, “according to the pluralistic democracy model, agencies should make political choices that satisfy the demands of the interest groups that make up the constituency of the directly accountable branches of government- Congress and the President. This is the precise role that the Chevron court sees agencies playing.” Id. at 99-100. Rust v. Sullivan, 500 U.S. 173 (1991) stands for that proposition.

207 529 U.S. at 161.

208 The “major question” exception is discussed in Sunstein, Cass R., Chevron Step Zero, 92 Va. L. Rev. 187, 193 (2006)Google Scholar, where he asserts that through a “trilogy” of outlier cases (FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33, 159-61 (2000); Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 703-08 (1995); MCI Telecomm. Corp. v. AT&T Co., 512 U.S. 218, 228-34 (1994)), the Court suggests the “possibility that deference will be reduced, or even nonexistent, if a fundamental issue is involved, one that goes to the heart of the regulatory scheme at issue. The apparent theory is that Congress should not be taken to have asked agencies to resolve those issues.” For an alternative theory, see Bressman, Lisa S., Deference and Democracy, Geo. Wash. L. Rev. (forthcoming 2007)Google Scholar (citing Gonzales v. Oregon, 126 S. Ct. 904 (2006))[hereinafter Bressman, Deference], arguing that the real issue the Court confronted revolved around the agency's “undemocratic” use of its authority, rather than whether Congress had delegated the authority in the first place.

209 Bressman, Deference, id.

210 Id.

211 There is, of course, another source of democratic legitimacy—the Congress. And one may wonder why one might not look to Congress as a way of avoiding the democratic deficit problem. Most scholars who support Chevron argue that democratic accountability is more likely to be found in the president than the Congress. The president is seen as having a national constituency and thus is more responsive than Congressmen to the electorate as a whole. See Mashaw, Jerry L., Greed, Chaos, and Governance 152 (1997)Google Scholar (asserting that President is more responsive to public preferences because he deals with national issues and has no specific constituency negotiating benefits for votes). Supporters of presidential accountability tend to denigrate the congressional branch as a source of democratic accountability. Tracking recent application of “public choice theory” they argue “that the legislature will produce too few laws that serve truly public ends, and too many laws that serve private ends.” Eskridge, William N. Jr.,Symposium on the Theory of Public Choice: Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 Va. L. Rev. 275, 277 (1988)CrossRefGoogle Scholar. Public choice theory, they would argue, “posits that legislatures fall prey to endless cycling and agenda manipulation in any voting scheme [and] suggests that, even under ideal circumstances and given the best intentions, Congress may be unable to arrive at constitutional decisions that are wholly consistent with the preferences of a majority of Congress' members. Note, , Should the Supreme Court Presume that Congress Acts Constitutionally? The Role of the Canon of Avoidance and Reliance on Early Legislative Practice in Constitutional Interpretation, 116 Harv. L. Rev. 1798, 1800 (2003)Google Scholar. A less theoretical critique of congress as an institution reflective of the public interest can be found in Mann, Thomas E. & Ornstein, Norman J., The Broken Branch: How Congress is Failing America and How to Get It Back On Track 212 (2006)Google Scholar. The authors condemn the “gradual collapse of the center in Congress,” asserting that parties now search for political success through “corrosive partisanship” leading to a decline in politicians “who care about compromise, product, and institutional health.”

212 Seidenfeld, supra note 178, at 100. See also Motor Vehicle Mfr's Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. 463 U.S. 29, 59 (1983),

The agency's changed view … seems to be related to the election of a new President of a different political party … A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations. As long as the agency remains within the bounds established by Congress, it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration.

(Justice Rehnquist concurring and dissenting, 463 U.S. 29, 59 (1983).

213 Pierce, Richard J., Democratizing the Administrative State, GWU Law School Public Law Research Paper No. 173, 4, 10–17. (October 2005), abstract available at http://ssrn.com/abstract=839227 Google Scholar (last visited November 7, 2006).

214 Christensen v. Harris Cty., 529 U.S. 576 (2000).

215 Id. at 586.

216 Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005). The case is discussed in Frueli, Joseph, Pesticides, Preemption, and the Return of Tort Protection, 23 Yale J. on Reg. 299 (2006)Google Scholar.

217 7 U.S.C. 136 et seq (2000).

218 Bates, 544 U.S. at 448.

219 Id.

220 Id. at 15.

221 Christensen, 529 U.S. at 591 (Scalia, J. concurring in part and concurring in judgment).

222 Pierce, supra note 213, at 17.

223 United States v. Mead Corp., 533 U.S. 218, 228 (2001)(quoting Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (U.S. 1944)).

224 Kagan, Elena, Presidential Administration, 114 Harv. L. Rev. 2245, 2376, 2378 (2001)CrossRefGoogle Scholar. In that regard she would distinguish “between actions taken by executive branch agencies and those taken by independent commissions.” Id. at 2376.

225 May, Randolph J., Defining Deference Down: Independent Agencies and Chevron Deference, 58 Admin. L. Rev. 429, 432 (2006)Google Scholar.

226 Humphrey's Ex'r v. United States, 295 U.S. 602, 628 (1935).

227 See supra note 178, and accompanying text.

228 Motor Vehicle Mfrs. Ass'n, 463 U.S. 29.

229 Merrill, supra note 200, at 1028.

230 Strauss, Peter, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 Colum. L. Rev. 1093, 1121 (1987)CrossRefGoogle Scholar.

231 Chevron, supra note 192 at 865.

232 Levin, Ronald M., The Anatomy of Chevron: Step Two Reconsidered, 72 Chi.-Kent. L. Rev. 1253 (1997)Google Scholar.

233 535 U.S. 218 (2001); see also Bressman, Lisa, How Mead has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443 (2005)Google Scholar [hereinafter Bressman, Mead] (providing a “narrow” reading of Mead).

234 Merrill, supra note 200, at 970.

235 See Bressman, Deference, supra note 208; Bressman, Mead, supra note 233; Bressman, Judicial Review, supra note 67; Bressman, Beyond Accountability, supra note 50; and Bressman, Lisa Schultz & Vandenbergh, Michael P., Inside the Administrative State: A Critical Look at the Practice of Presidential Control, Vanderbilt Public Law Research Paper No. 06-07, Mich. L. Rev. Vol. 105 (2006)Google Scholar.

236 Bressman, Deference, supra note 208, at 1.

237 Bressman, Judicial Review, supra note 67, at 1658-59.

238 Bressman, Mead, supra note 233, at 1449.

239 See Bressman, Beyond Accountability, supra note 50, at 532 (charging that Whitman v. American Trucking Ass'ns “signaled a rule of law deficit that could only be made up with administrative standards.”). See also Rubin, Edward, The Myth of Accountability and the Anti Administrative Impulses, 103 Mich. L. Rev. 2073, 2077 (2004–2005)Google Scholar.

240 Bressman, Mead, supra note 233, at 1449.

241 Id.

242 Id. at 1450.

243 See Rubin, supra note 239, at 2077.

244 See Fishkin, supra note 166.

245 See supra text accompanying notes 52-89.

246 See the U.S. Constitution, Article I.

247 Seidenfeld, supra note 178. Reuel Schiller argues that the “incoherence that has developed in administrative law” derives not from the legitimacy challenge but from “the decline of legal liberalism and the political ascendancy of a Republican party” reflecting “a laissez-faire. Antistatist ideology.” Schiller, Reuel E., Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945-1970, 53 Vand. L. Rev. 1389, 1451–52 (2000)Google Scholar.

248 Stewart, Richard B., Essay: Administrative Law in the Twenty First Century, 78 N.Y.U.L. Rev. 437, 453 (2003)Google Scholar.

249 Hon.Breyer, Stephen, Active Liberty 102–03 (2005)Google Scholar.