Governments and regulatory agencies make policy through a range of instruments from soft-law guidelines and executive orders to executive rules with the force of law. Based on her book, Democracy and Executive Power, Susan Rose-Ackerman’s essay highlights the link between cross-country differences in rulemaking practices and underlying constitutional frameworks. Based on the US, the UK, Germany, and France, the chapter illustrates how these countries’ disparate constitutional structures help to explain their divergent rulemaking practices. She stresses the existence of policymaking accountability under the rulemaking provisions of the US APA and its absence from the other cases. Nevertheless, whatever the legal framework, the author argues that bureaucrats should take account of outside input as they implement statutory language to make policy choices. The organization of the executive branch should encourage public input and promote bureaucratic competence. Contemporary pressures may indeed be moving all of these countries toward more accountable procedures – not just to protect individual rights but also to enhance the democratic legitimacy of executive rulemaking.

This chapter examines the relationship between the administrative state and constitutional values and structures with reference to German and American legal and political theory. It recovers from these intertwined traditions three analytical approaches to the administrative state. The first analytical approach understands the administrative state to implement the constitution. The second understands the administrative state to generate new constitutional structures and values. The third understands the administrative state to displace the constitution with patterns and practices of rule that lie outside of the existing governance framework. These frameworks foreground normative analysis of how the administrative state ought to relate to general democratic principles and the specific constitutional rules that institutionalize them. I argue for a differentiated and developmental understanding of the relationship between democracy, constitution, and administration. The concrete administration of democratic values should allow constitutional rules to shift in light of social and historical context. The administrative state should not be strictly limited by, but rather should facilitate critical interrogation of, the constitution’s current instantiation of democratic values. The administrative state can and should hold the constitution open for the introduction and proliferation of new institutional configurations and forms of public life.

This chapter addresses the question of how the realization of public interests by competitive tendering is affected by the preceding stage of limitation and the succeeding stage of execution of limited rights. For some types of limited rights, for example authorizations, the public interests involved seem primarily related to the need for limiting the number of these rights (instead of allocating them). By contrast, the award of public contracts focusses more naturally on the allocation stage of competitive tendering. Furthermore, the relationship between the allocation stage and the subsequent execution stage does not seem to be univocal. Whereas the sale of assets seems to depart from the assumption that public interests are satisfied once the assets are transferred, for other limited rights the execution stage seems almost as relevant for the promotion of public interests as the allocation stage itself. This chapter seeks to explain why different outcomes in the relationship between limitation, allocation and execution can be observed across different types of limited rights and to explore whether some common denominator can be identified with regard to this relationship.

This chapter explores ways in which administrative law fails to address problems raised by automated legal guidance. Administrative law requires notice-and-comment procedures for so-called legislative rules, or rules that bind agencies and the public. Other, less binding agency statements regarding the law, including, for instance, statements that offer an agency’s interpretation of the law or its enforcement policy, are subject to lesser procedural requirements. This chapter examines how this blind spot in the administrative law framework mirrors a broader democracy deficit in administrative law. Strikingly, this area of law, the purpose of which is to mandate that administrative agencies act in certain ways to protect the public, simply fails to address the pervasive, and impactful, ways that agencies often communicate law to people through the types of informal explanations found in automated legal guidance. As this chapter argues, administrative law reflects a bias toward sophisticated parties, rather than the general public.

This chapter forms the context for the discussion in the following chapters analyzing various legal grounds for challenging automated government decision-making. It outlines the constitutional, human rights, and administrative law frameworks in the United States, the United Kingdom and Australia.

This chapter introduces the book, defines key terms, and outlines the book’s scope and contribution. It explains the enthusiasm governments have for technology, and analyzes government automation against administrative law values of transparency, accountability, rationality, participation, and efficiency. The chapter then outlines the governance framework of the book, and sets out its structure.

Public administrations are increasingly deploying algorithmic systems to facilitate the application, execution, and enforcement of regulation, a practice that can be denoted as algorithmic regulation. While their reliance on digital technology is not new, both the scale at which they automate administrative acts and the importance of the decisions they delegate to algorithmic tools is on the rise. In this chapter, I contextualize this phenomenon and discuss the implementation of algorithmic regulation across several public sector domains. I then assess some of the ethical and legal conundrums that public administrations face when outsourcing their tasks to such systems and provide an overview of the legal framework that governs this practice, with a particular focus on the European Union. This framework encompasses not only constitutional and administrative law but also data protection law and AI-specific law. Finally, I offer some take-aways for public administrations to consider when seeking to deploy algorithmic regulation.

What are the weaknesses of the current tax compliance rules, and how can these rules more effectively address the challenge of high-end tax noncompliance? This chapter first describes the limitations of the traditional responses to tax noncompliance in the law and in prominent reform proposals. It then introduces a new approach: a system of means-adjusted tax compliance rules. As we argue, this approach can both complement the traditional responses to noncompliance and counter their limitations to build a more robust and effective tax compliance system. The final section of this chapter describes how introducing means adjustments to the tax compliance rules would not be a radically new direction for tax reform, but rather an extension and rationalization of principles that are already embedded in the current tax law.

This chapter addresses symmetry’s implications for separation of powers and federalism. It suggests that some major structural questions, such as the long-running debate over the president’s authority to fire or “remove” executive officers, hold an intensity out of step with their current political stakes. By contrast, other recent decisions, particularly those limiting agency authority over “major” policy questions and intensively reviewing the reasoned justification for certain policies, threaten to enable selective judicial disapproval of policies favored by progressives rather than conservatives. A preference for symmetry should support limiting or reconsidering these decisions. With respect to federalism, symmetry should likewise encourage the development of doctrines that grant parallel opportunities and protections to rival “red” and “blue” states dominated by either the Democratic or Republican Party.

This chapter looks at the ways in which the police is defined and confined by internal standards of constitutional acceptability. Before we get to the matter of individual rights, we must ask the question of whether and to what extent the police power is being used in ways that are reasonable, not arbitrary, and not the product of animus or unacceptable influence. These internal structural considerations have been used to limit the scope of the power and, more to the point of this chapter, they have the potential of being used in a way that reconciles broad governmental power with the protection of citizen interests and liberty.

This chapter begins a new part, this focusing on structural considerations in the scope and exercise of the police power. Some of the critical issues involving the power involve who gets to exercise it, and upon what conditions. The separation of powers among departments of government is relevant here, and there have been concerns in courts when the state legislatures delegate the exercise of this power to governors and administrators. We discuss some of these controversies in this chapter. Moreover, we discuss the ways in which the police power has long been used by local governments to implement health, safety, and welfare objectives in their community. The relationship between state and local governments, often labelled “localism,” in order to capture the constitutional dimensions of this dynamic relationship, is a focal point of this chapter.

This chapter addresses the widespread perception that rural politics are characterized by irrational antigovernment sentiment, right-wing conspiracy theories, and other ideological drivers. This perception includes the stereotype that rural residents are generally conservatives who “vote against their interests” when liberal policies might appear to help their communities more. The chapter argues that rural views on government are just as often rational reactions to the unique impacts of law, regulation, and government in rural communities. Drawing on legitimacy theory, the chapter argues that rural grievances toward the federal regulatory state specifically reflect predictable concerns relating to procedural justice, substantive outcomes, and a sense that agencies prioritize concerns other than rural residents’ concerns. Although rural views vary, and intersect with other identities such as race, diverse rural populations exhibit common concerns about agencies posing threats to livelihoods and failing to offer protection from environmental threats. The chapter argues that overlap between subjective rural sentiments and objective structural features of the regulatory state lend credence to rural views as not irrational. Barriers to public participation in agency rulemaking, regulatory cost–benefit analysis, and implementation of the Endangered Species Act all illustrate instances of the regulatory state often failing to take meaningful rural concerns seriously.