A constitutional theory of imperative participation: delegated rulemaking, citizens' participation and the separation of powers doctrine.

Author:Steiger, Dominik
Position::Abstract into V. Delegated Rulemaking: The Theory's Litmus Test B. The Executive: Delegated Rulemaking 1. Bound and Democratic: The Character of Agencies and Rulemaking, p. 1-35
 
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ABSTRACT

There is a need for a constitutional theory of imperative participation, as no comprehensive theory of participation exists to date and people everywhere in the world are asking for more influence in the exercise of public authority. The United States, as the oldest still-functioning democracy, with its well-developed participatory mechanisms, is the natural place to turn in order to find such a theory. Still, the United States Constitution only tacitly addresses participation, aside from the provisions governing the election of Congress and the President. However, participation can be conceptualized through the separation of powers doctrine. The latter can be understood not only as a system of checks and balances, but as an organizational principle balancing democracy (i.e., collective self-determination) and rule of law (i.e., individual self-determination). The United States Constitution's implicit rules on participation will be made explicit in this article in order to answer the two most important questions about any public participation in any given case. Firstly, who may participate in the exercise of public authority? Secondly, what legal effect does the participation possess? In this analysis, participation in the executive's delegated rulemaking procedures--which touches all three branches of government--will serve as the theory's litmus test.

  1. Introduction II. Participation A. Participation's Legal Effect: Imperative Participation B. Participation's Actors: From the People to One Individual. C. Participation's Functions: Individual Rights, Efficiency, and Democracy D. Summarizing Imperative Participation: Citizens Partaking in All State Affairs III. Separation of Powers IV. Conceptualizing Participation via the Separation of Powers Doctrine: A Constitutional Theory of Imperative Participation V. Delegated Rulemaking: The Theory's Litmus Test A. The Legislature: Democratic Delegation of Powers 1. Democratic Control: Standards of Rulemaking and Oversight Mechanisms 2. Imperative Participation in the Delegation Process B. The Executive: Delegated Rulemaking 1. Bound and Democratic: The Character of Agencies and Rulemaking 2. Imperative Participation in Rulemaking 3. Delegated Rulemaking and Participation: The Executive and Collective Self-Determination C. The Judiciary: Adjudicating Rulemaking and the Rule of Law 1. Separation of Powers and Judicial Review 2. Judicial Remedy 3. Participation on the Judicial Level: Legal Standing 4. Conclusion: Balancing Judicial Review and Standing VI. The Power of the Constitutional Theory of Imperative Participation I. Introduction

    Participation by the people is a powerful tool which influences the exercise of public authority within all branches of government and may enhance the legitimacy of public authority--but only if it is done right. Still, nearly fifty years after the beginning of the participation debate, (1) no overarching constitutional theory of participation exists which encompasses all three branches of government and demonstrates what is meant by "participation done right." This lacuna will be filled by this article, which develops a constitutional theory of imperative participation.

    There is a need for such a theory, as people everywhere in the world are asking for more influence in the exercise of public authority. (2) The United States, as the oldest still-functioning democracy, with its well-developed participatory mechanisms, (3) is the natural place to turn in order to find such a theory. Like all constitutions--except the South African one, which explicitly refers to the principle of responsiveness (4)--the United States Constitution only tacitly addresses participation, aside from the provisions governing the election of Congress and the President. (5) Still, participation is conceptualized through the United States Constitution's separation of powers doctrine. (6) The latter can be understood not only as a system of checks and balances, but as the organizational principle balancing democracy (i.e., collective self-determination) and rule of law (i.e., individual self-determination). (7)

    The implicit rules on participation will be made explicit in this article in order to answer the two most important questions about any public participation in any given case. Firstly, who may participate in the exercise of public authority? Secondly, which legal effect does the participation possess? In this analysis, participation in the executive's delegated rulemaking procedures--which touches all three branches of government--will serve as the theory's litmus test.

    This article proceeds as follows: First, in an inductive overview of participation, a constitutional understanding of imperative participation will be developed. It will be shown that certain structures exist with regard to who shall participate (the people, the affected public, or one individual) and which powers flow from that participation (decision-making, commenting, or procedure initiating). These structures are connected to the three functions of participation, i.e., the democratic, rule of law and efficiency functions. (8) Second, an understanding of the separation of powers doctrine will be developed alongside the functions of participation. (9) The congruence of the functions of participation and of the separation of powers doctrine allows for the deduction of a constitutional theory of imperative participation. (10) Finally, the theory will be put to the test by applying it to delegated rulemaking. (11)

  2. Participation

    Much trust in the governing class has been lost in democratic states in recent times and many citizens are turning their backs on their states in dismay. (12) There has been extensive commentary on this development, (13) and various terms have been coined to describe this process of withdrawal from the public sphere due to the powerlessness of the individual vis-a-vis the collective, or rather vis a-vis a few individuals. (14) "[P]ost-democracy" may be the most known among these terms. (15) This powerlessness is not only perceived, but truly exists, as recent empirical research has shown that "the preferences of economic elites ... have far more independent impact upon policy change than the preferences of average citizens do." (16)

    It has been claimed that participation is the path to increase the citizens' impact on the exercise of state authority and to engage citizens anew with their states, as well as win back constituents to the political systems and make them truly democratic. (17) Many have pondered on these theories, (18) and while participation certainly is not the magic bullet that will carry the (democratic) day, it is of considerable importance. (19) Although much thought has been invested in direct democracy and in participation in administrative and judicial proceedings, (20) surprisingly no (theoretical) legal thought has been invested in analyzing participation comprehensively in all three branches of government. As citizens demand more voice and question the democratic legitimacy of public authority, (21) it is becoming an urgent and practical need to think about new and better ways for citizen involvement in the exercise of state power. Following an inductive approach, the already existing participation opportunities need to be analyzed, as they have never been examined in a holistic manner.

    Before starting to find a pattern of participation in all three branches, participation needs to be defined. Many definitions of participation are sociological, (22) political, (23) or rights-based. (24) As a constitutional theory will be developed here, the definition of imperative participation will ultimately be much narrower. The United States Constitution's main focus lies on enabling and limiting the exercise of public authority. (25) Participation will thus be understood as citizens partaking in the exercise of public authority where the organ addressed is legally obliged to react to the citizens' action and must do so via a legal procedure. Participation comes in different forms: it has different legal effects, (26) different actors are involved, (27) and different functions are being fulfilled. (28)

    1. Participation's Legal Effect: Imperative Participation

      Participation, as it is understood in this article, possesses a legal effect that is imperative on the State. (29) It will therefore be referred to as "imperative participation." The imperative effect of citizens' participation can differ: direct democracy allows for legislating directly, while voting leads to newly constituted organs. (30) Participation in rulemaking, and other acts of state, forces the State to react to and consider the participants' submission (though not necessarily to follow it). (31) Participation in judicial matters forces the State to activate the judicial process and to deliver a judgment (though not to decide in favor of the plaintiff). (32)

      In contrast, important democratic rights and forms of action, such as freedom of speech or assembly, do not form part of this definition of participation. (33) As important as the fundamental rights to free speech and assembly are for the democratic state, (34) they do not force the State to listen. They are the soil in which participation is rooted and which participation needs to live and prosper--and are thus especially protected--but they are not forms of imperative participation. (35)

    2. Participation's Actors: From the People to One Individual

      The actors of participation differ. The people as a whole act in instances of representative and direct democracy. (36) In contrast, in the case of an administrative decision that, in principle, affects only one person, e.g., any order such as a building permit or a police order, only certain individuals participate as petitioners. The same is true for the plaintiffs in judicial proceedings. (37) In instances of public planning, more people may participate, such as the...

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