LAW, EXPERTISE AND RULEMAKING LEGITIMACY: REVISITING THE REFORMATION.

• Author: Shapiro, Sidney A.

1. INTRODUCTION 662 II. POLITICS AND ACCOUNTABILITY 665 A. Political Pluralism to the Rescue 665 B. "Reg-Neg " as "Better " Political Pluralism 668 C. Irreducible Discretion 670 III. LAW AND ACCOUNTABILITY 671 A. Finding Regulatory Negotiation Objectionable 672 1. Illegal Rules 672 2. Deal Maker, Not Decision Maker 672 B. Using Law for Legitimacy 674 1. Chevron 675 2. State Farm 676 IV. EXPERTISE 677 V. CONCLUSION : RETHINKING LAW AND EXPERTISE 680 I. INTRODUCTION

   In the 1960s and 1970s, Congress passed nearly all of the health, safety, and environmental laws that govern us today. Not to be outdone in the reform department, the courts fashioned a slew of new administrative procedures resulting in a "reformation" of American administrative law as Richard Stewart's iconic article characterized these developments. (1) Stewart understood the procedures as creating a type of interest representation political pluralism that would hold agencies accountable for fulfilling their legislative missions to protect people and the environment. (2) But, at the same time, environmental and other public interest advocates were lawyers who used the law to contest the legality of agency action.

   Administrative law scholarship continues to debate the relative roles of political and legal accountability in legitimizing public administration. (3) Like Scarlett Johansson and Bill Murray in Lost in Translation, however, administrative law finds itself in an alien culture when we expect administrative procedures to legitimize rulemaking by promoting political pluralism. Once the focus shifts to political process, public interest advocates become just another interest group seeking to use political power to serve their own political preferences. Although these "interests" concern such public goals as clean water, clean air, and the preservation of endangered species, these legislatively mandated goals become the personal preferences of a group's members and nothing more regarding what policy an agency should choose among its regulatory options.

   This understanding of public administration is misplaced. While agencies obviously operate in a political system and are influenced by it, the fact remains that the laws implemented by agencies are not neutral between protecting people and the environment, and not doing so. When public interest advocates sue an agency claiming that it has not met its statutory obligations, they are seeking to ensure the pursuit of the public interest as defined by an agency's legislative mandate. The same is true for regulated entities. While Congress has committed the country to protecting people and the environment in the ways indicated in a legislative mandate, the mandate has limitations that an agency cannot exceed. Holding the agency accountable by arguing it has exceeded those limitations likewise vindicates the public interest because it upholds the law establishing the agency's authority to act. In short, we have a political-legal system, not just a political system.

   The Article explains why it is worthwhile to untangle the threads of political and legal accountability that run through administrative law. My argument proceeds in five steps.

   Part II describes the political process narrative identified in Stewart's Reformation article and describes why this narrative considers political accountability as necessary to legitimize rulemaking. From this perspective, legal mandates leave an agency with discretionary and ultimate political choices about which rule to adopt. (4) Stewart characterized the procedural reforms adopted in the 1960s and 1970s as constraining that discretion by using a type of interest representation political pluralism. (5) Relatedly, proponents of regulatory negotiation argued in the late 1980s and early 1990s that it was a more efficient and effective means of achieving the political pluralism discussed by Stewart. (6) The viewpoint that the law largely does not constrain rulemaking has had a lasting and broad impact on administrative law scholarship, as this Part will explain.

   Part III considers how a legal narrative legitimizes rulemaking in light of Stewart's claim that rulemaking is a discretionary and ultimately political process. It begins with two articles written by Professor William (Bill) Funk that criticized regulatory negotiation as standing administrative law "on its head." (7) Because regulatory negotiation relies on a political deal to legitimize a rule, he argued, it ignores the reason why Congress has established an administrative agency in the first place, which is in the expectation it will use its policy experience and expertise to make reasoned choices. (8)

   I then expand on Professor Funk's analysis using a legal narrative captured by Frank Newman's christening of administrative law as "legal civics" many years ago. (9) In this narrative, judicial review verifies that an agency has chosen a policy option within its delegated authority that reflects its policy and technical expertise. Litigants serve the public interest by assisting the courts in determining whether an agency has done so. Moreover, although agencies operate in a political environment, including intervention by Presidents seeking to further their policy preferences, agencies must independently defend their policy choice according to the evidence and policy arguments before it regardless of how political influence motivated their actions.

   This narrative like the political process narrative, is about constraint. The role of administrative law is to ensure that agencies do not exceed their legislative mandate and to protect agency decision making from political influence that might subvert that mandate. But, as Part IV develops, this narrative is incomplete. When Professor Funk objected to regulatory negotiation, he did so on the basis that it displaces law and "expertise" in the choice of a regulatory policy. (10) An ongoing project of the author, separately and with others, has been to establish that the "legal civics" narrative suffers from the failure to understand the nature and context of expert public administration." More specifically, we have overlooked the robust contribution that expertise can make towards delivering the public interest, as defined in an agency's legislative mandate. Once we no longer treat what goes on inside of an agency as a "black box," (12) it is apparent expertise does the heavy lifting when it comes to making it possible for an agency to implement its statutory mission.

   Part IV considers the implications of the failure to fully acknowledge the essentiality of expertise to the regulatory enterprise. The recognition of this contribution is important for two reasons.

   Accounting for expertise gives us a more accurate picture of the degree to which, as is perceived by many, rulemaking at bottom is an inherently discretionary, political process. This perception underlies the interest of scholars to consider ways to bring more political accountability to this "political" process. But, before we take this step, which is challenged by its own accountability issues, we need to have a more accurate understanding of how expertise legitimizes agency action on the basis of reason-giving and policy evidence.

   In addition, once we recognize the essentiality of expertise to an agency's mission, we need to consider how administrative law and expertise interact with each other. Administrative law has the potential to support the contribution of expertise to good administration and it can constrain and limit it. We must therefore make administrative law more than the black box version of a search for constraining agency power. It needs to be about ensuring the capacity of public administration to act on behalf of regulatory beneficiaries. An agency's capacity includes both its legal authority to act and having the expertise it needs to do the job. If administrative law is to facilitate both of these objectives, legal doctrines must be based on an understanding of expertise.

   Yes, administrative law is "legal civics," but if administrative law is to legitimize administrative government, we need have a different conception of what we are doing. To be legitimate, an agency must do more than stay within its legal authority. It must also be enabled to deliver the goods of protecting people and the environment, just as Congress has required it to do.

2. POLITICS AND ACCOUNTABILITY

   Stewart's Reformation article attributes the concept of administrative law as political process to the fact that the law runs out when agencies engage in rulemaking. (13) Because of the generally ambiguous and vague nature of legislative mandates, Stewart characterized an agency's choice of a rule, although loosely bounded by law, as an inherently discretionary, political act. (14) In this narrative, the courts sought to legitimize the process through the participation of affected parties--a type of interest representation political pluralism. As noted, negotiated rulemaking drew on this concept and claimed, "We can do this better." (15) Although the use of regulatory negotiation has tailed off, the understanding that agencies are essentially unconstrained by law in rulemaking continues to be influential. This perception chimes with public choice analyses of agency decision making, supports the use of presidential administration, and it fuels arguments that the administrative state is illegitimate.

   1. Political Pluralism to the Rescue

      Up to the New Deal, administrative law had been focused on reconciling "competing claims of governmental authority and private autonomy by prohibiting official intrusions on private liberty or property unless authorized by legislative directives." (16) According to a "transmission belt thesis," "the agency [was] a mere transmission belt for implementing legislative directives in particular cases." (17) Since the "imposition of administratively determined sanctions on private...