The most knowledgeable branch.

Author:Sunstein, Cass R.
Position:Symposium: The Bounds of Executive Discretion in the Regulatory State

In the modern era, the executive branch has extraordinary information-gathering advantages over the legislative and judicial branches. As a result, it will often know immeasurably more than they do, both on domestic issues and on foreign affairs. In general, it also has a strong system of internal checks and balances, reducing (though certainly not eliminating) the risk of factual error. Because the executive is the most knowledgeable branch, it often makes sense, within constitutional boundaries, to give it considerable discretion in both domestic and foreign affairs and to grant it considerable (though hardly unlimited) deference when it exercises that discretion. Both legislators and judges tend to be insufficiently aware of their epistemic disadvantages. The argument for restricting executive discretion depends on suspicion about the biases and motivations of the most knowledgeable branch and about its failure to give sufficient respect to liberty, and an associated fear of some form of "groupthink," usually in the form of group polarization. In some times and places that suspicion is extremely important, but it is hazardous to invoke it as a basis for confining the authority of those who have the most knowledge. These points are illustrated with close reference to the debate over the Department of Transportation's rear visibility rule, proposed in 2010 and finalized in 2014.

  1. THE THESIS II. WHO KNOWS MOST? A. Technocracy and the Priority of Facts B. Sources of Knowledge 1. Judges and Lawyers 2. Congress and Elections a. In General b. Reelection C. Deliberative Democracy in the Trenches? 1. How Things Actually Work 2. Regulation 3. An Important Qualification 4. Knowledge and Constraint 5. Some Brief Doctrinal Notes III. THE TALE OF REAR VISIBILITY: A CASE STUDY A. A Death and A Statute 1. Context 2. Text 3. What Congress Knew 4. Options B. Within the Executive Branch 1. In General 2. The Proposed Rule 3. Three Questions, Post-Proposal 4. The Final Rule C. Epistemic Advantages and General Lessons IV. Conclusion I. THE THESIS

    If policymakers are to resolve national problems, they must have access to a great deal of information, much of it highly technical. Of the three branches of the national government, the Executive is by far the most knowledgeable, not only in foreign affairs but also in the domestic domain. While this informational advantage could not easily have been anticipated by the founding generation, it continues to grow every year. In particular, the disparity between the knowledge of the executive branch and the knowledge of Congress is increasing. But judges face a similar informational deficit, and they do not know what they do not know. The grotesquely distorting prism of litigation often makes that deficit in knowledge less than fully visible to judges, who are hearing from mere translators in the form of lawyers. These lawyers may not even speak the real language of the underlying dispute, especially in regulatory cases, which often involve highly technical matters. What are the risks posed by mercury? What is the best way to reduce the threat of salmonella in meat and poultry products? Is it dangerous for passengers to use Kindles and iPads on airplanes?

    Within the executive branch, there are numerous specialists, many of whom have spent years or even decades engaged in concentrated work on particular subjects. On serious questions, such specialists bring their knowledge to bear. They work for political appointees, but they are not themselves political; they labor across administrations, sometimes for decades. (1) Those within the executive branch also have managerial responsibilities, which similarly entail possession of a great deal of information. They are aware of an immense set of priorities and duties, and, at least when things are working well, they tend to see how various substantive areas and questions relate to one another, and which deserves attention first.

    If officials do not proceed on one task, their inaction might, in the abstract, seem objectionable or even scandalous. But the action might not be a product of neglect or dereliction, but rather of scarce resources and a belief that other tasks deserve priority. The real question might involve timing, and those in the executive branch are in a unique position to see why (and how) timing is important. For example, an issue that appears to be neglected in one year might, in reality, be subject to at least a general plan and might receive careful attention two years later (and that could be according to plan). The executive branch might also know that one apparent policy priority is, on reflection, not nearly as pressing. Pursuing it might even pose a serious risk of unintended adverse consequences. Moreover, the problem that concerns many people (including legislators and litigants) might not even be serious, in the sense that it does not pose significant risks in the real world. Their concern might be a product of well-organized private groups, anecdotes, or generalized suspicion of some entity ("polluters" or "the banks"). Government faces a constant bandwidth problem, and observers--focused on just one of a large number of issues--suffer from "bandwidth neglect."

    The legislative branch also suffers from a bandwidth problem, and it is at least as equally acute. It also leads in distinctive directions--not toward management of multiple problems, usually overseen by genuine specialists immersed in the details, but far more often toward an insistent focus on narrow political concerns and the concerns of the day, often voiced by powerful interests or raised by a newspaper story. Within the legislative branch, the sheer press of time and electoral incentives often lead to dependence on simple heuristics, interest groups, headlines and cable news, and "talking points," which, in turn, ensures serious informational deficits. When members of Congress see incompetence or wrongdoing or call for someone's resignation, they might be right, but they might also have no idea what they are talking about.

    Judges face their own challenges. Though they typically have far more time, and hence less intense bandwidth issues, their information is partial and fragmentary, often a kind of cartoon. It is a product of the adversary process, run by lawyers, which can lead to distorted and wildly inadequate perspectives. (2) Judges cannot possibly have an adequate sense of the full range of issues with which executive officials must deal. Judges will sometimes be presented with, and convinced by, a narrative of executive indifference or overreaching, even if that narrative has little or no resemblance to reality. (3)

    On purely epistemic grounds, there is special reason for deference to the decisions of the most knowledgeable branch. Here, as elsewhere, general propositions do not decide concrete cases. It is true that the motives and competence of executive branch officials cannot always be trusted. The executive branch might itself be influenced by interest groups. Its own perspective might be skewed. It might fail to respect liberty. Group polarization might lead executive branch officials in unfortunate directions. (4) There is a particular problem of "happy talk," by which such officials, attempting to please or calm the President in particular, present a rosy view of situations in away that produces erroneous decisions. (5)

    It is also true that not every executive branch, or every topic in every executive branch, is the same. Some issues may involve such partisan contestation, or such strong antecedent convictions, that the informational advantages of the executive branch are much less important. If high-level executive branch officials think that a dramatic increase in the minimum wage is an excellent idea, even though the evidence suggests otherwise, the executive branch will support a proposal that lacks epistemic foundations. It is true, finally, that courts and Congress can provide valuable checks; in the case of the former, consistency with law, and in the case of the latter, indispensable authorization and limitations.

    Nonetheless, the informational advantages of the executive branch are an essential part of thinking about the contemporary system of checks and balances. These advantages were not clearly visible until relatively recently, and they bear directly on a wide range of questions involving the allocation of authority. In particular, they raise questions not only about the helpfulness of certain forms of congressional scrutiny of executive action (as through politically motivated hearings), but also about the idea--newly receiving attention within federal courts--that courts should not defer to agency interpretations of ambiguities in their own regulations. (6)


    1. Technocracy and the Priority of Facts

      Suppose that the question for some branch of government, acting in accordance with its distinctive role, is to decide the appropriate level of national ambient air quality standards for ozone; the right approach to mercury; whether to require graphic warnings on cigarette packages; how to respond to the problem of distracted driving; whether to ban ozone-depleting chemicals from asthma medicines; or whether to require trucks to be equipped with improved breaks. In each of these cases, government needs to assemble a great deal of information about the likely consequences. It might be, for example, that at low levels, ozone and mercury present serious public health risks, or, instead, de minimis ones. Graphic warnings may or may not turn out to be highly effective. Bans on ozone-depleting chemicals from asthma medicines may or may not have significant adverse effects on asthma patients.

      In all of these cases, people might differ with respect to values, and those differences might well affect their ultimate judgments. Some people do have strong, immediate, value-driven reactions to words like "ozone" and...

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