Constraint vs. Efficacy in the Study of State Action
In their broadest strokes, my scholarly interests revolve around questions of regulatory design – inquiries into the institutional forms that law and regulation variously take, and should take. Dynamics of coordination have been particularly salient for me, underpinning a potential role for non-coercive mechanisms of state action I term “regulatory cues,” as well as cross-jurisdictional regulatory interactions I term “intersystemic governance.”
In exploring these patterns, my work has often intersected with issues traditionally studied in the fields of constitutional and administrative law. Questions of U.S. federalism, the nature of federal jurisdiction, and judicial review have variously reared their heads; the nature of the modern administrative state, meanwhile, is front and center.
My various analyses of regulatory cues, intersystemic governance, and the like have also seemed to diverge from the constitutional and administrative law literatures, however, in a way that has always struck me as significant, but was only recently driven home, in relevant comments and work of others.
My earliest sense of the relevant divergence came some years back, when I was working on my very first article, and read the opening paragraphs of Jody Freeman‘s The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 545-46 (2000). She states (with citations omitted):
Administrative law, a field motivated by the need to legitimize the exercise of governmental authority, must now reckon with private power, or risk irrelevance as a discipline. Since the New Deal explosion of government agencies, administrative law has been defined by the crisis of legitimacy and the problem of agency discretion. Agencies can claim, after all, only a dubious constitutional lineage–the Framers made no explicit provision for them, but instead divided power among the legislative and judicial branches and a unitary executive. The combination of executive, legislative, and adjudicative functions in administrative agencies appears to violate the separation of powers principles embodied in the Constitution. Worse yet, despite their considerable discretionary power to impact individual liberty and property rights, allocate benefits and burdens, and shape virtually every sector of the economy, agencies are not directly accountable to the electorate.
Unsurprisingly, administrative law scholarship has organized itself largely around the need to defend the administrative state against accusations of illegitimacy, principally by emphasizing mechanisms that render agencies indirectly accountable to the electorate, such as legislative and executive oversight and judicial review. Scholars have expended considerable energy in particular on structuring and disciplining the exercise of discretion in order to limit agencies’ freedom “to do as they please.” Only a handful of articles in the last sixty years, by contrast, have ventured beyond the traditional preoccupation with agencies and the project of constraint.
Freeman goes on to grapple with the question of the private role in public governance, the insight for which she is perhaps most famous. Beyond this discrete (if quite significant) point, though, I read the latter paragraphs to suggest an even deeper truth. As we have defined the discipline of administrative law (and constitutional law, I would venture to add), its underlying project – its basic motivation – is the constraint of government power (and perhaps executive power, most of all). It is, as Freeman’s opening paragraphs emphasize, an analysis in the negative, of how we limit the scope of state action.
If this is correct, then the substantive counterpoint to the traditional conception of administrative law that Freeman outlines in her opening paragraphs is not merely an acknowledgement of the private role in public governance, but rather (1) a descriptive project of analyzing and understanding the true nature of the modern administrative state, and (2) a normative project of evaluating (and perhaps even enhancing) the efficacy of state action.
The first piece is fairly straightforward. We need to devote more of our energies to understanding the functional nature of the modern administrative state. Beyond questions of legitimacy and accountability, an understanding of modern administration requires attention to questions of how present-day regulatory agencies actually operate. Absent attention to such questions, we can reasonably predict – if not already observe – a significant disconnect between scholarly analysis of the administrative state, and the realities of its day-to-day operation.
I am particularly interested, however, in the second question, of the efficacy of state action. Whatever value the descriptive project of understanding the modern administrative state may have, it is this normative project, of its efficacy, that strikes me as the most weighty counterpoint to the traditional emphasis of constitutional and administrative law on constraint. Without disputing the importance of our close attention to the constraint of state action, legal scholars’ distinct strengths in the study of institutions would arguably seem to warrant equal attention to studying and enhancing the efficacy of state action.
I think of my own work as broadly directed to this lacuna in our scholarly empahsis. But what has recently brought the issue of our relative inattention to the efficacy of state action to mind, have been a succession of recent references to questions of efficacy, in the work and comments of others:
(1) First, at a recent workshop, Deborah Pearlstein – previously Director of the Law and Security Program at Human Rights First, and now a colleague at Princeton’s Program in Law and Public Affairs – reviewed a soon-to-be-completed article, in which she draws on organization theory to evaluate White House demands for the consolidation of emergency decisionmaking power in the executive branch. Is such concentration, she asks, actually more efficacious than the relevant alternatives? And, in any case, what weight should constitutional analysis give to claims that effective decisionmaking requires (or does not require) such concentration?
(2) At a Temple University workshop on Ruling the World: Constitutionalism, International Law and Global Governance, organized by Jeff Dunoff and Joel Trachtman, meanwhile, comments by Joanne Scott (from what I would characterize as an administrative law vantage) and by Vicki Jackson (from a constitutional law perspective) again raised this question of efficacy. Constitutional law, Vicki emphasized, is not only about limiting power. It must attend to the efficacy of governance as well.
(3) Finally, in his “ticket” to the most recently held, annual Constitutional Law Schmooze, on executive power, David Golove echoed this point. We must, he suggested, “appreciate how law is an essential component in a larger system of political decision-making, a primary purpose of which is to enhance, not impede, the effectiveness of executive action . . .”
Of course, these represent only a handful of relevant data points. In conjunction with other indicators, however, they lead me to wonder whether we may stand at an important juncture, perhaps particularly in our approach to the discipline of administrative law, but in constitutional law as well. Implicitly, of course, the question of efficacy has always been on the table, as the rejoinder to demands for constraint. As suggested by Deb’s paper, thus, the asserted efficacy of unconstrained power is the exact argument made against constraint. Increasingly, however, the efficacy of state action may be emerging as a topic deserving the attention of legal scholars, not merely as a footnote to our study of constraint, but as a question in its own right.