Political Transitions and Agency Rulemaking

According to The New York Times, Attorney General Michael Mukasey has issued new guidelines that allow FBI agents to use intrusive investigative techniques, even if there is no clear reason for suspecting an individual or group of wrongdoing. Under the new rules, agents may engage in lengthy physical surveillance, covertly infiltrate lawful groups (much in the way that the Maryland state police were recently chastised for doing, see this post), and conduct pretext interviews where agents lie about their identities while questioning a subject’s associates and friends based merely on a generalized “threat.” The new rules permit the FBI to use these techniques on people “identified in part by their race or religion and without requiring even minimal evidence of criminal activity.” AG Mukasey promises that these investigations will not violate the Constitution. This “trust us” approach will no doubt provoke concern about further erosions of civil liberties, especially in light of the FBI’s long history of abusing its power to spy on civil rights groups over the ages.

These new rules will no doubt be a part of a flurry of regulatory activity in the final months of the Bush Presidency. Anne Joseph O’Connell has written a terrific article entitled Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State in the Virginia Law Review that highlights the uptick in agency policymaking in the period just before and after Presidential transitions. In a study that is a first of its kind, O’Connell surveyed a database of agency rulemaking from 1983 to 2003 and found that agency rulemaking is not as ossified as has been previously believed, particularly during political transitions. As the end of the Bush Presidency nears and a new Presidential administration approaches, we will likely see more rules like the ones recently adopted by AG Mukasey.

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