Robust efforts to include the public in rulemaking are key to increasing democratic accountability.
Debates over regulatory policy in nation states and in international institutions frequently conflate two distinct justifications for public input. The first justification is the protection of individuals against state overreaching by giving them rights to due process. The second justification is to enhance the democratic accountability of policymaking that takes place outside the elected legislature and inside executive bodies.
Comparative administrative law is a fruitful perspective from which to understand these two justifications by observing how constitutional frameworks and legal systems interact to implement government policies. My recent book, Democracy and Executive Power: Policymaking Accountability in the United States, the United Kingdom, Germany, and France, examines these issues by studying the relationship between national constitutions and administrative policymaking procedures in four established democracies.
My comparative study of executive rulemaking stresses the importance of public participation, reason-giving, and transparency, as overseen by the judiciary. It is fruitful to contrast my own research with Giancinto della Cananea’s Due Process of Law Beyond the State, in which he argues for bringing international institutions into the analysis of administrative “due process.” Della Cananea focuses on international administrative bodies and applies the concept of due process broadly to include policy-based rulemaking wherever it occurs.
Executive rulemaking procedures are of central importance to the field of U.S. administrative law. Federal procedure requires public notice of proposed rules and an opportunity for public comment. In contrast, the lack of required notice-and-comment procedures in the other countries that I study is connected to their constitutional structures either as parliamentary democracies, such as the United Kingdom and Germany, or as systems with strong presidents vis-á-vis the legislature, such as France. Latin America provides further examples of the latter system that I discuss in a forthcoming co-authored article in the Arizona Law Review.
In contrast, international rulemaking bodies, governed by treaties and other agreements, seldom have “constitutions” in the strong sense. Della Cananea asks what due process means when such bodies make rules and how well their processes provide public legitimacy, in practice.
Central to Della Cananea’s work and to my own is the distinction between procedures that protect the rights of individuals in their dealings with the state and procedures that enhance the democratic legitimacy of the policy decisions made inside the executive. Are the procedures that protect the individual against state overreaching the appropriate ones for making policy choices that implement a statute’s ambiguous or open-ended language? My own view is that the due process moniker is inadequate to cover all of the interactions between public officials and citizens.
Due process is often framed in terms of the rights of individuals, who ought to be able to respond to government actions that interfere with their rights. As such, due process focuses on cases where the government intends to impose individualized costs.
Of course, general rules, such as standards for air pollution discharges or COVID-19 mask mandates on public transportation, can be viewed as violations of rights. But what about cases where the government repeals a protective order or lowers a standard that affects a large number of people, both positively and negatively? In both cases, there are positive and negative effects on rights.
But a second issue is the democratic legitimacy of the choice process, including consultations with both experts and ordinary citizens and efforts to explain the ultimate decision in clear and rational language based on the best information available. Public involvement in policymaking choices is not the same thing as a hearing where participants document their own individual harms under various scenarios.
Nevertheless, it is true that “due process” is a universal concept in discussions of the rule of law, so perhaps it is malleable enough to incorporate the concern for democratic legitimacy that has motivated my comparative analysis. One would, however, need to go beyond traditional ways of conceptualizing due process to include requirements such as broad public notice, open-ended invitations to comment, and public statements of reasons, following the terminology of the U.S. Administrative Procedure Act (APA).
Many scholars are skeptical of the claimed benefits of the U.S. rulemaking process. It takes too long; the comments tilt toward business interests; there is little or no outreach to disadvantaged or low-income communities; and the internet permits advocates to flood the agency with millions of comments, some generated by bots. Furthermore, others claim that notice-and-comment hearings do not matter because the agency has consulted ahead of time with a biased sample of interests. Many of these criticisms are valid and well-documented, but even the fiercest critics seldom recommend the outright repeal of the informal rulemaking process.
It is striking that, even as the Supreme Court in West Virginia v. EPA upset settled precedents that deal with congressional drafting conventions, it did not raise concerns about APA rulemaking procedures. Justice Elena Kagan’s dissent also rested on statutory interpretation, precedent, and appeals to science, not APA procedures. At least in that case, the process was taken for granted; it did not help to resolve the case.
It is, however, worth confronting the critiques head on. Some criticisms are simply misplaced. For example, the argument that many final rules are little different from proposed rules only implies that the agency has done a good job of anticipating comments. We cannot know what the agency would have proposed if able to dispense with notice and comment, and issue rules without required consultation, as often happens for national rules in the other country cases that I studied. In Europe, environmental policymaking is something of an exception, but even there, consultation and reason-giving are only well institutionalized for major infrastructure projects, not general policy choices.
Furthermore, the alternative of sending draft regulations—called statutory instruments in the United Kingdom—to the parliament for approval is not an effective oversight mechanism. In a parliamentary system, the majority in the lower house is allied politically with the cabinet and appoints the prime minister, so parliamentary review is ineffective unless it catches outright corruption and malfeasance.
If imported to the United States, congressional review would freeze rulemaking for all but the most anodyne texts—even if it could circumvent the holding in INS v. Chadha and its progeny that Congress alone cannot veto executive actions. The Congressional Review Act’s attempted workaround requires Congress to void a rule by passing a statute that is either signed by the president or passed over a veto.
A better approach is to reform the notice-and-comment process itself to include required outreach, intervenor funding, and experiments with mini-publics and deliberative polls to gauge informed public sentiment. The text of the final rule would remain the responsibility of the executive agency, but reforms could increase the democratic accountability of the process.
This essay is part of a six-part series entitled, Administrative Law in Comparative Perspective.