Bending the Rules : Flexible Regulation and Constraints on Agency Discretion
This paper responds to calls for regulatory reform that propose increasing agency discretion as a means of permitting officials to use common sense when implementing regulatory programs. The article begins by discussing the need for ex-ante constraints on agency decisionmaking in order to ensure that regulation is predictable and democratically accountable. It first looks at the role of legally binding rules to guide agency discretion, and the ability of regulators to deviate from such rules to avoid perverse outcomes. It describes the tension between efficacy and officials' discretion to deviate from politically prescribed rules and suggests that agencies already have significant leeway to deviate. The article next discusses the role that institutional norms play in discouraging agencies from using this leeway to regulate reasonably. My analysis of how agencies use decisionmaking norms identifies some unique problems such use imposes for permitting constrained flexibility. In particular, I conclude that ex-ante specification of decisionmaking norms are not a feasible means for ensuring that such norms do not lead to inflexible or unreasonable decisionmaking.The article next addresses the need for ex-post review to ensure against several pathologies of agency decisionmaking. It evaluates the potential for bottom-line outcome review of agency decisions, as opposed to review of the process by which agencies reach decisions, to provide workable constraints on agency discretion without forfeiting agency flexibility. This evaluation suggests that such bottom-line review plays a role in preventing agency decisions that are at the extremes of what the polity will accept and that such review is best implemented by the political branches. Finally the article considers the potential for ex-post review of agency reasoning to provide constraints on agency decisionmaking without unduly hampering agency discretion to react to the particulars of the situation facing it. In this final section, I conclude that such ex-post review can channel agency discretion without inflexibly binding the agency by forcing the agency to restructure its decisionmaking process to take into account the concerns of potential reviewing bodies. I further conclude that the courts are better suited to such reasons-review than are the political branches
Year of publication: |
2019
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Authors: | Seidenfeld, Mark |
Publisher: |
[S.l.] : SSRN |
Saved in:
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