Administrative Agencies in the United States

Administrative Law and Democracy

Administrative agencies make individual decisions affecting citizens’ lives and they set general policies affecting an entire economy, but they are usually headed by officials who are neither elected nor otherwise directly accountable to the public. A fundamental challenge in both positive and prescriptive scholarship has been to analyze administrative decision-making from the standpoint of democracy. This challenge is particularly pronounced in constitutional systems such as the United States’ in which political party control can be divided between the legislature and the executive branch, each seeking to influence administrative outcomes. Much work in administrative law aims either to justify administrative procedures in democratic terms or to analyze empirically how those procedures impact on democratic values.

A common way of reconciling decision-making by unelected administrators with democracy has been to consider administrators as mere implementers of decisions made through a democratic legislative process. This is sometimes called the ‘transmission belt’ model of administrative law (Stewart 1975). Administrators, under this model, are viewed as the necessary instruments used to implement the will of the democratically controlled legislature. Legislation serves as the ‘transmission belt’ to the agency, both transferring democratic legitimacy to administrative actions and constraining those actions so that they advance legislative goals.

As a positive matter, the ‘transmission belt’ model underestimates the amount of discretion held by administrative officials. Laws require interpretation, and in the process of interpretation administrators acquire discretion (Hawkins 1992). Legislation often does not speak directly to the varied and at times unanticipated circumstances that confront administrators. Indeed, legislators may sometimes lack incentives for making laws clear or precise in the first place, as it can be to their electoral advantage to appear to have addressed vexing social problems, only in fact to have passed key tradeoffs along to unelected administrators. For some administrative tasks, particularly monitoring and enforcing laws, legislators give administrators explicit discretion over how to allocate their agencies’ resources to pursue broad legislative goals.

Scholars disagree about how much discretion legislators ought to allow administrative agencies to exercise. Administrative minimalists emphasize the electoral accountability of the legislature, and conclude that any legislative delegations to agencies should be narrowly constructed (Lowi 1979). The expansionist view emphasizes most administrators’ indirect accountability to an elected executive and contends that legislatures themselves are not perfectly representative, especially when key decisions are delegated internally to committees and legislative staff (Mashaw 1985). While disagreement may persist over the amount of authority to be delegated to agencies, in practice administrative agencies will continue to possess considerable discretion, even under relatively restrictive delegations.

The study of administrative procedure takes it as given that agencies possess discretion. The aim is to identify procedures that encourage administrators to exercise their discretion in reasonable and responsive ways. A leading approach has been to design administrative procedures to promote interest group pluralism (Stewart 1975). Transparent procedures and opportunities for public input give organized interests an ability to represent themselves, and their constituencies, in the administrative process. Such procedures include those providing for open meetings, access to government information, hearings and opportunities for public comment, and the ability to petition the government.

Open procedures are not only defended on the grounds of procedural fairness, but also because they force administrators to confront a wide array of interests before making decisions, thus broadening the political basis for administrative policy. These procedures may also protect against regulatory capture, a situation which occurs when an industry comes to control an agency in such a way as to yield private benefits to the industry (Stigler 1971).

A more recent analytic approach called ‘positive political economy’ seeks to explain administrative procedures as efforts by elected officials to control agency outcomes (McCubbins et al. 1987). Administrative law, according to this approach, addresses the principal–agent problem confronting elected officials when they create agencies or delegate power to administrators. The problem is that administrators face incentives to implement statutes in ways not intended by the coalition that enacted the legislation.

It is difficult for legislators continually to monitor agencies and in any case the original legislators will not always remain in power. Analysts argue that elected officials create administrative procedures with the goal of entrenching the outcomes desired by the original coalition. Such procedures can be imposed by the legislative as well as executive branch, and they include formal procedures for legislative review and veto, general requirements for transparency and interest group access, and requirements that agencies conduct economic analysis before reaching decisions.

A recent area of empirical debate has emerged in the United States over which branch of government exerts most control over administrative agencies. The resulting evidence has so far been mixed, as might be expected, since most agencies operate in a complicated political environment in which they are subject to multiple institutional constraints. Indeed, the overall complexity of administrative politics and law presents a major challenge for social scientists seeking to identify the effects of specific kinds of procedures under varied conditions. The recent positive political economy approach advances a more nuanced analytical account of democratic accountability than the simple ‘transmission belt’ model of administrative law, but the ongoing challenge will be to identify with still greater precision which kinds of procedures, and combinations of procedures, advance the aims of democratic accountability as well as other important social values. (1)

Expatriation Administrative Agencies

The provisions relating to expatriation are administered by the Immigration and Naturalization Service (for persons within the U.S.) and by the Department of State (for persons abroad or persons within the U.S. who seek passports). All administrative decisions by either the Immigration and Naturalization Service or the Department of State are subject to review by appropriate federal courts.” (2)

Resources

Notes and References

1. C. Coglianese, Administrative Law, International Encyclopedia
2. Information about Expatriation Administrative Agencies in the Encarta Online Encyclopedia

See Also

• Civil Law
• Democracy
• Dispute Resolution
• Environment Regulation
• Governments
• Judicial Review
• Legitimacy
• Occupational Health
• Regulation
• Public Administration
• Administration

Further Reading

• Brickman R, Jasanoff S, Ilgen T 1985 Controlling Chemicals: The Politics of Regulation in Europe and the United States. Cornell University Press, Ithaca, NY
• Coglianese C 1996 Litigating within relationships: Disputes and disturbance in the regulatory process. Law and Society Review 30: 735–65
• Coglianese C 1997 Assessing consensus: The promise and performance of negotiated rulemaking. Duke Law Journal 46: 1255–349
• Edley C F Jr 1990 Administrative Law: Rethinking Judicial Control of Bureaucracy. Yale University Press, New Haven, CT
• Harrington C 1988 Regulatory reform: Creating gaps and making markets. Law and Policy 10: 293
• Harter P J 1982 Negotiating regulations: A cure for malaise. Georgetown Law Journal 71: 1–118
• Hawkins K (ed.) 1992 The Uses of Discretion. Oxford University Press, Oxford, UK
• Jordan W S 2000 Ossification revisited: Does arbitrary and capricious review significantly interfere with agency ability to achieve regulatory goals through informal rulemaking?Northwestern University Law Review 94: 393–450
• Kagan R A 1991 Adversarial legalism and American government. Journal of Policy Analysis and Management 10: 369–406
• Lowi T J 1979 The End of Liberalism: The Second Republic of the United States. W. W. Norton, New York
• Mashaw J L 1985 Prodelegation: Why administrators should make political decisions. Journal of Law, Econ., and Organization 1: 81
• Mashaw J L, Harfst D L 1990 The Struggle for Auto Safety. Harvard University Press, Cambridge, MA
• McCubbins M, Noll R, Weingast B 1987 Administrative procedures as instruments of political control. Journal of Law, Econ., and Organization 3: 243
• McGarity T O 1992 Some thoughts on ‘deossifying’ the rulemaking process. Duke Law Journal 41: 1385–462
• Revesz R L 1997 Environmental regulation, ideology, and the D.C. Circuit. Virginia Law Review 83: 1717–72
• Schuck P H, Elliott E D 1990 To the Chevron station: An empirical study of federal administrative law. Duke Law Journal 1990: 984–1077
• Sellers J M 1995 Litigation as a local political resource: Courts in controversies over land use in France, Germany, and the United States. Law and Society Review 29: 475
• Shapiro M 1988 Who Guards the Guardians? Judicial Control of Administration. University of Georgia Press, Athens, GA
• Stewart R B 1975 The reformation of American administrative law. Harvard Law Review 88: 1667–813
• Stigler G J 1971 The theory of economic regulation. Bell Journal of Econ. and Manag. Sci. 2: 3
• Sunstein C R 1990 After the Rights Revolution: Reconceiving the Regulatory State. Harvard University Press, Cambridge, MA

In this Section

Expatriation, Expatriation Court Decisions, Citizenship for Married Women and Minors and Expatriation Administrative Agencies.

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