Sunday, April 5, 2009
Professor Evan Criddle (Syracuse) just posted on ssrn his most recent article in a pair on the fiduciary nature of the administrative state, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, also forthcoming in the Texas Law Review. This is smart, provocative, and timely; it's also an interesting and important challenge to the unitary executive theory. I highly recommend it.
Criddle's core thesis is that agencies ought to act like fiduciaries. The fiduciary model of popular representation goes back at least to Cicero--and was "deeply influential among the American political elite during the founding period--but Criddle argues that it's especially applicable to the contemporary administrative state because of agencies' relationships to Congress and to us:
When Congress entrusts administrative authority to administrative agencies, it tasks federal regulators with serving the interests of their designated statutory beneficiaries. Agencies necessarily exercise discretion in rulemaking, because Congress lacks the time and resources to explore all of the potential ramifications of its general delegations. The entrustment of discretionary lawmaking power to administrative agencies therefore engenders a relationship in which the public depends upon federal regulators to employ their discretionary powers in the public interest and stands in a position of acute vulnerability to the abuse of administrative power. Moreover, as in the legislative process, most voters do not monitor agency activities closely and lack coherent, informed preferences concerning administrative lawmaking. Just as constituents rely on their legislative representatives to educate them about lawmaking initiatives and act in their interest, the electorate likewise relies on administrative agencies to bring their expertise to bear in studying regulatory problems, to educate the public on the stakes of regulation, and ultimately to employ their rulemaking powers fairly and reasonably in furtherance of the general public welfare.
Criddle identifies six principles for a fiduciary agency--purposefulness, integrity, solicitude, fairness, reasonableness, and transparency--that distinguish his model from the "majoritarian proxy model of popular representation":
As long as a federal regulation enjoyed the suppose of a public majority, it would make little difference under the proxy model whether the regulation comported with Congress's purposes, whether it arbitrarily discriminated against rival classes of beneficiaries, or whether it reflected rational deliberation conducive to informed decision-making. In contrast, the fiduciary model insists that each of these principles is critical to achieve meaningful popular representation in the modern administrative state.
Criddle next offers three examples--designed to be illustrative, not exhaustive--of how Congress might move toward a fiduciary model:
(1) recalibrating the APA's exceptions for informal notice-and-comment rulemaking,(2) expanding judicial review of agency inaction in rulemaking, and (3) mandating disclosure of communications between agencies and the White House related to agency rulemaking.
Criddle is keenly aware of the piece's timeliness, what with President Obama's moves to increase transparency in the executive branch and more generally to increase participation in federal government. But he's also aware that Congress is unlikely to adopt his six principles anytime soon. He thus targets his argument at the White House and the agencies and offers concrete policies that they can adopt unilaterally to effect a fiduciary administration.
Whether this happens or not, Criddle's ideas about agencies' relationships to Congress and to We the People are quite appealing from the standpoints of open government, accountability, responsiveness, deliberation, and, well, democracy. They also provide a thoughtful balance to literature on the unitary executive theory. I highly recommend this.