Friday, March 31, 2023
Executive Capture of Agency Decision Making
Allison Whelan (Georgia State University), Executive Capture of Agency Decision Making, 75 Vand. L. R. 6 (2022):
The scientific credibility of the administrative state is under siege in the United States, risking distressful public health harms and even deaths. This Article addresses one component of this attack--executive interference in agency scientific decisionmaking. It offers a new conceptual framework, "internal agency capture," and policy prescription for addressing excessive overreach and interference by the executive branch in the scientific decisionmaking of federal agencies. The Article's critiques and analysis toggle a timeline that reflects recent history and that urges forward-thinking approaches to respond to executive overreach in agency scientific decisionmaking. Taking the Trump Administration and other presidencies as test cases, it scrutinizes who should control, or alternatively advance or limit, an agency's scientific decisions, which are distinct from its policymaking decisions. With its "internal agency capture" framework and the COVID-19 pandemic as its backdrop, the Article illustrates the phenomenon of excessive executive overreach at work in the scientific decisionmaking of the U.S. Food and Drug Administration ("FDA"), glaringly reflected in the Agency's decisions on reproductive medicines and protocols to respond to the pandemic. This Article demonstrates that covert internal capture can mislead the public, pose serious risks to individual and public health, undermine the arm's-length neutrality and objectivity of agencies, and result in lasting consequences for agency legitimacy and reputation.
The Article considers existing methods to oversee and provide a check on internal agency capture and describes the limitations of these approaches. It offers a novel solution, the creation of a new and independent Scientific Integrity Office, which would address many of these limitations and promote the important values of accountability, credibility, and public trust.