The Procedure Fetish

Nicholas Bagley

That’s the title of a new article of mine, slated for publication in the Michigan Law Review. It’s more polemical than most of my work, and it aims to disrupt some of the tidy stories that organize modern administrative law. Although I hope it finds an audience across the political spectrum, its primary target is my friends on the left, many of whom I fear are playing into the hands of those who want to strangle the administrative state.

The article opens with a puzzle. Knowing full well that onerous procedural rules will hamstring federal agencies, Republican policymakers have pushed “regulatory reform” bills like the Regulatory Accountability Act, the REINS Act, and the Separation of Powers Restoration Act. By tilting the scales against agency action, Republicans hope to end job-killing regulations and invigorate the free market. It’s a libertarian’s dream.

Democrats get it. They understand that the tangle of new procedural rules, if adopted, would bind the administrative state as effectively as Lilliputian ropes bound Gulliver. And they’ve generally (though not universally) opposed what they view as brazen anti-statist measures, which would frustrate their efforts to forestall environmental degradation, protect consumers, and empower workers.

So here’s the puzzle. If adding new administrative procedures will so obviously advance a libertarian agenda, might not relaxing existing administrative constraints advance liberal ones? What if Gulliver is already bound?

Continue reading