Watts on Seifter on States as Interest Groups in Administrative Law (AdLaw Bridge Series)

by Chris Walker — Thursday, Sept. 25, 2014@chris_j_walker
My guess is that nearly all law professors are familiar with Jotwell—The Journal of Things We Like (Lots), which is hosted online by the University of Miami Law School under the direction of Michael Froomkin.  But I’m also pretty confident that this resource is underutilized—and for the most part unknown—outside of the legal academy.  I hope to change that, at least with respect to Jotwell’s Administrative Law Section and its usefulness in bridging the gap between theory and practice in the regulatory state.
Each month Jotwell’s Administrative Law Section publishes a short review of a current piece of scholarship in the field. These reviews situate the scholarship within the broader literature—and oftentimes also within the realities of administrative-law practice—and then focus mainly on the things the reviewer likes (lots) about the piece. I’ll aim to highlight the review each month on this blog. (Disclosure: I’m a contributing editor at Jotwell, with my latest review featured last month.)
Consider September’s review by Kathryn Watts of Miriam Seifter‘s terrific article States as Interest Groups in the Administrative Process, which just came out in the Virginia Law Review. Before turning to the review, here’s the abstract of the article:
A rising tide in federalism scholarship and political discourse accords unmitigated praise to the notion of partnership between states and federal agencies. This Article reveals a more complicated picture. It begins by analyzing the penetrating but usually invisible role of “state interest groups”—lobbying associations of state officials—in shaping federal regulation. These groups have become the core vehicle for state involvement in federal administration, but surprisingly, their pervasive and critical role is rarely noted in the legal literature.
The Article shows that the pathologies of state interest groups reflect broader, latent tensions within the emerging project of administrative federalism. To develop this claim, the Article disaggregates a trio of benefits thought to flow from state involvement in federal administration—protecting state power, enhancing agency expertise, and maintaining a democratically accountable process—and shows that these benefits are unlikely to coincide. Instead, mechanisms designed to pursue state power as an end in itself thrive at the expense of expertise and accountability. The project of affording states a voice in the federal regulatory process must therefore begin to take account of tradeoffs among key goals, not just benefits. The Article closes by sketching best practices to help agencies, courts, and states balance the competing goals of administrative federalism.
And here is a taste from Professor Watts’ review, which can be read in full here:
The complicated and decidedly not rosy picture of state interest groups that Professor Seifter paints in her article invites the question of what should be done to recalibrate state interest groups so that in the future state power is not protected at the expense of agency expertise and democratic accountability. In her article, Professor Seifter has time to only briefly address this important question. However, at the end of her article, Professor Seifter does begin to sketch out a very preliminary suite of best practices that might guide relevant actors, including federal actors and OMB, state interest groups and courts. For example, to promote greater accountability and transparency, Professor Seifter tentatively suggests that state interest groups—which have claimed immunity from state and federal sunshine laws—might consider voluntarily disseminating their membership and funding information as well as their internal votes. In addition, she briefly argues that courts should take care not to apply judicial deference doctrines in a way that would incentivize agencies to adhere to a consultative process that undermines two central values in administrative decisionmaking—expertise and accountability.

Like Professor Watts, I too look forward to Professor Seifter’s follow-up work in this area on best practices federal agencies can adopt when consulting with the states (and thus state interest groups) in their regulatory efforts. Hopefully we’ll even learn more about those best practices on this blog, as Professor Seifter plans to contribute here.

I am also curious about the extent to which federal agencies are already adept at navigating the states-as-interest-groups landscape to take advantage of the tremendous value of federal-state partnerships (in protecting state autonomy, enhancing agency expertise, and maintaining democratic accountability) while minimizing the costs identified in the article. No doubt those skills vary by agency, with best practices to be gleaned from across the federal administrative state. Sounds like a great project for the Administrative Conference of the United States (ACUS) .

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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