In Bending the Rules: Procedural Politicking in the Bureaucracy, Rachel Potter examines agency strategies for coping with presidential, congressional, and judicial review of their proposed rules.  Scholars have long thought that agencies substantively moderate their rules to anticipate concerns likely to be raised in the course of the political process and subsequent litigation.  Prof. Potter explores a second stratagem, agency manipulation of their rulemaking process to forestall action by the President, Congress, or the courts.  She labels such strategies “procedural politicking.”

The first of my two blogposts for this symposium took a rather narrow focus.  I discussed whether agencies’ drafting of abstracts and preambles included in notices of proposed rulemaking, might reflect “sincere” motives, namely the perceived need to provide a full record for judicial review, or “strategic” ones, discouraging presidential, congressional, and judicial engagement.  In this post, I explore a few normative implications of Prof. Potter’s procedural politicking theory.  I make two points.  First, agency deployment of some procedural politicking methods undermines the very foundation of the administrative state.  Second, some procedural politicking strategies may have questionable efficacy.

I. Procedural Politicking and the Challenge to Accountability

Prof. Potter herself seems largely unconcerned about independence procedural politicking and other trends accord agencies:

The bureaucracy now functions as an independent force in the American constitutional system.  The fact that unelected bureaucrats have political influence should not in and of itself be a cause for concern.  A professionalized civil service is a hallmark of a well-fashioned modern state.  As bureaucrats are often experts in their respective domains, they may use their powers to steer policy toward outcomes that make society better off.  P. 189.

In other words, bureaucratic expertise can produce “optimal” regulatory decisions.[1]  However, the agencies’ legitimacy is grounded not only on their expertise, but also their accountability to the political branches of government, either by way of presidential and congressional political oversight/control or judicial review.  See, e.g., Peter L. Strauss, From Expertise to Politics: The Transformation of American Rulemaking, 31 WAKE FOREST L. REV. 745, 764-66 (1996).

Agency regulatory choices almost inevitably reflect some combination of technical expertise and value judgments.  Administrative law scholars, such as Peter Strauss, have chronicled the growing realization that rulemaking involves not only expert judgment, but political choices as well.  See, id. at 753-55 with id. at 755-58, 760, 764, 773 (chronicling development during three periods, 1946-61, 1961-77, and 1977-93); Jud Mathews, Minimally Democratic Administrative Law, 68 ADMIN. L. REV. 605, 606-07, 615-16, 642 (2016).  Thus agencies must be accountable to elected representatives, namely the President and Congress.  See, Chevron v. Natural Resources Defense Council, 467 U.S. 837, 865 (1984); accord, Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 499 (2010); Sierra Club v. Costle, 657 F.2d 298, 408, 409-10 (D.C. Cir. 1981).[2]  And they must be subject to judicial review to ensure that they both act consistently with statutory mandates and engage in reasoned decision-making.  INS v. Chadha, 462 U.S. 919, 953 n.16 (1983); Yakus v. U.S. 321 U.S. 414, 425-26 (1944); Motor Vehicle Manufacturer’ Assn. v. State Farm, 463 U.S. 29, 42-44 (1983).

The long-theorized agency approach for coping with the prospect of presidential or congressional overturning or judicial invalidation of their rules, namely substantively crafting rules in ways that anticipate those institutions’ reactions, is largely consistent with the need for agency accountability.  Such an approach may result in policies that are not solely grounded on expertise, that is, on experts being free to choose the “best policy.”  However, policies are rarely value-neutral and elected officials should have some say over the values regulations reflect.

But some of the “procedural politicking” strategies can sever the political accountability critical to the legitimacy of the administrative state.  Let us consider four such strategies in this regard: (1) framing, (2) making rule abstracts unreadable, (3) timing the comment period during congressional recesses, and (4) proceeding quickly when political overseers are favorable and waiting them out when they are not.

II. The Anti-Democratic Nature of Four Types of Procedural Politicking

Agencies can hardly avoid framing the problem they have proposed a regulation to address.  P. 89 n.7.  But deceptive framing can mislead the President, Congress, and the Judiciary.  Theoretically, deceptive framing could allow a rule to become law even if contrary to presidential and congressional preferences or judicially enforced requirements for fidelity to law and reasoned decision-making.[3]  The FDA consciously framed the issue addressed by its proposed mid-1990’s tobacco regulations as one of children’s health rather than as a broader public health issue primarily manifesting its effects in chronic adult smokers.  P. 71-72.  The FDA intentionally framed the issue in that way to make its regulation more politically palatable.  P. 71-72.[4]

However, deceptive framing can ensnare the agency as well.  If the FDA wished to adopt measures that broadly addressed the health effects of adult smoking, framing the issue as solely one of children’s health might make it more difficult to justify such measures.  A more recent example of such dangers is the Secretary of Commerce’s effort to frame his decision to add a citizenship question to the short-form census questionnaire as an effort to provide data the Justice Department needs to litigating Voting Rights Act cases.  See, Department of Commerce v. New York, — U.S. —, 139 S. Ct. 2551 (2019).  That justification could not be defended as sincere, id, at 2575-76, and was insufficient to justify the action the Secretary wished to take, see Bernard Bell, Citizenship and the Census: State of New York v. U.S. Department of Commerce (Round One)(Part II) (Aug. 9) (“The Need for the Citizenship Question”).

Deceptive or incomprehensible abstracts to proposed rules can also undermine accountability, by enabling agencies to adopt regulations “under the radar.” The proposed regulations might appear innocuous, but might well face presidential rejection, congressional disapproval, or judicial invalidation if fully understood.[5]

Prof. Potter uses the abstract of the Department of Education’s 2% rule, allowing schools to use alternative tests for students with disabilities to comply with the No Child Left Behind Act of 2001,[6]  to illustrate the use of deceptive and incomprehensible abstracts.  PP. 86-87.  The rule allowed schools to administer an alternative test to as much as 2% of its student body.  But “when the proposal was published in the Federal Register, its purpose and the means by which it accomplished that goal were largely obscured.”  P. 86.  In particular, the abstract summarizing the rule in the Notice of Proposed Rulemaking was jargon-laden, provided little substantive information, and conspicuously failed to mention the crux of the proposal, namely the two percent threshold.  It even avoided using the word “test.”  P. 86.[7]    The abstract’s incomprehensibility matched its deceptiveness.  Its readability score was -13.1, putting it in the lowest 1% of all abstracts of proposed rules in Potter’s reduced 2900 proposed rules data set.  P. 99.  Prof. Potter concluded:

“This account exemplifies two ways — using obfuscatory language and omitting key pieces of information — in which an agency can strategically use writing tools to shield a proposed rule from potentially hostile oversight.”  P. 87.

Prof. Potter finds that while potential congressional opposition has no effect on the length of time initially allotted for the comment period, it does effect the timing of the comment period.  In particular, to inhibit congressional efforts to pressure the agency to abandon a proposed rule, agencies are more likely to make the comment period during a congressional recess.  P. 124-26.  Moving from weak potential congressional opposition to strong potential congressional opposition results in a 7% increase in the proposed rule’s overlap with congressional recesses.[8]  Prof. Potter notes that “the effects appear to be largely concentrated among cases in which the agency’s interest groups are opposed to the agency’s efforts.”  P. 125.  This strategy seems almost solely aimed at reducing the likelihood that a potentially objectionable rule will be brought to Congress’ attention during the formal comment period.  Thus, it does little except help agency rulemakers avoid potential congressional scrutiny.

Agencies have some control over the timing of various steps in the rulemaking process and the speed with which they proceed.  Prof. Potter finds evidence that agencies delay proceeding or move forward more slowly when certain political overseers are likely to be unfavorable, and more swiftly when they are favorable.  Her statistical analysis shows that agencies tend to proceed more slowly when the Office of Information and Regulatory Affairs (“OIRA”) review at the proposed rule stage was longer (indicating OIRA discomfort with the rule).  P. 142.[9]   Her analysis also shows that agencies tend to proceed more slowly when they face an “unaligned Congress.”  P. 142.  And her analysis shows the same when courts are “active” with respect to that agency’s rulemakings.  P. 142-43. This supports her Strategic Timing Hypothesis, namely that “agencies will use their procedural control over timing to make sure that their rules are announced in a favorable political environment.”  P. 134.

So agencies can wait out their political overseers when the will likely be unfavorable to the agency’s initiative and proceed quickly when political overseers favorable.  P. 80.  Such a strategy would not seem anti-democratic per se.  Proponents of policies may often press forward when political circumstances are favorable or hold back when they are not.  (Politics, after all, is the art of the possible.)  However, agencies’ use of control over the timing of rulemaking might be problematic if agencies could effectively segment the process so that they could wait sequentially for each principal institution to become favorable.

Legislation must be passed by both houses of Congress and signed by the President within one session of Congress.  Once enacted, the timing of any challenge to the legislation is largely controlled by those who oppose the new statute, and they often challenge it promptly.  If an agency can get a rule through the OIRA process, then wait for a favorable Congress, and then wait for a favorable judicial climate (by delaying the rule’s implementation date), it could adopt a regulation even though there was no one period of time in which all the principals were favorable.  However, it is unclear that agencies have the level of control needed to limit consideration of their regulation to one principal at a time; Prof. Potter’s statistical analysis does not establish that they do.

In short, some methods of procedural politicking, particularly if misused, threaten to sever the political accountability critical to the legitimacy of the administrative state.

III. The Efficacy of Procedural Politicking

But can procedural politicking strategies work — do they succeed in allowing agencies to adopt rules that escape meaningful presidential, congressional and judicial review?  In this section I will examine two procedural politicking strategies in this regard: appeals to scientific authority and use of procedural devices to limit opportunities for comment.

A. Appeals to Scientific Authority

Prof. Potter suggests that one means agencies use to avoid political scrutiny are appeals to authority, including scientific authority.  In particular, they use technical jargon to discuss scientific or technical issues in non-transparent, and sometimes deceptive ways. PP. 73-74, 169-70; accord, P. 89. “[A]gencies can discourage nonexperts from engaging the rule,” by writing the rule and its justification in dense language and “technical jargon.” P. 73.  And agencies can appeal to authority by “peppering the text of the rule with scientific and technical citations.”  P. 74.

Prof. Potter identifies the FDA’s use of this strategy in promulgating its menu labelling regulation, the case study she uses to illustrate use of many procedural politicking ploys.  Prof. Potter accuses the FDA of citing five studies that were unrepresentative of the body of scientific work in support of its assertion that “[i]n recent years there has been growing support among public health experts for providing calorie and other nutrition information on restaurant menus in order to help consumers make informed choices.”  P. 169.  More generally, she notes the appeal to scientific authority in the Regulatory Impact Analyses included in both the notice of proposed rulemaking and the notice of final rulemaking (the latter of which included 108 academic citations).  P. 170.

Reliance on scientific expertise may indeed be helpful with regard to judicial review.  Even if opponents of the regulation provide a sufficient rebuttal to show that scientific uncertainty exists, agencies receive deference when acting in the face of scientific uncertainty.  State Farm, 463 U.S. at 52.  Moreover, public confidence in the scientific community seems to have remained relatively stable for well over 40 years, with 44% of adults expressing great confidence in the scientific community.  Cary Funk and Brian Kennedy, Public Confidence In Scientists Has Remained Stable For Decades, (Pew Research Center March 22, 2019).[10]

However, it is not clear that appeals to non-transparent scientific studies or scientific consensus will ward off presidential or congressional scrutiny of agency proposals, particularly those that impose significant costs on the public or major industries.  Stephan Lewandowsky, et al., Science and the Public: Debate, Denial, and Skepticism, 2016 JOURNAL OF SOCIAL AND POLITICAL PSYCHOLOGY 537 (Aug. 8, 2016).[11] Scientists have expressed a concern about the attack on science in the Executive Branch.  Jacob Carter, et al., The State of Science in the Trump Era:  Damage Done, Lessons Learned, and a Path to Progress (Jan. 2019); Jacob Carter, et al., The Trump Administration Has Attacked Science 100 Times … and Counting, SCIENTIFIC AMERICAN: OBSERVATIONS (May 29, 2019).  A detailed examination of the claims is beyond the scope of this blogpost.  That said, some members of the scientific community have suggested that part of the reason for public skepticism of science is the lack of transparency and accessibility of scientific discussion.  Jeffrey Mervis, Scientists ‘partly to blame’ for skepticism of evidence in policymaking, says AAAS CEO (Jan. 30, 2017).[12]

Theoretically, appeals to scientific authority might arouse congressional suspicions and weaken the agency’s case.  And indeed, many members of Congress may be suspicious of Executive Branch control over the conclusions government scientists express.  See, Scientific Integrity Act, H.R.1709, 116^th Cong (2019); See, Scientific Integrity Act, S. 775, 116^th Cong (2019).

In short, it is not clear that invocation of scientific authority can ward off serious presidential or congressional scrutiny of a regulatory proposal.

B. Procedural Chicanery

Are the procedural strategies used to limit opportunities to comment likely to ward of presidential or congressional action or judicial invalidation of proposed rules?  Obvious procedural stratagems designed to limit participation in the rulemaking process are particularly susceptible to judicial interference.  This is especially so with regard to efforts to avoid providing reasonable notice and a reasonable opportunity to comment. While the APA procedural requirements are limited, other statutes impose additional requirements. Moreover, courts are particularly adept at examining procedural matters.[13]  High-handed and unfair procedures may well also disturb, and be criticized by, members of Congress.  They surely will have a more intuitive grasp of procedural fairness than the nuances of the substance of a regulatory proposal.  It may be, as well, that use of some procedural devices might be taken as a signal to judges to engage in more exacting substantive scrutiny of the proposal, rather than simply deferring to the agency because of the difficulty of parsing the substantive arguments.

The recent events in the Waters of the United States (“WOTUS”) rulemaking provide an example of the apparent lack of success of appeal to scientific authority and efforts to curtail public comment.

C. Recent Developments in the WOTUS Rulemaking

The Clean Water Act (“the Act”) prohibits the discharge of any pollutant into “navigable waters,” defined as “the waters of the United States.”[14]  But the Act failed to define the waters of the United States.  The Supreme Court has done little better.  Its last major decision on the issue, Rapanos v. United States, 547 U.S. 715 (2006), left the definition unclear; the Court could produce only a plurality decision. Intrepidly, the Army Corps and the United States Environmental Protection Agency (“EPA”) set out to simplify the identification of “waters of the United States.” Army Corps of Engineers & EPA, Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule, 79 Fed. Reg. 22188, 22190 (Apr. 21, 2014).  The technical basis for the agencies’ proposed rule was a preliminary EPA report that reviewed “more than a thousand publications from peer-reviewed scientific literature” and discussed the inter-connected nature of the nation’s waters (the “Draft Connectivity Report”).  Texas v. EPA, — F. Supp. 3d, —, 2019 WL 2272464 *2 (S.D. Tex. May 28, 2019).

The proposed rule separated waters into three groups: (1) per se waters of the United States (“Categorically Covered Waters”), (2) waters “that require a case-specific showing of their significant nexus to traditionally covered waters . . .,” and (3) categorically excluded waters.  Texas v. EPA at *2 (citing National Ass’n of Mfrs. V. Department of Defense, — U.S. —, 138 S. Ct. 617, 626 (2018)).  The key to the nexus requirement was the term “adjacent”— defined to mean all waters  “bordering, contiguous or neighboring” a Categorically Covered Water.” 79 Fed. Reg. at 22263. “[N]eighboring” was defined as “waters located within the riparian area or floodplain of a [Categorically Covered Water], or waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to such a [Categorically Covered] water.” Id. (italics added).  The Agencies allowed interested parties three months to comment on the Proposed Rule. Texas v. EPA at *2.  After this notice-and-comment period closed, the EPA’s Science Advisory Board issued “revisory comments” to its Draft Connectivity Report. See, Army Corps of Engineers & EPA, Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule and Notice of Availability, 79 Fed. Reg. 63594 (Oct. 24, 2014).  In response, the agencies reopened the comment period for the Proposed Rule for another month. Texas v. EPA at *3. However, the Agencies declined reopen the comment period after the final revision of the connectivity report, i.e., the Final Connectivity Report, was issued on January 15, 2015. Id. at *3.  On June 29, 2015, the agencies released their Final Rule.  The Final Rule defined “adjacent waters” using distance-based criteria, rather than the ecologic and hydrologic criteria used in the Proposed Rule.  Id.  Various parties challenged the rule.  The District Circuit remanded the rule on a procedural ground, namely the final rule was not a logical outgrowth of the proposed rule.  Id. at *5-*6.  The substitution of distance-based criteria for ecologic and hydrologic criteria, in conjunction with the refusal to re-open the rule for comment, meant that the agencies had deprived interested parties of a meaningful opportunity to be heard.  Id.

These developments illustrate both observations I have offered regarding to the efficacy of procedural politicking.  Most obviously, making a decision to deprive interested parties of a further opportunity to comment, if it was intended as a procedural politicking ploy that would prevent interest groups from mobilizing, failed.  And it failed precisely because courts are particularly attuned to procedural deficiencies in rulemaking.  Second, the developments also suggests the potential ineffectiveness of an appeal to scientific authority.  The agency began with that strategy, basing its rule on a report that reviewed thousands of peer-reviewed studies and sought to define the waters of the United States using scientific and technical criteria.  After receiving comments on its proposal, the agency appears to have retreated from, or at least softened, that approach, relying on distance as a proxy for a more fine-grained use of ecologic or hydrologic criteria.

IV. Conclusion

Prof. Potter’s analysis makes a major contribution to scholars’ understanding of the rulemaking processes’ nuances, and the strategic considerations that appear to go into agency decisionmaking regarding rulemaking processes.  Procedural politicking could undermine the political accountability critical to the legitimacy of the administrative state.  However, there is reason to doubt that procedural politicking ploys are entirely successful at inoculating agency initiatives from meaningful presidential, congressional, and judicial review.

Bernard Bell is a Professor of Law and Herbert Hannoch Scholar at Rutgers Law School.

This piece is part two of a two-part series. Part one is available here. This post is part of a symposium reviewing Bending the Rules: Procedural Politicking in the Bureaucracy, a new book by Dr. Rachel A. Potter, Assistant Professor of Politics at the University of Virginia. All of the posts can be read here.

[1] The classic exposition of this philosophy appears in Humphrey’s Executor v. U.S., 295 U.S. 602 (1935).  There the Court said: “The [Federal Trade] Commission is to be non-partisan, and it must, from the very nature of its duties, act with entire impartiality.  It is charged with no policy except the policy of the law.  It’s duties are neither political nor executive.”  Id. at 624.  It further noted that Congress intended “to create a body of experts” “free from political manipulation or control or the possibility of such a thing,” and thus “free to exercise its judgment without leave or hindrance of any other official or department of government.” Id. at 625-26.

[2] While most of these statements reference presidential oversight, Sierra Club states: Where Congressmen keep their comments focused on the substance of the proposed rule . . . administrative agencies are expected to balance Congressional pressure with the pressures emanating from all other sources.  Id. at 409-410.

[3] With regard to judicial review in particular, Chief Justice Roberts, writing for the Court, recently observed: The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise.  Department of Commerce v. New York, — U.S. —, 139 S. Ct. 2551, 2575-76 (2019).

[4] It is difficult to justify a policy on the paternalistic basis of protecting adults with full information from making decisions that harm their own health.  See, Bernard W. Bell, Review Essay, Cass Sunstein, Simpler: The Future Of Government, 64 J. LEGAL EDUC. 126, 130 (2014)(“[p]aternalistic interventions are some of the hardest for liberal democracies to justify”).

[5] This is the concern underlying the requirement in many state constitutions that the subject or object of a legislative act be expressed in its title.  SHAMBIE SINGER & NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION §18.1 & 18.2 (accessible on Westlaw). The rule ensures reasonable notice of the proposed statute’s purview to members of the assembly, and to the public. Id. at §18.2.

[6] Pub. L. 107-110, 115 Stat. 1425 (2002)(codified at scattered sections of the U.S.C.).

[7] Potter reprints the abstract originally published in the Federal Register.  P. 86 n.4.  Even the Federal Register citation to the 2% rule is ponderous: Office of Elementary and Secondary Education; Office of Special Education and Rehabilitative Services, U.S. Department of Education, Notice of Proposed Rulemaking, Title I—Improving the Academic Achievement of the Disadvantaged; Individuals With Disabilities Education Act (IDEA)—Assistance to States for the Education of Children With Disabilities, 70 Fed. Reg. 74624 (Dec. 15, 2005).

[8] I lay out Prof. Potter’s metrics and methodology in my first blogpost in this series.  In particular, I explain her measure reflecting a comparison of an aligned Congress (in which little opposition would be expected) and an unaligned Congress (in which significant opposition can be expected).

[9] Prof. Potter presents a more fine-grained analysis to show that “agencies use information they have about OIRA leadership and their position toward a specific rule to inform their pacing strategies.”  P. 147; PP. 145-47.

[10] Confidence in the medical community is somewhat lower, with 37% expressing great confidence in the medical community, and appears to be in general decline since 1973.

[11] Science and the Public, supra, at 537 (“when the . . . scientific method yields discoveries . . .  that touch on people’s lifestyle or worldviews, or that impinge on corporate vested interests, the public response can be anything but favorable”).

[12] Mervis quotes Rush Holt: “Too often, we scientists have presented the evidence in a way that was condescending and hierarchical. . . . That haughty attitude has generated a backlash within the body politic against all types of scientific evidence.” “Because people feel they cannot evaluate the validity of our conclusion . . . it becomes simply one person’s assertion.” Accord, Science and the Public, supra, at 540, 542, 544.  Another observer writes:

Researchers often like to talk about engaging the public. But when they speak of “engagement,” too many scientists still think of a one-way street: they want to talk at the public, not hear from it. One result of this is that, having forged a close relationship with the political establishment . . . it has very weak ties with insurgent forces, on the left or the right.

Colin Macilwain, Science and Democracy, 32 ISSUES IN SCIENCE & TECHNOLOGY (Sumer 2016).

[13]  See Natural Resources Defense Council v. U.S. Nuclear Regulatory Commission, 547 F.2d 633, 643-45, 653-54 (D.C. Cir. 1976); id at 655-57 (Bazelon, J., concurring)(“in highly technical areas, where judges are institutionally incompetent to weigh evidence for themselves, a focus on agency procedures will prove less intrusive, and more likely to improve the quality of decisionmaking, than judges ‘steeping’ themselves ‘in technical matters to determine whether the agency has exercised a reasoned discretion.’”); Ethyl Corp. v. EPA, 541 F.2d 1, 66-68 (1976) (en banc) (Bazelon, C. J., concurring), cert. denied, 426 U.S. 941, (1976); see, U.S. v Morrison, 529 U.S. 598, 661-64 (2000) (Breyer, J., dissenting) (suggesting a similar approach in reviewing congressional determination of the scope of its Commerce Clause powers)

[14] 33 U.S.C. §§ 1311(a), 1362(12), 1362(7).