Susan Rose-Ackerman on the Role of the Executive in Four Different Democracies

Susan Rose-Ackerman
Susan Rose-Ackerman from Yale Law School speaking at the Chicago-Kent Law Review Symposium on the Trump Administration and Administrative Law on November 29, 2018


Susan Rose-Ackerman joins the podcast to discuss her new book Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France. Susan is the Henry R. Luce Professor Emeritus of Law and Political Science at Yale University.

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Many of these things that you and I are talking about are simply initiatives put forward by the chief executive or maybe by a cabinet minister. Something they want to do and rather than something that they’re required to do. And it seems to me that that’s a rather fragile base on which to build a more effective participatory process, which doesn’t give up on the role of technocracy and expertise.

Susan Rose-Ackerman

Key Highlights Include

  • How have executives handled the pandemic
  • Differences between the executives of Germany, France, UK and US
  • How different executives make rules to implement public statutes
  • Description of deliberative democracy used in France to create environmental policies
  • Is the administrative state democratic

Podcast Transcript

Whenever we try to make governance more democratic, we typically begin with elections. We might refer to that as participatory democracy. After that we might include greater input from citizens into legislation. We might call that deliberative democracy. But rarely do we consider how to democratize the bureaucracy or public administration. It just kind of exists in the background. 

Except it’s not in the background. Government is all around us. And it does more than carry out orders from politicians. It designs the rules necessary to implement those statutes and laws our elected leaders enact. 

Susan Rose-Ackerman has studied governance as a professor of law and political science at Yale University. Her latest book is Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France. 

Our conversation touches on the differences between executive authority in different democracies. You’ll discover differences between parliamentary and presidential systems. We’ll talk about ways citizen input is already included in some ways and consider ways it can do better. 

Like always I prepared a full transcript available at democracyparadox.com and am always available for questions and comments via email. But for now… This is my conversation with Susan Rose-Ackerman…

jmk

Susan Rose-Ackerman, welcome to the Democracy Paradox.

Susan Rose-Ackerman

Oh, thank you for having me here.

jmk

No problem. Susan, I found your book incredibly relevant, especially as governments wrestle with how to handle the pandemic. Now, I really hope that this doesn’t catch you off guard because I know that your book doesn’t deal directly with the pandemic, but I think it’s really a great way to put some of your ideas into context. Can you explain the process that the executive branch will take for the recent vaccine mandates that Joe Biden has put in place in the United States? What’s the process that we’re going to have to go through with OSHA and these different agencies?

Susan Rose-Ackerman

Well, I think there’s probably not a simple answer to that. I think the basic thing to say is that my book is about making rules with the force of law in the executive. And in most cases, I’m dealing with situations in which there’s some time, being sure that you’ve got public involvement, public reason giving, time to justify things. Now, the problem of course is when there is a disaster, a catastrophe, the government has to act very fast in order to stem the problem and that can mean taking shortcuts around whatever requirements for public accountability exist. And the public may put up with it, of course, because of the emergency, but you certainly see that In the responses to the pandemic.

Now, in terms of the approval of drugs, it involves levels of testing, people eventually, moving from animals and other things to people, to see that they’re safe and effective. And there certainly have been some interactions between the public and the government in the past in terms of that process, whether it goes too slow or not.

jmk

Now the recent vaccine mandates that President Joe Biden has put into place that he’s relying on agencies like OSHA to enforce, and he’s not mandating everyone to get a vaccine. It’s specific workers like if you’re employed by the federal government, if you’re a federal contractor, if you work for a company that’s got over a hundred employees so that it falls under the domain of OSHA. Now, I find it interesting to think about this recent event, because it gives us some context for some of the ideas in your book, such as when you talk about the way that legislators don’t always write in every single contingency and many things don’t go through legislation.

The legislators leave a lot of room for both the president, but even the bureaucrats, to be able to fill in the gaps and President Biden’s executive order is interesting because he’s laying out a directive for agencies like OSHA, and I think a few others, to be able to take action, but even then the bureaucracies still fill in a lot of the gaps about how to execute it. So, what’s that process like, especially within a democracy where we expect that everything’s up for debate, but at the same time, there’s a lot of room for executive action even within the existing legislation that we’ve passed through democratic legislative processes?

Susan Rose-Ackerman

Well, I guess there’s two things to say about that. First point you really already made, which is that if you expect modern governments to deal with, not just something like the pandemic, but ordinary health and safety, environmental problems, it’s unrealistic to imagine that the statutes themselves are going to incorporate all of the trade-offs that are going to need to be made between technology and democratic accountability. So, if you think it’s a good idea for the government to get involved with correcting market failures, dealing with problems of health and safety, with environmental harm that implies to me that the statutes are going to of necessity leave space for the executive to make rules.

And it’s not just the complexity, it’s time. It’s that the legislature has limited time. Laws can’t be just changed… the statutes just you can’t be changed every month, or something, every year. So, that leaves this space. Now that means that we’re talking about the combination of the bureaucracy and people who have some kind of political accountability whether they are presidents who’ve been elected or whether they are in the parliamentary systems I talk about, prime minister and cabinets, which come out of or are responsible to a majority in the legislature. So, you’ve got plenty of political actors inside the executive.

And part of what I’m trying to think about is the relationship between those political actors and the legislature, on the one side, and the career civil servants on the other side to take account of both the importance of having the input from bureaucrats who know something, who have been there for a while and have some or come from even from outside the government with some sort of expertise and their relationship with the politicians. Now, when I talk about executive power, I’m not just talking about the president. I’m talking about the cabinet officials and also people in independent agencies who are not directly accountable to the president.

But then within the executive there is some tension between what the president can do on his or her own by just issuing an executive order and expecting it to be enforced. And instead, going through the process in say the Environmental Protection Agency, within OSHA, within the core executive branch, or within something like an independent agency, like the FCC or other kinds of independent agencies. So, I’m using the term executive broadly to mean, not just the chief executive, but the other people with political commitments, but who also are directly tied to the bureaucratic structure of the government.

jmk

Now you brought up an interesting point that the legislature doesn’t always have the time to be able to pass legislation in a thoughtful manner. They need to leave some room for the bureaucracy to be able to make decisions in moments like these, when we have an emergency, like a pandemic…

Susan Rose-Ackerman

I mean, I guess what I would say, even if they’re being thoughtful, it’s not just that they’re being, ‘Eh, we just make a law.’ But they are thoughtfully making a law. But a realistic understanding of what they can do, even when being very thoughtful and responsible is that they are just not going to really be responsibly able to take on these details. And if they try, they are likely to get it wrong.

jmk

I want to ask you about that though. There’s a difference between some of the countries that you look at. There are significant differences and one of the biggest is in the United States, we’ve got a separation between the executive and the legislative branch, a very clear separation that everybody in the United States knows very well between the President and the Congress. But in other countries there’s a unification within the position of Prime Minister where the Prime Minister acts effectively as both Speaker of the House, like you’d have in the United States, but they’re also effectively the President. They’re the executive in chief.

So, is there a difference in a parliamentary system where they’re able to pass legislation easier because the executive already controls the legislative body? And oftentimes there is even less independence of those members, especially if they’re elected on a PR list or something like that. There’s more party unity. Is there a difference in a country like Germany or even in the United Kingdom or France where there’s a little bit more unity between the executive and the legislature?

Susan Rose-Ackerman

Let’s leave France as a little bit of a special case and talk about the UK. So, in the UK, you clearly have a parliamentary government in which the cabinet is formed by people who are members of the parliament. And then there are people called back benchers, members of the governing party, but who are not actually in the government. And so, it’s true that there’s more freedom for the cabinet and the prime minister to propose legislation and expect it’s going to be passed. Now. It’s not quite true that the prime minister is the speaker. There’s a separate speaker in the parliament. If you watch some of the Brexit debates, you would have noticed there was a quite aggressive one.

But it does mean that the government has a platform through the queen’s speech here when the parliament opens that it can get through the parliament. And the House of Lords is there. of course, but it looks at things and votes on them, but it can’t block legislation. And, of course, it’s not an elected body. It doesn’t have much democratic legitimacy. So. it’s true that therefore the legislature is not going to be a very good check on the activities of the government, so long as the cabinet has a strong majority in the legislature.

So, that means that when the government, when the executive and the parliament promulgates a rule with the force of law. In other words, under a statute it has the authority to promulgate a rule. It promulgates a rule with the force of law called a statutory instrument in the UK. It can pretty well do what it wants. Right? Because even if it has to be approved as it does mostly, many times, by the parliament and even by the House of Lords that nothing much happens there. I talk in the, book about how very quickly and in a cursory way, that review takes place.

So, in Germany, similarly, you have a parliamentary system and so the same point kind of applies there. The one difference is there’s an upper house, the Bundesrat, which represents the states and it often will have a different political composition than the government, but nevertheless, and it has to approve some of these rules, but nevertheless there’s not that much pushback. So, we don’t have anything sort of built into the structure of the government that encourages that independence. And as a matter of fact, you do not have in either of those countries, anything like the US Administrative Procedure Act as it applies to rulemaking. Germany has an APA, but it does not apply to rulemaking. And you can see why it would not to be in the interest of a unitary government to have a statute that would constrain their own ability to carry out their statutes.

We have to look to other routes for public accountability. France as a presidential system and, in fact, a very strong presidential system because unlike most parliamentary systems, if there’s a vote of no confidence in the legislature, the president stays in office. He’s got a fixed term. So, he’s got a lot of independent power and I think there the argument is simply that the president is just very strong. You’ll see there’s an election coming up next year where the president is elected first and then the parliament gets elected a month or two afterwards. So, you know, if he comes in with a strong mandate, it’s very likely the legislature is going to follow suit. So, it’s a little different story, but it’s similarly a story about a strong executive that doesn’t get much pushback in most cases from the legislature.

jmk

So, what you’re saying is in a country like the United Kingdom or a country like Germany where it’s very easy to be able to pass legislation, where in theory, they could get much more specific and pass emergency legislation much quicker than in a country like the United States where you have many more people that you’re having to negotiate between. A country like Germany or the United Kingdom, and even France to some extent where you have a powerful executive, you’re saying that they don’t get more specific in their legislation, because they don’t have to. Because they already know that they’d be able to pass the legislation if it was necessary. So as a result, they just allow it to be vague anyway. Is that what you’re saying?

Susan Rose-Ackerman

Well, I think there’s two parts to it. It’s true that if the executive is drafting the statute, why would it necessarily want to constrain itself? One reason it might is that it doesn’t want its agenda to get undone by a new government. But, of course, in a parliamentary system it’s not that hard for a new government when it comes in to amend a law, if it wants to. In the US, one Congress and President can make things difficult for the next government. So, there’s no particular reason to want very specific laws, unless you have strong interest groups who really want to be clear about something.

But in terms of what I’ve been focusing on which is not only the substantive contexts of the laws, but the procedural constraints on what you can do. Where you see procedural constraints in these countries is to some extent for environmental things and for big projects, for a highway, an extra runway at the Heathrow Airport, a new high-speed rail. Things that are going to have specific effects on the people living near whatever it is. And so, there are individuals with particular geographical locations who are very concerned.

So, these countries do have quite elaborate procedural processes for those sorts of things. And you have powerful environmental movements in all three countries who are pushing for stronger public involvement in the broader things, like say climate change, and other stuff, and have gotten some response. It’s just that on the background of a government framework that is not friendly, you know, to doing things that way.

jmk

So, is the lack of specificity – Does that ever become a challenge to the idea of the rule of law, because the legislature isn’t establishing clear boundaries, but allowing it to fall back on the bureaucracy or the administrative state instead?

Susan Rose-Ackerman

One thing just to point out is that, as you know, the American constitution as written doesn’t say anything specifically about the modern regulatory state. You can certainly argue that the understanding of the constitution was deeply affected by the Roosevelt revolution, now incorporated in there. But in Germany, the constitution explicitly permits delegation of this kind so long as the content, purpose, and scope is articulated in the statute. And there was a very early case in the constitutional court in Germany, extraordinarily important institution, establishing the legitimacy and credibility of the Federal Republic. And there was a case involving regulation in the nuclear area, which people claimed that it was illegitimate for the government to promulgate a general rule. It had to decide everything case by case.

And the court came back and said, ‘No, that’s wrong. It is constitutionally legitimate to promulgate a general rule and actually it might be more protective of individual rights to do it that way. We’re going to treat like cases the same.’ It was a very important decision in permitting rulemaking to go forward in a range of areas that recognized their value.

jmk

So, that’s actually a good place to introduce the idea that you mentioned where in Germany, the bureaucracy, the administrative state becomes effectively a fourth branch. It becomes almost a branch of government that’s acknowledged. In the United States and in many other countries, it kind of acts as one, but we don’t always acknowledge it explicitly. You write in the book, “In practice, the most effective potential checks on presidential power do not come from political opponents, but from the bureaucracy itself.” I find that to be very fascinating, especially in the current context that we’ve been dealing with the pandemic. There was a lot of tension between Trump and the administrative state, especially with the CDC when we were talking about, whether to wear masks, whether to do different things. When should the bureaucracy check elected leaders and when should they stand back and just follow them?

Susan Rose-Ackerman

Well, obviously not an easy question. But when we’re speaking about the bureaucracy here, I mean, to see it a little broader than just talking about the civil service. In other words, we’re talking about, say for example, let’s say the Environmental Protection Agency in the US which has career civil servants, but then a layer above that of political appointees who maybe wouldn’t describe themselves as bureaucrats. They’re not going to be there for their whole careers, although they may go back and forth between government and the private sector or academia or think tanks or whatever. And it’s that complex of people who are sort of career, often technocratic experts, in one way or another, or at least policy experts with experience in particular areas, interacting with political appointees.

I think the problem with it in the Trump administration was that you had an administration that really disliked the career bureaucrats. And that could have a very kind of destructive effect on the ability of any of the agencies to really carry out the law because you sometimes had appointed in relatively high positions in some of these places, people who just basically were really out of sympathy with the fact that they had to carry out certain kinds of laws. I’m sure there are people in every administration. There are probably some in Biden or Obama that were like that too. But it was particularly striking in the Trump administration. It was actually a policy to appoint people who were basically not in sympathy with the statutes.

So, I think it’s natural to expect that the people that have some kind of history in the agency, who have some legitimate claim to knowing something are going to be interacting with the more short-term political appointees and with the office of the president to assert the importance of the bureaucratic processes which involve, in the US at least, the requirement of open-ended consultation, public reason giving which was extremely important as part of what has to go on.

jmk

So, do you see a similar role for the bureaucracy where they serve as a check on elected officials in the other countries you studied like the United Kingdom, Germany, and France?

Susan Rose-Ackerman

Well, it depends on what you mean. Yes. I mean, you may be familiar with it. There’s a famous television program called Yes, Minister. It’s a joke, but it’s about the relationship between the career civil servant and the political appointee who comes in over the top. And in all three of the countries France, Germany and the UK, you have very strong civil service traditions of publicly respected bureaucrats that have strong norms of good behavior. Not to say they all behave well. Of course, they don’t. But there’s a powerful civil service there. And in addition, a much thinner layer of political appointees over the civil service. So, they are closer to power than in the United States. And so, of course, they are extremely important and it’s extremely important how they’re trained and what values they are trying to carry out.

So, I mean, it’s not a simple answer to how they act, but it’s important. You know there’s famous school in France, a public university of higher education, that trains the elite body of civil servants. And Macron announced a few months ago, he was going to get rid of it. It was too elitist. He didn’t like it. And it is very elitist. But it itself has been trying to reform more on the lines of some kinds of modern reforms in the way one thinks about making policy throughout developed countries. But he said, well, he’s going to get rid of it. But then it turns out he’s going to just create a new one. So, he didn’t deny that he needed some kind of way to channel some kind of talent into the public administration.

So, the interesting thing will be whether he or whoever succeeds him manages to do that in a way that is, you know, broader, more diverse, brings in certain kinds of modern techniques of analyzing things that have not been so important in France. So it’ll be interesting to watch when that happens. But that’s pointing out that those are an important bunch of people wherever they come from.

jmk

So, I asked you about bureaucrats standing up to executive power, standing up to elected officials. Let’s look at the reverse. You also write that, “A democracy may make choices that do not jibe with those supported by technically trained analysts. But that is a problem for the analysts, not a critique of democracy.”

Susan Rose-Ackerman

So what I meant by that is that technocrats have an obligation to explain what they’re doing in a democracy. They shouldn’t be able to just assert, ‘Well, I’m the expert, just listen to me.’ So, it needs to be part of the way in which technocrats and long-term bureaucrats, part of their training and their experience, to see that they have a responsibility to the public. Now, that means two things. It means, first of all, they may be obligated to carry out statutes, which they disagree with. And disagree, not just in a whimsical way, but just to be with somehow the underlying assumptions that produced the statute.

And on the one hand, they can articulate those tensions and try to seek amendments in the laws. Agencies do that all the time. But, on the other hand, if that’s what the law said, they’re kind of stuck with it. The other point is, there’s both the obligation to obey the law, whether you like it or not. But the second point being a similar obligation on people with expertise to explain why they disagree to the public and the important interest groups, so that they can influence the way the political system operates and not expect that just because they’re experts, they deserve to be listened to.

jmk

So, I keep coming back to the pandemic because it’s obviously on all of our minds and a lot of the comments you just made make me think about some of the conflicts that have been going on during the pandemic where the experts come up with recommendations and part of the public has rebelled against some of those. Do you think that the experts have done a good job explaining the need for some of the steps that we’ve taken during the pandemic, or are there other reasons that people have struggled to follow them?

Susan Rose-Ackerman

Well, I mean, obviously there’s both the things that are going on. I mean, my own view is that there has not been enough focus put on the harm that people who fail to get vaccinated or wear masks are doing to others who are vulnerable. Of course, there’s a piece of the discussion that has to do with people claiming their individual rights to behave in certain ways. But it’s important to say to people that you don’t have a right to just harm others. Even though, of course, these people are not going around hitting people, but they are causing pain. It’s partly, I guess, having people understand risk which is a concept very important in expert analysis but very poorly understood in the general public.

So, that when we talk about a heightened risk, we’re not talking of course about any kind of certainty, we’re talking about your actions having an impact on other people. That doesn’t for sure mean something’s going to happen, but it means it’s more likely to happen than it would otherwise. So, it does seem to me that that should be part of the story. You know, there’s other aspects of it that have to do with people who are strongly in favor of Trump and are looking for any way to kind of make the current administration look bad. And I think that’s a different story.

jmk

So, let’s take a step back and talk more about the idea of accountability, because I think that that’s really central towards the idea of the bureaucracy, the executive, the administration. The United States has a unique model of using public hearings to be able to bring in public input. European models, especially the ones that you discussed, do not use a similar system. So, why don’t we lay out what the American model is like before we explain some of the differences that we see in some of the countries in Europe?

Susan Rose-Ackerman

I mean the first point to make is that any European listening to this is going to say, ‘Wait a minute, we have an awful lot of public hearings.’ And it’s true. They do have a lot of public hearings, just not in this particular area. But let me describe the American situation. So, the US operates under something called the Administrative Procedure Act passed in 1946, along with a lot of other executive reform that includes a lot of provisions. But the one I focus on has to do with making rules with the force of law. In other words, something that has future effect. And in general, will have effect on a range, not just on like one person, but a range of people, industries, groups, come under this rule.

The key thing is that you make the rule now and it applies in the future to behavior that’s going to come up. And for those rules, we have something which is called notice and comment rulemaking which is very simple. It’s part of a page in this statute. And all it says is that if you’re going to make a rule like this, you first of all have to have public notice. It has to be in the federal register, which is now, of course, available online. And second, you have to have a comment process which is available to anyone with an interest to you, the executive, key point, you the executive branch person cannot decide who to hear from. It has to be open for anybody to come in.

And third, you have an obligation to evaluate those comments. It doesn’t mean, you have to take them. Some of them may be completely stupid, but you have to at least look at them and then consider whether you want to modify your initial proposal before you issue the final rule. And when you issue the final rule, you want to explain why that rule fits with the statute, why it’s compatible with the statute. And it’s a good choice and takes into account the comments that seem material.

And then there is a possibility of judicial review where, of course, there is a worry about the courts themselves writing the rules. But they can review it for, on the one hand, following the proper procedure. Did you in fact have an open-ended hearing? And then, did you have notice? And then is the final rule that you’ve come up with compatible with the statute and, of course, with the constitution? So, it has those features of notice, of open-ended hearing from people, and of public reason giving, and of limited judicial review. So, to me, those are fundamental things. Now, you could see where they could go wrong, right? Not go wrong, but where kind of built into that structure has some problems.

One of them is how long it might take. Well, if you’re going to be accountable, it’s going to take some time. but there might be ways to speed it up. Secondly, another way in which it is limited is it does not require any outreach by the agency. The agency just has to give notice. It doesn’t have to go look around and see whether groups representing low-income people or disadvantaged people are particularly heard. It depends on the private sector to get them organized, on civil society itself to be organized enough to participate. And third, it exempts certain kinds of government activities from this process, in particular, ones that give out benefits. So, there’s some difficulties, problems of it. But to me, it expresses some principles that we shouldn’t forget in the process of criticizing it, which is very easy to do in the US.

jmk

Just to confirm though, this process is not something that’s set out in the constitution necessarily. It’s established through public statute. Can you just kind of briefly mention the public statute and why Congress decided to set these procedures in place?

Susan Rose-Ackerman

Well, as I said, the statute is called the Administrative Procedure Act, promulgated in 1946, just after the end of the war when there was a range of other attempts to reform the way in which government operated, accountability of the government process. Initially rule making really came into its own at the time that the regulatory statutes were passed outside of one’s having to do so as competition. So, the environmental statutes, OSHA, a range of other statutes, like that where it really made sense to use rules and not do everything on a case by case basis.

Now one question you might ask is why did Harry Truman sign the act, right? This is Congress passing this thing and it was going to tie his hands to some extent. I don’t think it’s completely clear why he did, but one argument at least is that he was afraid that the Democrats were going to lose the next election and all of the things that had happened over the New Deal period would be vulnerable. So, that’s the statute that we have now. Now as I said, Germany, for example, has an Administrative Procedure Act. You can translate it. But it has to do with adjudications only. In other words, case by case, individual thing. There is something called formal rulemaking in that act, which an agency could use, but it is very, very judicialized. So, that would be one way to go.

You can’t have a rule unless you go through something that’s almost like a little court proceeding. Well, that happens for adjudications, but it’s not surprising that the agencies are not about to go through a court like thing if they don’t have to, if it’s not actually in the statute. And I would say that’s a good idea, because the whole process is a much more political technocratic process. It should not be an analysized to a judicial process in which there’s sides arguing both sides back and forth and it’s a neutral decision-maker. No. Bureaucrats are not neutral decision makers. They are policymakers who have to listen to outsiders before they make their choices. So, it’s mostly not used via the formal part.

jmk

But during the last few presidencies, it has seemed like executive orders and different bureaucratic regulations end up in the courts very frequently. Is this piece of legislation with the very formal rules that it lays out, is that a big part of the reason why a lot of bureaucratic decisions end up in the courts in the United States?

Susan Rose-Ackerman

No, I don’t think, because as I was saying, the process that we use is not heavily judicialized. It has a requirement of justification, of reason giving and justification, substantively, and in terms of process of notice and hearing. You have to go through the process of giving the rules and has to be substantively related to the underlying statute. If you look at the other countries that I’m looking at, particularly France and Germany, they, in fact, have a separate special court system for administrative law processes. The Conseil d’État in France and the lower courts there is a long history. And Germany has an administrative court system as well. This means that you’ve got more expertise in the courts with effect to administrative law issues, but because of what I was just saying, that expertise is not particularly about rulemaking.

It’s about what their law is, which is much more about adjudicatory decisions. In France, you have some interesting features. You have an environmental charter that includes a participatory right and it is part of the constitution for the environment. Their constitutional court held that that clause in their constitution required NGOs to have a right to participate in essentially a rulemaking, I mean, a policy choice of their environmental ministry. And that was quite striking to me to see that happening because it was taking on, you know, some of the values that I’m talking about. And at least in the environment saying, yes, this is part of what our constitution implies is public involvement, not just in where the railroad goes, but in a general policy about who the agency has to consult.

It led to a general amendment for their environmental statute that requires some kind of notice and hearing something like the US APA, truncated, you know, not very generous, but like, ‘Oh, okay, we have to do it.’ But still it was very interesting to see the court recognizing that as a value and it’s connected to a treaty called the Aarhus Convention. It is a treaty that only has to do with process for European countries. Only has to do with decisions that have environmental consequences. And it has been ratified not only by all these member states, but also by the European Union itself which gives it more teeth than the treaty itself has.

And, of course, the environment, the more important point maybe, is that the environmental area or civil society is quite well organized, not just in the US but also in Europe and is pushing for policy change. Some of that being legislative or constitutional change particularly say in the climate area, but they’re also involved in, interested in regulatory policy change in the executive. So, you’ve got a political push in that area. That is, I think, is stronger than in some other policy areas.

jmk

Now did that constitutional change, did that lead to the Grenelle in France in 2007?

Susan Rose-Ackerman

No. That’s different. The Grenelle in 2007, I don’t think it particularly related, not directly related to that. Some of the same people may have been pushing… So, let’s just explain what that is. First of all, the Grenelle sounds like a pastry or something, but it’s a street in Paris where a number of the important ministries are located. Sarkozy came in as president without any very strong environmental credentials and he wanted to do something. This is just purely executive. It has no legal status at all. It was just pure executive initiative. He said, ‘Let’s get together representatives of all the important groups who might care about some environmental matters.’

This was organized on the framework of bringing together or inviting to be part of the process, groups that were already organized, who had a concern about these things. You could petition to be included in the group and they were quite broad in including groups. It was a pretty broad connection divided up into committees, you know, to discuss things. And at least from what I’ve read about it. It came out pretty well and they came up with some proposals for statutes and some statutes were passed. Now, of course, there was a gap between the proposals that came out of the Grenelle and what was actually passed. The French government said, ‘Oh, we have to have some more input here from others. And they did. But something happened even though the people in the Grenelle weren’t always so happy.

But maybe a more interesting follow-up or analogy to that is Macron’s Climate Summit, also a participatory process that happened last year that was choosing like 150 randomly selected, well, not just randomly, structurally to represent the demography of the country of France. And they negotiated over several months, over a weekend, and came up with a lot of proposals in particularly with respect to the climate. And Macron said, ‘Yeah, there are some that I can put into effect right away. And there’s some I might propose. Some I reject.’ The interesting thing about this to me was that after this thing disbanded. ‘Okay, it’s over now. I’m Macron, I’m going to take the ones I like and sort of, you know, be wishy-washy about the others.’

Instead of that or, in addition to that, some of the people who have been part of that group have organized themselves as their own kind of advocacy group. They’ve gone to the EU. They’ve tried to talk to Macron again about trying to push some of the things that they wanted. Which is, I think, a very interesting development. Then their proposals ranged from statutory changes, constitutional changes, there’s a proposal to change the language of the constitution to be more environmentally friendly and statutory and regulatory stuff. So, it was a very, very broad across the board thing and, we’ll see what actual concrete results it has, because it was once again, like the Grenelle purely advisory. I mean, it had no legal status. Both of these things were creations of a President who wanted to do something that would enhance his environmental credentials. And we’ll see what happens.

jmk

So, with the rise of things like the Grenelle in 2007 and this other participatory democratic function in France that you just went through that’s much more recent and the mini-publics that we see in the UK and other places, have we learned how to make the administrative state more democratic?

Susan Rose-Ackerman

Well, I mean, I guess my point is that many of these things that you and I are talking about are simply initiatives put forward by the chief executive or maybe by a cabinet minister. Something they want to do and rather than something that they’re required to do. And it seems to me that that’s a rather fragile base on which to build a more effective participatory process, which doesn’t give up on the role of technocracy and expertise that incorporates and brings in expertise. So, some of this I think, needs to be thought of in terms of legislative initiatives which you already have in Europe in some specific regulatory areas for infrastructure projects. So, there’s some experience in engaging the public in different ways.

And, of course, it wouldn’t just be the public. It would be business, other kinds of organized labor unions, other sorts of organized groups that wanted to be heard. And, as we see in the US, one important issue is the balance between letting business have their say about what the impact of a rule is going to be on them and not having them to completely dominate the process, which means both that the bureaucracy itself is politically independent of any group and that the civil society organizations are in a legal framework in which it’s easy for them to organize and fundraise to be part of the discussion.

jmk

So, as a follow-up then, is some democracy deficit going to be inevitable when we’re dealing with the administrative state?

Susan Rose-Ackerman

Well, it depends what you mean by democracy deficit. I mean, you can say that when the legislature decides that it wants to delegate. They’re the democratically responsible people who are delegating and it is certainly one thing that they have a responsibility to do is to monitor what’s happening, how the delegated authority is being used in the executive, and in the agencies, they enlist the courts in doing that quite regularly. And so, that also suggests that it’s important to write these statutes in a way that is compatible with the courts providing review of process and of basic compatibility with the statute without inviting the courts to become the rule makers themselves.

jmk

Well, thank you so much for joining me. This has been a great conversation. It’s very informative in a context that I haven’t really thought enough about, I don’t think. So, thank you so much for writing your book and thank you so much for talking to me.

Susan Rose-Ackerman

Well, thank you for taking the time to talk to me. I’m delighted to have a chance to talk about it in a format in which I hope people who might not ordinarily think that administrative law was a really exciting field, might find it actually was. So, thank you again. Good bye.

Key Links

Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France by Susan Rose-Ackerman

Susan Rose-Ackerman on Wikipedia

EPuM Interview with Susan Rose-Ackerman on YouTube

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