The Missing Link in Citizen Participation in U.S. Administrative Process

Wendy Wagner

Résumé

[Extract] The participatory process that lies at the heart of U.S. administrative law is hailed by some to be among the most comprehensive in the world. Agencies promulgate rules under elaborate procedures designed to place public participants as important collaborators and watchdogs at virtually every step in the agency’s decision. Indeed, in this process, citizens are guaranteed ­– by legislation ­– important rights of participation, which include commenting, accessing information, and ultimately challenging agency rules in court.

In practice, however, the work of the U.S. agencies has become increasingly inaccessible to many of the individuals and groups that their rules affect. Rulemaking records are often very large and can run into the hundreds of pages. Comments submitted on agency proposals, standing alone, can include thousands of submissions, many of which are dozens of pages each. The agency’s own explanations, proposals, and rule text can be opaque and gratuitously complicated in ways that even experts cannot follow. As Professors Farina, Newhart, and Blake observe, from the perspective of affected citizens, the agency’s rule and accompanying analysis “is about as accessible as if the documents were written hieroglyphics.” The net result is an administrative process that – despite its promises otherwise – has become increasingly inhospitable to meaningful engagement by stakeholders in general and citizens in particular, including their self-appointed experts and advocates.

This paper explores the growing gap between the legally protected “right” to participate in administrative process and the practical ability to act on that right in U.S. administrative law. The basic argument is a simple one. If a legal process depends on public participation, then the process should be designed to ensure that meaningful participation takes place. Merely providing opportunities for citizens to inform and hold agencies accountable is futile if the agency is allowed or even encouraged to develop policies and rules that are voluminous, analytically opaque, and effectively incomprehensible to all but the most well-funded expert. Yet this seemingly obvious and important feature of administrative process – namely the failure to require that the decisions be reasonably comprehensible to the diverse set of interests – has gradually slipped through the cracks in the design of administrative process.

More specifically, a disconnect or missing link has developed between the mandated means of ensuring participation in administrative process and the unenforceable, but overarching end goal of engaging affected groups. This disconnect occurs because the measures for ensuring participation (opportunities to comment; transparent processes; right to review) are legally enforceable but are effectively severed from any effort to ensure the penultimate goal of vigorous participation. Even more perversely, as the U.S. legal system grows more proceduralized, comprehension barriers to participation grow with them. The resulting information deluge ushered in by various analytical and paperwork requirements, in fact, appears to be inversely correlated with the ability of less sophisticated parties to understand the implications of the underlying regulatory decisions with respect to their interests.

This essay begins with a brief overview of the design and structure of U.S. administrative process. It then proceeds to identify ways that the end goal of meaningful participation has been lost in the proceduralization of U.S. administrative law and how this omission serves to ultimately undermine the end goal of ensuring vigorous participation. The paper closes with some suggestions for future research. Since it has been suggested that U.S. participation may in fact provide a model for other countries, the hope is that by exposing fundamental problems in the design of administrative process, others can sidestep these pitfalls or at least be aware of the limitations of the U.S. approach.

 

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