Democratic Rulemaking

Abstract

Abstract In the introduction, I sketched the magnitude of the problem posed by administrative discretion. At this point in the argument, the stage has been set for a solution. It is time to assemble the players so as to describe the conditions necessary to avoiding bureaucratic domination. There are four main elements of my story that need now to be combined. First, I have shown in an abstract way how the normative fruitfulness of democratic deliberation allows the legislature’s conclusions to be handed off to the agencies as premises to guide further truth-oriented deliberation about what we ought to do.1 For instance, once the legislature had spoken, it was reasonable for officials in the Department of Transportation to presume that transportation ought to be made available to the disabled and to go on from there to figure out how best to do this. Second, in characterizing types of practical reasoning, I distinguished different patterns of constraint. A narrowly instrumental constraint that attempted to keep controversial decisions about public ends out of the agencies is, I argued, naive; but the broadly instrumental constraint that builds on the idea of specifying ends will prove useful. Third, I have shown how flexible agency deliberation can and often does extend beyond specifying legislatively set ends to establishing new ends in a rationally defensible way. In the second round of rulemaking under the Biaggi Amendment, this involved articulating a new, superordinate (or more final) end, that of avoiding discrimination against the disabled, to help guide the specification of the legislatively mandated end, that of making special efforts to make transportation accessible to the disabled. Yet this move came about largely because of the bureaucratic entrepreneurship of the DOT’s acting assistant secretary for environment, safety, and consumer affairs, Martin Convisser, and the creative agenda management of the DOT’s general counsel, Linda Kamm. Hence, while they were indeed engaged in a flexible remaking of aims, such processes should be more closely guided by public input than was this one. Finally, I have followed the process of formulating the public will through the electoral process to the passage of legislation.