Arguments related to agency employee qualifications
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| Agency control |
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Agency dynamics is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Agency dynamics is a term used to refer to the structure and function of administrative agencies. While the majority of agencies are housed under the executive branch, others are established as independent federal agencies or are housed under the legislative or judicial branches. These structural variations impact agency oversight as well as agency interactions across branches. This pillar also involves understanding the nuts and bolts of agency functions, including rulemaking and adjudication proceedings.
This page examines the main arguments that have been advanced regarding agency employee qualifications. While some arguments claim that current agency employee qualifications promote expertise, for example, others contend that current agency employee qualifications hinder effective policymaking.
This page features the following arguments concerning agency employee qualifications:
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Agency expertise strengthens public policy
2. Argument: Agency expertise contributes to regulatory stagnation
3. Argument: Administrative judges lack the expertise to preside over adjudication
4. Argument: Administrative judges' expertise meets the demand for adjudicative roles
Argument: Agency expertise strengthens public policy
The expertise of agency employees, according to this argument, contributes to robust agency decisionmaking outside of the influence of the political branches.
Claim: Agency procedures leverage expertise and promote accountability
This claim suggests that rulemaking and adjudication procedures enhance agency accountability and support agency expertise.
- Administrative law scholar Wendy Wagner described this claim in her law review essay "A Place for Agency Expertise: Reconciling Agency Expertise with Presidential Power." Wagner argued that procedures governing agency action promote agency expertise by holding agencies accountable.
- "The twenty-first century agency-as-expert abandons any pretense of the New Dealer’s insulated, neutral expert, and instead it is distinguished by a highly proceduralized approach to decisionmaking, reinforced by a professionalized civil service. In this way, multiple, overlapping public and scientific processes constrain the agencies’ discretion and improve the rigor and transparency of their decisions and underlying analyses. The heightened transparency of this process also enhances agency accountability and legitimacy. In fact, this deliberative approach to agency expertise finds roots in the philosophy of science, where a founding precept is that all science should be subject to rigorous questioning and constant, skeptical double-checking."[1]
- Wagner further claimed that agency decisionmaking leverages expertise.
- "Just as science is defined by virtue of its process, expert regulation is now characterized by its adherence to a decisionmaking process that seeks both the best science and the best policy through multiple explication and oversight requirements. Transparency, peer and public scrutiny, and more structured analysis processes are the hallmarks of the agency-as-expert in the United States today and appear to have helped agencies retain their authoritative role as the nation’s experts."[1]
Argument: Agency expertise contributes to regulatory stagnation
Agency expertise, according to this argument, can embed stagnant policies and hinder the development of new ideas.
Claim: Agency expertise results in sub-optimal policy
This claim suggests that agency expertise serves to prolong old regulatory approaches rather than promote new policy development.
- Clyde Wayne Crews, director of the Competitive Enterprise Institute, claimed that agency expertise prevents the exploration of creative approaches to policy.
- "You see the dilemma; 'expertise' is getting defined by default as embedding the new into decades-old centrally defined models and (infra)structures. Instead of creating a vocabulary and strategy for liberalization, governments impose or perpetuate an increasingly sub-optimal 'commons' to divvy up. The failure to allow the development of completely new and necessary institutions of markets and capitalism — and the failure to even recognize the need for it– is one of the greatest costs of the regulatory state, unquantified and unquantifiable."[2]
Argument: Administrative judges lack the expertise to preside over adjudication
This argument contends that administrative judges, unlike administrative law judges, lack sufficient expertise to preside over adjudication proceedings.
Claim: Administrative judges lack the expertise to preside as impartial adjudicators
This claim suggests that administrative judges (AJs) are less qualified than administrative law judges.
- Administrative law scholar Kent Barnett described this claim in his law review article "Against Administrative Judges." Barnett claimed that the less stringent qualifications for administrative judges, as opposed to administrative law judges, can make administrative judges prone to partiality concerns during adjudication proceedings.
- "Agencies appoint agency-employed AJs without any outside agency’s (such as the OPM’s) involvement in the selection process. Agencies often have established guidelines for selecting AJs as part of a competitive process for AJs who have no other duties. For instance, the Nuclear Regulatory Commission requires that hearing examiners 'shall be from a list of qualified attorneys possessing the highest degree of integrity, ability, and good judgment'; have certain authorization; be employed by the agency, or one of its licensees or contractors that are not parties to the hearing; have no ex parte knowledge of the proceedings; and otherwise be impartial. But agencies are not generally required by any statute or the U.S. Constitution to be appointed in a particular way or to have any particular qualifications (such as being a lawyer), aside from Civil Service statutes that apply to hiring generally. Indeed, the Bush administration came under fire for appointing Immigration Judges ('IJs') — a category of AJs — based on political criteria, instead of under a competitive process. Half of the 37 hired IJs had no immigration experience, and those with experience had all worked in enforcement or as prosecutor. And because many AJs have additional duties aside from presiding over hearings, agencies may have a freer and less visible hand in selecting employees to serve as part-time adjudicators."[3]
Argument: Administrative judges' expertise meets the demand for adjudicative roles
The rise in informal adjudication, according to this argument, necessitates the use of administrative judges to preside over proceedings.
Claim: Administrative judges' expertise satisfies current agency standards for administrative adjudicators
This claim suggests that the rise in informal adjudication has created a demand for administrative adjudicators that exceeds the availability of administrative law judges. The expertise of administrative judges, according to this claim, is sufficient to satisfy agency needs for informal adjudicators.
- Paul Verkuil, former chairman of the Administrative Conference of the United States, in a 1992 presentation at a University of California, Los Angeles, Law School symposium, claimed that U.S. Supreme Court decisions in the 1990s have allowed agencies to increase the use of informal adjudication—an unconstrained model of adjudication not bound by the formal adjudication requirements of the Administrative Procedure Act (APA). As a result, Verkuil contends that informal adjudication supports the use of a variety of federal administrative adjudicators not specified by the Administrative Procedure Act:
- "It is fair to say that by the 1990s the Court has moved towards greater decisional freedom under the Due Process Clause. From its earlier position in Wong Yang Sung of equating due process to formal APA hearings, the Court has evolved from the Goldberg requirement of specifying procedures for due process to a world that can readily accept an informal process of infinite variety. In this environment the decider need not be APA-qualified, nor must the APA formal hearing process serve as a baseline. This informal process, which is not defined by the APA, remains an amorphous competing model."[4]
See also
External links
Footnotes
- ↑ 1.0 1.1 Columbia Law Review, "A Place for Agency Expertise: Reconciling Agency Expertise with Presidential Power," accessed December 15, 2020
- ↑ Competitive Enterprise Institute, "The Costs Of Federal Agency Expertise," August 29, 2018
- ↑ UC Davis Law Review, "Against Administrative Judges," accessed December 15, 2020
- ↑ College of Wiliam & Mary Law School Scholarship Repository, "Reflections upon the Federal Administrative Judiciary," 1992
