STEIGER PM - Albany Law Revie Steiger Production.pdf · STEIGER 3/12/2016 3:26 PM 2015/2016] A Constitutional Theory of Imperative Participation 5 à-vis a few individuals.14 “[P]ost-democracy”

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1

ARTICLES

A CONSTITUTIONAL THEORY OF IMPERATIVE

PARTICIPATION: DELEGATED RULEMAKING, CITIZENS’

PARTICIPATION AND THE SEPARATION OF POWERS

DOCTRINE

Dominik Steiger, New York University/Freie Universität Berlin*

ABSTRACT

There is a need for a constitutional theory of imperative

participation, as no comprehensive theory of participation exists to

date and people everywhere in the world are asking for more

influence in the exercise of public authority. The United States, as

the oldest still-functioning democracy, with its well-developed

participatory mechanisms, is the natural place to turn in order to find

such a theory. Still, the United States Constitution only tacitly

addresses participation, aside from the provisions governing the

election of Congress and the President. However, participation can

be conceptualized through the separation of powers doctrine. The

latter can be understood not only as a system of checks and balances,

but as an organizational principle balancing democracy (i.e.,

collective self-determination) and rule of law (i.e., individual self-

determination). The United States Constitution’s implicit rules on

participation will be made explicit in this article in order to answer

the two most important questions about any public participation in

* Dr. iur., Senior Fellow Freie Universität Berlin, Emile Noël Fellow Academic Year

2014/2015, Jean Monnet Center, New York University School of Law, Deutsches Haus at NYU

DAAD Visiting Fellow, DFG-Forschungsstipendiat. The author would like to thank Jelena

Bäumler, Armin von Bogdandy, Gráinne de Búrca, Adam B. Cox, Heike Krieger, Peter

Lindseth, Christoph Möllers, John Morison, Burt Neuborne, Niels Petersen and Joseph H.

Weiler, my fellow Emile Noël Fellows Mor Bakhoum, Pietro Faraguna, Katarzyna Granat,

Vanessa Mak, Andrew Mitchell, Lucas P.M. Peeperkorn, Bilyana Petkova, Áine Ryall and

Tania Voon, and all participants of the Emile Noël workshop, especially Roxana Banu, Maria

Adele Carrai, Daniel Francis, Zsuzsanna Gedeon and Joanna Langille. Thanks also to Wiebke

Günther and Deborah Casalin.

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2 Albany Law Review [Vol. 79.1

any given case. Firstly, who may participate in the exercise of public

authority? Secondly, what legal effect does the participation possess?

In this analysis, participation in the executive’s delegated

rulemaking procedures—which touches all three branches of

government—will serve as the theory’s litmus test.

I. INTRODUCTION .......................................................................... 3

II. PARTICIPATION .......................................................................... 4

A. Participation’s Legal Effect: Imperative Participation ...... 6

B. Participation’s Actors: From the People to One

Individual ........................................................................... 7

C. Participation’s Functions: Individual Rights,

Efficiency, and Democracy ................................................. 8

D. Summarizing Imperative Participation: Citizens

Partaking in All State Affairs ............................................ 9

III. SEPARATION OF POWERS ......................................................... 10

IV. CONCEPTUALIZING PARTICIPATION VIA THE SEPARATION

OF POWERS DOCTRINE: A CONSTITUTIONAL THEORY OF

IMPERATIVE PARTICIPATION .................................................... 14

V. DELEGATED RULEMAKING: THE THEORY’S LITMUS TEST ....... 17

A. The Legislature: Democratic Delegation of Powers .......... 18

1. Democratic Control: Standards of Rulemaking and

Oversight Mechanisms................................................ 19

2. Imperative Participation in the Delegation Process .. 27

B. The Executive: Delegated Rulemaking ............................. 29

1. Bound and Democratic: The Character of Agencies

and Rulemaking .......................................................... 30

2. Imperative Participation in Rulemaking ................... 39

3. Delegated Rulemaking and Participation: The

Executive and Collective Self-Determination............. 44

C. The Judiciary: Adjudicating Rulemaking and the

Rule of Law ....................................................................... 45

1. Separation of Powers and Judicial Review ................. 46

2. Judicial Remedy .......................................................... 58

3. Participation on the Judicial Level: Legal Standing .. 59

4. Conclusion: Balancing Judicial Review and

Standing ...................................................................... 64

VI. THE POWER OF THE CONSTITUTIONAL THEORY OF

IMPERATIVE PARTICIPATION .................................................... 65

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2015/2016] A Constitutional Theory of Imperative Participation 3

I. INTRODUCTION

Participation by the people is a powerful tool which influences the

exercise of public authority within all branches of government and

may enhance the legitimacy of public authority—but only if it is done

right. Still, nearly fifty years after the beginning of the participation

debate,1 no overarching constitutional theory of participation exists

which encompasses all three branches of government and

demonstrates what is meant by “participation done right.” This

lacuna will be filled by this article, which develops a constitutional

theory of imperative participation.

There is a need for such a theory, as people everywhere in the world

are asking for more influence in the exercise of public authority.2 The

United States, as the oldest still-functioning democracy, with its well-

developed participatory mechanisms,3 is the natural place to turn in

order to find such a theory. Like all constitutions—except the South

African one, which explicitly refers to the principle of

responsiveness4—the United States Constitution only tacitly

addresses participation, aside from the provisions governing the

election of Congress and the President.5 Still, participation is

conceptualized through the United States Constitution’s separation

of powers doctrine.6 The latter can be understood not only as a

system of checks and balances, but as the organizational principle

balancing democracy (i.e., collective self-determination) and rule of

law (i.e., individual self-determination).7

The implicit rules on participation will be made explicit in this

article in order to answer the two most important questions about

any public participation in any given case. Firstly, who may

participate in the exercise of public authority? Secondly, which legal

effect does the participation possess? In this analysis, participation

in the executive’s delegated rulemaking procedures—which touches

1 See Barbara L. Bezdek, Citizen Engagement in the Shrinking City: Toward Development

Justice in an Era of Growing Inequality, 33 ST. LOUIS U. PUB. L. REV. 3, 3 (2013). 2 See id. at 7–8, 39. 3 See Graham T. Allison, Jr. & Robert P. Beschel, Jr., Can the United States Promote

Democracy?, 107 POL. SCI. Q. 81, 90, 93 (1992). 4 S. AFR. CONST., 1996, ch. 1(d). 5 See K.K. DuViver, The United States as a Democratic Ideal?: International Lessons in

Referendum Democracy, 79 TEMP. L. REV. 821, 825–27 (2006). 6 See Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency

Model to Direct Democracy, 56 VAND. L. REV. 395, 401–03 (2003). 7 See WILLIAM E. HUDSON, AMERICAN DEMOCRACY IN PERIL: EIGHT CHALLENGES TO

AMERICA’S FUTURE 9 (7th ed. 2013).

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all three branches of government—will serve as the theory’s litmus

test.

This article proceeds as follows: First, in an inductive overview of

participation, a constitutional understanding of imperative

participation will be developed. It will be shown that certain

structures exist with regard to who shall participate (the people, the

affected public, or one individual) and which powers flow from that

participation (decision-making, commenting, or procedure-

initiating). These structures are connected to the three functions of

participation, i.e., the democratic, rule of law and efficiency

functions.8 Second, an understanding of the separation of powers

doctrine will be developed alongside the functions of participation.9

The congruence of the functions of participation and of the separation

of powers doctrine allows for the deduction of a constitutional theory

of imperative participation.10 Finally, the theory will be put to the

test by applying it to delegated rulemaking.11

II. PARTICIPATION

Much trust in the governing class has been lost in democratic

states in recent times and many citizens are turning their backs on

their states in dismay.12 There has been extensive commentary on

this development,13 and various terms have been coined to describe

this process of withdrawal from the public sphere due to the

powerlessness of the individual vis-à-vis the collective, or rather vis-

8 See infra Part II. 9 See infra Part III. 10 See infra Part IV. 11 See infra Part V. 12 See MIKE LOFGREN, THE PARTY IS OVER: HOW REPUBLICANS WENT CRAZY, DEMOCRATS

BECAME USELESS, AND THE MIDDLE CLASS GOT SHAFTED 1, 5, 6 (2012). 13 See, e.g., MICKEY EDWARDS, THE PARTIES VERSUS THE PEOPLE: HOW TO TURN

REPUBLICANS AND DEMOCRATS INTO AMERICANS, at ix (2012); JACOB S. HACKER & PAUL

PIERSON, WINNER-TAKE-ALL POLITICS: HOW WASHINGTON MADE THE RICH RICHER—AND

TURNED ITS BACK ON THE MIDDLE CLASS 152 (2010); HUDSON, supra note 7, at xiii; LAWRENCE

LESSIG, REPUBLIC, LOST: HOW MONEY CORRUPTS CONGRESS—AND A PLAN TO STOP IT 1, 9

(2011); LOFGREN, supra note 12, at 1, 5, 6; PETER MAIR, RULING THE VOID: THE HOLLOWING OF

WESTERN DEMOCRACY 2–3 (2013); THOMAS E. MANN & NORMAN J. ORNSTEIN, IT’S EVEN WORSE

THAN IT LOOKS: HOW THE AMERICAN CONSTITUTIONAL SYSTEM COLLIDED WITH THE NEW

POLITICS OF EXTREMISM 27 (2012); ROBERT C. POST, CITIZENS DIVIDED: CAMPAIGN FINANCE

REFORM AND THE CONSTITUTION 30 (2014); ROBERT B. REICH, BEYOND OUTRAGE: WHAT HAS

GONE WRONG WITH OUR ECONOMY AND OUR DEMOCRACY, AND HOW TO FIX IT, at xi (2012);

PIERRE ROSANVALLON, COUNTER-DEMOCRACY: POLITICS IN AN AGE OF DISTRUST 1 (Arthur

Goldhammer trans., 2008); NADIA URBINATI, DEMOCRACY DISFIGURED: OPINION, TRUTH, AND

THE PEOPLE 12 (2014).

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à-vis a few individuals.14 “[P]ost-democracy” may be the most known

among these terms.15 This powerlessness is not only perceived, but

truly exists, as recent empirical research has shown that “the

preferences of economic elites . . . have far more independent impact

upon policy change than the preferences of average citizens do.”16

It has been claimed that participation is the path to increase the

citizens’ impact on the exercise of state authority and to engage

citizens anew with their states, as well as win back constituents to

the political systems and make them truly democratic.17 Many have

pondered on these theories,18 and while participation certainly is not

the magic bullet that will carry the (democratic) day, it is of

considerable importance.19 Although much thought has been

invested in direct democracy and in participation in administrative

and judicial proceedings,20 surprisingly no (theoretical) legal thought

has been invested in analyzing participation comprehensively in all

three branches of government. As citizens demand more voice and

question the democratic legitimacy of public authority,21 it is

becoming an urgent and practical need to think about new and better

ways for citizen involvement in the exercise of state power. Following

an inductive approach, the already existing participation

opportunities need to be analyzed, as they have never been examined

in a holistic manner.

Before starting to find a pattern of participation in all three

branches, participation needs to be defined. Many definitions of

14 See COLIN CROUCH, POST-DEMOCRACY, at vii, viii–ix (2004). 15 Id. at ix. 16 Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest

Groups, and Average Citizens, 12 PERSP. ON POL. 564, 576 (2014). 17 See BENJAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE

117, 152 (1984); THEODORA TH. ZIAMOU, RULEMAKING, PARTICIPATION AND THE LIMITS OF

PUBLIC LAW IN THE USA AND EUROPE 230 (2001); Sherry R. Arnstein, A Ladder of Citizen

Participation, 35 J. AM. INST. PLANNERS 216, 216 (1969); Sherry R. Arnstein, A Working Model

for Public Participation, 35 PUB. ADMIN. REV. 70, 70, 73 (1975). 18 See BARBER, supra note 17, at 8. 19 See id. at 155. 20 See Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency

Model to Direct Democracy, 56 VAND. L. REV. 395, 400 (2003) (noting how direct democracy has

been accomplished in the United States through the lawmaking powers of some administrative

agencies); Stephanie Tai, Three Asymmetries of Informed Environmental Decisionmaking, 78

TEMP. L. REV. 659, 671–72 (2005) (explaining how public participation through direct

democracy allows for interested citizens to demand judicial review of administrative actions). 21 See HUDSON, supra note 7, at 140.

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participation are sociological,22 political,23 or rights-based.24 As a

constitutional theory will be developed here, the definition of

imperative participation will ultimately be much narrower. The

United States Constitution’s main focus lies on enabling and limiting

the exercise of public authority.25 Participation will thus be

understood as citizens partaking in the exercise of public authority

where the organ addressed is legally obliged to react to the citizens’

action and must do so via a legal procedure. Participation comes in

different forms: it has different legal effects,26 different actors are

involved,27 and different functions are being fulfilled.28

A. Participation’s Legal Effect: Imperative Participation

Participation, as it is understood in this article, possesses a legal

effect that is imperative on the State.29 It will therefore be referred

to as “imperative participation.” The imperative effect of citizens’

participation can differ: direct democracy allows for legislating

directly, while voting leads to newly constituted organs.30

Participation in rulemaking, and other acts of state, forces the State

to react to and consider the participants’ submission (though not

necessarily to follow it).31 Participation in judicial matters forces the

State to activate the judicial process and to deliver a judgment

(though not to decide in favor of the plaintiff).32

In contrast, important democratic rights and forms of action, such

as freedom of speech or assembly, do not form part of this definition

of participation.33 As important as the fundamental rights to free

22 Damien Contandriopoulos, A Sociological Perspective on Public Participation in Health

Care, 58 SOC. SCI. & MED. 321, 322 (2004). 23 See ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPE AND REVIVAL OF AMERICAN

COMMUNITY 18 (2000). 24 JOANA MENDES, PARTICIPATION IN EU RULE-MAKING: A RIGHTS-BASED APPROACH 1

(2011). 25 See Stephanie Hall Barclay, Retained by the People: Federalism, the Ultimate Sovereign,

and Natural Limits on Government Power, 23 WM. & MARY BILL OF RTS. J. 257, 264–66 (2014). 26 See infra Part II(A). 27 See infra Part II(B). 28 See infra Part II(C). 29 See HUDSON, supra note 7, at 143. 30 See id. at 160, 177. 31 See HUBERT HEINELT, GOVERNING MODERN SOCIETIES: TOWARDS PARTICIPATORY

GOVERNANCE 8 (2010). 32 See id. at 9; Tai, supra note 20, at 672. 33 See JAMES S. FISHKIN, WHEN THE PEOPLE SPEAK: DELIBERATIVE DEMOCRACY AND PUBLIC

CONSULTATION 45 (2009) (exemplifying that these fundamental rights are missing from this

definition of participation).

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speech and assembly are for the democratic state,34 they do not force

the State to listen. They are the soil in which participation is rooted

and which participation needs to live and prosper—and are thus

especially protected—but they are not forms of imperative

participation.35

B. Participation’s Actors: From the People to One Individual

The actors of participation differ. The people as a whole act in

instances of representative and direct democracy.36 In contrast, in

the case of an administrative decision that, in principle, affects only

one person, e.g., any order such as a building permit or a police order,

only certain individuals participate as petitioners. The same is true

for the plaintiffs in judicial proceedings.37 In instances of public

planning, more people may participate, such as the affected public.38

In delegated rulemaking, different NGOs and experts might

participate.39 In the United States, the public may also participate

in rulemaking procedures.40

If one regards the actors on a continuum, they move gradually in

quantitative terms from everybody (i.e., the people), to a group of

people (i.e., the affected public), to just one person (i.e., the plaintiff).

In qualitative terms, this rather clear graduation becomes more

complex. For example, the people are not composed of everybody, but

only of citizens—a more and more contested principle.41 The affected

public may also include legal aliens. Plaintiffs can even be aliens not

residing within the country.42 From these qualitative observations,

it follows that a mechanical quantitative differentiation is a

generalization and simplification. However, the qualitative approach

does not contradict the quantitative approach, but actually confirms

34 See BURT NEUBORNE, MADISON’S MUSIC: ON READING THE FIRST AMENDMENT 98 (2015). 35 See id. 36 See HEINELT, supra note 31, at 9–10. 37 See CORNELIUS M. KERWIN & SCOTT R. FURLONG, RULEMAKING: HOW GOVERNMENT

AGENCIES WRITE LAW AND MAKE POLICY 167 (4th ed. 2001). 38 See HEINELT, supra note 31, at 28. 39 See id. at 11, 28. 40 See FISHKIN, supra note 33, at 76 (noting that participation should be more than just the

election of policymakers, but should also include direct policymaking). 41 See HEINELT, supra note 31, at 28; Wessel le Roux, Representative Democracy, Migration

and Residence Based Voting Rights in Post-Apartheid South Africa and Post-Unification

Germany (1990-2015), in THE END OF THE REPRESENTATIVE STATE? DEMOCRACY AT THE

CROSSROADS (Henk Botha & Nils Schaks & Dominik Steiger eds., forthcoming 2016)

(manuscript at 188, 189) (on file with author). 42 See, e.g., id. at 22.

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it in general, yet simultaneously makes it more complex in the

specifics.

C. Participation’s Functions: Individual Rights, Efficiency, and

Democracy

Lastly, the functions of participation differ. One can differentiate

three main functions of participation which determine the different

legal effects and actors, and thus serve as a switch.

First, participation protects the rule of law.43 The rule of law

concept can be understood in many ways.44 In this article, it is

understood as a broad concept, not only encompassing the primacy of

law, but also the protection of individual rights and the furthering of

individual self-determination.45 The terms will be used

interchangeably to underline the notion that the rule of law serves

individual rights and individual self-determination.

Second, participation enhances the public authority’s efficiency by

informing the competent organs via special expertise that is based on

expert knowledge and/or familiarity with the subject.46

Third, participation enhances democratic legitimacy.47 Similar to

the rule of law concept, the term democracy can be understood in

many different ways.48 In this article, democracy is also understood

as a broad concept, not only encompassing majority rule, but also

deliberative and participatory notions that allow for collective self-

determination by the people.49

43 MENDES, supra note 24, at 33. 44 See Joana Mendes, Rule of Law and Participation: A Normative Analysis of

Internationalised Rulemaking as Composite Procedures 20 (The Jean Monnet Ctr. for Int’l &

Reg’l Econ. Law & Just., Working Paper No. JMWP 13/13, 2013). 45 Cf. Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (In Florida)?, 21

L. & PHIL. 137, 147 (2002) (showcasing the Rule of Law as being a concept riddled by legal

processes and judicial discretion, particularly in relation to the issues arising from the 2002

United States Presidential election). 46 See KERWIN & FURLONG, supra note 37, at 169; ARMIN VON BOGDANDY, GUBERNATIVE

RECHTSETZUNG 68–69 (2000). 47 Mio Fredriksson, Between Equity and Local Autonomy: A Governance Dilemma in

Swedish Healthcare, DIGITAL COMPREHENSIVE SUMMARIES OF UPPSALA DISSERTATIONS FROM

THE FACULTY OF MED. 30 (2012), http://uu.diva-

portal.org/smash/get/diva2:461056/FULLTEXT01.pdf. 48 CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 6, 7 (2001). 49 See Joshua Cohen, Democracy and Liberty, in DELIBERATIVE DEMOCRACY 185–186 (John

Elster ed., 1998); FISHKIN, supra note 33, at 45 (discussing the various avenues that citizens

can take to engage in political participation); JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS:

CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 302–03 (William Rehg

trans., MIT Press 1996) (1992); HEINELT, supra note 31, at 23. For a delineation of

participatory democracy and deliberative democracy see Antonio Floridia, Beyond Participatory

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D. Summarizing Imperative Participation: Citizens Partaking in

All State Affairs

To summarize: Participation allows the people to exert the power

to create laws or make state organs react to citizens’ action. However,

not everyone is always allowed to participate. Furthering the rule of

law, promoting democracy, and guaranteeing efficiency are the

functions of participation,50 but a tension exists between these

functions, which is the reason for involving different actors and

allowing those actors different kinds of influence on decisions.

The following hypothetical demonstrates this tension quite well: If

the affected public could decide on the building of a cross-country oil

pipeline, like the proposed and heavily disputed Keystone XL

pipeline, which would connect the tar sands oilfields of Canada to

United States refineries in the Gulf of Mexico area,51 there would

never be any pipeline, because most affected people would say

“NIMBY––Not in my backyard!” The affected public’s decision,

however, could be contrary to a law passed by Congress deciding the

pipeline would be built,52 or to a potential decision approving the

pipeline by the Environmental Protection Agency (“EPA”).

Which decision would prevail? The one of the affected public, or

the one of Congress or the EPA—organs which are both fully

legitimized by all the American people?53 Such a decision by the

affected public might also infringe upon the fundamental rights of

the companies building the pipeline. However, if the affected public

had no say whatsoever, their interests and rights would be nearly

worthless. Protests and resistance by the people would follow, and

effective enforcement might become impossible, or at least severely

hampered.

The tension thus needs to be resolved by balancing the conflicts

Democracy, Towards Deliberative Democracy: Elements of a Possible Theoretical Genealogy, 44

RIVISTA ITALIANA DI SCIENZA POLITICA 299, 305 (2014). 50 Furthermore, these three criteria are the decisive criteria for the success and survival of

liberal democracies. See FRANCIS FUKUYAMA, POLITICAL ORDER AND POLITICAL DECAY: FROM

THE INDUSTRIAL REVOLUTION TO THE GLOBALIZATION OF DEMOCRACY 25, 26–27 (2014); FRANCIS

FUKUYAMA, THE ORIGINS OF POLITICAL ORDER: FROM PREHUMAN TIMES TO THE FRENCH

REVOLUTION 15, 16 (2011). 51 David Barer et al., What is the Keystone XL Pipeline?, STATEIMPACT,

https://stateimpact.npr.org/texas/tag/keystone-xl-pipeline/ (last visited Jan. 31, 2016). 52 Such a law regarding Keystone XL passed the House in November 2014 and was narrowly

defeated by one vote in the Senate. Bill Chappell, Senate Rejects Keystone XL Pipeline Bill, in

a Close Vote, NPR (Nov. 18, 2014, 6:20 PM), www.npr.org/sections/thetwo-

way/2014/11/18/365048998/senate-rejects-keystone-xl-pipeline-bill-in-a-close-vote. 53 U.S. CONST. art. I, § 1; 40 C.F.R. § 1.1 (2015).

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between democracy and the rule of law. This tension mirrors the

tension of collective (democratic) and individual (rule of law based)

self-determination, which is unraveled by the separation of powers

doctrine.54 This will also lead to a more efficient government, as the

absence of protests and resistance—or, speaking positively, the

general acceptance of majority decisions and general recognition of

individual rights—will allow for effective enforcement of government

authority. This insight with regard to the separation of powers

doctrine can be fructified by answering the questions of who may

participate and which form participation must take in a specific

situation.

III. SEPARATION OF POWERS

The three functions of participation––protection of individual

rights, guaranteeing efficiency, and enabling democracy––are

mirrored in the separation of powers doctrine, which is the decisive

constitutional norm in conceptualizing participation.55 Participation

will thus be aligned with the separation of powers doctrine. The

doctrine—which is not understood as a strict separation doctrine, but

rather as a checks and balances doctrine56—classically protects the

rule of law and preserves individual freedom by dividing public

authority into different branches and limiting their power.57 The

doctrine also enhances the public authority’s efficiency by assigning

public power not only to different organs, but to the organs that are

best equipped to execute that function.58 Often overlooked, but

54 See CHRISTOPH MÖLLERS, THE THREE BRANCHES: A COMPARATIVE MODEL OF SEPARATION

OF POWERS 51 (2013); KRISTINA ROEPSTORFF, THE POLITICS OF SELF-DETERMINATION: BEYOND

THE DECOLONISATION PROCESS 56 (2013). 55 See supra Part II.C. 56 See THE FEDERALIST NO. 47 (James Madison); Peter L. Strauss, The Place of Agencies in

Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 577–78, 616

(1984) (differentiating between: “separation of powers” (strict); “separation of functions” (less

strict and can be called a “Madisonian view”); and “checks and balances”). 57 See Myers v. United States, 272 U.S. 52, 291, 293 (1926); Bundesverfassungsgericht

[BVerfG] [Federal Constitutional Court] Dec. 17, 2013, NEUE ZEITSCHRIFT FÜR

VERWALTUNGSRECHT [NVWZ] 577 (578, 579) 2014 (Ger.); GEOFFREY R. STONE ET AL.,

CONSTITUTIONAL LAW xli, 368 (7th ed. 2013); THE FEDERALIST NO. 48 (James Madison). 58 While this is explicitly denied in Myers, 272 U.S. at 293, the U.S. Supreme Court in

Buckley v. Valeo, 424 U.S. 1, 121 (1976), refers to the effectiveness of government in the context

of the separation of powers. In United States v. Nixon, 418 U.S. 683, 707 (1974), the Supreme

Court speaks of “the constitutional balance of ‘a workable government.’” The Court in Mistretta

v. United States, 488 U.S. 361, 372 (1989), allowed for delegations because “Congress simply

cannot do its job absent an ability to delegate power under broad general directives.” See also

Opp Cotton Mills, Inc. v. Adm’r of Wage & Hour Div., 312 U.S. 126, 145 (1941) (“In an

increasingly complex society Congress obviously could not perform its functions if it were

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inherent to the second function, is the creation of organs and their

empowerment with specific competences and functions to exercise

public authority in the first place.59 As all public authority in the

three legal orders needs to be traced back to the people, the

democratic aspect is intrinsic to the separation of powers doctrine.60

It is not enough, however, that participation and separation of

powers share the same functions. The most important task is to

balance these functions. This entails assigning certain powers to

certain branches and organs in order to fulfill the promises of a

functioning and efficient state in which democracy and the rule of

law, collective and individual self-determination, individual rights,

and collective interests are all brought into equilibrium.61

In order to balance the aims of participation and determine who

may participate, and with how much power in any given case, this

article will make use of a new and important understanding of, and

insight into, the separation of powers doctrine. This insight

emphasizes that the claims of democracy and the rule of law—i.e., of

collective self-determination and of individual self-determination,

which are often said to be contradictory62—are legally unraveled in

the procedures foreseen by the separation of powers doctrine.63

The organizational principle of the separation of powers achieves

this balancing act by assigning public authority to the “proper”

branch and organ according to three criteria:64 First, is the public

authority rather bound or unbound by law? Second, does the public

authority mainly have retrospective or prospective effects? Third,

does the public authority primarily affect one individual or

obliged to find all the facts subsidiary to the basic conclusions which support the defined

legislative policy . . . .”); N.W. Barber, Prelude to the Separation of Powers, 60 CAMBRIDGE L.J.

59, 63 (2001) (explaining one purpose of the separation of powers is to promote efficiency);

STONE ET AL., supra note 57, at 368 (noting one distinct purpose of the separation powers is

efficiency); Strauss, supra note 56, at 620 (noting the effective functioning of the system of

checks and balances). Justice Jackson pleaded for a workable government, stating, “[w]hile the

Constitution diffuses power . . . to secure liberty, it also contemplates that practice will

integrate the dispersed powers into a workable government,” Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring), which was cited approvingly in

Mistretta, 488 U.S. at 381. See also id. at 383 (“In cases specifically involving the Judicial

Branch, we have expressed our vigilance against two dangers: first, that the Judicial Branch

neither be assigned nor allowed ‘tasks that are more properly accomplished by [other] branches

. . . .’”) (quoting Morrison v. Olson, 487 U.S. 654, 680–81(1988)). 59 See MÖLLERS, supra note 54, at 80. 60 Id. at 51, 80. 61 THE FEDERALIST NO. 48, supra note 57. 62 See MÖLLERS, supra note 54, at 63. 63 See id. at 108, 109. 64 Id. at 50.

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potentially everybody?

The public authority exercised by the legislature is characterized

by its low degree of legal predetermination, as it is only bound by the

Constitution;65 its temporal orientation, which is prospective;66 and

finally, the scope of its decisions, which potentially affects

everybody.67 The legislative proceeding is a mainly democratic one

and allows for collective self-determination.68

Public authority exercised by the judiciary principally affects one

person, is retrospective, and is clearly defined by law.69 Judicial

proceedings70 mainly protect the rule of law and individual self-

determination.71 Of course, constitutional courts differ from this

analysis.72 But this is the reason their judgments and even their

existence is so disputed: they are, in a way, a foreign concept in the

court system as well as in the democratic system, protecting

democracy against itself.73 The focus on the protection of individual

self-determination might not be as strong in the United States as in

the German system, for example, with its particular emphasis on

subjective rights.74 However, the United States Supreme Court not

only held that “[i]t is emphatically the province and duty of the

judicial department to say what the law is,”75 but that “[t]he province

of the court is, solely, to decide on the rights of individuals . . . .”76

65 Id. at 80, 84; Peter L. Strauss, Was There a Baby in the Bathwater?: A Comment on the

Supreme Court’s Legislative Veto Decision, 1983 DUKE L.J. 789, 796, 798. 66 MÖLLERS, supra note 54, at 84; see also Bundesverfassungsgericht [BVerfG] [Federal

Constitutional Court] Dec. 17, 2013, NEUE ZEITSCHRIFT FÜR VERWALTUNGSRECHT [NVWZ] 577

(580) 2014 (Ger.) (explaining the legislature’s responsibility is the present, not the past);

Strauss, supra note 65, at 798 (noting the legislature’s “future effect”). In fact, the United

States Constitution forbids retroactive and individual laws. U.S. CONST. art.1, § 9, cl. 3. 67 See MÖLLERS, supra note 54, at 84. 68 See THE FEDERALIST NO. 39 (James Madison). 69 MÖLLERS, supra note 54, at 80, 89; Strauss, supra note 65, at 798. 70 Of course, individual self-determination is primarily based on a decision and on the will

of a single person. But from a legal point of view, individual self-determination necessitates

legal rights and mechanisms to protect individual self-determination. See MÖLLERS, supra note

54, at 68. 71 See id. at 95. 72 See id. at 135–36. 73 See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE

BAR OF POLITICS 1, 29 (1962); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF

JUDICIAL REVIEW 74, 106 (1980). 74 See Alexander Blankenagel, The Concept of Subjective Rights as the Focal Point of German

Administrative Law, 11 TEL AVIV U. STUD. L. 79, 80, 88 (1992). 75 City of Arlington v. FCC, 113 S. Ct. 1863, 1880 (2013) (Roberts, C.J., dissenting) (quoting

Marbury v. Madison, 5 U.S. 137, 177 (1803)). 76 Marbury, 5 U.S. at 170. See also JOSEPH VINING, LEGAL IDENTITY: THE COMING OF AGE

OF PUBLIC LAW 15 (1978) (noting the court’s role in preserving an individual’s power); Susan

Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 263 (1990) (stating the Court’s primary role

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Even if, of course, the Supreme Court articulates norms and uses its

certiorari power according to the importance of the questions before

it,77 it primarily protects individual self-determination.78

Since democracy and the rule of law are always co-existent in all

branches,79 the sliding scale character of this model must be

emphasized: Parliament also has to respect and protect individual

rights;80 court cases—de facto in civil law countries and, via

precedent, de jure in common law countries—do not only concern the

individual plaintiff.81 Still, Parliament is predominantly concerned

with the collective good and courts are predominantly concerned with

individual rights.82

The executive branch, situated in between the two other branches,

is especially “two-faced”: as a rule maker, it is close to the legislative

branch; as an adjudicator, it is close to the judiciary; and hence

mediates on a continuous and gradual scale between the two poles.

Independent from whether it acts as a rule maker or an adjudicator,

is deciding an individual’s rights); Abram Chayes, The Role of the Judge in Public Law

Litigation, 89 HARV. L. REV. 1281, 1285 (1976) (explaining that private law is based in

protecting an individual’s rights); Abram Chayes, The Supreme Court, 1981 Term: Foreword:

Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 46–47 (1982) (noting that a

court does not give an individual their rights, but rather one is entitled to their rights); Louis

L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff,

116 U. PA. L. REV. 1033, 1033 (1968) (identifying the individual rights and power of a plaintiff);

Robert J. Pushaw, Jr., Article III’s Case/Controversy Distinction and the Dual Functions of

Federal Courts, 69 NOTRE DAME L. REV. 447, 523 n.356 (1994) (noting that it is the Court’s

purpose to protect individual rights); Cass R. Sunstein, Standing and the Privatization of

Public Law, 88 COLUM. L. REV. 1432, 1460, 1469 (1988) (noting the role of the judicial branch

is to protect individual rights); Mark V. Tushnet, The New Law of Standing: A Plea for

Abandonment, 62 CORNELL L. REV. 663, 666 (1977) (noting that part of the judical process is

the consideration of individual rights); but see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY

185 (1977); Richard H. Fallon, Jr., Marbury and the Constitutional Mind: A Bicentennial Essay

on the Wages of Doctrinal Tension, 91 CALIF. L. REV. 1, 14 (2003); Henry P. Monaghan,

Constitutional Adjudication: The Who and When, 82 YALE L. J. 1363, 1366 (1973). See RICHARD

H. FALLON, JR. ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM

72–73 (6th ed. 2009), for the overview of the law declaration model vs. the dispute resolution

model. 77 FALLON, JR. ET AL., supra note 76, at 75. 78 Gray v. Romeo, 697 F. Supp. 580, 585 (D.R.I. 1988). 79 See generally Francesca Bignami, The Administrative State in a Separation of Powers

Constitution: Lessons for European Community Rulemaking from the United States, Part

II(C)(2) (Jean Monnet Cntr. for Int’l and Reg’l Econ. Law & Justice, Working Paper, 1999),

http://www.jeanmonnetprogram.org/archive/papers/99/990501.html (explaining the

rulemaking process includes those branches chosen through the democratic process). 80 See Robert A. Sedler, Constitutional Protection of Individual Rights in Canada: The

Impact of the New Canadian Charter of Rights and Freedoms, 59 NOTRE DAME L. REV. 1191,

1228 (1984). 81 See Bignami, supra note 79, Part V(B). 82 See id. at Introduction, Part VIII A.

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the executive’s action is to some degree determined by a statute.83

Other than that, its exercise of public authority has different effects,

as it differs in scope, in its temporal orientation, and in the degree of

legal pre-determination.84

If the administration’s action is strictly pre-determined (leaving no

or only some discretion), retrospective (i.e., regulating a case that

originated in the past even if the act affects the future, such as the

granting of a building permit) and regulates one single case (for

example, in the case of a demolition order), then the administration

acts in the adjudicative mode.85 If the administration’s action is less

legally pre-determined, prospective,86 and concerns everybody (as in

delegated rulemaking), it rather acts in a legislative mode.87

Elements of collective self-determination in the rulemaking mode

are far more distinct than in the administration’s adjudicative

actions, but less so than in the actions of the legislature, because the

administration is bound more strictly by law.88 Elements of

individual self-determination in the administration’s adjudicative

mode are far more distinct than in the in the administration’s

rulemaking mode, but less so than in the judiciary, as there is more

discretion yielded to the administration.89

From the separation of powers point of view, delegated rulemaking

belongs primarily to the democratic sphere of collective self-

determination, while the adjudicative mode is situated more in the

sphere of the rule of law and individual self-determination.90

IV. CONCEPTUALIZING PARTICIPATION VIA THE SEPARATION OF

POWERS DOCTRINE: A CONSTITUTIONAL THEORY OF IMPERATIVE

PARTICIPATION

The functions of participation and the functions of the separation

of powers doctrine overlap. Both are concerned with the subject

matter of public authority: the separation of powers doctrine governs

83 See MÖLLERS, supra note 54, at 96, 97. 84 See id. 85 See id. at 89–90. 86 Retrospective rules are even prohibited by the Constitution. See generally Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208, 209 (1988) (noting that although some form of

retroactivity is permitted under the law, it is unfavored). For an overview of the U.S.

jurisprudence in this regard, see Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and

Equitable Discretion in Administrative Law, 53 DUKE L.J. 291, 348 (2003). 87 See MÖLLERS, supra note 54, at 84. 88 See id. at 66, 84, 90, 100. 89 See id. at 100. 90 See id. at 66, 79, 95, 97.

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how public authority is exercised and assigned to the proper branch;91

participation is the partaking in the exercise of public authority.92

Both control and limit public authority in order to protect individual

self-determination.93 Both follow the logic of democracy and efficiency

in order to allow for collective self-determination.94 Owing to this

overlap of functions and subject matter, the fourth function of the

separation of powers doctrine—which unravels the “contradictory

claims of individual and democratic collective autonomy”95—serves

as the guiding principle in creating a constitutional theory of

imperative participation.

Participation in legislative proceedings, which enables collective

self-determination, requires the people to decide on future matters

concerning everybody.96 This is evident in instances of direct

democracy where the people—i.e., everybody—decide on general

laws.97 But it also holds true with regard to representative

democracy where a parliament, which is elected and therefore

decided upon by the people,98 decides on general laws.99 As the mode

of collective self-determination also needs to respect individual self-

determination, the people’s laws will have to respect the rule of law

and individual self-determination.

In contrast, participation in judicial proceedings, which protect

individual self-determination, requires only one person to partake—

i.e., the person who wants to restore her or his individual self-

determination that was impaired by the State in the past.100 Here,

the State is forced to react and render a verdict if the individual’s

rights have been affected.101 The decision-making powers remain

with the public authority and are executed strictly according to the

law, in order to respect democracy / collective self-determination.102

91 See THE FEDERALIST NO. 48, supra note 57. 92 See MÖLLERS, supra note 54, at 78–79. 93 See id. at 69, 78. 94 See id. at 66, 109; see supra notes 50, 58 and accompanying text. 95 MÖLLERS, supra note 54, at 4. 96 See id. at 66 (explaining that collective self-determination involves decision-making from

several people and can take priority over the individual’s interest). 97 Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through

Heuristic Cues and “Disclosure Plus”, 50 UCLA L. REV. 1141, 1151 (2003); Daniel A. Smith, The

Voice of the Crowd – Colorado’s Initiative: Representation and the Spatial Bias of Direct

Democracy, 78 U. COLO. L. REV. 1395, 1434 (2007). 98 Frank Emmert, Rule of Law in Central and Eastern Europe, 32 FORDHAM INT’L L.J. 551,

565 (2009). 99 See id. 100 See MÖLLERS, supra note 54, at 95. 101 See id. 102 In re Enforcement of a Subpoena, 972 N.E.2d 1022, 1029 (Mass. 2012); MÖLLERS, supra

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The executive branch, with its different functions and organs,

requires a deeper analysis. As the second branch mediates on a

continuous and gradual basis between the two poles of democracy

and the rule of law, it first needs to be determined which form of self-

determination is the focus of the particular exercise of public

authority. The “who” and the “how” of participation depends on

whether the administrative act is more legislative (i.e., a rule, and

thus more about collective self-determination) or more adjudicative

(i.e., an order, and thus more about individual self-determination).

From this theory, it follows that fewer and fewer people can

participate in administrative action as it moves on the sliding scale

from the legislative mode (which allows everybody to participate) to

the adjudicative mode (which allows only the ones whose rights have

been breached to participate). The decision-making power will

always stay with the State in order to protect individual and

collective self-determination. Still, within the discretion accorded to

the state organ, it has to consider the results of participation: the

more discretion the state organ has been accorded by the law, the

more it has to consider the results of the participation, and vice versa.

If the citizens want to decide themselves on administrative questions,

they have to convince the people to either vote for a new government,

or—if available—to decide on a law via means of direct democracy.

In short, the separation of powers doctrine serves as an

organizational principle balancing democracy (or collective self-

determination) and the rule of law (encompassing individual rights

and thus individual self-determination) by assigning public authority

to the “proper” branch: the legislature enables collective self-

determination, the judiciary protects individual self-determination,

and the executive is situated in between the two on a sliding scale.

From this, it follows that in legislative matters, everybody must be

able to participate and decide (elections, direct democracy); in judicial

matters, an individual must be able to participate, but the State

decides. Finally, participation in the second branch must never allow

for the public to decide, as the executive is already more rule-bound

than the legislature. At its democratic end (rulemaking) everybody

must be able to participate, at its rule of law end (adjudication) only

the affected individuals must be able to do so.

The methodological path chosen is inductive with regard to public

participation and deductive with regard to principles of democracy

note 54, at 89–90.

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and the rule of law. An inductive approach reasons from specific

events to an underlying principle.103 A deductive approach reasons

from a general principle to a specific answer.104 With the help of the

deductive approach, the constitutional theory of imperative

participation has been developed by deducing the modes of

participation from the democracy principle, the rule of law principle,

and the separation of powers doctrine. The inductive approach will

confirm that theory by showing that the way participation is already

articulated in the legal order of the United States accords to the

constitutional theory of imperative participation.

V. DELEGATED RULEMAKING: THE THEORY’S LITMUS TEST

The constitutional theory of imperative participation, outlined

above, needs to be tested thoroughly. As delegated rulemaking is

situated at the heart of the separation of powers doctrine105—the

executive acts in a quasi-legislative function106 on the basis of a

delegation by the legislature and is scrutinized by the judiciary—it

serves as the litmus test for the theory, which strives to find an

answer with regard to all three branches. A rule is, in short, a

binding government statement of general applicability and future

effect.107 It thus resembles a law, but has not been passed by the

legislature.108 This constellation therefore carries certain separation

of powers implications.

According to Article I, Section 1 of the U.S. Constitution, Congress,

as the legislature, is charged with the task of making laws.109 This

task is further refined in Article I, Section 8, which, inter alia,

contains the necessary and proper clause.110 Article II, Section 1 U.S.

Constitution entrusts the President, as the head of the executive,

with the task of taking care that these laws are faithfully executed.111

Article III of the U.S. Constitution confers on the judiciary the power

to decide cases and controversies.112 Since 1789, Congress has

103 DAVID E. GRAY, DOING RESEARCH IN THE REAL WORLD 16 (Jai Seaman et al. eds., 3rd ed.

2014). 104 Id. 105 See THE FEDERALIST NO. 48, supra note 57. 106 Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935). 107 5 U.S.C. § 551(4) (2014). 108 U.S. CONST. art. I, § 8, cl. 18; see § 551(4); Humphrey’s Ex’r, 295 U.S. at 628. 109 U.S. CONST. art. I, §§ 1, 8 cl. 18. 110 U.S. CONST. art. I, § 8, cl. 18; John Mikhail, The Necessary and Proper Clauses, 102 GEO.

L.J. 1045, 1058 (2014). 111 U.S. CONST. art. II, § 1, cl. 8. 112 U.S. CONST. art. III, § 2, cl. 1.

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delegated some of its power to the President and other organs of the

executive branch.113 Although delegated rulemaking is nowhere

mentioned in the Constitution, it is nevertheless accepted in

principle.114 This has been confirmed by the Supreme Court, which

watches over the legality of delegated rulemaking.115

In the following, this article will explore the legislature’s delegation

process,116 executive rulemaking,117 and judicial review function,118

and how the separation of powers doctrine steers citizens’

involvement in these processes.

A. The Legislature: Democratic Delegation of Powers

The legislature first and foremost serves democratic ends and

allows for collective self-determination.119 Like all laws, delegating

laws are prospective, general, and only bound by the Constitution.120

Participation in passing delegation laws must encompass the people,

i.e., everybody, and must allow for decision-making power.121 This

follows from the democratic character of lawmaking.

The separation of powers doctrine is the decisive constitutional

standard to be applied in regulating the delegation of powers from

Congress to the administration.122 The democratic legislature cannot

simply delegate broad powers to the executive, as this might be in

breach of the separation of powers doctrine.123 Imagine that

Congress were to delegate all lawmaking powers to the President; by

doing so, it would abolish the separation of powers doctrine, and with

it, the Constitution itself.124 In order to adhere to the separation of

113 Bowsher v. Synar, 478 U.S. 714, 753, 755–56 (1986); Constitution of the United States,

U.S. SENATE, http://www.senate.gov/civics/constitution_item/constitution.htm (last visited Feb.

02, 2015). 114 For a timeline of different phases of rulemaking, see Peter L. Strauss, From Expertise to

Politics: The Transformation of American Rulemaking, 31 WAKE FOREST L. REV. 745, 750

(1996). 115 Carrie Leonetti, Watching the Hen House: Judicial Rulemaking and Judicial Review, 91

NEB. L. REV. 72, 86 (2012). 116 See infra Part V.A. 117 See infra Part V.B. 118 See infra Part V.C. 119 See MÖLLERS, supra note 54, at 85. 120 U.S. CONST. art. I, §§ 1, 8, cl. 18; MÖLLERS, supra note 54, at 84. 121 See Strauss, supra note 114, at 748 (noting that when it comes to rulemaking power, the

people act as an external oversight). 122 John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV.

1939, 1942 (2011). 123 See id. at 1944. 124 In fact, the German Enabling Act of 1933 (Ermächtigungsgesetz) foresaw exactly that

and turned Germany from a democracy to a dictatorship. See Peter L. Lindseth, The Paradox

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powers doctrine, certain delegation standards must be followed.125

Participation in the delegation process is equally governed by the

separation of powers doctrine.126 As it is the legislature—and thus

the most democratically-oriented branch—that delegates,

participation involves everybody and allows everybody to decide.127

1. Democratic Control: Standards of Rulemaking and Oversight

Mechanisms

Delegation is mentioned nowhere in the United States

Constitution. Article I of the U.S. Constitution provides that the

legislature will make laws.128 Laws are widely understood to be

binding norms of general character regulating future events, passed

by Congress, and only bound by the Constitution.129 They thus allow

for collective self-determination. Article II of the U.S. Constitution

provides that the executive will faithfully execute these laws.130

From the principle of democracy and the separation of powers

doctrine, it follows that Congress has to guide and steer the

executive.131 In order to do so, different standards and oversight

mechanisms have been employed and can be distinguished.132 The

point of departure for all research on delegation is the non-delegation

doctrine, which suggests that delegation is unconstitutional.133 Via

the intelligible principle test, the courts undertook the effort to

structure the delegation of rulemaking powers from congress to the

agencies.134 Legislative oversight by legislative veto has been limited

by the Supreme Court, but is still in use.135 Often overlooked,

Congress also possesses further instruments which provide strong

of the Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and

France, 1920s-1950s, 113 YALE L.J. 1341, 1360, 1371 (2004). 125 See infra Part V.A.1. 126 See infra Part V.A.2. 127 See infra Part V.A.2. 128 U.S. CONST. art. I, § 1. 129 See U.S. CONST. art. I, § 8, cl. 18. 130 U.S. CONST. art. II, § 1, cl. 8. 131 See, e.g., J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (stating

that the legislature, through the intelligible principle, can steer the executive). 132 See Mathew D. McCubbins et al., Administrative Procedures as Instruments of Political

Control, 3 J. L. ECON. & ORG. 243, 244 (1987). 133 See infra Part V.A.1.a; see e.g., Mistretta v. United States, 488 U.S. 361, 382 (1989) (“[W]e

[have] invalidated attempts by Congress . . . to reassign powers vested by the Constitution in

either the Judicial Branch or the Executive Branch.”). 134 See infra Part V.A.1.b; see e.g., J.W. Hampton & Co., 276 U.S. at 409 (showing an example

of the courts attempting to structure legislative delegation). 135 See infra Part V.A.1.c; see INS v. Chadha, 462 U.S. 919, 959 (1983); Louis Fisher, CONG.

RESEARCH SERV., RS22132, LEGISLATIVE VETOES AFTER CHADHA 6 (2005).

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oversight mechanisms.136

a. Non-Delegation Doctrine

The starting point of every inquiry into delegation is the so-called

non-delegation doctrine. It is rooted in the separation of powers

doctrine and said to prohibit the delegation of rulemaking power to

the executive.137

Supporting the claim of the existence of a non-delegation doctrine,

in 1892, the Supreme Court, without further argument, simply held

non-delegation to be “a principle universally recognized.”138

Similarly, in Youngstown Sheet and Tube Co. v. Sawyer,139 a case that

was not about delegated rulemaking in particular but about

presidential powers in general,140 the Supreme Court referred to the

vesting clauses of Article I and II of the U.S. Constitution and held

that “the framework of our Constitution, the President’s [or any other

executive branch’s] power to see that the laws are faithfully executed

refutes the idea that he is to be a lawmaker.”141

On the contrary, the first delegation already took place in 1789;142

Chief Justice John Marshall declared delegation which “fill[s] up the

details” to be “certainly” lawful;143 the Supreme Court spoke

affirmatively of the quasi-legislative function of agency activity;144

and only in two cases did the Supreme Court actually invalidate a

delegating law.145 Strikingly, these two laws were not invalidated on

the grounds of the non-delegation doctrine, but because Congress

delegated overly broad powers to the executive.146 It is thus an

136 See infra Part V.A.1.d. 137 See Mistretta v. United States, 488 U.S. 361, 382 (1989) (citing Bowsher v. Synar, 478

U.S. 714, 726 (1986)); INS v. Chadha, 462 U.S. 919, 956 (1983); N. Pipeline Constr. Co. v.

Marathon Pipe Line Co., 458 U.S. 50, 76 (1982)); Alexander Volokh, The New Private-

Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges, 37 HARV. J.L.

& PUB. POL’Y 931, 954 (2014). 138 Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892). 139 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 140 Youngstown, 343 U.S. at 582. 141 As Justice Black for the majority stated flatly. Id. at 587. See also Buckley v. Valeo, 424

U.S. 1, 123 (1976) (emphasizing the words of Justice Black more than two decades later)

(quoting Youngstown, 343 U.S. at 587). 142 Appropriations for the Support of Governement, ch. 23, 1 Stat. 95 (1789); Regulation of

Trade and Intercourse with the Indian Tribes, ch. 33, 1 Stat. 137 (1790). 143 Wayman v. Southard, 23 U.S. 1, 43 (1825). 144 Humphrey’s Ex’r v. United States, 295 U.S. 602, 628, 629 (1935). 145 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935); Panama

Refining Co. v. Ryan, 293 U.S. 388, 433 (1935). 146 A. L. A. Schechter Poultry Corp., 295 U.S. at 541–42; Panama Refining. Co., 293 U.S. at

416, 418–19.

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overstatement that the doctrine “has had one good year, and 211 bad

ones (and counting).”147 Rather, the non-delegation doctrine is “no

doctrine at all.”148

The constitutionality of delegated rulemaking is not only necessary

to allow for effective and efficient exercise of public authority,149 but

is furthermore in accordance with the vision of the Founding Fathers.

Madison has already explained in The Federalist No. 47 that

separation of powers was never meant as a clear-cut separation of

either form or function.150 Rather, this doctrine allows for overlaps

and intersections.151 The United States Constitution consequently

allows Congress to delegate rulemaking power—as long as it stays

within the constitutional boundaries set by the separation of powers

doctrine.152

b. Intelligible Principle

The Supreme Court has held—though without further

elaboration—that Congress, as the lawmaker, needs to uphold its

responsibility and thus steer the administration via an intelligible

principle.153 This principle was the decisive argument in striking

down the first delegating act ever in the Panama Refining decision.154

Section 9(c) of the National Industrial Recovery Act gave the

President the power to prohibit the transport of hot oil, i.e., oil

produced in excess of state quotas, in interstate and foreign

commerce.155 As the Court could find no standard but only a

“declaration of policy” in which certain (somewhat conflicting)156

goals of the act were announced, it found the delegation too broad and

unconstitutional: “As to the transportation of oil production in excess

of state permission, the Congress has declared no policy, has

established no standard, has laid down no rule. There is no

requirement, no definition of circumstances and conditions in which

147 Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000). 148 Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2364 (2001). 149 For reasons speaking favor of the necessity of delegation, see Richard B. Stewart, The

Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1695 (1975). 150 THE FEDERALIST NO. 47, supra note 56. 151 Mistretta v. United States, 488 U.S. 361, 381 (1989). 152 See J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). 153 See id. 154 Panama Refining Co. v. Ryan, 293 U.S. 388, 429–30, 433 (1935) (quoting J.W. Hampton,

Jr. & Co., at 409). 155 Id. at 406. 156 Uwe Kischel, Delegation of Legislative Power to Agencies: A Comparative Analysis of

United States and German Law, 46 ADMIN. L. REV. 213, 219 (1994).

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the transportation is to be allowed or prohibited.”157 This act was an

extreme example of the absence of any standards and “paled in

comparison (even at the time) to the vagueness associated with

countless delegations to administrative agencies.”158 But neither in

this case—nor in the Schechter decision of the same year, which was

the last delegating act ever invalidated by the Supreme Court—did

the Court positively state what the intelligible principle exactly

demands.159 In Schechter, the Supreme Court declared

unconstitutional the centerpiece of the National Industrial Recovery

Act.160 Section 3 of the Act was about “codes of fair competition”

created by a round table of union and industry representatives, which

were then to be adopted by the President in order to become

effective.161 The Supreme Court concluded that section 3:

[S]upplies no standards for any trade, industry or activity. It

does not undertake to prescribe rules of conduct to be applied

to particular states of fact determined by appropriate

administrative procedure. Instead, . . . it authorizes the

making of codes to prescribe them. For that legislative

undertaking [it] sets up no standards, aside from the

statement of the general aims of rehabilitation, correction and

expansion found in section one.162

This delegation went even further than the one in Panama

Refining, especially as it allowed for private parties to have a

considerable influence in the preparation of the rules.163

Other delegating statutes were upheld by the Supreme Court,

157 Panama Refining. Co., 293 U.S. at 430. 158 Kagan, supra note 148, at 2365–66. 159 The Supreme Court did not mention the intelligible principle but spoke of “standards”

that are not met. See KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE 176 (2nd ed.

1979). But see LOUIS L JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 60 (1965)

(finding the standards to be narrower). 160 Kischel, supra note 156, at 219–20. 161 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 521–23 (1935). 162 Id. at 541. 163 Kagan, supra note 148, at 2365; see also STONE ET AL., supra note 57, at 425 (comparing

Pamana Refining and Schechter); ZIAMOU, supra note 17, at 55 (“After the famous Panama

Refining and Schechter cases, where the Supreme Court struck down acts of Congress for

enabling an unconstitutionally broad delegation of power by not providing sufficient standards

to limit the scope of agency discretion, they have been hesitant to invalidate statutes on

delegation grounds, thus upholding the granting of vaguely defined powers to administrative

agencies.”). The National Recovery Act of 1933 foresaw that the President was supposed to

approve the code if several criteria were met, inter alia, that (a) “no inequitable restrictions on

admission to membership” existed and, (b) that the codes were not used to get rid of

competition. A. L. A. Schechter Poultry Corp., 295 U.S. at 521 n.4; see also DAVIS, supra note

159, at 176 (“[M]ost sweeping congressional delegation of all time.”).

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including delegations that granted power to make rules “as public

convenience, interest, or necessity requires”164 or to fix prices in order

“to stabilize commodity prices, be fair and equitable, and be fixed

with due consideration to prevailing prices during a designated base

period.”165 Even statutes that authorize regulations in the “public

interest” have been found constitutional by the Supreme Court.166

The Agricultural Adjustment Act allows the Secretary of Agriculture

to make rules with regard to agricultural marketing, only requiring

that agricultural marketing should be “orderly.”167 The Patient

Protection and Affordable Care Act168 authorized different agencies

to issue “such regulations as may be necessary.”169 Neither law has

been challenged on these grounds.170

While upholding these rather broad statutes, the Supreme Court

has failed to give content and meaning to the intelligible principle.

Undertakings in the lower courts to argue that procedural safeguards

developed by the agency form part of the principle, and thus

implement a higher standard, have failed.171 In Whitman v.

American Trucking Ass’ns.,172 the Court held that the development of

procedural standards by the agency cannot cure an unlawful

delegation of Congress.173 In this decision, the Court at least gave

164 National Broadcasting Co. v. United States, 319 U.S. 190, 214, 220, 225, 227 (1943). 165 Kischel, supra note 156, at 220. 166 See, e.g., National Broadcasting. Co., 319 U. S. at 225, 226, 227 (1943) (discussing the

Federal Communications Commission’s power to regulate airwaves); New York Cent. Sec. Corp.

v. United States, 287 U.S. 12, 24, 25 (1932) (discussing Interstate Commerce Commission’s

power to approve railroad consolidations); see also Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 475 (2001) (discussing the Environmental Protection Agency’s power to regulate air

quality). 167 MAEVE P. CAREY, CONG. RESEARCH SERV., RL32240, THE FEDERAL RULEMAKING

PROCESS: AN OVERVIEW 4 (2013), https://www.fas.org/sgp/crs/misc/RL32240.pdf (referring to

the examination of the amount of regulatory discretion afforded to the agencies) (citing U.S.

GEN. ACCT. OFF., GAO/GGD-99-20, REGULATORY BURDEN: SOME AGENCIES’ CLAIMS REGARDING

LACK OF RULEMAKING DISCRETION HAVE MERIT 3 (1999), http://www.gao.gov/assets/230/2267

56.pdf). 168 The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119. 169 CAREY, supra note 167, at 4 (quoting CURTIS W. COPELAND, CONG. RESEARCH SERV.,

R41180, REGULATIONS PURSUANT TO THE PATIENT PROTECTION AND AFFORDABLE CARE ACT

(P.L. 111-148) 12 (2010), http://www.ncsl.org/documents/health/Regulations.pdf.). 170 See generally CAREY, supra note 167, at 4 (discussing how Acts, such as the Agricultural

Adjustment Act, and the Patient Protection and Affordable Care Act, grant agencies significant

discretion as to how rules are established and what they require). 171 See Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F. Supp. 737, 755

(D.C. 1971); ZIAMOU, supra note 17, at 56. Both Loving v. United States, 517 U.S. 748, 773–74

(1996) and Touby v. United States, 500 U.S. 160, 169 (1991), upheld delegation acts against

non-delegation complaints. 172 Whitman v. Am. Trucking Ass’ns., 531 U.S. 457 (2001). 173 Id. at 473. For developments up until the District of Columbia Circuit Court’s decision

in Whitman, see Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 MICH. L. REV.

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some structure to the principle by holding that “the degree of agency

discretion that is acceptable varies according to the scope of the

power congressionally conferred.”174 In addition, one important and

often undervalued consequence of the intelligible principle is its

interpretative effect, which leads the Supreme Court to give a narrow

interpretation to statutes in order not to be forced to invalidate

them.175

c. Legislative Veto

Other methods remain to control the administration and allow

Congress to stay true to the separation of powers doctrine while

delegating. Congress delegates rulemaking powers via laws, which

can be repealed by Congress.176 But a repeal of a law is a law in itself,

and as such, is subject to a presidential veto.177 In order to avoid the

presidential veto, the “legislative veto” was developed.178 In the

delegating statutes, the two chambers of Congress—or sometimes,

only one of the chambers or even a committee—were empowered to

veto an order or a rule made by the agency, thus taking back

Congress’ power.179 But in INS v. Chadha,180 the Supreme Court

decided that the separation of powers doctrine demands Congress

give the President the opportunity to veto a congressional act

reversing an agency order.181 That same year, the Supreme Court

extended its Chadha finding to rules as well.182 These cases sounded

“the death knell for nearly 200 other statutory provisions in which

303, 342 (1999). See also Kischel, supra note 156, at 226 (discussing various other famous cases

with regard to how the issue of delegation has been analyzed). 174 Whitman, 531 U.S. at 475 (citing Loving, 517 U.S. at 772; United States v. Mazurie, 419

U.S. 544, 556–57 (1975)). This is also true in cases in which fundamental rights are touched

upon. See Kent v. Dulles, 357 U.S. 116, 125 (1958). This can be compared to the German

Wesentlichkeitstheorie. See ZIAMOU, supra note 17, at 56. 175 See Kischel, supra note 156, at 222. The Supreme Court has read the word “significant”

into the risk requirement in the Benzene case. See Indus. Union Dep’t, AFL-CIO v. Am. Petrol.

Inst., 448 U.S. 607, 639–40 (1980). 176 See Saikrishna Bangalore Prakash, Deviant Executive Lawmaking, 67 GEO. WASH. L.

REV. 1, 23 (1998). 177 See INS v. Chadha, 462 U.S. 919, 956–57 (1983). 178 LOUIS FISHER, CONG. RESEARCH SERV., RS22132, LEGISLATIVE VETOES AFTER CHADHA 1

(2005). 179 See Hermann Pünder, Democratic Legitimation of Delegated Legislation—A Comparative

View on the American, British and German Law, 58 INT’L & COMP. L. Q. 353, 366–67 (2009).

Even if Congress has not used it quite often, the existence of it already has a controlling effect

on the Administration. See Kagan, supra note 148, at 2257. 180 Chadha, 462 U.S. 919. 181 Id. at 952, 956–58. 182 Process Gas Consumers Grp. v. Consumer Energy Council, 463 U.S. 1216 (1983).

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Congress has reserved a ‘legislative veto.’”183 Still, more than four

hundred legislative vetoes were enacted between the decision and

2005.184 Although the President proclaims them to be

unconstitutional on a regular basis, legislative vetoes have an

important impact on the agencies, as the agencies need to work with

the review committees to which the veto competence is usually

transferred.185 There is thus still a heavy impact by Congress on the

agencies in the rulemaking process.186

d. Other Congressional Oversight Mechanisms

In order to steer the administration, Congress possesses a wide set

of tools beside the ones already analyzed. Contrary to the perception

that the leeway is supposedly so wide that the agencies have even

been called a “junior-varsity congress,”187 congressional oversight

mechanisms allow for a considerable amount of control and

accountability.188 Congress can phrase its delegating laws in very

strict language;189 withhold funding if it is not content with the work

of the executive;190 or make use of appropriations riders in order to

restrict the use of funds for special purposes191 or in order to direct

the use of funds for special purposes.192 Despite the Chadha decision,

Congress can still legislatively override an agency’s decision as long

as the President does not veto it, as well as revise statutory

183 Chadha, 462 U.S. at 967 (White, J., dissenting). 184 FISHER, supra note 178, at 5. 185 Id. 186 See id. at 6. 187 Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting). 188 See KERWIN & FURLONG, supra note 37, at 221–29 (reviewing various mechanisms

bywhich Congress maintains control); McCubbins et al., supra note 132, at 244 (arguing that

the design and structure of agencies was decisive in controlling rulemaking through Congress). 189 If Congress does not, one can even argue that a form of delegation has taken place: from

Chevron it follows that in case of ambiguity, the statute takes on the meaning that the agencies

have given to it. See Sunstein, supra note 147, at 329. This can be regarded as a case of implicit

delegation. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984);

Sunstein, supra note 147, at 329–30. Thus some voiced concern against the Chevron judgment

precisely on non-delegation grounds. See Cynthia R. Farina, Statutory Interpretation and the

Balance of Power in the Administrative State, 89 COLUM. L. REV.452, 511–12 (1989); Antonin

Scalia, Judicial Deference to Administrative Interpretations of Law, 38 DUKE L.J. 511, 519–20

(1989). 190 See Reeve T. Bull, Making the Administrative State “Safe for Democracy”: A Theoretical

and Practical Analysis of Citizen Participation in Agency Decisionmaking, 65 ADMIN. L. REV.

611, 619 (2013); Kagan, supra note 148, at 2256; see generally, 5 U.S.C. §§ 801–808 (2006)

(reviewing Congress’ review of Agency Rulemaking). 191 E. Donald Elliott, INS v. Chadha: The Administrative Constitution, the Constitution, and

the Legislative Veto, 1983 SUP. CT. REV. 125, 156, 157. 192 COPELAND, supra note 169, at 17.

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mandates.193 All agencies must also submit their rules to the United

States Government Accountability Office—both houses of Congress

can then issue a joint resolution of disapproval,194 or even require the

agency to get a positive affirmation by Congress before the rule enters

into force.195 Moreover, Congress can hold “serious”196 and

“embarrassing”197 oversight hearings, and finally block presidential

nominees, which has been called the “perhaps most effective means

of influence.”198 Although it has been argued that Congress has no

great interest in overseeing the administration,199 the opposite is

true: Congress uses its tools in such a way that the rulemaking

procedure can be called a system of “congressional dominance.”200

e. Delegating Rulemaking Powers: Some Conclusions

The most important insight is that the separation of powers

doctrine governs the delegation of powers and allows for the

delegation of rulemaking powers from the democratic legislature to

the executive. The doctrine is indeed a system of checks and

balances, not a clear-cut separation.201 The delegating laws are—like

all laws—prospective, general, and only bound by the constitution.

This shows that Congress is acting in a democratic manner and

allows for collective self-determination—not only by controlling the

administration, but also by empowering it to act and pursue the

democratic will of the people. Allowing delegation is not only

permissible but also of considerable importance in today’s

administrative state, as delegation is necessary to heighten the

state’s effectiveness and efficiency.202

193 See Bull, supra note 190, at 618–19; Elliott, supra note 191, at 156–57; Kagan, supra note

148, at 2256–57; see generally, 5 U.S.C. §§ 801–808 (2006) (reviewing Congress’ review of

Agency Rulemaking). 194 5 U.S.C. § 801(a)(1)(A), (b)(1); RICHARD S. BETH, CONG. RESEARCH SERV., RL31160,

DISAPPROVAL OF REGULATIONS BY CONGRESS: PROCEDURE UNDER THE CONGRESSIONAL REVIEW

ACT 1, 9 (2001). 195 See Elliott, supra note 191, at 157. 196 Kagan, supra note 148, at 2256. 197 Elliott, supra note 191, at 157. 198 Kagan, supra note 148, at 2256; Barry R. Weingast & Mark J. Moran, Bureaucratic

Discretion or Congressional Control?: Regulatory Policymaking by the Federal Trade

Commission, 91 J. POL. ECON. 765, 769 (1983). 199 See Kagan, supra note 148, at 2256. 200 See Weingast & Moran, supra note 198, at 767 (basing this upon empiral research). See

Elliott, supra note 191, at 156–57, for even more different means of controlling the

administration. 201 THE FEDERALIST NO. 47, supra note 56. 202 For reasons in favor of the necessity of delegation, see Stewart, supra note 149, at 1695.

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Although the underdeveloped intelligible principle and the finding

of the unconstitutionality of the legislative veto seem not to provide

a safeguard against too much delegation of powers,203 which would

run contrary to the demands of the separation of powers doctrine, the

checks against uncontrolled delegation are rather strong, and

Congress is left with ample tools in order to control the Executive.

The democratic control that Congress asserts is stronger than one

might think and is in accordance with the separation of powers

doctrine.

2. Imperative Participation in the Delegation Process

Participation in the delegation process involves everybody and

allows everybody to decide.204 This can be deduced from the

democratic character of lawmaking. Although participation in the

actual delegation process on the federal level is rather sparse,205 the

people decide on the personnel that acts in the delegation process:

Before Congress can delegate, it must be elected. In addition, the

people vote for the President, who also possesses control mechanisms

over the agencies and their rulemaking.206 Electing a President who

is in favor of deregulation, like Ronald Reagan, or in favor of

regulation, like Bill Clinton, does lead to a significant difference in

the action of the agencies.207 The first mode of imperative

participation is a representative mode based on elections of the

political personnel.

Different from this first mode, the second mode of imperative

participation on the federal legislative level is only available in

theory, but well known on the state level:208 Direct democracy allows

the people to pass delegating laws themselves.209 One can

203 See DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 133

(1994); KENNETH F. WARREN, ADMINISTRATIVE LAW IN THE POLITICAL SYSTEM 217 (5th ed.

2011); see generally THEODORE J. LOWI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF

THE UNITED STATES 93 (2nd ed. 1979) (describing why the doctrine of delegation of power is

favored although recognized weaknesses exist). 204 See id. 205 See infra notes 208, 212–14 and accompanying text. 206 See Arthur H. Garrison, The Opinions by the Attorney General and the Office of Legal

Counsel: How and Why They are Significant, 76 ALB. L. REV. 217, 233 (2013). 207 See Kagan, supra note 148, at 2248–49. 208 See Christopher A. Coury, Direct Democracy through Initiative and Referendum:

Checking the Balance, 8 NOTRE DAME J. L. ETHICS & PUB. POL’Y 573, 573 (2014); Karen Syma

Czapanskiy & Rashida Manjoo, The Right of Public Participation in the Law-Making Process

and the Role of Legislature in the Promotion of This Right, 19 DUKE J. COMP. & INT’L L. 1, 1–2

(2008); John G. Matsusaka, Direct Democracy Works, 19 J. ECON. PERSP. 185, 185–86 (2005). 209 See id. at 186, 187.

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differentiate between a referendum, where the State asks the people

to decide on a certain legislative issue,210 and an initiative, where a

group of people ask the people to decide on a legislative issue.211

Without further delving into the state level, the existence of direct

democracy here shows that it is not just a theoretical possibility but

a constitutional reality.

In addition, a third mode of imperative participation in the

legislative process exists, but again only in theory on the federal

level. This is the right to petition and to partake in congressional

lawmaking. Although everybody can petition Congress, as enshrined

in the First Amendment, the right to petition does not form part of

imperative participation, as the Supreme Court held that “[n]othing

in the First Amendment or in this Court’s case law . . . suggests that

the rights to speak, associate, and petition require government

policymakers to listen or respond to individuals’ communications on

public issues.”212 Neither does a right to partake in congressional

lawmaking exist.213 Although the committee hearings in both the

Senate and the House allow for witnesses to state their point of view,

these witnesses need to be invited by the chair or the minority leader

to testify.214 The invitees almost always include an administration

official, and the bill’s sponsor or most important co-sponsor(s).215 In

addition, the chair invites lobbyists or local governments likely

affected by the bill.216 These hearings do not give everybody a chance

to be heard in the lawmaking process. Examples from other countries

or states demonstrate that things can be done differently. In South

Africa, citizens’ submissions in the legislative process have to be

considered.217 In Montana, everybody has the right to speak in

210 CAL. CONST. art. II, § 9(a) (West, Westlaw through Ch. 807 of 2015 Legislative Session).

A “referendum is the power of the electors to approve or reject statutes or parts of statutes

except urgency statutes, statutes calling elections, and statutes providing for tax levies or

appropriations for usual current expenses of the State.” Id. 211 CAL. CONST. art. II, § 8(a) (West, Westlaw through Ch. 807 of 2015 Legislative Session).

An “initiative is the power of the electors to propose statutes and amendments to the

Constitution and to adopt or reject them.” Id. 212 Minn. Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 285 (1984). 213 Czapanskiy & Manjoo, supra note 208, at 35. 214 CHRISTOPHER M. DAVIS, CONG. RESEARCH SERV., 98-304, HOUSE COMMITTEE HEARINGS:

ARRANGING WITNESSES 1 (2015); VALERIE HEITSHUSEN, CONG. RESEARCH SERV., 98-336

SENATE COMMITTEE HEARINGS: ARRANGING WITNESSES 1 (2015). 215 See ROGER H. DAVIDSON & WALTER J. OLESZEK, CONGRESS AND ITS MEMBERS 220 (2d

prtg. 1981). 216 See DAVIS, supra note 214, at 1; HEITSHUSEN, supra note 214, at 1. 217 Doctors for Life Int’l v. Speaker of the Nat’l Assembly 2006 (6) SA 2 (CC) at 8 para. 14 (S.

Afr.); Matatiele Mun. v. President of S. Afr. 2006 (1) BCLR 47 (CC) at 20 para. 40 (S. Afr.); see

Danie Brand, Reply: Writing the Law Democratically: A Reply to Theunis Roux, in

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congressional committees.218 This form of participation differs from

the two aforementioned modes of legislative participation in two very

important aspects: first, it is not the people as an organ that is

participating, but citizens as individuals; second, citizens cannot

decide on the issues themselves. Of course, if the citizens constitute

themselves as the people, they take up the lawmaking function,

either by voting for a new legislature or by using means of direct

democracy.219

With regard to the two last modes of imperative participation,

normative reality is obviously not in conformity with the theory.220

This is not surprising, as the inductive approach only reaches as far

as today’s representative system. But on a theoretical level, one can

deduce this mode of direct democracy from the separation of powers

and the democracy principle.

To sum it up, Congress first and foremost serves democratic ends

and allows for collective self-determination. The separation of

powers doctrine is the decisive constitutional standard to be applied

in regulating the delegation powers from the legislature to the

administration. Delegating laws—like all laws—are prospective,

general, and only bound by the Constitution. Participation in

delegation is governed decisively by the democracy principle, which

is balanced by the separation of powers doctrine with the rule of law.

Thus, participation in passing delegation laws encompasses the

people, i.e., everybody, and allows for decision-making power of the

people.

B. The Executive: Delegated Rulemaking

Now we have arrived at the heart of delegated rulemaking. The

CONSTITUTIONAL CONVERSATIONS 97, 100, 104 (Stu Woolman & Michael Bishop eds., 2008);

Barbara E. Loots, Civic Duty as the Basis for Public Participation in the Legislative Process, in

THE END OF THE REPRESENTATIVE STATE? DEMOCRACY AT THE CROSSROADS (forthcoming 2015)

(manuscript at 1–2) (on file with the author); Theunis Roux, The Principle of Democracy in

South African Constitutional Law, in CONSTITUTIONAL CONVERSATIONS, supra, at 96 n.33;

Czapanskiy & Manjoo, supra note 208, at 1. 218 Testifying Before a Committee, MONT. LEGISLATURE, http://leg.mt.gov/css/About-the-

Legislature/Lawmaking-Process/testify.asp (last visited Feb. 4, 2016).

Committee hearings allow you to speak your mind before the committee takes any action

and before the bill is brought to the attention of the House and Senate for debate and a

final vote. . . . [Congress is] eager to hear your thoughts and perspective. Don’t be

intimidated, and don’t let stage fright stop you from taking this opportunity to participate

in your government!

Id. 219 See HUDSON, supra note 7, at 143, 160. 220 See supra notes 208, 212 and accompanying text.

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executive serves democratic ends by allowing for collective self-

determination on the one hand, and serves rule-of-law ends by

allowing for individual self-determination on the other hand.221

Viewed from the perspective of the separation of powers’ balancing

function, rulemaking is situated on the democratic outer rim of the

executive’s sliding scale (or continuum) from democracy to the rule of

law. The rulemaking process is the most democratic form of action

that the executive can take, but less democratic than the lawmakers’

actions. Consequently, the participation process will allow everybody

to participate—but the decision will rest with the State.

Like laws, rules are prospective, general, and bound by the

Constitution, and—in addition to general laws—by the respective

delegating laws. In addition, the agencies are bound by their

governing statutes / executive orders and Congress’ influence upon

them.222 From this and the underlying separation of powers doctrine,

it follows that the participation process in rulemaking proceedings

must accommodate the stronger impact of the rule of law: although

everybody is allowed to participate, it is the State that decides.223

Only this construction can ease the tension between democracy and

the rule of law, balance the two principles, and lead to efficiency in

this exercise of public authority (i.e., the rulemaking process).224

1. Bound and Democratic: The Character of Agencies and

Rulemaking

The rulemaking process is the most democratic form of action in

which the executive can engage. However, the rule-of-law principle

infuses the rulemaking process. This is shown by the fact that the

agencies are more constrained than Congress and are only competent

to act in certain sectors of public life according to their governing

statutes.225 These legal constraints also materialize with regard to

the legal character of the rules.226 Therefore, rulemaking as a

democratic process will be discussed against the background of the

rise of the administrative state.227

221 See MÖLLERS, supra note 54, at 71, 97. 222 See infra Part V.B.1. 223 See, e.g., JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 295 (4th ed.

2006) (explaining that the APA requires agencies to provide opportunity for written comment,

but leaves the decision of whether to even allow oral presentation to the agency). 224 See infra Part V.B.2. 225 See infra Part V.B.1.a. 226 See infra Part V.B.1.b. 227 See infra Part V.B.1.c.

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a. Institutions: Executive and Independent Agencies

Rulemaking institutions form an integral part of the second

branch, are created by either the first branch or another organ of the

second branch, and are controlled to varying degrees by organs of

both branches.228 They are legally constrained in their scope of action

by the governing statutes: for example, the mission of the

Department of Homeland Security “shall be to develop and

coordinate the implementation of a comprehensive national strategy

to secure the United States from terrorist threats or attacks”;229 the

Environmental Protection Agency (“EPA”) is competent to ensure the

“establishment and enforcement of environmental protection

standards consistent with national environmental goals”;230 and the

Federal Trade Commission is competent “to prevent persons,

partnerships, or corporations . . . from using unfair methods of

competition in commerce.”231

A second constraint might follow from the agency’s status, which is

determined according to the influence the President can legally exert

upon it.232 The latter then affects the influence that Congress can

still exert.233 The status of an agency can either be that of an

executive branch agency or an independent regulatory agency.234

While both of these types of agencies can be created by Congress or

the President,235 the President possesses different powers to direct

and influence the executive branch, while the independent regulatory

228 See DAVIS, supra note 159, at 3; KERWIN & FURLONG, supra note 37, at 7–8. 229 Exec. Order No. 13,228, 66 Fed. Reg. 51,812 (Oct. 10, 2001). 230 42 U.S.C. § 4321 (2013). 231 15 U.S.C. § 45(a)(2) (2014). 232 See Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993); Soucie v. David, 448 F.2d 1067,

1073 (D.C. Cir. 1971). 233 See id. at 1074. 234 See Scott F. Johnson, Administrative Agencies: A Comparison of New Hampshire and

Federal Agencies’ History, Structure and Rulemaking Requirements, 4 PIERCE L. REV. 435, 439

(2006). In addition, the President can also be the delegee of power. See ZIAMOU, supra note 17,

at 41; Kagan, supra note 148, at 2319–20. Today, delegation to the President seems uncommon,

but the first delegation ever undertaken by the first Congress delegated authority to the

President. See Act Providing for the Payment of Invalid Pensioners of the United States, ch.

24, 1 Stat. 95 (1789), Act to Regulate Trade and Intercourse with the Indian Tribes, ch. 33, 1

Stat. 137 (1790); Jeffrey S. Lubbers, The Transformation of the U.S. Rulemaking Process—For

Better or Worse, 34 OHIO N.U.L. REV. 469, 470 (2008); Sunstein, supra note 147, at 322–23. 235 William G. Howell & David E. Lewis, Agencies by Presidential Design, 64 J. POL. 1095

1098 tbl.1, 1101 (2002). About half of the 425 agencies created between 1946 and 1995 were

created by the President (including the National Security Administration and the Peace Corps)

and included more than twenty independent regulatory branches. See id. at 1096, 1097, 1098

tbl.1. As they need to be financed by Congress, the President is not politically independent

from Congress in creating agencies. See id. at 1101.

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agencies are outside of his legal influence.236 Does this difference

influence their rulemaking powers and/or participation

opportunities?

Departments and the executive branch agencies237 are concerned

with specific issues such as finance or the environment. The best-

known examples—next to the departments headed by a Secretary,

such as the Department of the Treasury—are the EPA and the Food

and Drug Administration.238 They can either be created by Congress,

like the National Military Establishment (two years later renamed

the Department of Defense),239 or by the President through a

Presidential Reorganization Plan, like in the case of the EPA,240 or

through an executive order, like in the case of the United States

Department Of Homeland Security.241 Their scope of action is

restrained to the competences conferred on them by the governing

statute/order.242 In addition, the President can influence them in

different ways. Most importantly, he appoints the heads of the

agencies and numerous other leading officials, and can also remove

them without reason—which is perhaps the single most notable

difference from the independent agencies.243 The Executive Orders

236 See Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935); Free Enter. Fund v. Pub.

Co. Accounting Oversight Bd., 537 F.3d 667, 679 (D.C. Cir. 2008). 237 Strauss, supra note 56, at 583 (“[C]abinet agencies, independent executive agencies,

[and] independent regulatory commissions.”). 238 See Our Mission and What We Do, EPA.GOV, http://www2.epa.gov/aboutepa/our-mission-

and-what-we-do (last updated Sept. 29, 2015); Statement of FDA Mission, FDA.GOV,

http://www.fda.gov/downloads/aboutfda/reportsmanualsforms/reports/budgetreports/ucm2983

32.pdf (last visited Feb.. 8, 2016); What Does FDA Regulate, FDA.GOV,

http://www.fda.gov/AboutFDA/Transparency/Basics/ucm194879.htm (last updated Dec. 28,

2015). 239 National Security Act of 1947, Pub. L. No. 80-253, § 201, 61 Stat. 495, 499 (1947);

National Security Act Amendments of 1949, Pub. L. No. 81-216, § 4, 63 Stat. 578, 579 (1949). 240 Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15623 (Dec. 2, 1970), reprinted in 5

U.S.C. app. 209 (2014). A reorganization is not available to the President anymore, as the time

limit of 5 U.S.C. § 905(b) expired at the end of 1984. 5 U.S.C. § 905(b) (2014). For an overview

of the different Reorganization Statutes, see HENRY B. HOGUE, CONG. RESEARCH SERV.,

R42852, PRESIDENTIAL REORGANIZATION AUTHORITY: HISTORY, RECENT INITIATIVES, AND

OPTIONS FOR CONGRESS 4 tbl.1 (2002). 241 Exec. Order No. 13,228, 3 C.F.R. § 796 (2002). Because of the Reorganization Act of 1977,

the creation of executive agencies might be unconstitutional. See Jeremiah Goulka & Michael

A. Wermuth, The Law and the Creation of a New Domestic Intelligence Agency in the United

States, in THE CHALLENGE OF DOMESTIC INTELLIGENCE IN A FREE SOCIETY: A

MULTIDISCIPLINARY LOOK AT THE CREATION OF A U.S. DOMESTIC COUNTERTERRORISM

INTELLIGENCE AGENCY 105, 110–11 (Brian A. Jackson ed., 2009). 242 See, e.g., Reorganization Plan No. 3 of 1970, 5 U.S.C. App. at 212 (describing the roles

and functions of the then-proposed EPA); Humphrey’s Ex’r v. United States, 295 U.S. 602, 628

(1935) (describing the role of the Federal Trade Commission). 243 See Morrison v. Olson, 487 U.S. 654, 689–90 (1988); Bowsher v. Synar, 478 U.S. 714, 722–

23 (1986); Humphrey’s Ex’r, 295 U.S. at 631–32; Myers v. United States, 272 U.S. 52, 163–64

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No. 12,291244 and 12,866245 allowed Presidents Reagan and

Clinton,246 respectively, to gain far more oversight over the executive

agencies, and thus centralized control over rulemaking.247 These

orders, of which the main rules are still in force today, installed a

system of review through the Office of Information and Regulatory

Affairs (“OIRA”), which was placed within the Office of Management

and Budget.248 This office reviews rules and makes changes,

sometimes substantial in nature.249

Independent regulatory agencies seem to be very similar to the

executive agencies, as both are more rule-bound than Congress250 and

concerned with specific issues.251 The first “independent” agency was

the Interstate Commerce Commission, founded in 1887.252 Congress

set up the Commission and gave it, inter alia, the “authority to

inquire into the management of the business of all common carriers

subject to the provisions of [the Interstate Commerce Act].”253

(1926). 244 Exec. Order No. 12,291, 3 C.F.R. § 127 (1982). For executive orders, see ZIAMOU, supra

note 17, at 75 n.253. They are constitutional, as decided in two court cases. Chevron U.S.A,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865–66 (1984); Sierra Club v. Costle, 657 F.2d

298, 408 (D.C. Cir. 1981). 245 Exec. Order No. 12,866, 3 C.F.R. § 638 (1993). 246 3 C.F.R. § 127; 3 C.F.R. § 638. 247 See 3 C.F.R. § 127; 3 C.F.R. § 638; see Exec. Order No. 13,422, 3 C.F.R. § 191 (2008);

Exec. Order No. 13,563, 3 C.F.R. § 215 (2012). 248 See, e.g., 3 C.F.R. § 638. 249 James F. Blumstein, Regulatory Review by the Executive Office of the President: An

Overview and Policy Analysis of Current Issues, 51 DUKE L.J. 851, 858–59 (2001); Kagan, supra

note 148, at 2277–78; Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State,

62 U. CHI. L. REV. 1, 3 (1995); Wendy Wagner, The Participation-Centered Model Meets

Administrative Process, 2013 WIS. L. REV. 671, 688. 250 See Paperwork Reduction Act of 1980, 44 U.S.C. § 3502(5) (2013) for an overview:

[T]he term “independent regulatory agency” means the Board of Governors of the Federal

Reserve System, the Commodity Futures Trading Commission, the Consumer Product

Safety Commission, the Federal Communications Commission, the Federal Deposit

Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing

Finance Agency, the Federal Maritime Commission, the Federal Trade Commission, the

Interstate Commerce Commission, the Mine Enforcement Safety and Health Review

Commission, the National Labor Relations Board, the Nuclear Regulatory Commission,

the Occupational Safety and Health Review Commission, the Postal Regulatory

Commission, the Securities and Exchange Commission, the Bureau of Consumer Financial

Protection, the Office of Financial Research, Office of the Comptroller of the Currency, and

any other similar agency designated by statute as a Federal independent regulatory

agency or commission.

Id. 251 See, e.g., Reorganization Plan No. 3 of 1970, 5 U.S.C. app. 209, 212 (2014). 252 ZIAMOU, supra note 17, at 53; see Interstate Commerce Act of 1887, ch. 104, § 11, 24 Stat.

379, 383 (1887). 253 Interstate Commerce Act of 1887 § 12. This section also provides:

[T]he Commission hereby created shall have authority to inquire into the management of

the business of all common carriers subject to the provisions of this act, and shall keep

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Rulemaking was not mentioned in that very first statute setting up

an agency. This is different nowadays—for example, the Federal

Trade Commission in its governing statute is explicitly endowed with

the power “to make rules and regulations for the purpose of carrying

out the provisions of this subchapter.”254 Other examples include the

Federal Energy Regulatory Commission, the Nuclear Regulatory

Commission,255 the Federal Communications Commission, and the

Occupational Safety and Health Review Commission.256 They are all

endowed with certain competences identified in the governing

statutes, thus constraining their powers.257 Different from the

executive agencies, the President’s control is quite limited.258 He may

name the agencies’ head(s), but otherwise the agencies cannot be

legally steered by the President’s Office of Management and

Budget.259 The President’s executive orders also do not apply to them

de iure260 and their leading officers cannot be fired by the President

at will.261 The President thus has no legal power to supervise and

control the agencies’ decisions.262 However, the independent agencies

itself informed as to the manner and method in which the same is conducted, and shall

have the right to obtain from such common carriers full and complete information

necessary to enable the Commission to perform the duties and carry out the objects for

which it was created; and for the purposes of this act the Commission shall have power to

require the attendance and testimony of witnesses and the production of all books, papers,

tariffs, contracts, agreements, and documents relating to any matter under investigation,

and to that end may invoke the aid of any court of the United States in requiring the

attendance and testimony of witnesses and the production of books, papers, and

documents under the provisions of this section.

Id. See ZIAMOU, supra note 17, at 53. 254 15 U.S.C. § 46(g) (2013). 255 42 U.S.C. § 5841 (2013); 42 U.S.C. § 7134 (2013). 256 29 U.S.C. §§ 656(a), 661(a) (2013); 47 U.S.C. § 151 (2013). However, the Occupational

Safety and Health Administration would be an executive agency. John F. Manning,

Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96

COLUM. L. REV. 612, 630 n.106 (1996). Both OSHA and OSHRC are placed in the Department

of Labor. Id. 257 See 29 U.S.C. § 661(g); 42 U.S.C. §§ 5841, 7134; 47 U.S.C. § 151. 258 See Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal

Rulemaking, 38 ADMIN. L. REV. 181, 185–86 (1986). 259 See id. at 185, 187, 199 n.50. 260 See William P. Skladony, Executive Order 11,246: Does it Apply to Federal Deposit

Insurance?, 2 ANN. REV. BANKING L. 213, 219 (1983). Although there always have been efforts

to do so, the latest Obama Executive Order on Delegated Rulemaking urged the independent

agencies to follow the same proceedings as those set up for executive agencies. Exec. Order No.

13,579, 76 Fed. Reg. 41,587, 41,587 (2011). 261 See Humphrey’s Ex’r v. United States, 295 U.S. 602, 631–32 (1935); Pünder, supra note

179, at 359–60. Furthermore, the President has only a say in appointing the Commissioner

but nobody else. See Strauss, supra note 56, at 589. 262 See STONE ET AL., supra note 57, at 437. However, independent agencies usually also

follow President’s orders directed to executive agencies: “they have participated in the

Regulatory Council, publish regular agendas of rulemaking, are attentive to White House

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are not as independent as one might think; the President still

possesses political means of controlling the independent regulatory

agencies in a way similar to the executive agencies.263 “The

characteristics of the oversight relations of President and Congress

with ‘executive’ and ‘independent’ agencies owe as much (or more) to

politics as to law.”264

To sum up, all agencies are created by a governing statute/order

which regulates their field of action and yields them certain

competences. Within this field, the agencies act with their governing

statutes limiting them. However, the institutional setup, i.e.,

whether the agency is constructed as an independent or an executive

agency, does not tell us much about the legal constraints on

rulemaking or on participation therein, but only something about the

legal—not practical—influence the President wields.265 Legal

constraints on rulemaking and participation are rather found in the

statutes that delegate lawmaking functions to the agencies.

b. Rules

Delegating statutes empower the executive to make rules and

limits this power at the same time.266 Rules are both prospective and

inquiries about their progress, and otherwise behave as if they were in fact subject to the

discipline from which they have been excused.” Strauss, supra note 56, at 593. Thus all

Supreme Court decisions concerned with agencies have pondered thoroughly on separation of

powers issues. See Morrison v. Olson, 487 U.S. 654, 675–76 (1988); Bowsher v. Synar, 478 U.S.

714, 722–23 (1986); Wiener v. United States, 357 U.S. 349, 351–52 (1958); Humphrey’s Ex’r,

295 U.S. at 629–30; Myers v. United States, 272 U.S. 52, 161 (1926). See also Strauss, supra

note 56, at 609 (giving an overview of separation of powers issues). 263 See id. at 583. 264 Id.; see also Philip J. Harter, Executive Oversight of Rulemaking: The President Is No

Stranger, 36 AM. U.L. REV. 557, 565, 566 (1987) (discussing the President’s relationship with

agencies); Kagan, supra note 148, at 2288 (arguing that President Clinton included the

independent agencies in his Executive Order No. 12,866 and subjected “the independents to

the regulatory planning process” and oversight); Strauss, supra note 65, at 797 (discussing the

President’s powers). Furthermore, for the executive agencies, the President assumed that he

had the final word in the decision-making process, which he inter alia showed by issuing

frequent directives. See Kagan, supra note 148, at 2290. 265 See id. at 2360, 2362. With regard to participation, and thus, the most important

influence for the purposes of this paper: “There is little reason to think, however, that

presidential administration changes fundamentally the ability of interest groups to provide

effective input within the formal (though nominally ‘informal’) process of notice-and-comment.”

Id. at 2360. “[A]n active presidential role in agency rulemaking, however exercised, in no way

interferes with the function of the participatory process in ensuring an adequate record for

judicial review.” Id. at 2362. 266 See, e.g., Strauss & Sunstein, supra note 258, at 185, 187 (noting that the President only

has some powers over agencies).

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general—and thus quite similar to democratic laws.267 However,

laws are only limited by the Constitution, while rules are also limited

by laws. A rule is defined by 5 U.S.C. § 551(4)268 as “the whole or a

part of an agency statement of general or particular applicability and

future effect designed to implement, interpret, or prescribe law or

policy.”269 This definition requires differentiation between rules from

laws on the one hand, and from orders and adjudications—which are

defined in 5 U.S.C. § 551—on the other hand.270

The first differentiation between laws and rules is connected to the

acting institution. Only Congress can enact laws.271 Thus, every

other act that is reminiscent of a law, but not enacted by Congress,

cannot be a law but must be something else. Where an agency acts,

it will be called a rule.272 But the acting institution is not the only

difference, only the most obvious. As 5 U.S.C. § 551(4) further states,

rules need to be designed in a certain way, which is to “implement,

interpret, or prescribe law.”273 Thus, a rule is in itself bound by law,

depends upon the law, and is restricted to the confines set by the

delegating law.274 It can be described as being at a tertiary level,

subordinate to the Constitution and the delegating statute. One final

distinction concerns its binding effect: laws and rules are binding,

except for so-called interpretative rules, which interpret other rules

and offer ways and means to fulfill the binding rules.275 But apart

267 See KERWIN & FURLONG, supra note 37, at 6. 268 5 U.S.C. § 551(4) (2014). 269 Id. 270 Id. § 551(6)–(7) (“‘[O]rder’ means the whole or a part of a final disposition, whether

affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than

rule making but including licensing. ‘[A]djudication’ means agency process for the formulation

of an order.”). 271 U.S. CONST. art. I, §§ 1, 8, cl. 18. 272 5 U.S.C. § 551(4). The Supreme Court has held that:

Article I, § 1, of the Constitution vests “all legislative Powers herein granted . . . in a

Congress of the United States.” This text permits no delegation of those powers. [W]e

repeatedly have said that when Congress confers decision-making authority upon

agencies, Congress must “lay down by legislative act an intelligible principle to which the

person or body authorized to [act] is directed to conform.”

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (citations omitted) (first citing

Loving v. United States, 517 U.S. 748, 771 (1996); id. at 776–77 (Scalia, J., concurring); and

then quoting J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). But see

Whitman, 531 U.S. at 488 (Stevens, J., concurring) (lamenting that the Court pretends that

rulemaking is not lawmaking); INS v. Chadha, 462 U.S. 919, 953 n.16 (1983) (quoting

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)) (“the President's power to

see that the laws are faithfully executed refutes the idea that he is to be a lawmaker”). 273 5 U.S.C. § 551(4). 274 See, e.g., Strauss, supra note 114, at 747 (discussing how a legislature directs agencies

via law to make rules for specific issues). 275 Id. at 746, 749.

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from that, a rule and a law share the same features in principle: they

are both of general applicability (and thus concern everybody) and

are of future effect (and thus prospective).276 Famous examples of

agency rules are the 1971 EPA National Ambient Air Quality

Standards, which establishes six common classes of pollutants,277 or

the SEC Rule 10b-5, which prohibits insider trading.278

Future effects and general applicability are the main

differentiating factors with regard to orders, adjudications, and rules.

According to the well-known and nearly century-old Londoner/Bi-

Metallic distinction,279 which has been maintained by the

Administrative Procedure Act (“APA”), disputes involving parties

that are particular and identifiable are handled via adjudicative acts,

which are based on the rule of law.280 Such disputes can be called

“bipolar”281 and involve a “relatively circumscribed resolution of

discrete claims involving identifiable firms or individuals.”282 In

contrast, rules are “polycentric”283 and involve “relatively open-ended

policymaking potentially affecting and involving trade-offs among

broad social groups.”284 Thus, the number of people affected

differentiates between whether a certain act is a rule or an

adjudicative act. Adding a time frame to that definition can further

help in differentiating the two:285 adjudicative acts are retrospective

276 AMERICAN BAR ASSOCIATION, A GUIDE TO FEDERAL AGENCY ADJUDICATION: SECTION OF

ADMINISTRATIVE LAW AND REGULATORY PRACTICE 6 (Michael Asimow ed., 2003); MÖLLERS,

supra note 54, at 84; see KERWIN & FURLONG, supra note 37, at 6. Although § 551(4) of the APA

also speaks of “particular applicability,” this will be of no further concern. 5 U.S.C. § 551(4).

The qualification of particular applicability can be understood as still referring to general rules,

but those which are not as wide. Furthermore, the Administrative Conference of the United

States, as well as the American Bar Association, have proposed to eliminate the word

“particular.” AMERICAN BAR ASSOCIATION, supra, at 6 n.30. 277 See Sunstein, supra note 173, at 310, 321. 278 See Matthew P. Wynne, Note, Rule 10B-5(B) Enforcement Actions in Light of Janus:

Making the Case for Agency Deference, 81 FORDHAM L. REV. 2111, 2117–18, 2119 (2013). 279 Kagan, supra note 148, at 2362; see Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239

U.S. 441, 445 (1915); Londoner v. Denver, 210 U.S. 373, 384 (1908). 280 Kagan, supra note 148, at 2362 n.435 (referring to § 554 which requires trial-type

proceedings in adjudications). 281 Richard A. Nagareda, Comment, Ex Parte Contacts and Institutional Roles: Lessons from

the OMB Experience, 55 U. CHI. L. REV. 591, 597 (1988). 282 Kagan, supra note 148, at 2363. 283 See Lon Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 393–94

(1978). 284 Kagan, supra note 148, at 2363; see Peter L. Strauss, Revisiting Overton Park: Political

and Judicial Controls over Administrative Actions Affecting the Community, 39 UCLA L. REV.

1251, 1257 (1992). 285 See ZIAMOU, supra note 17, at 6, 7 (noting the relationship of a time frame, specifically,

a prospective one).

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while rules—like laws—are generally prospective.286

c. The Democratic Nature of Rulemaking in the Administrative

State

The democratic character of the executive branch became far more

important owing to the rise of the administrative state. The

differentiation between quasi-legislative (and therefore democratic)

rules and quasi-judicial adjudicative orders, as well as the rise of the

former in recent decades, is the consequence of an epic shift in

administrative law not just in the United States, but worldwide.287

This development is owed to the ascent of the administrative state

in the 1930s in the United States.288 The administrative state is first

and foremost a regulatory state—a state that moves from a world

with bipolar relations to a world with polycentric relations.289

“[A]gencies shifted, often in accordance with congressional mandates,

from case-by-case adjudication to rulemaking as a more efficient,

explicitly legislative procedure for implementing the new, far-

reaching regulatory programs.”290

The administration no longer acts as the transmission belt to the

will of the people, transforming laws enacted by Congress into

specific acts, as the world has gotten more complicated and more

complex.291 The way laws are shaped has changed deeply in the last

one hundred years, from a conditional structure to a final structure:

the laws often only name the goal that is to be achieved by the

286 Id.; William V. Luneburg, Retroactivity and Administrative Rulemaking, 1991 DUKE L.J.

106, 106. 287 See, e.g., Benedict Kingsbury, et al., The Emergence of Global Administrative Law, 68 L.

CONTEMP. PROBS. 15, 31–32 (2005) (noting changes in administrative law and efforts to

regulate administrative law on a worldwide level in recent decades); see also Reuel E. Schiller,

Rulemaking’s Promise: Administrative Law and Legal Culture in the 1960s and 1970s, 3 ADMIN.

L. REV. 1139, 1139, 1144–45 (2001) (discussing the increased use of rulemaking by agencies

since the late 1960s in the United States). 288 See Bruce M. Kramer, Federal Legislative and Administrative Regulation of Hydraulic

Fracturing Operations, 44 TEX. TECH. L. REV. 837, 838 (2012); Richard B. Stewart,

Administrative Law in the Twenty-First Century, 78 N.Y.U. L. REV. 437, 440–41 (2003). 289 See Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in

Contemporary Legal Thought, 89 MINN. L. REV. 342, 344 (2004); Strauss, supra note 284, at

1257. 290 Stewart, supra note 288, at 442; see also Stewart, supra note 149, at 1673–74 (explaining

the traditional model of case-by-case adjudication by agencies). According to Stewart, this has

led to a transformation of the typical administrative model, moving away from the mere

“protection of private autonomy [to] the provision of a surrogate political process to ensure the

fair representation of a wide range of affected interests in the process of administrative

decision.” Id. at 1670. 291 Id. at 1684.

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administration, but not the ways of getting there anymore.292 A lack

of substantive specifications from the legislature to the

administration requires the administration to balance policies—“an

inherently discretionary, ultimately political” function.293 Therefore,

a democratic, deliberative procedure has emerged on the

administrative level. This is reflected by an increased use of rules by

the administration in order to translate the will of Congress (and

thus of the people) into manageable clauses.294 “[T]he exercise of

agency discretion is inevitably seen as the essentially legislative

process of adjusting the competing claims of various private interests

affected by agency policy.”295 This development “seeks to assure an

informed, reasoned exercise of agency discretion that is responsive to

the concerns of all affected interests.”296 As democracy in the

administration has become more important, so has participation.

2. Imperative Participation in Rulemaking

Participation in executive proceedings is closely connected to the

executive’s adjudicative acts/rules divide and the rise of the

agencies.297 From this democracy / rule-of-law divide, it follows that

participation is neither fully democratic nor fully adjudicative.298 As

rulemaking is mainly a legislative process, the democratic aspect of

participation must be emphasized. But democracy can conflict with

the rule of law, as the hypothetical oil pipeline example has shown.

Only if this tension is resolved by the separation of powers’ balancing

function, does participation become fully constitutional.299 This

requires everybody to participate while the decision-making power

stays with the executive. Either by electing a new leadership in

Congress and/or the presidency, or via means of direct democracy

292 See, e.g., Edward L. Rubin, Law and Legislation in the Administrative State, 89 COLUM.

L. REV. 369, 411, 414–15 (1989) (discussing the greater adaptability of and shift towards goal-

oriented laws, rather than laws that specify techniques to be used); see Jan S. Oster, The Scope

of Judicial Review in the German and U.S. Administrative Legal System, 9 GERMAN L.J. 1267,

1270 (2008) (discussing the difference between final and conditional structures of laws). 293 Stewart, supra note 149, at 1684. 294 See Schiller, supra note 287, at 1145, 1147, 1148, 1149. 295 Stewart, supra note 149, at 1683. 296 Stewart, supra note 288, at 442. 297 See supra notes 83–90 and accompanying text. 298 See supra notes 83–90 and accompanying text. 299 See, e.g., Harold Feld, Saving the Citizen Suit: The Effect of Lujan v. Defenders of Wildlife

and the Role of Citizen Suits in Environmental Enforcement, 19 COLUM. J. ENVTL. L. 141, 146–

47, 148 (1994) (explaining that citizen participation through the citizen suit regarding issues

pertaining to the Endangered Species Act struck a balance between Congressional action and

democracy).

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(though in practice only on the state level), the people can still decide

themselves on delegating laws, and thus influence the executive.

In order to reach this democratic ideal, different forms of

participation have evolved over the years.300 They differ with regard

to how they allow for participation and how they facilitate

participation.301 However, they are all in agreement that the State

has to listen to and consider the will of the people, although the final

decision is taken by the public organ and not by the participants.302

Thus, all three aims of participation are furthered—democracy,

individual rights, and efficiency. Further, there is congruence in the

sense that everybody may participate and influence the decision-

making process on the one hand, while on the other hand,

participation is not restricted to those individuals who are directly

and legally affected. This fits the constitutional theory of imperative

participation: while participation in delegated rulemaking is open to

everybody, as it is on the legislative level, participants’ influence on

the decision-making process is not as restricted as on the judicial

level.303 One can differentiate among three main forms of

participation in delegated rulemaking: an informal rulemaking

300 See, e.g., Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648, 104 Stat. 4969

(developing a framework for Federal agency conduct of negotiated rule creation); Toxic

Substances Control Act, Pub. L. No. 94-469, 90 Stat. 2003 (1976) (codified as amended at 15

U.S.C. §§ 2601–2692 (2013)) (requiring testing and use restrictions on specific chemicals in

order to protect human and environmental health); Consumer Product Safety Act, Pub. L. No.

92-573, 86 Stat. 1207 (1972) (codified as amended at 15 U.S.C. §§ 2051–2084 (2014)) (protecting

consumers from injuries resulting from hazardous products where the risk is unreasonable);

Federal Advisory Committee Act, Pub. L. No. 92-463, 86 Stat. 770 (1972) (establishing a system

to govern the creation of executive branch advisory committees); Occupational Safety and

Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590 (codified as amended at 29 U.S.C. §§ 651–

678 (2013)) (establishing a framework for people to participate in rulemaking regarding safe

and healthy working conditions); Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat.

237 (1946) (governing the way federal administrative agencies can establish or propose

regulations). 301 See Negotiated Rulemaking Act of 1990 § 584; Toxic Substances Control Act § 21;

Consumer Product Safety Act § 7; Federal Advisory Committee Act § 10; Occupational Safety

and Health Act of 1970 § 6; Administrative Procedure Act § 4. 302 See Negotiated Rulemaking Act § 584(a)(7); Toxic Substances Control Act § 21(b)(2);

Consumer Product Safety Act § 7(3)(B); Federal Advisory Committee Act, § 10(3); Occupational

Safety and Health Act § 6(b)(1); Administrative Procedure Act § 4(d). 303 See, e.g., Administrative Procedure Act, § 4 (noting that any interested person can

participate, and participation is therefore open to everyone); Czapanskiy & Manjoo, supra note

208, at 1–2, 2 n.2 (discussing the lack of a required mechanism for discussion between

legislative leaders and the public, but also Congress’s custom of open hearings); William G.

Young & Jordan M. Singer, Bench Presence: Toward a More Complete Model of Federal District

Court Productivity, 118 PENN ST. L. REV. 55, 85 (2013) (describing public participation in the

judicial process through jurors).

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procedure,304 a formal rulemaking procedure,305 and the negotiated

rulemaking procedure.306 They all differ in the way participation

affects the procedure.

a. Informal Rulemaking Procedure

Informal rulemaking can be regarded as the default participation

procedure.307 Its centerpiece is the notice and comment procedure,

which allows everybody to comment on the proposed rules.308

Because of the comment procedure, informal rulemaking is a

“deliberative-constitutive” process,309 and therefore, truly

democratic. The notice and comment procedure starts310 with a

notice311 of proposed rules, which is published in the Federal

Register.312 The agency can only dismiss the procedure if it is

“impracticable, unnecessary, or contrary to the public interest.”313 If

it does so—and in general there is some agency discretion on whether

to initiate a rulemaking procedure—the public can petition the

agency to start a procedure.314 Accordingly, 5 U.S.C. § 553(e)

prescribes that the agency shall give an interested person the right

to petition for the “issuance, amendment, or repeal of a rule.”315 The

agency is forced to react and give a reasons statement.316

304 See infra Part V.B.2.a. 305 See infra Part V.B.2.b. 306 See infra Part V.B.2.c. 307 Catherine Donnelly, Participation and Expertise: Judicial Attitudes in Comparative

Perspective, in COMPARATIVE ADMINISTRATIVE LAW 357, 358 (Susan Rose-Ackerman & Peter L.

Lindseth eds., 2010); Robert W. Hamilton, Procedures for the Adoption of Rules of General

Applicability: The Need for Procedural Innovation in Administrative Rulemaking, 60 CALIF. L.

REV. 1276, 1276 (1972). See E. Donald Elliott, Re-Inventing Rulemaking, 41 DUKE L.J. 1490,

1492 (1992) (critiquing informal rulemaking and arguing that the notice and comment

procedure is only good in order to compile a record for the judiciary). Elliott prefers to get rid

of public participation and would like to focus on representation. Id. at 1495–96. 308 See Hamilton, supra note 307, at 1276. That all can partake makes it the most

“democratic procedure.” KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY

INQUIRY 66 (1969). 309 See ELIZABETH FISHER, RISK REGULATION AND ADMINISTRATIVE CONSTITUTIONALISM 33

tbl.1, 95 (2007). 310 For a discussion on the timing of the notice procedure, see Vermont Yankee Nuclear

Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 539–49 (1978). 311 For the necessary information which needs to be included in the notice, see United States

v. Novia Scotia Food Prods. Corp., 568 F.2d 240, 251 (2d Cir. 1977). 312 About the Federal Register, NATIONAL ARCHIVES, http://www.archives.gov/federal-

register/the-federal-register/about.html (last visited Feb. 09, 2016). 313 5 U.S.C. § 553(b)(3)(B) (2014). 314 Royal C. Gardner, Public Participation and Wetlands Regulation, 10 UCLA J. ENVTL. L.

& POL’Y 1, 21 (1991). 315 5 U.S.C. § 553(e) (2014). 316 5 U.S.C. § 555(e).

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The notice must, inter alia, include “a statement of the time, place,

and nature of public rule making proceedings,” and “either the terms

or substance of the proposed rule or a description of the subjects and

issues involved.”317 Before reaching this stage, the agency will work

out a proposal on its own.318 In order to allow participation at an

early stage, the 1976 Administrative Conference of the United States

suggested an advanced notice of proposed rulemaking. Indeed, some

delegating norms foresee this procedure specifically.319 After the

notice, the next step consists of the actual participation. Everybody

who is interested is afforded the opportunity to submit data, views,

or arguments according to 5 U.S.C. § 553(c).320 Although it has

nowhere been specified how long the period of the public comment

procedure should last, agencies usually allow 30 days.321 For

“significant” rules, Executive Order 12,866—which de iure applies

only to executive agencies—foresees 60 days.322 Oral hearings are

discretionary.323 These hearings are—in contrast to trial-type

proceedings—more like the ones used by legislatures.324

After the input has been gathered, it needs to be considered by the

agency,325 which requires giving “good faith attention” to the

comments.326 This is the centerpiece of the deliberative and

democratic approach of agency rulemaking. The deliberations or

meetings327 of the independent regulatory commissions are usually

public, as foreseen by the Government in the Sunshine Act, a

“showpiece of administrative democracy.”328 The courts have argued

317 5 U.S.C. § 553(b)(1), (3). 318 See, e.g., 15 U.S.C. § 57a(b)(2)(A) (2014) (requiring proposed rulemaking). 319 Id.; 42 U.S.C. § 6393(a)(2)(A) (2014). 320 5 U.S.C. § 553(c). 321 CAREY, supra note 167, at 6. 322 Id. at 6 n.19; see supra notes 259–61 and accompanying text. 323 5 U.S.C. § 553(c). Sometimes oral hearings are required by some statutes. See, e.g.,

Hamilton, supra note 307, at 1318 (referring to the National Gas Pipeline Safety Act of 1968). 324 Neil D. McFeeley, Note, Judical Review of Informal Administrative Rulemaking, 1984

DUKE L.J. 347, 349. 325 5 U.S.C. § 553(c); see also ZIAMOU, supra note 17, at 71 (noting that the agency will

consider all relevant material). 326 Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 554 (9th Cir. 1977); see 40 C.F.R.

§ 1503.4(a) (2015). 327 See 5 U.S.C. § 552b(a)(2) (2014) (giving a definition of meeting). 328 ALFRED C. AMAN, JR. & WILLIAM T. MAYTON, ADMINISTRATIVE LAW 677, 688 (3d ed.

2014). Further amendments to the APA that helped “to define and structure rulemaking

procedures so that the process is fair to the citizenry” are the Freedom of Information Act,

Privacy Act, Negotiated Rulemaking Act, and the Federal Advisory Committee Act. WARREN,

supra note 203, at 204; see ZIAMOU, supra note 17, at 72. The Regulatory Flexibility Act, the

Unfunded Mandates Reform Act, the National Environmental Policy Act of 1969, and the

Paperwork Reduction Act “did not change the essential procedures that rulemaking agencies

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that the “significant comments”329 or “comments of cogent

materiality”330 have to be considered, but not all arguments.331 After

this deliberative process has taken place, the agency must

incorporate a concise general statement of the adopted rule’s basis

and purpose.332 This general statement, which used to be quite short,

has evolved into a rather lengthy rulemaking record which includes

“notice, comments and documents submitted by interested persons,

transcripts, other factual information considered, reports of advisory

committees, and agency’s concise general statement or final order.”333

Thus, everybody possesses influence and voice—not just some

special interest groups. The agency must deliberate on the comments

and consider them. Still, the decision stays with the agency. This is

as democratic as it can get inside the second branch.

b. Formal Rulemaking

Formal rulemaking is regulated by 5 U.S.C. §§ 556 and 557 and

requires trial-type hearings.334 Its determinations are record-

based.335

By allowing the submission of evidence and arguments, the

examination and cross-examination of witnesses, fact-

findings and the compilation of a record, trial-type hearings

are ideal for exposing in detail the advantages and

disadvantages of an issue and permitting the active

involvement of the parties. On the other hand, they tend to

be costly, time-consuming and unsuitable for the resolution of

complex issues.336

employed as much as they required agencies to consider certain specific consequences of

proposed rules when making their own evaluations.” ZIAMOU, supra note 17, at 72–73. 329 Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 394 (D.C. Cir. 1973) (“[C]omments

must be significant enough to step over a threshold requirement of materiality before any lack

of agency response or consideration becomes of concern.”). 330 United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977) (“It is

not in keeping with the rational process to leave vital questions, raised by comments which are

of cogent materiality, completely unanswered.”). 331 See id. (citing Auto. Parts & Accessories Ass’n v. Boyd, 407 F.2d 330, 338 (D.C. Cir.

1968)). 332 Id. (citing Auto. Parts & Accessories Ass’n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968)). 333 Philip J. Harter, Negotiating Regulations: A Cure for Malaise, 71 GEO. L.J. 1, 14 n.77

(1982). 334 Hamilton, supra note 307, at 1277. 335 CAREY, supra note 167, at 5 (noting that trial-type hearings are always necessary when

a statute requires rules be made on the record). See also United States v. Florida E. Coast Ry.

Co., 410 U.S. 224, 241 (1973). 336 ZIAMOU, supra note 17, at 163.

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Because of this inability to deal with complex issues, formal

rulemaking is said to be “dead.”337 However, as in informal

rulemaking, everybody possesses influence, and democratic aims are

being followed. Still, the decision remains with the agency.

c. Negotiated Rulemaking

Negotiated rulemaking takes place prior to the publication of a

notice of proposed rulemaking.338 It might be applied in cases where

“a limited number of identifiable interests . . . will be significantly

affected by the rule,” and “there is a reasonable likelihood that a

committee can be convened with a balanced representation of persons

who can adequately represent” the said interests.339 The people who

are significantly affected will be represented.340 Representatives of

various interest groups, together with the agency, negotiate the

text.341 The final text will be decided upon solely by the agency.342

This participation mode does not seem to fit the theory, as not

everybody can participate, but only a selected few.343 However, a

notice and comment procedure will follow the negotiations.344

3. Delegated Rulemaking and Participation: The Executive and

Collective Self-Determination

Delegated rulemaking, and participation therein, first and

foremost serve democratic ends and are ruled by the separation of

powers doctrine.345 As delegated rulemaking belongs mainly to the

337 See Pünder, supra note 179, at 354–55. For a discussion on why formal rulemaking is

considered dead, see Vermont Yankee Nuclear Power Corp v. Nat. Res. Def. Council, 435 U.S.

519, 525 (1978) (striking down so-called hybrid rulemaking, an intersection between formal

and informal rulemaking); WARREN, supra note 203, at 201 (explaining that very few statutes

require formal rulemaking like the Food, Drug and Cosmetic Act of 1938, 21 U.S.C., § 371

(e)(3)); ZIAMOU, supra note 17, at 71–72 (discussing the holding of the Vermont Yankee case). 338 See 5 U.S.C. § 563(a)(5) (2014). 339 Id. § 563(a)(2)–(3). 340 See WARREN, supra note 203, at 221; ZIAMOU, supra note 17, at 103. 341 Id. at 103. 342 Statement on Signing the Negotiated Rulemaking Act of 1990, GEORGE BUSH

PRESIDENTIAL LIBRARY & MUSEUM (Nov. 29, 1990), http://bush41library.tamu.edu/archives/

public-papers/2512. Upon signing the act, George H.W. Bush emphasized, “[u]nder the

Appointments Clause of the Constitution . . . governmental authority may be exercised only by

officers of the United States.” Id. 343 See WARREN, supra note 203, at 223. 344 Sara R. Rinfret & Scott R. Furlong, Defining Environmental Rulemaking, in THE OXFORD

HANDBOOK OF U.S. ENVIRONMENTAL POLICY 379, 381 (Sheldon Kamieniecki & Michael E. Kraft

eds., 2013). 345 See WARREN, supra note 203, at 207.

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democratic sphere, everybody is called upon to participate.346

Furthermore, the administration is forced to listen to and consider

this input, and thus enter into a dialogue. But from this, no decision-

making powers follow for the public: as delegated rulemaking takes

place in the second branch of government, and is thus governed by

the laws enacted by the lawmakers, it is not the participants who

decide but the democratically legitimated administrators.347 If the

people want to decide on administrative issues, they have to

concentrate their efforts at another level and vote for another

government. The United States’ system fulfills this democratic ideal

in administrative law.

C. The Judiciary: Adjudicating Rulemaking and the Rule of Law

The judiciary first and foremost serves the protection of the rule of

law and allows for individual self-determination.348 Judgments on

the rulemaking process—like all judgments—are retrospective, react

to an individual complaint, deal with an individual case, and are

bound by the Constitution and the law.349 They are based on reason,

not will, as Alexander Hamilton famously stated.350 The decisions of

the legislature, on the other hand, are based on a collective (and thus

democratic) will—and to a lesser extent, the decisions of the

executive, when it acts as a rule maker.

The century-old dilemma that presents itself is how the judiciary

can respect the democratic will and protect individual self-

determination at the same time.351 Judicial protection in general is

important in order to protect individual self-determination.352

However, judicial review should not reach too far in order to allow for

collective self-determination. The separation of powers doctrine

ensures that democratic will-based decisions are made by the

legislature and the executive, not the judiciary, by restricting the

judicial control of legislative and administrative acts.353 While

reviewability and the scope of review, as well as the awarded remedy,

346 See id. at 207, 226. 347 See Cary Coglianese, The Internet and Public Participation in Rulemaking 3 (John F.

Kennedy Sch. of Gov’t, Harv. Univ., Working Paper RPP-2003-05, 2003). 348 See supra text accompanying note 71. 349 See WARREN, supra note 203, at 369–70, 406. 350 THE FEDERALIST NO. 78 (Alexander Hamilton). 351 See BICKEL, supra note 73, at 235; ELY, supra note 73, at 103. 352 See supra text accompanying note 71. 353 See HAROLD H. BRUFF, BALANCE OF FORCES: SEPARATION OF POWERS LAW IN THE

ADMINISTRATIVE STATE 63, 70, 72, 75 (2006).

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determine how the State’s decision on participation in administrative

proceedings is framed, “standing” determines who is allowed to

participate in this decision.354

Restricting the courts’ judicial review powers prohibits the courts

from rendering judgment on certain aspects of a case in order to

preserve the separation of powers.355 While a judgment will usually

vacate a rule, the possibility of remand without vacation allows for

the rule’s legal effect to continue.356 Standing limits the participation

of individuals in the courts’ proceedings and is equally controlled by

the separation of powers.357 Only a delicate balance between the

scope of review, the judgment’s effect, and legal standing satisfies the

separation of powers doctrine by balancing collective and individual

self-determination.358

1. Separation of Powers and Judicial Review

The courts protect the rule of law and allow for individual self-

determination. Based on reason, judgments following the rule of law

are “wholly retrospective”359 and concern mainly the plaintiffs and

the defendants.360 The courts review the agencies’ rules.361 The

separation of powers doctrine bars them from political activity and

overreaching into the democratic realm of the other two branches by

restricting the courts’ review powers.362 This restriction plays out on

different levels. First, judicial review can be excluded.363 Second, the

scope of review might be restricted, inter alia, by deferring to the

administration.364

a. Exclusion of Judicial Review/Reviewability (5 U.S.C. § 701)

The exclusion of judicial review usually guards a core area or

354 LUBBERS, supra note 223, at 410, 469. 355 See infra Part V.C.1. 356 See infra Part V.C.2. 357 See infra Part V.C.3. 358 See infra Part V.C.4. 359 Strauss, supra note 114, at 766. From this, it follows that in general, judicial holdings

must be applied retroactively. Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995)

(citing Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 90 (1993)). 360 See Strauss, supra note 114, at 766. 361 The review of delegating laws does not protect participation and will not be considered

here. 362 See BRUFF, supra note 353, at 63, 70, 72, 75. 363 See infra Part V.C.1.a. 364 See infra Part V.C.1.b.

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“‘special province’ of the Executive”365 against judicial review and is

based on the separation of powers doctrine.366 The APA allows

Congress to preclude judicial review via statutes.367 The Supreme

Court tries to contain this wide exclusion with an assumption of the

reviewability of the decision (or non-decision).368 But the courts have

been reluctant to apply the presumption of reviewability.369 In its

much-criticized Heckler v. Chaney370 judgment, the Supreme Court

even turned the assumption upside-down in cases where the agency

refused to act.371 Far-reaching exclusion of judicial review has rightly

been attacked on grounds of the separation of powers by Justices

Reed and Douglas, in their dissent in United States v. Wunderlich,372

stating that the exclusion of judicial review:

[M]akes a tyrant out of every contracting officer. He is

granted the power of a tyrant even though he is stubborn,

perverse or captious. He is allowed the power of a tyrant

though he is incompetent or negligent. He has the power of

life and death over a private business even though his decision

is grossly erroneous. Power granted is seldom neglected.

The principle of checks and balances is a healthy one. An

official who is accountable will act more prudently. A citizen

who has an appeal to a body independent of the controversy

has protection against passion, obstinacy, irrational conduct,

and incompetency of an official.373

The exclusion of judicial review, rather than the more specific

limitation of its scope, might lead to too much discretion for the other

365 Cf. United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Heckler v. Chaney,

470 U.S. 821, 832 (1985)) (explaining that a court can exercise its power in a selective-

prosecution claim). 366 Richard E. Levy & Sidney A. Shapiro, Government Benefits and the Rule of Law: Toward

a Standards-Based Theory of Judicial Review, 58 ADMIN. L. REV. 499, 540 (2006). See 5 U.S.C.

§ 701(a) (2014); Chaney, 470 U.S. at 832–33. 367 LUBBERS, supra note 223, at 405–06. 368 Harold H. Bruff, Availability of Judicial Review, in A GUIDE TO JUDICIAL AND POLITICAL

REVIEW OF FEDERAL AGENCIES 12 (John F. Duffy & Michael Herz eds., 2005). See, e.g., Citizens

to Protect Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); Ass’n. of Data Processing Orgs.

v. Camp, 397 U.S. 150, 156 (1970) (first quoting Stark v. Wickard, 321 U.S. 288, 312 (1944)

(Frankfurter, J., dissenting); and then quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51

(1955)); Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967). 369 WARREN, supra note 203, at 381–82 (discussing various Court judgments regarding the

reviewability of agency actions). 370 Heckler v. Chaney, 470 U.S. 821 (1985). 371 See id. at 837–38; WARREN, supra note 203, at 379–80; Cass R. Sunstein, What’s Standing

after Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MICH. L. REV. 163, 195 (1992). 372 United States v. Wunderlich, 342 U.S. 98 (1951). 373 Id. at 101–02 (Douglas, J., dissenting).

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branches, which often do not comply with the legal rules binding

them without judicial oversight374 and thus leave individual self-

determination unprotected. Because of this, courts indeed need to

follow the presumption of reviewability.

b. Scope of Judicial Review (5 U.S.C. § 706)

The scope of judicial review is governed by 5 U.S.C. § 706.375 It has

been said that the article’s different provisions are rather vague and

wide open to interpretation.376 However, two undisputed basic

principles exist: The first one is that at least some deference is

granted to the agencies.377 This principle “is rooted in the separation-

of-powers doctrine.”378 Equally rooted in the doctrine is the second

principle, that under no circumstances may courts substitute the

agency’s decision with their own.379 Both principles guard the

collective decision-making process from the courts’ influence. Aside

from that, dispute arises as to the exact scope of review. One can

differentiate between an approach that allows for a wide discretion

of some aspects of the agencies’ actions380 and one that allows for close

scrutiny of some other aspects.381 The former is said to be applied to

substantive rights, the latter to procedural rights.382 Therefore,

procedural rights will first be differentiated from substantive

rights.383

i. Substantive and Procedural Rights

Already in the 1970s, Professor Richard Stewart wrote that as a

reaction to the rise of the administrative state, “courts have changed

the focus of judicial review . . . so that its dominant purpose is no

longer the prevention of unauthorized intrusions on private

374 See Ittai Bar-Siman-Tov, Lawmakers as Lawbreakers, 52 WM. & MARY L. REV. 805, 869–

70 (2010) (suggesting without judicial review there may be a lack of self-policing by legislators

using examples from states). 375 5 U.S.C. § 706 (2014); ZIAMOU, supra note 17, at 172. 376 WARREN, supra note 203, at 395; see ZIAMOU, supra note 17, at 172 (stating the provisions

of APA § 706). 377 See WARREN, supra note 203, at 395–96. 378 Id.; see Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the

Nondelegation Doctrine, 2 ADMIN. L.J. 269, 269 (1988). 379 Citizens to Protect Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). 380 See infra Part V.C.1.b.ii. 381 See infra Part V.C.1.b.iii. 382 See Merrick B. Garland, Deregulation and Judicial Review, 98 HARV. L. REV. 505, 510–

11 (1985). 383 See infra Part V.C.1.b.i.

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autonomy, but the assurance of fair representation for all affected

interests in the exercise of the legislative power delegated to

agencies.”384 The differentiation that Stewart makes is one between

individual self-determination (“private autonomy”) and collective

self-determination (“fair representation”).385 This focus of review

translates on the level of scope of review into the differentiation

between procedural and substantive laws, as observed by Justice—

then Professor—Elena Kagan nearly thirty years later.386 She

describes that because of the rise of the administrative state, courts

“shy away from such substantive review of agency outcomes, perhaps

in recognition of their own inability to claim either a democratic

pedigree or expert knowledge. [They] incline instead toward

enforcing structures and methods of decisionmaking.”387

Substantive laws are created by statute and are concerned with a

certain subject matter, the “what.”388 They confer substantial rights

on an individual and affect the outcome of the process, but not the

process itself.389 Procedural laws, in contrast, are concerned with the

“how,” the way substantive laws are applied and come into being.390

Procedural laws thus affect the decision-making process and the

participation process.391 They can be further sub-divided into quasi-

procedural norms, which concern the decision-making process, and

procedural norms, which concern participation in the process.392

Agency decisions can run counter to substantive laws as well as

procedural laws.393 Consequently, the courts review agencies’ actions

against both sets of norms.394 When using the substantive law

yardstick, the courts protect individual self-determination: if an

administrative decision breaches a substantive law, it will be

declared unlawful.395 This is old-fashioned, standard judicial review,

384 Stewart, supra note 149, at 1712 (referring to the expansion of the traditional model). 385 Id. 386 Kagan, supra note 148, at 2269. 387 Id. 388 See Substantive Law, CORNELL UNIV. L. SCH., https://www.law.cornell.edu/wex/subs

tantive_law (last visited Feb. 8, 2016). 389 See id. 390 See Thomas O. Main, The Procedural Foundation of Substantive Law, 87 WASH. U. L.

REV. 802, 802 (2010). 391 See Garland, supra note 382, at 578. 392 See id. at 578, 579 (differentiating procedural from quasi-procedural, and noting that

participation as such is procedural, but the agency’s handling of the results of participation is

quasi-procedural). 393 See id. at 525–26. 394 See id. 395 See infra note 403 and accompanying text.

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which protects individual self-determination against administrative

acts.

Individual self-determination is also protected by judicial review in

light of the procedural norms. However, different from the protection

of substantive rules, the courts not only protect the individual and

individual self-determination—e.g., by protecting the individual

right to participate in an administrative proceeding—but extend

their protection to the decision-making process.396 This reaches

beyond the courts’ original task of protecting the individual against

the collective, as now the courts are protecting the collective decision-

making process against the agency: “[A]dministrative procedures . . .

simultaneously please the Baptists and the bootleggers.”397 This

protection of collective self-determination can have two negative,

mutually exclusive, consequences that render procedural rights far

more complicated than substantive rights.398 If the courts exercise

too much scrutiny, collective self-determination is seriously impaired

by non-elected federal judges. If the courts do not exercise enough

scrutiny, individual participation rights become seriously impaired.

Chief Justice John Roberts—looking at the problem from an

institutional point of view and arguing in favor of judicial scrutiny of

agency action399—framed this dilemma by stating that the Court’s

“duty to police the boundary between the Legislature and the

Executive is as critical as [the Court’s] duty to respect that between

the Judiciary and the Executive.”400 Whether the courts have

succeeded in striking the right balance between the three branches,

and consequently of individual and collective self-determination,

depends on the courts’ protection of substantive rights401 and

procedural rights.402

396 See supra notes 100–02 and accompanying text. Courts protect the process ex negativo

and in cases involving substantive rights. The case here is different though, as the protection

is not counter to individual rights but parallel to them. See, e.g., WARREN, supra note 203, at

377 (noting that when courts do not review individuals’ requests for review, the individuals just

have to live with the agency decision). 397 Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 COLUM. L.

REV. 1749, 1805 (2007). 398 This tension between individual self-determination and collective self-determination

seems to mirror the influence the legislature has on individual self-determination. But it is far

more difficult to conceive too much protection of individual self-determination through a

process of collective self-determination than the other way round. 399 City of Arlington v. FCC, 133 S. Ct. 1863, 1885, 1886 (2013) (Roberts, C.J., dissenting). 400 Id. at 1886. 401 See infra Part V.C.1.b.ii. 402 See infra Part V.C.1.b.iii.

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ii. Substantive Laws and the Chevron Doctrine

According to 5 U.S.C. § 706(2)(C), a rule that is “in excess of

statutory jurisdiction, authority, or limitations, or short of statutory

right,” must be held to be “unlawful and set aside” by the Court.403

The Supreme Court granted agencies wide discretion in interpreting

whether a statutory right is indeed a statutory right in the landmark

decision Chevron, U.S.A., Inc. v. Natural Resources Defense Council

(NRDC).404 The Court applies a broad scope of review and allows for

wide deference in rulemaking procedures in cases in which an agency

interprets a statute.405 A two-step inquiry is necessary: “If the intent

of Congress is clear, that is the end of the matter; for the court, as

well as the agency, must give effect to the unambiguously expressed

intent of Congress.”406 But, “if the statute is silent or ambiguous with

respect to the specific issue,” the courts can only decide on “whether

the agency’s answer is based on a permissible construction of the

statute,”407 or—in other words—whether it “has adopted a reasonable

interpretation of the statute.”408 In the absence of clear congressional

intent, the Chevron test gives the agencies a wide leeway in

rulemaking by allowing them to interpret substantive laws as they

see fit, as long as the interpretation is reasonable.409 The

determination of whether a statute allows a certain rule of course

impacts on the substantive rights—and obligations—of the

individual: in the case of King v. Burwell,410 the second case on the

legality of “Obamacare,” the decisive question was whether

individuals are entitled to federal health care subsidies in states

which have not established their own exchange yet.411 Although the

statute uses the words “established by the state” in the particular

403 5 U.S.C. § 706(2)(C) (2014). 404 Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 866 (1984). See WARREN, supra note

203, at 375. Chevron has been the most cited U.S. Supreme Court decision ever. Thomas J.

Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of

Chevron, 73 U. CHI. L. REV. 823, 823 (2006). 405 See Robert C. Dolehide, A Comparative “Hard Look” at Chevron: What the United

Kingdom and Australia Reveal About American Administrative Law, 88 TEX. L. REV. 1381,

1386 (2010). 406 Chevron, 467 U.S. at 842–43. 407 Id. at 843. See, e.g., Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 84 (2002); Capital

Cities Cable v. Crisp, 467 U.S. 691, 699 (1984) (quoting Fid. Fed. Sav. & Loan Ass’n v. de la

Cuesta, 458 U.S. 141, 153–54 (1982)); United States v. Erika, Inc., 456 U.S. 201, 208 (1982). 408 Kagan, supra note 148, at 2373. 409 See Miles & Sunstein, supra note 404, at 824. 410 King v. Burwell, 135 S. Ct. 2480 (2015). 411 Id. at 2485.

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section,412 it can be inferred from other sections that it needs to be

read as “established by the state or by the Federal Government.”413

The latter understanding was the one supported by the IRS.414 This

reading led to a substantive individual right to health care subsidies

in all of the United States; the petitioners’ reading did not.415 The

appeals court upheld the agency’s reading on grounds of step two of

the Chevron test,416 as did the Supreme Court.417 Since the Court

deferred, the agency’s decision—within some boundaries—was

decisive.418 But the agency could have also decided otherwise, as long

as this differing understanding would also be reasonable.

Two main accounts of the Chevron jurisprudence are in dispute:

the first account argues that the interpretation of the law is

essentially a task which adheres to the rule of law, and therefore is

not an open and democratic procedure.419 As Chevron was about the

outcome of the process and substantive rights, no deference should

have been accorded to the agencies.420 By deferring, the courts

instead limited their ability to protect individual self-determination.

The Obamacare example shows that by deferring, the agency is

granted the power to decide on substantive rights: had the agency

decided to interpret the statute in a way that no subsidies had been

awarded in states where no state exchange had been set up, the

courts would not have determined that a substantive right to

subsidies existed. This reading diminishes individual self-

determination and should be corrected by the courts. The courts,

however, do not always follow their own doctrine, but sometimes

apply a narrower scrutiny in order to protect individual rights.421

A second account of the Chevron doctrine does not focus on its

412 26 U.S.C. § 36B(b)(2)(A) (2014). 413 King, 135 S. Ct. at 2496 (Scalia, J., dissenting). 414 Id. at 2487 (majority opinion). 415 See id. at 2488, 2495–96. 416 King v. Burwell, 759 F.3d 358, 376 (4th Cir. 2014), aff’d, 135 S. Ct. 2480 (2015). 417 King, 135 S. Ct. at 2488, 2489, 2496. 418 See id. at 2496 (affirming the lower court’s decision and thus upholding the agency’s

decision). 419 See Kagan, supra note 148, at 2368. 420 See generally Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN.

L. REV. 363, 382–83 (1986) (discussing circumstances under which a court will engage in

judicial review of agency policy decisions). 421 See, e.g., Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 133 (1992) (denying

deference to the Forsyth County administrator in the interest of protecting First Amendment

rights); see also Eric Berger, Individual Rights, Judicial Deference, and Administrative Law

Norms in Constitutional Decision Making, 91 B.U. L. REV. 2029, 2033 (2011) (“Sometimes [the

Supreme Court] denies deference because unbridled administrative discretion creates too much

risk for constitutional infringement.”).

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limits to the protection of individual self-determination through the

courts, but on the fact that its limited scope of review protects

collective self-determination via deference to the agencies.422 This is

because the agencies—acting in a democratic fashion as rulemakers

because of the openness of the decision-making process and thus of

the procedure423—are provided with discretion in making their policy

decision. This different reading is due to the Supreme Court’s failure

to “adequately distinguish between outcome review and process

review.”424 According to the second reading, not only the

interpretation of law falls within Chevron’s purview but also matters

of policy.425 Then, “[j]udicial deference to agency ‘interpretation’ of

law is simply one way of recognizing a delegation of law-making

authority [and thus policy] to an agency.”426 To use the Obamacare

example again, the agency’s decision to interpret the law either way

would not so much be a legal decision, but a policy decision based on

the rulemaking process and its inherently democratic character.427

No matter which account one follows, it is certainly true that the

422 See Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 865–66 (1984); Cass R. Sunstein,

Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 465 (1987) (“The Court justified

its decision in part by pointing to presidential supervision over agencies and to the fact that

the President, unlike courts, is accountable to the electorate.”). 423 See discussion supra Parts V.B.1–2. 424 Gary Lawson, Outcome, Procedure and Process: Agency Duties of Explanation for Legal

Conclusions, 48 RUTGERS L. REV. 313, 338 (1996). 425 See Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071,

2086–87 (1990). The second step, it is argued, is about the decision-making process. See, e.g.,

Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHI.-KENT L. REV. 1253,

1260–63 (1997) (arguing against the second step in Chevron and examining cases from the D.C.

Circuit Court that have transformed the question of whether the agency’s decision was

reasonable to whether it was “reasoned”); Matthew C. Stephenson & Adrian Vermeule,

Chevron has Only One Step, 95 VA. L. REV. 597, 604 (2009) (“We have the doctrinal equivalent

of musical chairs, with three doctrines (Chevron Step One, Chevron Step Two, State Farm) and

only two chairs (interpretive reasonableness and reasoned decisionmaking).”). See generally

Kmiec, supra note 378, at 287–90 (making the assumption that Chevron applies to policy);

Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in Administrative Law,

64 TEX. L. REV. 469, 520–24 (1985) (making the assumption that Chevron applies to policy);

Kenneth W. Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. ON REG. 283, 307 (1986)

(making the assumption that Chevron applies to policy). 426 Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 26

(1983). See also David J. Barron & Elena Kagan, Chevron’s Nondelegation Doctrine, 2001 SUP.

CT. REV. 201, 216–17 (“[W]hen Congress grants an agency the power to implement a statute in

a way that has binding legal effect . . . Congress necessarily grants the agency the power to

resolve ambiguities in the statute.”). 427 This is consistent with Chevron’s two-step analytical framework, which “is premised on

the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the

agency to fill in the statutory gaps.” King v. Burwell, 135 S. Ct. 2480, 2488 (2015) (quoting

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)); Barron & Kagan, supra

note 426, at 213.

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Court limits the protection of individual self-determination by

allowing for wide deference in the interpretation of substantive

laws.428 Maybe, in order to counter this limited review on substantive

norms, the courts’ review of the rulemaking process can make up for

this limitation?

iii. Procedural Laws and the Hard-Look Doctrine

The Supreme Court’s scrutiny of the rulemaking process and the

corresponding procedural laws and rights differ from the scrutiny of

substantive rights.429 The subdivision of procedural rights into

(quasi-)procedural norms, which concern the decision-making

process, and procedural rights, which concern the participation in the

process, is reflected by 5 U.S.C. § 706(2)(A) and (D).430

According to 5 U.S.C. § 706(2)(A) and (D), the reviewing court must

“hold unlawful and set aside agency action, findings, and conclusions

found to be [not in] observance of procedure required by law.”431 This

latter norm encompasses the requirements of 5 U.S.C. §553: a notice

of proposed rulemaking, an opportunity to participate, the

publication of a statement of basis and purpose, and the publication

of the notice procedure, as well as following special procedural norms

made up of the delegation norms and the procedural requirements

set by the agency itself.432 This protection is of considerable

importance, as it protects the right to participate.433 From this norm,

it follows that in case no participation took place where required by

law, the rule must be held unnecessary and set aside.434 However,

the “harmless error” rule applies, which ensures that a rule will be

upheld “‘when a mistake of the administrative body is one that clearly

had no bearing on the procedure used or the substance of decision

reached.’”435 It thus depends on whether the same result could be

428 See Kagan, supra note 148, at 2373. 429 See, e.g., Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic

Legitimacy, and Procedural Efficacy, 87 GEO. L.J. 887, 950–51 (1999). 430 See 5 U.S.C. § 706(2)(A), (D) (2014). 431 Id. 432 See 5 U.S.C. § 553 (2014). One author differentiates between procedures and process of

decision-making. Lawson, supra note 424, at 316. As most authors refer to the decision-making

process as procedural this term will be used in a broad sense. 433 See Bruce P. Ely et al., State Administrative Procedure Acts: Procedural Avenues to Attack

Faulty Regulations and Assessments, 19 J. MULTISTATE TAX’N & INCENTIVES 8, 10–11 (2009). 434 See, e.g., Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946, 948–49 (D.C. Cir. 1987)

(differentiating interpretative rules for which no notice-and-comment procedure is necessary

and legislative rules); see 5 U.S.C § 533(b). 435 United States Steel Corp. v. EPA, 595 F.2d 207, 215 (5th Cir. 1979) (quoting Braniff

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expected in a new proceeding.436

However, a right to participate is depleted of meaning if the agency

does not consider the results of the participation and then take those

results into account.437 This is where 5 U.S.C. § 706(2)(A) comes into

play, which foresees that the reviewing court must “hold unlawful

and set aside agency action, findings, and conclusions found to be

arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.”438 The ensuing test is best understood as a

procedural standard,439 as it is about reasoned decision-making,440

and it is essentially about the policy decision the agency makes and

not its legal interpretation of the statute.441 The courts apply the so-

called hard-look doctrine.442 The doctrine is understood by the

Supreme Court as a very strict standard which needs to be thorough,

“searching[,] and careful.”443 It first and foremost demands that the

agency develops a rulemaking record, in order to allow the courts to

review the decision-making process.444 Because of this, the hard-look

doctrine has been blamed for inflating the rulemaking records to

hundreds of pages.445 The procedural requirements demand that the

record supports the conclusions which led to the rule; tests the basis

Airways v. Civil Aeronautics Bd., 379 F.2d 453, 466 (D.C. Cir. 1967)). 436 See LUBBERS, supra note 223, at 524 n.211; Craig Smith, Taking “Due Account” of the

APA’s Prejudicial-Error Rule, 96 VA. L. REV. 1727, 1740 (2010). It has been held that “utter

failure to comply with notice and comment cannot be considered harmless if there is any

uncertainty at all as to the effect of that failure.” Sugar Cane Growers Coop. of Fla. v. Veneman,

289 F.3d 89, 96 (D.C. Cir. 2002) (citing McLouth Steel Products Corp. v. Thomas, 838 F.2d

1317, 1324 (D.C. Cir. 1988)). 437 See Ely et al., supra note 433, at 11. 438 5 U.S.C. § 706(2) (2014). 439 See Garland, supra note 382, at 525; Thomas J. Miles & Cass R. Sunstein, The Real World

of Arbitrariness Review, 75 U. CHI. L. REV. 761, 761 (2008). 440 See Bressman, supra note 397, at 1761, 1777; McFeeley, supra note 324, at 352–53;

Lawson, supra note 424, at 318. But cf. Stephenson & Vermeule, supra note 425, at 598, 603

(proposing that the courts should move to a single-step test that examines the reasonableness

of an agency’s interpretation). 441 See Patrick Garry, The Values and Viewpoints Affecting Judicial Review of Agency

Actions: A Focus on the Hard-Look Doctrine, 53 WASHBURN L.J. 71, 74–75, 76 (2013);

Stephenson & Vermeule, supra note 425, at 603; see generally Breyer, supra note 420, at 364

(discussing courts’ attitudes towards agency regulatory policy). Critics also argue that hard-

look review can be used by judges to overturn agency actions to which they have ideological

objections, thus allowing those judges to engage in inappropriate policymaking. Matthew C.

Stephenson, A Costly Signaling Theory of “Hard-Look” Judicial Review, 58 ADMIN. L. REV. 753,

765 (2006) (discussing criticisms of hard-look review). See Bressman, supra note 397, at 1766–

67. 442 Stephenson, supra note 441, at 754. 443 Id. at 758, 771–72; Breyer, supra note 420, at 387. 444 Stephenson, supra note 441, at 758. 445 See Strauss, supra note 114, at 760 (explaining in the subsequent pages how this led

agencies to circumvent participation).

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of the agencies’ conclusions;446 and reviews whether the policy choices

are rationally connected with the facts447 and have been adequately

articulated, defended, and adhered to.448

Alternatives must have been taken into account.449 “[C]ourts

require[] agencies to address and respond to the factual, analytical,

and policy submissions made by the various participating interests

and justify their policy decisions with detailed reasons supported by

the rulemaking record.”450 Thus, the hard-look doctrine is about

whether the agency has considered the facts before it and has

adequately balanced the results of the participation.451 The courts

closely guard the collective process of decision-making.452 In theory,

they do not scrutinize the outcome of the collective process. In reality,

they sometimes do though, as it is a thin line—easily overstepped—

between requiring agencies to address and respond to submissions,

and requiring agencies to create a different rule even though the legal

preconditions have been met (but not to the satisfaction of the

judge(s)).453 As the process of collective decision-making

encompasses the individual right to have one’s participation

considered, the scrutiny of the agency’s duty to consider the results

of the participation process also protects individual self-

determination.454 Thus, the hard-look doctrine indeed protects

individual self-determination—even if it might over-scrutinize

446 BENJAMIN W. MINTZ & NANCY G. MILLER, A GUIDE TO FEDERAL AGENCY RULEMAKING

323 (2d ed.1991). 447 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 448 Sunstein, supra note 173, at 344. 449 Breyer, supra note 420, at 383; Cass R. Sunstein, Deregulation and the Hard-Look

Doctrine, 1983 SUP. CT. REV. 177, 182. See, e.g., State Farm, 463 U.S. at 45, 48, 55, 56 (citing

Bob Jones Univ. v. United States, 461 U.S. 574, 599–602 (1983); Haig v. Agee, 453 U.S. 280,

291–301 (1981)) (discussing the National Highway Traffic Safety Administration’s failure to

consider alternatives and adequately justify their rescission regarding the passive restraint

requirement in new vehicles). 450 Stewart, supra note 288, at 442. 451 See Garland, supra note 382, at 526–27 (citing Home Box Office, Inc. v. FCC, 567 F.2d 9,

35 (D.C. Cir. 1997)). 452 See Garry, supra note 441, at 77. 453 See Garland, supra note 382, at 526–27; Garry, supra note 441, at 79; Scott A. Keller,

Depoliticizing Judicial Review of Agency Rulemaking, 84 WASH. L. REV. 419, 481 (2009)

(“[W]hen judges are given significant discretion to invalidate agency action, their policy

preferences affect their decisions.”); Stephenson, supra note 441, at 765; Sunstein, supra note

449, at 188 (“There is, moreover, the familiar risks that judicial remedies will be based on a

skewed understanding of a complex regulatory scheme or serve the preferences of the judges

rather than promote genuine public interest.”). 454 Cf. Sunstein, supra note 449, at 188 (“It is important to be realistic about the limitations

of judicial remedies, and one may find it highly implausible to think that such remedies will by

themselves be able to transform the regulatory process into a forum for collective self-

determination.”).

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collective self-determination in some instances.

A Supreme Court decision in 2009 recognized the dilemma that the

courts must only scrutinize the boundaries of agency rulemaking,

and points in the right direction by underlining an argument that

Chief Justice William Rehnquist already made in his dissenting

opinion in State Farm.455 In FCC v. Fox Television Stations,456 the

Supreme Court held that not only rational reasons but also political

reasons may inform the agency’s policy decision, and thus allowed for

some deference in the essentially political and democratic process of

rulemaking:

[T]he agency must show that there are good reasons for the

new policy. But it need not demonstrate to a court’s

satisfaction that the reasons for the new policy are better than

the reasons for the old one; it suffices that the new policy is

permissible under the statute, that there are good reasons for

it, and that the agency believes it to be better, which the

conscious change of course adequately indicates. This means

that the agency need not always provide a more detailed

justification than what would suffice for a new policy created

on a blank slate.457

It seems as if the Supreme Court has indeed found a sensible

balance between strict scrutiny of and leeway for procedural norms

in rulemaking.

To conclude, the scope of review of substantive rules allows for a

lot of deference to the agencies, and primarily protects the agencies’

policy choices rather than individual self-determination. Still, often

the courts do not defer, despite Chevron, and thus protect individual

self-determination. The review of procedural rules, even if rather

aimed at protecting collective self-determination, also protects

individual self-determination. In addition, the Supreme Court

softened this hard-look doctrine with regard to the decision-making

455 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983)

(Rehnquist, J., dissenting) (“A change in administration brought about by the people casting

their votes is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and

benefits of its programs and regulations.”); FCC v. Fox Television Stations, Inc., 556 U.S. 502,

515–16 (2009). 456 Fox Television Stations, Inc., 556 U.S. 502. 457 Id. at 515. See Donnelly, supra note 307, at 361 (“The case involved a change in a policy

of the Federal Communication Commission which was, as Justice Scalia put it, based on

‘significant political pressure from Congress’. In a five-four split, the Court held that an agency

need not always provide a more detailed justification for a policy change, thereby perhaps

rendering it easier for agencies to justify a change of policy based on political, rather than

expertise, considerations.”).

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process, and thus leaves leeway for the process of collective self-

determination. At the same time, the basis of any decision-making

process, i.e., the question of whether participation has taken place, is

under strict scrutiny in order to protect both the individual right to

participate and the collective process. Justice Breyer’s verdict that

“current doctrine is anomalous [because i]t urges courts to defer to

administrative interpretations of regulatory statutes, while also

urging them to review agency decisions of regulatory policy

strictly”458 is not entirely true anymore, thanks to the 2009 Supreme

Court decision FCC v. Fox Television Stations. Still, the right balance

has not yet been found between individual and collective self-

determination—one which puts the protection of individual self-

determination at center stage, and at the same time gives enough

leeway to the administration’s policy decisions which belong to the

realm of collective self-determination.

2. Judicial Remedy

The standard judicial remedy would be to set aside a rule that

violates the law—be it substantive or procedural—within the scope

of review.459 But the courts, in order to protect the agencies’ collective

decision-making process, have taken to remanding without vacating,

especially when procedural rights have been breached.460 This might

well be the right approach from a collective self-determination

perspective,461 at least as long as the administrative process can be

repeated, or will be repeated soon, and the repetition does not serve

only as a fig leaf, and may well lead to a new outcome. However, from

an individual self-determination perspective, this remedy seems to

be quite weak, as it leaves an illegal rule intact and thus, turns a

plaintiff’s victory into a defeat. This speaks in favor of remand and

vacate—at least as long as there no strong arguments against a

vacation based on rules and/or the specific context (e.g. that people

would go hungry if a food-stamp program were put on hold

altogether).

458 Breyer, supra note 420, at 364–65; see also Dolehide, supra note 405, at 1381 (noting the

anomaly that though judges are experts at statute interpretation, they defer to an agency’s

interpretation of a statute). 459 See generally Garland, supra note 382, at 568–70 (listing remedies available to courts,

including requiring agencies to promulgate alternate rules). 460 See id. at 570; Levin, supra note 86, at 305–310. 461 See generally id. (discussing the remedies available to courts and the impact those

remedies have on the agency decision making process).

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3. Participation on the Judicial Level: Legal Standing

Different from participation in the two other branches,

participation plays a far bigger role in judicial proceedings. The

courts can never decide on their own whether to act: they are obliged

to pick up and decide on what an individual or a group brings to them,

and they are confined by the bounds of the matter in dispute.462 Thus,

the right to participate, i.e., the law of standing to initiate judicial

proceedings, equals the right to engage the third branch.

Standing was developed only in the 1920s and 1930s as part of the

struggle on how to deal with the regulatory state463 and was based on

the “Case or Controversy” requirement of Article III, Section 2 of the

U.S. Constitution.464 Standing was associated with a “legal right,—

one of property, one arising out of contract, one protected against

tortious invasion, or one founded on a statute which confers a

privilege.”465 Standing was understood to be very narrow and allowed

only those whose rights were infringed upon to participate on the

judicial level.466 This so called legal interests test was developed

especially by Justices Frankfurter and Brandeis in order “to limit the

occasions for judicial intervention into democratic processes.”467 In

other words, standing flows from the separation of powers doctrine:

The idea of separation of powers that underlies standing

doctrine explains why . . . [certain] suits, even when premised

on allegations of several instances of violations of law, are

rarely if ever appropriate for federal-court adjudication . . .

[because “c]arried to its logical end, [respondents’] approach

would have the federal courts as virtually continuing monitors

of the wisdom and soundness of Executive action; such a role

is appropriate for the Congress acting through its committees

462 See generally Joan Leary Matthews, Unlocking the Courthouse Doors: Removal of the

“Special Harm” Standing Requirement Under SEQRA, 65 ALB. L. REV. 421, 435–36 (2001)

(discussing the issue of standing and its requirements, including that courts are limited to

hearing cases or controversies as requested by the parties). 463 See Sunstein, supra note 371, at 170. 464 See id. at 168, 168 n.18. 465 Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 137 (1939) (citing In Re Ayers,

123 U.S. 443, 496 (1887); Walla Walla City v. Walla Walla Water Co., 172 U.S. 1, 22–23 (1898);

Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110–11 (1902); Ex parte Young, 209

U.S. 123, 167–68 (1908); Scully v. Bird, 209 U.S. 481, 489–90 (1908); Phila. Co. v. Stimson, 223

U.S. 605, 622–23 (1912); Lane v. Watts, 234 U.S. 525, 540 (1914); Truax v. Raich, 239 U.S. 33,

37–38 (1915); Lipke v. Lederer, 259 U.S. 557, 562 (1922)). 466 See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation

of Powers, 17 SUFFOLK U. L. REV. 881, 887 n.28 (1983). 467 Sunstein, supra note 371, at 179.

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and the ‘power of the purse’; it is not the role of the judiciary,

absent actual present or immediately threatened injury

resulting from unlawful governmental action.”468

The Supreme Court abandoned the legal interests test in favor of

the injury-in-fact test in 1970, and thus opened the door to a wide

array of cases.469 The Supreme Court decided that an “injury in fact,

economic or otherwise” would be sufficient for standing as long as

“the interest sought to be protected by the complainant is arguably

within the zone of interests to be protected or regulated by the statute

or constitutional guarantee in question.”470 Within this zone of

interest, nearly any interest can be named, such as an “aesthetic,

conservational and[/or] recreational” interest.471 The reason for the

relaxation of the standing requirement was due to the perception that

agencies were captured by the interests of big industry.472 Thus, the

courts were supposed to control the agencies in order to balance the

influence of the lobbies.473 Relaxed standing rules did not aim at

more individual self-determination but aimed to control the process

of collective self-determination via the judiciary.474 Only in one

regard did this development in the 1970s advance individual self-

determination. This was the case in the Data Processing decision, in

468 Allen v. Wright, 468 U.S. 737, 759–60 (1984) (quoting Laird v. Tatum, 408 U.S. 1, 15

(1972)). See Christoph Möllers, Steps to a Tripartite Theory of Multi-level-Government 39 (Jean

Monnet Program, Working Paper No. 5/03, 2003), www.jeanmonnetprogram.org/archive/paper

s/03/030501.pdf; Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially

Imposed Limit on Legislative Power, 42 DUKE L.J. 1170, 1178 (1993); Scalia, supra note 466, at

891; STONE ET AL., supra note 57, at 106 (“Standing ensure[s] that courts will not hear cases

simply because they want to; they require a concrete stake and thus give the executive and

legislative branches a range of breathing space.”). 469 See Ass’n of Data Processing Servs. Org. v. Camp, 397 U.S. 150, 152–54 n.1 (1970)

(quoting Ass’n of Data Processing Servs. Org. v. Camp, 406 F.2d 837, 843 (8th Cir. 1969)). 470 Id. at 152, 153. See also Air Courier Conf. of Am. v. Am. Postal Workers Union, 498 U.S.

517, 523, 530–31 (1991) (denying standing because the zone of interest test was not passed). 471 Ass’n of Data Processing Servs. Org., 397 U.S. at 153–54 (quoting Scenic Hudson Pres.

Conference v. Fed. Power Com., 354 F.2d 608, 616 (1965); Office of Commc’n of United Church

of Christ v. FCC, 359 F.2d 994, 1002 n.16 (1966)). See, e.g., Citizens to Pres. Overton Park, Inc.

v. Volpe, 401 U.S. 402, 405–06, 410 (1971) (finding that petitioners, comprised of private

citizens and conservation organizations, had standing to bring a claim against the Secretary of

Transportation for allegedly failing to undertake plans to minimize harm to a public park

during construction of a highway); United States v. Students Challenging Regulatory Agency

Procedures, 412 U.S. 669, 675–76, 678, 683–84, 685 (1973) (finding that appellees’ injury of

“economic, recreational and aesthetic harm” was sufficient to establish standing). 472 Sunstein, supra note 371, at 183–84. 473 See generally id. (noting that agencies were subject to political pressure from regulated

industries, leading to changes to the concept of standing). 474 See, e.g., id. at 203–04 (describing the application of the relaxed standing principle in the

Regents of the Univ. of Cal. v. Bakke case, which granted the plaintiff standing based on

ostensibly collective rather than individual injury).

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which the Supreme Court held, in short, that “beneficiaries of

government regulation, not merely those trying to fend off

government action, can have standing to sue.”475

In addition to this relaxation through the courts, Congress

developed the so-called citizen suit, which allowed standing for

everybody based on specific statutes. The Supreme Court put this

into reverse gear in the 1990s. In its Lujan decision,476 the Court

stated:

We have consistently held that a plaintiff raising only a

generally available grievance about government—claiming

only harm to his and every citizen’s interest in proper

application of the Constitution and laws, and seeking relief

that no more directly and tangibly benefits him than it does

the public at large—does not state an Article III case or

controversy.477

While the judgment accepted the “injury in fact” requirement, the

Court emphasized the requirement of a concrete interest: “[T]he

plaintiff must have suffered an ‘injury in fact’—an invasion of a

legally protected interest which is (a) concrete and particularized, . .

. and (b) ‘actual or imminent, not “conjectural” or “hypothetical.”’”478

A plaintiff must show more than a mere “general interest [in the

alleged procedural violation] common to all members of the public.”479

The judgment then turned to the citizen suit provision of the

Endangered Species Act (ESA), which provides that anybody may

enjoin the government where it is allegedly in breach of the ESA.480

By this, standing has been expressly ordained by Congress onto

anybody as “part of a complex system in which Congress . . . enlists

courts and citizens in order to produce compliance.”481 The Court

refused to accept this: “[T]he injury-in-fact requirement had been

satisfied by congressional conferral upon all persons of an abstract,

self-contained, noninstrumental ‘right’ to have the Executive observe

475 STONE ET. AL., supra note 57, at 108. 476 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1991). 477 Id. at 573–74. 478 Id. at 560 (citations omitted) (first citing Allen v. Wright, 468 U.S. 737, 756 (1984); Warth

v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740 n.16 (1972); and

then quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)); see also Summers v. Earth

Island Inst., 555 U.S. 488, 493 (2009) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)) (noting that this is still the same rule that courts

are using). 479 Ex parte Lévitt, 302 U.S. 633, 634 (1937) (per curiam). 480 Sunstein, supra note 371, at 200. 481 Id. at 221.

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the procedures required by law. We reject this view.”482 While

accepting standing on the basis of a concrete interest, the Court

declared the citizen’s suit to be unconstitutional.483

Some have voiced the fear that from this judgment, it follows that

procedural rights cannot confer standing anymore.484 However, in a

clarifying footnote, the Court held that a breach of a procedural right

can lead to standing “so long as the procedures in question are

designed to protect some threatened concrete interest of [the

individual] that is the ultimate basis of his standing.”485 This view is

reinforced by Justices Blackmun’s and O’Connor’s dissent, which

insists that one “cannot be saying that ‘procedural injuries’ as a class

are necessarily insufficient for purposes of Article III standing. Most

governmental conduct can be classified as ‘procedural.’ Many

injuries caused by governmental conduct, therefore, are categorizable

at some level of generality as ‘procedural’ injuries.”486 According to

the dissenters, “some classes of procedural duties are so enmeshed

with the prevention of a substantive, concrete harm that an

individual plaintiff may be able to demonstrate a sufficient likelihood

of injury just through the breach of that procedural duty.”487

Thus, all agree procedural breaches can lead to standing as long as

the procedural norm protects a “concrete interest”488 or if there is “an

inextricable link between procedural and substantive harm”489—and

thus the plaintiff’s individual self-determination is threatened.

Congress was only barred from naming the citizen a “public

procurator” by the Supreme Court, which thus limited the influence

of the judiciary to its original task: protecting individual rights.490

There is no disagreement on whether procedural administrative

rights can confer standing.491 Lujan thus would have been decided

differently if the plaintiffs had argued that a right to participate in a

rulemaking proceeding was breached. Accordingly, in later cases,

environmental special interest groups possessed standing.492 The

482 Lujan, 504 U.S. at 573. This understanding was later upheld in Utah v. Evans, 536 U.S.

452, 459 (2002) and Horne v. Flores, 557 U.S. 433, 445 (2009). 483 Lujan, 504 U.S. at 562–63, 578. 484 See id. at 601 (Blackmun, J., dissenting). 485 Id. at 573 n.8 (majority opinion). 486 Id. at 601–02 (Blackmun, J., dissenting). 487 Id. at 605. 488 See id. at 572, 573 n.8 (majority opinion). 489 Id. at 605 (Blackmun, J., dissenting). 490 See id. at 576–77 (majority opinion) (quoting Stark v. Wickard, 321 U.S. 288, 309–10

(1944)). 491 Id. at 572, 601–02. 492 See, e.g., Ctr. for Biological Diversity v. United States Dep’t of the Interior, 563 F.3d 466,

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alleged breach of procedural norm suffices, as long as the plaintiff

shows “that the government act performed without the procedure in

question will cause a distinct risk to a particularized interest of the

plaintiff.”493 Thus, “‘a procedural-rights plaintiff must show not only

that the defendant’s acts omitted some procedural requirement, but

also that it is substantially probable that the procedural breach will

cause the essential injury to the plaintiff’s own interest.’”494 Nearly

any interest can be named, for example, “‘the desire to use or observe

an animal species, even for purely esthetic purposes, is undeniably a

cognizable interest for purpose of standing.’”495

This corresponds to the rather broad standing identified earlier.

To correct this broad standing, the Court of Appeals for the D.C.

Circuit has developed a causation requirement, which mirrors the

harmless error rule: “To demonstrate standing, then, a procedural-

rights plaintiff must show not only that the defendant’s acts omitted

some procedural requirement, but also that it is substantially

probable that the procedural breach will cause the essential injury to

the plaintiff’s own interest.”496 If one accepts this argument as put

forward, 5 U.S.C. § 706(2)(D), which extends the scope of review to

procedural laws, would be “effectively eliminate[d],”497 as no plaintiff

would be able to prove causation. The same would be true for 5

U.S.C. § 706(2)(A), as the arbitrary and capricious standard is

understood as (quasi-)procedural.498 Thus, the causation

requirement must be read as putting the burden of proof on the

agency:

A plaintiff who alleges a deprivation of a procedural protection

to which he is entitled never has to prove that if he had

received the procedure the substantive result would have been

altered. All that is necessary is to show that the procedural

step was connected to the substantive result.499

This approach can also find some basis in the Lujan decision, where

the Supreme Court held that “[t]here is this much truth to the

479 (2009). 493 Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (citing Lujan, 504 U.S.

at 572–73; Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 223 (1974); Capital

Legal Found. v. Commodity Credit Corp., 711 F.2d 253, 258 (D.C. Cir. 1983)). 494 Ctr. for Biological Diversity, 563 F.3d at 479 (quoting Bentsen, 94 F.3d at 664–65). 495 Id. at 479 (quoting Lujan, 504 U.S. at 562–63). 496 Bentsen, 94 F.3d at 664–65; see supra note 437 and accompanying text. 497 Cynthia R. Farina, Standing, in A GUIDE TO JUDICIAL AND POLITICAL REVIEW OF

FEDERAL AGENCIES, supra note 368, at 46. 498 Garland, supra note 382, at 525. 499 Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002).

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assertion that ‘procedural rights’ are special: the person who has been

accorded a procedural right to protect his concrete interests can

assert that right without meeting all the normal standards for

redressability and immediacy.”500

Procedural rights are even more special if “the plaintiff is suing to

enforce a procedural right that has not been made contingent on the

plaintiff’s having such an interest. The most ubiquitous APA

example . . . may be § 553(c)’s provision for adequate notice of, and

opportunity to comment upon, a proposed rule.”501 This rule does not

depend upon a substantive interest of the commentator, and thus the

plaintiff possesses standing as long as he or she sought to participate

in the administrative proceeding.502

4. Conclusion: Balancing Judicial Review and Standing

From the separation of powers, it follows that courts first and

foremost protect individual self-determination and the rule of law

while respecting the democratic process and outcome of the

proceedings of collective self-determination.503 This balance is struck

on the admissibility and merits level.504 While no coherent approach

by the courts is displayed in the balancing of the different

components, in the end they match up to a rather balanced result.

On the one hand, by deferring to the agencies the competence to

interpret statutes, the courts limit their ability to protect individual

self-determination.505 On the other hand, everybody whose

participation rights on the administrative level have been breached

possesses standing.506 Other procedural rights confer standing if a

concrete interest is at stake.507 Although this is a rather wide

understanding of standing, it protects individual self-determination,

keeps “public procurators” at bay and allows for collective self-

determination. In addition, although the hard-look doctrine is

500 Lujan, 504 U.S. at 572 n.7. 501 Farina, supra note 497, at 35. 502 Id. at 35, 36 (citing Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d

1534, 1537 (9th Cir.1993) (“The environmental groups have Article III standing if for no other

reason than that they allege procedural violations in an agency process in which they

participated.”). But cf. Lujan, 504 U.S. at 573–74 (“[The Court] ha[s] consistently held that a

plaintiff raising only a generally available grievance about government . . . does not state an

Article III case or controversy.”). 503 See supra text accompanying notes 457–58. 504 See discussion supra Parts V.C.1–2 and text accompanying notes 399–402. 505 See supra text accompanying notes 396–402. 506 See supra text accompanying notes 488–93. 507 See supra text accompanying notes 484–88.

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primarily aimed at controlling the process of collective self-

determination, it has been limited since 2009, as political issues have

been admitted to the process.508 It also protects individual self-

determination through scrutinizing procedural rights.509 Thus, in the

end, the judiciary finds the right balance of ensuring individual self-

determination while respecting collective self-determination.

To conclude, participation in the judicial process involves only the

plaintiff who is injured in his rights and interests. He is not allowed

to decide for himself, but only to make himself heard and have his

case considered and decided by the court. Participation on the

judicial level thus works according to the constitutional theory of

imperative participation laid out above. Direct judicial review by

individuals on the grounds of the infringement of participatory rights

is well known, legal standing is relatively broad, and the scope of

review allows for protection of individual self-determination.

VI. THE POWER OF THE CONSTITUTIONAL THEORY OF IMPERATIVE

PARTICIPATION

To wrap it up, the constitutional theory of imperative participation

conceptualizes participation and makes the United States

Constitution’s implicit rules on participation explicit. It shows who

must be able to participate and how much influence this participation

must possess in order to add to the legitimacy of the exercise of public

authority. The litmus test of delegated rulemaking proves that

theory right.

Participation according to the United States Constitution needs to

be spelled out as follows: First, everybody is able to participate on the

legislative level, either indirectly via elections or directly via forms of

direct democracy. Direct democracy does not exist on the United

States federal level, but only on the state level; here is room for

improvement. Second, rules will be made by the executive. However,

the public—and not only those individuals who are directly affected—

can give comments on the issue, which need to be taken into

consideration. Third, with regard to judicial review, those whose

participatory rights have been infringed possess standing to

challenge the executive proceedings. These criteria are not only the

limits of participation but should be understood as its ideal, following

from the principles of democracy and the rule of law as balanced by

508 See supra notes 450–52, 455–57 and accompanying text. 509 See supra text accompanying notes 453–54.

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the separation of powers doctrine.

Documents

STEIGER PM - Albany Law Revie Steiger Production.pdf · STEIGER 3/12/2016 3:26 PM 2015/2016] A Constitutional Theory of Imperative Participation 5 à-vis a few individuals.14 “[P]ost-democracy”