Executive Rulemaking and Democratic Legitimacy: "Reform" in the United States and the United Kingdom's Route to Brexit

Authors

Susan Rose-Ackerman, Yale Law School

Abstract

Established public law principles are under strain from the prospect of Brexit in the United Kingdom and the Trump Administration in the United States. In the United Kingdom the Parliament is playing an increasingly important role in overseeing the Government, and the judiciary is beginning to support democratic accountability in executive policymaking. In the United States, possible statutory changes and the power of the president to reshape the public administration are of concern. Although in the United States the most draconian measures will likely die with the return of the House to Democratic Party control, they may remain on the wish list of advocates of deregulation. In the United Kingdom no general statute requires a notice-and-comment process with public input and reason-giving, but the judiciary is beginning to view public involvement as a way to promote the democratic accountability of executive policymaking. If these developments were given a statutory base in the Brexit bill, the United Kingdom could achieve enhanced public accountability without the admitted weaknesses of a referendum. In the United States the notice-and-comment provisions of the APA require openness to public input and reason-giving by regulators. The courts explicitly invoke democratic values to justify rulemaking procedures that require transparency, public participation, and reason-giving. American procedural requirements strike a balance between democratic accountability and policymaking discretion that could help the United Kingdom craft more democratically responsive procedures. However, if legislative and executive branch changes in the United States succeed, we may see a reversal where the United Kingdom moves toward rulemaking procedures that are more accountable to the public at the same time as the United States moves away from rulemaking and operates in a less transparent manner. The worry in the United Kingdom is that the transition to the post-Brexit world will be only weakly informed by thoughtful input from the public. The worry in the United States is that executive policymaking will become increasingly difficult and subject to challenge.

Recommended Citation

Susan Rose-Ackerman, Executive Rulemaking and Democratic Legitimacy: "Reform" in the United States and the United Kingdom's Route to Brexit, 94 Chi.-Kent L. Rev. 267 (2019).
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol94/iss2/4