ECONOMY

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What these various forms of procedural rules have in common is that they have
profound political implications. As noted, fire alarms need to be credible to work.
This means that congressional constituents must have access to agency proceedings
and information. It also means that agencies cannot plot in secrecy, against either
Congress or its constituents. Moreover, these procedures also facilitate Congress’s
ex post enforcement mechanisms. Congress cannot know all about what every agency
does. Yet, when their attention is needed, these procedures ensure that all politically
relevant information is available to them. These procedures reveal: who are the relevant
parties, what are the interests, what they want, and how much do they care about
it. The procedures also reveal the various policy options. Of course, if Congress had to
focus on all this information for each agency, they would fail. But the ability to bring
their attention to any given agency if necessary grants agencies ex ante incentives to
avoid being put in the “ex post” hot seat by serving congressional interests in the first
place.
Critically, these structural and procedural constraints have their effect only if
courts enforce them. One key piece of evidence that courts can be expected to enforce
these constraints and thereby facilitate legislative interests is that legislatures typically
delegate enforcement of administrative procedures to courts (McNollgast 1987). The
reasons for this delegation are not difficult to fathom: Reliable judicial enforcement
increases the likelihood that the agency’s choice will mirror political preferences
without the need for political oversight (McCubbins and Schwartz 1984).
While the discussion thus far has focused on administrative procedure and the
courts’ role in supervising the bureaucracy through procedural review, courts have
available to them two other important mechanisms of control. First, courts may
invalidate agency action on the grounds that such action violates the US Constitution.
Constitutional review is a draconian device that, when implemented, constricts the
actions of both the agencies and the legislature. Despite well-known instances of
the courts’ use of procedural due process to restrain agencies and Congress, the
due process “revolution” portended by administrative law scholars of the 1970s and
1980s never came to pass; rather, courts have only seldom invoked the trump of
procedural due process, instead relying on other techniques of control to supervise
the bureaucracy (Rodriguez and Weingast 2006b). PPT provides a compelling explanation
for this strategy: Courts are more likely to control agencies in order to carry
out legislative preferences and interests than to implement trans-statutory values
through constitutional rules. Non-constitutional review strikes a balance, from the
perspective of the courts, between the political imperatives of bureaucratic control
and the values underlying procedural fairness as implemented by the courts.
Second, courts may invalidate agency action on the grounds that such action is
“arbitrary” or “capricious” or, in the case of formal agency proceedings, is unsupported
by the evidence taken as a whole. Since at least the early 1970s, the courts
have been employing these standards to give agency decisions a so-called “hard
not draw a bright line distinction between these twin functions of procedural rules. They can be viewed
profitably as serving both political interests and broad “procedural justice” goals.