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Stephenson, Matthew

Interest group pluralism presumes that public policy outcomes are determined principally through a contest for influence among organized pressure groups. Most interest groups, however, do not represent themselves in this process. Rather, they rely on professional lobbyists for representation, information, and advice. These lobbyists are agents with their own interests, and these interests may not align perfectly with those of their clients. This essay outlines this principal-agent problem and sketches its possible implications for policy outcomes. In particular, we hypothesize that the lobbyist-client agency problem may bias policy in favor of small homogeneous groups, may exacerbate status quo bias and lead to excessive attention to symbolic issues, may promote expansive delegations to administrative agencies, and may impede systematic reforms to the policy-making process.

This Article explores how the separation of powers affects voters’ electoral strategies, and how this interaction influences the performance of different institutional arrangements. We show that when one political agent, such as the President, acts unilaterally, voters are likely to respond asymmetrically to policy successes and failures in order to offset the risk that the President may be biased or “captured” by special interest groups. When political agents act in concert — such as when the President seeks congressional authorization for a policy initiative — voters prefer a more refined strategy, with less acute asymmetries between political rewards and punishments. Our analysis has positive and normative implications. First, it suggests that presidents do not always prefer to operate with as little congressional interference as possible. Second, it provides a rationalist account for “responsibility shifting” by elected officials — behavior that is usually thought to derive from voter confusion or irrationality. Third, it suggests that separation of powers does not necessarily induce “gridlock” or otherwise reduce the likelihood of policy change. Fourth, it suggests that although separation of powers enhances the efficacy of the electoral constraint on politicians, voter welfare is higher when separation of powers is “optional” rather than mandatory, as when the President may seek congressional authorization for policy initiatives but is not required to do so.

Although administrative law doctrine requires courts to defer to an agency’s reasonable statutory interpretation, the doctrine is unclear as to whether an agency gets less deference when it changes its own prior interpretation. We formally analyze how judicial deference to revised agency interpretations affects the ideological content of agencies’ interpretations. We find a nonmonotonic relationship between judicial deference to inconsistent agency interpretations and interpretive extremism. This relationship arises because as courts become less deferential to revised interpretations, the initial agency finds it more attractive to promulgate a moderate interpretation that will not be revised. However, the less deferential the courts, the more extreme this moderate interpretation becomes. Normatively, our results suggest that an interest in responsiveness of interpretive policy to the preferences of the incumbent leadership favors deference to revised interpretations, whereas an interest in ideological moderation favors a somewhat less deferential posture to interpretive revisions.

In carrying out their duties, federal administrative agencies must often interpret statutes and regulations that are not entirely clear. Sometimes an agency’s interpretation of an ambiguous legal text may not seem like the best or most natural interpretation of that text. Nonetheless, a staple of modern federal administrative law doctrine is the principle of judicial deference to administrative interpretations of both congressional statutes and agency regulations. The seminal case on judicial deference to reasonable agency statutory interpretations is, of course, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. In the context of administrative interpretations of the agency’s own regulations, the leading authority is the Supreme Court’s 1945 decision in Bowles v. Seminole Rock & Sand Co., which held that an agency’s construction of its own regulation should be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” More recent Supreme Court cases—including Thomas Jefferson University v. Shalala and Auer v. Robbins—have reaffirmed the Seminole Rock principle of judicial deference to an agency’s reasonable construction of its own regulations.

Although Chevron deference and Seminole Rock deference are closely related, there has been much more thorough exploration of the theoretical underpinnings and practical consequences of Chevron. This has not eliminated doubt or disagreement about the nature, validity, or wisdom of Chevron deference, but a consensus has gradually emerged that Chevron is grounded in a presumption (likely a legal fiction) about congressional intent. That presumption is in turn grounded in a set of pragmatic considerations—most notably expertise, accountability, and uniformity—that are thought to favor administrative over judicial construction. Furthermore, in part because of the self-conscious and sophisticated reflection on Chevron’s justifications, courts and commentators have become increasingly attentive to questions regarding the proper scope and limits of what Professors Merrill and Hickman have described as “Chevron’s domain.” Although Chevron was widely seen as replacing an open-ended, multifactor inquiry with a more rule-like framework, a strain in the doctrine and commentary has long suggested that the case for Chevron deference is not equally strong in all contexts, and indeed such deference might sometimes be inappropriate.

This view reached its apotheosis in United States v. Mead Corp., in which the Supreme Court held that some agency statutory interpretations—particularly those contained in interpretive rules, informal orders, or other pronouncements issued without extensive procedures—were presumptively not entitled to Chevron deference. Such interpretations fall outside Chevron’s domain, and therefore receive at most a measure of judicial respect, pursuant to the Court’s 1944 decision in Skidmore v. Swift & Co. Although Mead and much subsequent commentary emphasized procedural formality as the key consideration marking the boundaries of Chevron’s domain, other strands of the doctrine have suggested that something less than full Chevron deference might be appropriate when, for example, several agencies share interpretive authority over the same statute, when an agency’s interpretation of a statutory provision has been inconsistent over time, or when the interpretive question is unusually fundamental or important. The academic literature is rife with proposals for further refinements to Chevron’s domain, as well as defenses and criticisms of the limits the Court has already developed.

By contrast, courts and commentators have paid less attention to analogous questions regarding Seminole Rock’s domain. Indeed, Seminole Rock has attracted less attention and discussion than Chevron in general, and the discussion that does exist has tended to focus on wholesale critiques or defenses of Seminole Rock, rather than questions regarding possible limits on the set of administrative interpretations that qualify for such deference. Yet this is starting to change: emerging strands of both the academic literature and the caselaw have begun to take seriously, and to grapple with, questions regarding Seminole Rock’s proper scope. This trend has accelerated in the wake of Mead. Indeed, post-Mead circuit court cases have sent mixed signals regarding the effect of that decision on Seminole Rock deference. This Article builds on prior work by posing—and suggesting some preliminary answers to—the question of whether there ought to be limits to Seminole Rock’s domain, comparable (though perhaps not identical) to the limits that have been advocated, and in some cases recognized, for Chevron’s domain.

We have three objectives in this Article: the first is descriptive, the second analytic, and the third prescriptive. Our descriptive objective is to provide a succinct summary of the state of the current doctrine regarding the limits—or lack thereof—on Seminole Rock’s domain. Our analytic objective is to develop a taxonomy of the considerations that courts might plausibly use to develop midlevel doctrinal rules or presumptions that would limit Seminole Rock’s domain, and to assess the costs and benefits of these different doctrinal possibilities. Our prescriptive objective is to advocate—tentatively—a subset of these possible rules. Of these three objectives, the analytic objective is paramount. More important than any particular doctrinal change, is the development of a more sophisticated framework for thinking about issues of Seminole Rock’s domain, so that these issues and problems can be confronted squarely and explicitly.

We analyze the interaction between electoral accountability and separation-of-powers by comparing three regimes: ‘Unilateral Authority’ (the President has exclusive decision-making power); ‘Mandatory Checks’ (the President cannot change policy without congressional assent); and ‘Opt-in Checks’ (the President may seek congressional authorization or act unilaterally). We find: (1) voters use asymmetric electoral rewards and punishments to offset the risk of politician bias, but voters rely less on this blunt instrument if there are internal checks; (2) adding a veto player need not alter the ex ante likelihood of policy change; and (3) voter welfare is highest under Opt-In Checks and lowest under Unilateral Authority.

We use an agency model to analyze the impact of judicial review on the incentives of elected leaders to “posture” by enacting bold but ill-advised policies. We find that judicial review may exacerbate posturing by rescuing leaders from the consequences of unwise policies, but may also discourage posturing by alerting voters to unjustified government action. We further find that judges will defer to the decision of elected leaders unless posturing is sufficiently likely. We then show how judicial review affects voter welfare, both through its effect on policy choice and through its effect on the efficacy of the electoral process in selecting leaders. We also analyze how the desirability of judicial review is affected by characteristics of the leaders and the judges.

It is often asserted that separation of legislative powers tends to make legislation both more moderate (because concessions to all veto players are needed to secure enactment) and less frequent (because sufficient concessions are sometimes infeasible). The formal analysis in this paper shows this claim to be incomplete, and sometimes incorrect. Although greater separation of powers makes legislation more difficult to enact, it also makes legislation, once enacted, more difficult to repeal. Attenuating the threat of repeal means that when one faction has sufficient power to push through extreme policies, it is more likely to do so than would be the case if legislative power were more concentrated. These two effects cut in opposite directions, and it is difficult to say, as a general matter, which will predominate. Indeed, increasing the fragmentation of legislative power may sometimes increase both the expected frequency and the expected extremism of legislative enactments.

Although ensuring the “accountability” of agents to their principals is widely considered a core objective of institutional design, recent work in political economy has identified and elucidated an important class of situations in which effective accountability mechanisms can decrease, rather than increase, an agent’s likelihood of acting in her principal’s interests. The problem, which we call “over-accountability,” is essentially an information problem: sometimes even a fully rational but imperfectly informed principal (e.g., the citizens) will reward “bad” actions rather than “good” actions by an agent (e.g. the President). In these cases, not only do accountability mechanisms fail to remedy the agency problem inherent in representative government, they actually make the problem worse. This Article offers a conceptual and empirical overview of over-accountability problems, and also considers a range of potential solutions. By surveying both the distortions themselves and a range of possible responses, this article aspires to assist both public law scholars and institutional reformers in producing more effective solutions.