It seems as if there is a current tendency in government to reward thinking, writing and talking, and not so much doing. We can write excellent desired conditions, full of complexity and nuance, but in some cases struggle to deal with today’s problems (e.g. law enforcement) that we detail on The Smokey Wire. Many forests are doing good work, for sure. And yet,the FS is proposing that local folks develop Adaptive Management Strategies for Old Growth. (a new process! whoopee!). when what the local folks would really like the FS to do is pre-plan for wildfires and actually do the physical work of to implement PODs, fuel breaks and other helpful.. actions. Because while some are fiddling with verbiage, forests and communities are burning, 300K acres here, 40K acres there.
But this isn’t a recent trend. I remember “Process Predicament”- now 20 years ago. There was also “Analysis Paralysis.” It’s been going on awhile. Nicholas Bagley wrote this in 2021. This may sound a bit anti-lawyer, but Bagley is a law prof, and the essay was originally published in the Michigan Law Review. Personally I think we need both, good management and regulatory oversight but I think we could do better at balancing those. My bolds.
If America has a procedure problem, it may be because it has a lawyer problem. Among lawyers, anxiety about agency legitimacy is reflexively invoked to defend the legally imposed procedures that structure agency decision-making. Here’s Richard Stewart, a titan in the field: “The traditional conception of administrative law . . . bespeaks a common social value in legitimating, through controlling rules and procedures, the exercise of power over private interests by officials not otherwise formally accountable.” Similar statements abound in the literature. Every procedure under the sun has been defended, at one time or another, as a guarantor of the fragile legitimacy of the administrative state.
But it pays to be precise. It is reasonable to believe that procedural regularity is an important facet of government legitimacy. But legitimacy is not solely — not even primarily — a product of the procedures that agencies follow. Legitimacy arises more generally from the perception that government is capable, informed, prompt, responsive, and fair. Mandatory procedures may sometimes advance those values. They can focus agencies on priorities they may have ignored, orient bureaucracies to broader public goals, and improve the quality of agency deliberations. But procedures can also burn agency resources on senseless paperwork, empower lawyers at the expense of experts, and frustrate agencies’ ability to act. When procedures impair an agency’s ability to do its job, they can drain an agency of legitimacy.
What’s more, if an agency consistently makes bad decisions, the lawyer’s assumption that more procedures will force it to make good ones is dubious. Bad decisions may sometimes occur because the agency didn’t follow the proper procedures, but they’re more often the product of resource constraints, poor leadership, misplaced legal obligations, organizational dysfunction, ill-trained employees, political infighting, and the like.
That’s a pretty good list, in my experience.
In general, the best way to build an agency’s legitimacy will be to address those concerns, either by turning to Congress for resources and reform or by enlisting someone who knows something about management.
Yet lawyers, not managers, have assumed primary responsibility for shaping administrative law in the United States. And if all you’ve got is a lawyer, everything looks like a procedural problem.
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Instead of defending procedures at a high level of abstraction (legitimacy! accountability!), we need to take a more granular look at the effects that legally imposed procedures have on the task of governance. Minimalism should be the watchword. New procedures should be greeted with suspicion and old procedures should be revisited, with an eye to cutting them back or eliminating them. Some will be worth retaining: No one wants a latter-day Robert Moses bulldozing neighborhoods with impunity. It’s reasonable, for example, to require agencies to offer reasons for major actions. History and international experience suggest the need for rules protecting the civil service. And some targeted judicial review is appropriate to prevent agencies from flouting legal constraints. Beyond that, however, we should be cautious. Administrative law could achieve more by doing less.
We also need to revive a strain of thinking that connects the legitimacy of the administrative state to its ability to satisfy public aspirations. That means building up our agencies, not devising ever-more elaborate means of tying them down. Antiquated rules that make it hard to hire and retain qualified personnel should be scrapped. Legislatures need to appropriate the funds to expand an overstretched bureaucracy and to pay for top talent, much as some independent agencies can already do. Fewer tasks should be outsourced to poorly supervised contractors; more functions should be brought in-house. And we must make large investments in the information technology that forms the backbone of competent governance.
These aren’t tasks for lawyers, with their fetish for procedural rules. They are tasks for legislators, managers, and policy experts. They are the ones who will drive real regulatory reform and — perhaps — build the government institutions that will allow us to cope with the challenges of the 21st century. The lawyers need to get out of the way.
Lawyers only “get in the way” when they are invited – by statutes and regulations. Every one of those has a reason for being here, and that reason and the effectiveness of the “fix” should be revisited regularly.
“When procedures impair an agency’s ability to do its job, they can drain an agency of legitimacy.” This is a key point, but I suspect the problem is more often disagreement about what the agency’s job is and the degree to which that should be compromised by public health and safety and environmental effects.
Yes, I’m waiting for an evaluation of the effectiveness of the 2012 Planning Rule. I seem to remember a claim being made about being able to finish plans in three years, faster than the 82, when more stuff was added.
I think the sample size is still too small. When they reviewed the ’82 rule about 10 years later, they had produced all of the national forest plans using it. (And others may feel like I do – “didn’t we just redo the Rule?”) Why don’t you just ask them for a table showing how long it took to complete the plans that have been revised under both rules (or at least the start and finish dates). I can’t believe such a document doesn’t exist.
If the sample size is too small… after 12 years of doing them.. maybe that sends its own message.
Which would be that the agency doesn’t prioritize funding for planning like they did under the ’82 regs.
do you know the comparative amounts? Seems to like there’s lots of money in the NWFP FAC committee effort, plus they stood up a national team to assist the forests..
Sorry, no idea. All I know is that pretty much every national forest was funded for plan development from 1980-1990, and in the last 10 years it’s been maybe a quarter of that. If they have been spending that money on something else, it doesn’t negate my point that the small sample size for completed revisions does not indicate a problem with the 2012 Rule.