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JMWP 07 Steiger Cover: Billy The Kid, 2000, Steven Lewis THE JEAN MONNET PROGRAM J.H.H. Weiler, Director Gráinne de Burca, Director Jean Monnet Working Paper 7/16 Dominic Steiger THE SEPARATION OF POWERS DOCTRINE AND THE POWER OF PARTICIPATION NYU School of Law New York, NY 10011 The Jean Monnet Working Paper Series can be found at www.JeanMonnetProgram.org All rights reserved. No part of this paper may be reproduced in any form without permission of the author. ISSN 2161-0320 (online) Copy Editor: Danielle Leeds Kim © Dominik Steiger 2016 New York University School of Law New York, NY 10011 USA Publications in the Series should be cited as: AUTHOR, TITLE, JEAN MONNET WORKING PAPER NO./YEAR [URL] The Separation of Powers Doctrine and the Power of Participation Citizen’s Influence in Delegated Rule-Making in the United States, the European Union and Germany Dr. Dominik Steiger, KU Leuven/New York University/Freie Universität Berlin1 Abstract: 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 correctly. The United States, the European Union and Germany all facilitate forms of citizens’ participation but differ with regard to the actors involved and the degree of influence exerted. Just under fifty years have passed since the participation debate began, yet there is no overarching constitutional theory of participation that encompasses all three branches of government and demonstrates what is meant by “participation done correctly”. This lacuna must be filled in order to further develop participatory mechanisms. This Jean Monnet Working Paper seeks to do so by developing a constitutional theory of imperative participation based on the separation of powers doctrine which may be found in all three legal 1 Dr. iur., [email protected], Professor for Public International Law, KU Leuven; Emile Noël Fellow Academic Year 2014/2015, Jean Monnet Center, New York University School of Law; Deutsches Haus at NYU DAAD Visiting Fellow Fall 2014, DFG-Forschungsstipendiat Academic Year 2014/2015, Senior Fellow Freie Universität Berlin 2009-2016. The author would like to thank Jelena Bäumler, Gráinne de Búrca, Adam B. Cox, Heike Krieger, Peter Lindseth, Christoph Möllers, John Morison, Burt Neuborne, Armin von Bogdandy, Joseph H. Weiler, my fellow Emile Noël Fellows Mor Bakhoum, Pietro Faraguna, Katarzyna Granat, Vanessa Mak, Andrew Mitchell, Bilyana Petkova, Lucas P.M. Peeperkorn, 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 go to Deborah Casalin, Wiebke Günther, and Jim Hirschmann. Furthermore, the author would like to like to acknowledge that a version of this Working Paper was published as “A Constitutional Theory of Imperative Participation: Delegated Rulemaking, Citizens’ Participation and the Separation of Powers Doctrine” in the 79 Albany Law Review 101-167 (2016). 1 Power of Participation orders. To do this, the two most important questions about public participation in any given case will be answered: Firstly, who may participate in the exercise of public authority? Secondly, what legal effect does the participation have? 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. Power of Participation Table of Contents I. Introduction ............................................................................................ 6 II. Participation .......................................................................................... 7 A. Participation’s Legal Effect: Imperative Participation ........................ 10 B. Participation’s Actors: From the People to one Individual ................... 11 C. Participation’s Functions: Individual Rights, Efficiency and Democracy ............................................................................................................... 12 D. Summarizing Imperative Participation: Citizen’s Partaking in All State Affairs .................................................................................................... 13 III. Separation of Powers .......................................................................... 14 IV. Conceptualizing Participation via the Separation of Powers Doctrine: A Constitutional Theory of Imperative Participation .................................... 19 V. Delegated Rulemaking: The Theory’s Litmus Test ................................. 21 A. The Legislature: Democratic Delegation of Powers ............................ 22 1. United States .................................................................................... 23 a. Democratic Control: Standards of Rulemaking and Oversight Mechanisms .... 23 aa. Non-delegation doctrine ................................................................................ 24 bb. Intelligible principle ...................................................................................... 25 cc. Legislative Veto............................................................................................... 27 dd. Other Congressional Oversight Mechanisms ................................................ 28 ee. Delegating Rulemaking Powers in the United States: Some Conclusions .... 29 b. Imperative Participation in the Delegation Process ........................................... 30 2. Germany .......................................................................................... 32 a. Democratic Control: Standards of Rulemaking and Oversight Mechanisms .... 33 b. Imperative Participation in the Delegation Process ........................................... 34 3. European Union .............................................................................. 34 Power of Participation a. Democratic Control: Standards of Rulemaking and Oversight Mechanisms .... 35 b. Imperative Participation in the Delegation Process ........................................... 37 4. Conclusion on the Legislature .......................................................... 38 B. The Executive: Delegated Rulemaking ................................................ 38 1. United States .................................................................................... 39 a. Bound and Democratic: The Character of Agencies and Rulemaking ............... 39 aa. Institutions: Executive and Independent Agencies ....................................... 39 bb. Rules .............................................................................................................. 44 cc. The Democratic Nature of Rulemaking in the Administrative State ............ 45 b. Imperative Participation in Rulemaking ............................................................ 47 aa. Informal rulemaking procedure .................................................................... 48 bb. Formal Rulemaking ....................................................................................... 50 cc. Negotiated Rulemaking .................................................................................. 51 2. Germany .......................................................................................... 51 a. Bound but Democratic: The Character of Rulemaking ...................................... 51 b. Participation in Rulemaking ............................................................................... 52 3. European Union .............................................................................. 54 a. Bound and Democratic: The Character of Rulemaking...................................... 54 b. Participation in Rulemaking ............................................................................... 55 4. Delegated Rulemaking and Participation: Executive and Collective Self-Determination .............................................................................. 57 C. The Judiciary: Adjudicating Rulemaking and the Rule of Law ............ 58 1. United States .................................................................................... 58 a. Separation of Powers and Judicial Review .............................................. 59 aa. Exclusion of Judicial Review/Reviewability (§ 701 APA) ............................. 59 bb. Scope of Judicial Review (§ 706 APA) ........................................................... 60 Power of Participation i. Substantive and Procedural Rights ............................................................... 61 ii. Substantive Laws and the Chevron Doctrine ............................................... 63 iii. Procedural Laws and the Hard-Look Doctrine .......................................... 65 b. Judicial Remedy .................................................................................................. 69 c. Participation on the Judicial Level: Legal Standing ........................................... 69 d. Conclusion: Balancing Judicial Review and Standing ....................................... 75 2. Judicial Review in Germany ............................................................ 75 3. Judicial Review in the European Union ........................................... 77 4. Conclusion on the Judiciary ............................................................ 77 VI. The Power of the Constitutional Theory of Imperative Participation ... 78 Power of Participation I. Introduction Calls
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