—Democratic Experimentalism“: a Separation of Powers for Our Time?
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COLBURNMACROFINAL.DOC 4/1/2004 1:50 PM “Democratic Experimentalism”: A Separation of Powers For Our Time? Jamison E. Colburn† The American administrative state often looks like Hobbes’ Leviathan itself.1 It makes and changes law on a scale and with an inscrutability that are scarcely to be believed. Its agencies at times seem rigidly bureaucratic while at others cravenly partisan and political. They are unlike anything contemplated at the Founding, yet they exist in an environment that would crush anything less powerful or pervasive. Most importantly, though, the bases of federal agencies’ legitimacy and authority have been matched in their ambiguity only by that of how our constitutional traditions tolerate them. A new school of thought integrating different critiques of the administrative state is now seeking to revolutionize the Leviathan. It is called “democratic experimentalism” and it describes, while also trying to facilitate, new deliberative regulatory structures. It proposes to recreate a participatory democracy out of the technocratic and impenetrable pieces of the administrative state. Across diverse spheres once run by experts far remote (both physically and socially) from the citizens and localities concerned, pragmatic innovations have led to newly participatory and collaborative models. The academics who call themselves democratic experimentalists have sought to explain how certain of these instances share foundational similarities. This article argues that much of the scholarship forming this new model misses a basic historical point about the separation of powers doctrine. It makes that point by interpreting the doctrine as an evolving discourse, exploring its historical evolution while at the same time trying to suggest what it will do to the democratic experimentalist project in the real world. This † Assistant Professor of Law, Western New England College; J.D. Rutgers Law School; LL.M. Harvard Law School; Candidate, J.S.D., Columbia University. For terrific conversations, encouragement, and help on various drafts, I thank Libby Adler, Michael Dorf, Taylor Flynn, Archon Fung, Eric Gouvin, John Hill, Elizabeth Leong, Edward Rubin, William Simon, Peter Strauss, James Stribopoulos, Robert F. Williams, participants in the Rutgers-Camden Faculty Workshop, the Northeastern Junior Faculty Exchange, and the Tuesday Group at Columbia Law School. Comments are most welcome: [email protected]. 1. On the identification of the modern state with Hobbes’ sovereign, see Gary Lawson & Guy Seidman, The Hobbesian Constitution: Governing Without Authority, 95 NW. U. L. REV. 581, 626 (2001), stating “[i]f congressional paralysis is really a mandate for disregarding constitutional commands, then constitutionalism is a bad joke.” As to administrative authority today in particular, it is instructive to note that of all the “rights” of sovereignty in Hobbes’ Leviathan: the authority to make “Rules” and to judge conclusively whose “Opinions” or “Doctrines” were true and consistent with the sovereign’s objectives were among the most vital. See THOMAS HOBBES, LEVIATHAN 96-102, 122-46 (Norton Critical Ed. 1997) (1651). COLBURNMACROFINAL.DOC 4/1/2004 1:50 PM 288 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:287 interpretation comes to this: the separation of powers is a powerful mechanism of opposing governmental innovation. It has played a profound role in shaping the administrative state. In fact, its ambivalent pieces were largely responsible for that pillar of the administrative state, the Administrative Procedure Act (APA), passed in 1946.2 And this article hypothesizes that that episode is highly instructive to democratic experimentalists of today. As I argue below, the APA was at base a détente between two opposing theories of the separation of powers under modern circumstances, one of which was quite like democratic experimentalism today. Indeed there is reason to believe that a conflict very similar to the one behind the APA is framing the current constitutional-political agenda, cutting a now familiar arc between pragmatic and juridical affects toward governmental authority. I. INTRODUCTION Through several practical and philosophical constructs, democratic experimentalists are theorizing a transformation of courts, agencies, legislatures, and publics as institutions. These core constructs include: (1) problem-oriented pragmatism; (2) coordinated decentralization; (3) participatory transparency; and (4) collaboration as a premise for political action of all kinds.3 They have been hard-won:4 they reflect worldliness 2. Administrative Procedure Act of 1946, Pub. L. No. 79-404, 60 Stat. 237 (codified as amended at 5 U.S.C. §§ 551-706 (1994)). 3. Several texts directly consider “democratic experimentalism” or some of its components as a general, theoretical endeavor. See generally KAI N. LEE, COMPASS AND GYROSCOPE: INTEGRATING SCIENCE AND POLITICS FOR THE ENVIRONMENT (1993); ROBERTO MANGABEIRA, DEMOCRACY REALIZED: THE PROGRESSIVE ALTERNATIVE (1998); WILLIAM H. SIMON, THE COMMUNITY ECONOMIC DEVELOPMENT MOVEMENT: LAW, BUSINESS, AND THE NEW SOCIAL POLICY (2001) [hereinafter SIMON, COMMUNITY ECONOMIC DEVELOPMENT MOVEMENT]; Joshua Cohen & Charles Sabel, Directly Deliberative Polyarchy, 3 EUR. L.J. 313 (1997); Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267 (1998) [hereinafter Dorf & Sabel, Democratic Experimentalism]; Michael C. Dorf & Charles F. Sabel, Drug Treatment Courts and Experimentalist Government, 53 VAND. L. REV. 831 (2000) [hereinafter Dorf & Sabel, Experimentalist Government]; Bradley C. Karkkainen, Information as Environmental Regulation: TRI and Performance Benchmarking, Precursor to a New Paradigm?, 89 GEO. L.J. 257 (2001); Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 COLUM. L. REV. 551 (1997); Susan Sturm, “Second Generation” Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458 (2001). While it is by now equal parts constitutional law, political and social theory, and economics, each of these is motivated by its own “case study” describing features common to several local, collaborative efforts to address public problems otherwise unsolved by markets and/or the primary regulatory structures of the larger state. 4. See DEWITT JOHN, CIVIC ENVIRONMENTALISM: ALTERNATIVES TO REGULATION IN STATES AND COMMUNITIES 40-45, 125-97, 280-97 (1994) [hereinafter CIVIC ENVIRONMENTALISM]; CHARLES F. SABEL ET AL., BEYOND BACKYARD ENVIRONMENTALISM 9-16 (2000) [hereinafter BEYOND BACKYARD ENVIRONMENTALISM]. Collaborative partnerships in ecosystem restoration, for example, have come about largely as a result of the failures of centralized, command-and-control organizational forms like those predominant since the New Deal. See CIVIC ENVIRONMENTALISM, supra; BEYOND BACKYARD ENVIRONMENTALSIM, supra. Likewise, market-sensitive community economic development arrangements have replaced generations of failed “gentrification” programs carried on by regulatory fiat and/or tax-and-spend COLBURNMACROFINAL.DOC 4/1/2004 1:50 PM 2004] A SEPARATION OF POWERS FOR OUR TIME? 289 toward regulatory politics as much as any intellectual vision. Nonetheless, at their strongest they aspire to reconceive of legal authority in a “post- administrative state.”5 Each construct has its own rich history at all levels of governance and political thought, but for reasons of scope, this article can render only crude sketches of them. The form of problem-oriented pragmatism can be summed in the insistence “that thought is instrumental (the truth or value of an assertion lies in what it can do for us) and contextual (assertions should be interpreted in the social circumstances in which they arise).”6 This is the same form of pragmatism that viewed democracy itself as a process of inquiry and learning.7 The second core construct, coordinated decentralization, recognizes that all citizens must act out of local knowledge (if any knowledge at all) and that the highest and best function of any centralized authority is to empower while simultaneously disciplining local authorities to better learn on behalf of and then to serve those local publics. That discipline usually takes the form of what is called “continuous monitoring” of local units by some centralized authority capable of pooling information and benchmarking performances among them.8 Finally, collaborative structures that allow autonomous participants to deliberate by becoming each other’s critics form the participatory linkages between the various constructs of democratic experimentalism’s vision. Without collaboration, real learning about shared ends and available means is severely hampered.9 The Environmental Protection Agency’s (EPA) “Toxic Release Inventory,” a program celebrated by democratic experimentalists, is supposed to exemplify each of these in producing the very sort of regulatory regime advocated. By requiring broad-based information about toxics use and release and making that boondoggles. SIMON, COMMUNITY ECONOMIC DEVELOPMENT MOVEMENT, supra note 3, at 17-54. 5. See generally Michael C. Dorf, Legal Indeterminacy and Institutional Design, 78 N.Y.U. L. Rev. 875 (2003) [hereinafter Dorf, Legal Indeterminacy]. 6. William H. Simon, Solving Problems v. Claiming Rights: The Pragmatist Challenge to Legal Liberalism 4 (2002) (unpublished manuscript, on file with author). 7. Id. See generally ROBERT H. WESTBROOK, JOHN DEWEY AND AMERICAN DEMOCRACY (1991).