Polarization and Judicial Review of Agency Rulemaking

• In Event: Balancing Acts: The Supreme Court and Interbranch Politics

Abstract

How does political polarization affect agency rulemaking in the shadow of judicial review? I analyze a formal model of agency rulemaking under a polarized judiciary to understand how polarization influences four aspects of agency rulemaking: the propensity to regulate, the amount of effort exerted by the agency when it does regulate, the likelihood of judicial invalidation, and ultimate policy outcomes. I find that in equilibrium, when the status quo is not too extreme, polarization can dissuade the agency from regulating and increase the frequency with which regulations are blocked, contributing to "administrative gridlock." When the agency does regulate, polarization has "Goldilocks" effects on the development of expertise and moderation of policy: a modest degree of polarization promotes informed rulemaking and moderate policy, while too much or too little has the opposite effect. I also use the model to evaluate different institutional approaches to judicial review of agency rulemaking.

Author

• Reilly Steel, Princeton University