“Unorthodox Lawmaking, Unorthodox Rulemaking”

Gluck, O’Connell, and Po have posted this draft on SSRN (forthcoming, Columbia Law Review).  Here is the abstract:

The Schoolhouse Rock! cartoon version of the conventional legislative process is dead, if it was ever an accurate description in the first place. Major policy today is often the product of “unorthodox lawmaking” and “unorthodox rulemaking” — deviations from traditional process marked by frequent use of omnibus bills and multiple agency implementation; emergency statutes and regulations issued without prior comment; outsourcing to lawmaking commissions and unconventional delegates; process shortcuts outside of emergencies; presidential policymaking; and outside drafters, some nonpartisan and others hyperpartisan. These unorthodoxies are everywhere, and they have shifted the balance in the elected branches and beyond, often centralizing power in actors — like party leadership and the White House — not traditionally part of the core lawmaking and rulemaking processes. These unorthodoxies are the new textbook process.

The theories and doctrines of legislation and administrative law, however, have paid little attention to these evolutions. The limited commentary that does exist tends to lump all unorthodox policymaking together or to preserve an artificial divide between their legislative and administrative manifestations. But omnibus policymaking is different from emergency policymaking — not only in process and product, but in the challenges that each poses for courts. And both forms of policymaking are different from presidential policymaking, and so on. Unorthodoxies in one branch are also closely linked to unorthodoxies in the other.

The “law crowd” — a group in which the value of process is deeply instilled — tends to look upon these modern changes with suspicion. But some unorthodoxies may in fact be beneficial to democracy, and any assessment requires a much clearer understanding of what legislative and administrative doctrines are for than we currently have. Unorthodox policymaking may make the job of courts more difficult by, for instance, making law messier or less transparent, but is the role of courts to reflect how policy is made? Improve how policy is made? Or advance different values altogether?

This Essay develops an account of today’s unorthodox lawmaking and unorthodox rulemaking and substantiates the link between them. It utilizes a new typology of unorthodoxies to explore the causes, costs and benefits, and winners and losers associated with each different kind of policymaking, and plays out the ways that the theories and doctrines of legislation and administrative law might respond to the modern context in which they now unquestionably operate.

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