Administrative Law and Agency Policymaking: Rethinking the Positive Theory of Political Control

Abstract

Positive political theory (PPT) models of agency policymaking contend that politicians use the tools of ex post and ex ante control to overcome some of the agency problems associated with delegation (such as the inability to foresee the issues the agency will face), in part by enlisting interest groups in the battle to control agencies. PPT models of political control have done a good job of illustrating how and why politicians try to influence agency policymaking; but they overstate politicians' ability to do so, for two reasons. First, commonly-employed methodological assumptions in positive models tend to obscure the most important impediments to political control. Second, the antecedents to the current PPT literature posed a false dichotomy between agency autonomy and good government, one which some positive theorists seem to continue to accept, at least implicitly. This article examines these positive and normative biases in the PPT literature, and suggests that PPT models can do a better job of analyzing the agency policymaking process by abandoning these restrictive assumptions.