Academic journal article Political Research Quarterly

Making Rules about Rulemaking: A Comparison of Presidential and Parliamentary Systems

Academic journal article Political Research Quarterly

Making Rules about Rulemaking: A Comparison of Presidential and Parliamentary Systems

Article excerpt

Abstract

The authors examine the administrative procedures acts (APAs) of separation of powers and parliamentary systems. They examine sixteen national APAs (thirteen parliamentary and three presidential) and forty-eight APAs from the U.S. states that have institutional structures analogous to the presidential systems. They identify a very stark difference between the parliamentary and presidential APAs. While all of the presidential system APAs place constraints on both adjudicative and rulemaking activities, only two of the parliamentary APAs make any reference to rulemaking at all. The authors present an institutional explanation for this observation based on recent work on veto players and delegated discretion to administrative agents. They argue that the presence of partisan veto players discourages focus on rulemaking in APAs.

Keywords

delegation, oversight, veto players, administrative procedures acts

Administrative procedures acts (APAs) are critically important institutional features in many democracies. They serve to constrain the implementation of laws spanning many policy areas across time. Despite their importance, there has been very little scholarly attention paid to them by political scientists outside of the U.S. case. The result is that our understanding of the role of APAs is limited by our focus on the types of institutional structures found in the United States and in a handful of other presidential systems. There has been virtually no attention paid to the possibility that APAs in parliamentary systems may differ from those in separation of powers systems. This is despite the fact that much of the comparative politics research on institutions underscores important differences between these two types of systems. Most recently, research on veto players identifies differences between the partisan veto players found in parliamentary systems and institutional veto players found in separation of powers systems (see especially Tsebelis 1995, 2002). We argue that these differences between partisan and institutional veto players lead to an important characteristic of APAs from separation of powers systems that sets them apart from their counterparts in parliamentary systems. In particular, partisan veto players in parliamentary systems are able to impose ex post costs on each other that mitigate the incentives to adopt ex ante constraints in the form of APAs. We find that while APAs in separation of powers systems constrain both rulemaking (quasi-legislative) and adjudicative (quasi-judicial) actions, APAs in parliamentary systems only constrain adjudication.

First, we establish why we should study APAs at all and discuss why we should study them comparatively. Second, we present an institutional theory of administrative constraint in the context of differences between types of veto players found in separation of powers and parliamentary systems. Third, we focus the institutional approach on APAs in particular. Fourth, we present evidence taken from sixteen national and forty-eight U.S. state APAs. We conclude with a call for further comparative study of APAs' content and their role in the institutional structures of modern democracies.

Why Study APAs Comparatively?

Delegation from the principals who write laws to the agents who implement them is necessary in any modern democracy. APAs have become important tools for principals to monitor and control their agents after they have delegated policymaking power. These laws have enormous scope and impact because they apply to all, or almost all, policymaking agencies. APAs structure the relationship between agencies and their principals and establish procedural floors that agencies must meet before they take legal action. These laws may cover appeals procedures designed to protect individuals from arbitrary agency actions or judicial review of agency decisions, or they may require agencies to hold hearings, publish information and decisions, or receive comments from interest groups and private citizens regarding proposed policies. …

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