Article

The Regulatory State

Susan Rose‐Ackerman

in The Oxford Handbook of Comparative Constitutional Law

Published in print May 2012 | ISBN: 9780199578610
Published online November 2012 | | DOI: http://dx.doi.org/10.1093/oxfordhb/9780199578610.013.0033

Series: Oxford Handbooks in Law

The Regulatory State

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The challenges to constitutional law raised by the modern administrative state take contrasting forms in presidential and parliamentary systems. This article focuses on the differences between the US presidential system and the procedural requirements of its Administrative Procedure Act (APA), on the one hand, and parliamentary democracies where the government must maintain the confidence of the legislature, on the other. The need to assure technical competence may clash with both public accountability under the APA and political accountability to parliament. The article is organized as follows. Section II discusses delegation of policymaking authority outside the legislature. Section III concentrates on the creation of independent agencies and their connection to regulatory policy and government oversight. Section IV considers the role both of economic analysis in the policy process and of procedural requirements designed to further political and public accountability. Section V brings in the courts' role in reviewing and overseeing the regulatory process in the rest of government. Section VI concludes with some reflections on the connection between administrative law, public policymaking, and democratic legitimacy.

Keywords: constitutional law; administrative state; United States presidential system; Administrative Procedure Act; parliamentary democracy; public accountability

Article.  8419 words. 

Subjects: Law ; Comparative Law ; Constitutional and Administrative Law

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