Legislative Choice of Regulatory Forms: Legal Process or Administrative Process?

Abstract

Perhaps because of the importance and visibility of some regulatory agencies and commissions, numerous observers have come to regard the administrative form of regulation as the “logical“ or “natural“ method of intervening in the economy or society. In fact, however, regulation comes in a variety of forms. The administrative form might seem all pervasive upon first consideration, but a variety of legislative enactments clearly regulatory in effect such as large portions of the tax code, direct government subsidies and so forth suggest that delegation of legislative authority to administrative entities is, not so universal as is often assumed. Moreover, when viewed in historical perspective, choice of bureaucratic implementation of regulatory programs does not obviously emerge as the “logical“ or “natural“ method, at least not in the view of many political actors of the late nineteenth and early twentieth centuries. This paper surveys a heterogeneous body of literature on the subject of regulatory origin in order to identify proposed explanations for legislative choice of administrative forms of regulation in preference to judicial enforcement of legislative enactments. The focus of the survey is on the choices made by legislators and the considerations underlying their choices. Among the latter are (1) beliefs in the inherent superiority of administrative forms, (2) efforts to escape the costs, political and otherwise, of regulating directly, (3) ideologies supportive of delegation to administrators, and (4) uncertainty about the future operation of the regulatory process. These ideas are examined in an exploratory spirit; no firm conclusions are drawn at this time.