From: SSRN

Forthcoming, Daedalus, symposium on deliberative democracy/Preliminary Discussion Draft

Cass  R.  Sunstein


These points suggest strong reasons to reject the view, offered, energetically, by some law professors, that courts should be less willing to defer to executive action when that action is not a product of the autonomous decisionmaking of the particular agency involved, but of numerous officials within the executive branch.29 Put to one side the fact that courts will not ordinarily know about the internal process of deliberation, and will not be able to sort out the precise role of various officials. The much deeper problem is that view has things exactly backwards. If an agency is acting on its own, there might well be reason to worry about myopia, mission orientation, and tunnel vision, potentially compromising the ultimate judgment. If multiple officials are involved, there are of course no guarantees, but the risks are reduced because of the safeguards provided by multiple perspectives. The case for judicial deference to executive action is far stronger if the action is supported and produced by numerous officials, and not only by the rulemaking agency. That process of support, and that kind of production, ensure far more in the way of both deliberation and democracy.

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