Working Smart and Hard? Agency Effort, Judicial Review, and Policy Precision
Ian R. Turner, Texas A&M University – Department of Political Science
In this paper I assess the effects of oversight, like OIRA or judicial review, on the administrative process through the lens of its effect on the incentives for agencies to invest high effort to improve policy enforcement. Specifically I analyze a game-theoretic model of policymaking between an administrative agency and a court.5 The agency first chooses a high or low effort investment that dictates how precisely realized policy outcomes will approximate the substantive goal laid out in the content of the policy. This represents an agency’s investment in what Carpenter (2001) refers to as ‘programmatic capacity.’6 An ex ante high effort investment means that the agency has higher capacity to effectively implement or enforce policies once they are crafted, which means outcomes produced by agencies that have made high effort investments are more precise. Following this effort investment the agency learns the circumstances of the policy environment and chooses a substantive policy target.7 This choice represents the agency setting the content of substantive policy. Both choices can affect the overall desirability of outcomes from a principal’s perspective. Bias introduced in the content of policy and lack of effort investment in enforcement capacity can both lead to adverse outcomes.8 Following these agency choices, the court reviews the agency’s effort investment and chooses to uphold or overturn its actions.
Implications for Executive Oversight
The model provides implications for executive oversight conducted by the Office of Information and Regulatory Affairs (OIRA), an office housed in the president’s Office of Management and Budget (OMB). The president uses this oversight to attempt to ensure that agency-made policy remains in congruence with his agenda (Copeland 2005). OIRA review, as I will refer to it, closely parallels the process of judicial review discussed throughout this paper. It is similar to judicial review in that it is reactive and is limited to either approving or effectively vetoing agency policy (Bueno de Mesquita and Stephenson 2007). The reactive nature of both types of oversight allow the agency to “set the agenda” by taking initial policy actions that will subsequently be reviewed. In the case of the OIRA, the agency proposes a rule prior to a public commenting period and resubmits the rule in final draft form.27 The OIRA must approve the final rule before it can be published in the Federal Register, at which point it carries the full force of law. The OIRA can make or break agency policymaking by approving or rejecting agency rules (Copeland 2005).28
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