The New Normal: Regulatory Dysfunction as Policymaking

Ming Hsu Chen and Daimeon Shanks

Scholars often presume that administrative dysfunction is a deviation from the norm of regularity in administrative law. This presumption is reinforced by courts who defer to agencies on the basis of a legal fiction of idealized regularity. In reality, irregularities are common in policymaking and they make agencies vulnerable to dysfunction. Irregularities are not bugs, but features of the administrative state. Sometimes, a national emergency makes political influence unavoidable and urges departures from usual regulatory processes. At other times, however, the framing of a problem as a national emergency is a pretextual justification to pursue a pre- determined political goal that may not be otherwise attainable or attractive through regular processes—a striking example of bad faith governance. The consequences of this kind of dysfunctional policymaking can be dangerous, especially when it then becomes normalized in agency policymaking.

Building on an emerging scholarship on internal administrative law, this Article looks inside agencies to expose the phenomenon of regulatory dysfunction in policymaking. It describes the structural characteristics and logics associated with irregular policymaking and provides a typology of agency responses to irregularities ranging from bureaucratic legalism to bureaucratic rationality. Using case studies from immigration law, environmental law, and public health law, it explains how the resulting irregularities can lead to dysfunction. It concludes by assessing the consequences of dysfunctional policymaking for administrative law and scholarship, showing where it makes a difference to flip the starting presumption of regularity. While irregularity is predictable, the normalization of dysfunctional policymaking is worrisome. This Article seeks to shift the discourse around administrative policymaking by injecting some realism about what is, and what should be, the new normal.