Cass Sunstein has offered a new solution to advance good governance in a time of partisanship—what he terms an age of “partyism.” Because a partisan world leads to gridlock in Congress, he suggests that executive agencies should continue to be empowered with substantial latitude to interpret their own statutes. Indeed, Professor Sunstein argues that agencies should gain a “bit more” discretion to construe existing statutes since Congress will not be doing much updating.
Michael Greve offered his own excellent demurral to Professor Sunstein’s solution. Here are two additional points of critique. First, empowering agencies is not neutral with respect to partisanship because bureaucrats lean to the left. Second, empowering agencies is not neutral as an ideological matter. The progressive agenda itself needs substantial discretion to continue the effectiveness and political endurance of much centralized regulation. In contrast, conservatives and libertarians are more sympathetic to market and other forms of decentralized order that will take hold even if federal regulation cannot be updated.
There is substantial evidence to support the first point that most federal employees lean to the left of Republicans.