Deciding What The Law Should Be

Just below, Mark rightfully attacks the DEA for using its enforcement powers to attack an effort to change the laws. That, I think, is right. But his statement that, “DEA’s job is enforcing the laws, not deciding what the laws should be” may or may not be right, but it is a large part of almost every agency’s “job” to recommend changes (or the status quo) in the law. Some agencies (like the SSA from the 40s-70s) actually have long-term projects for policy development. Many agencies have whole divisions whose primary purpose is research designed to feed into recommendations for policy change–and it is probably the case that “agency-led policy development” is even more prevalent in Western European countries. The real point here, of course, is that while there is an argument that agencies should have an important role in the development of policy (given that they often have substantial expertise and experience that legislatures do not), that is completely different from targeting law enforcement effort at those who disagree with the agency position. It is probably the case that we ought to be especially suspicious of agency-led policy development (except when the agency is recommending changes designed to improve the implementation of existing laws) when the agency involved has criminal enforcement powers–as opposed to agencies that administer spending programs. That said, it is important to recognize that modern states typically have nothing like the textbook “legislatures devise laws and agencies enforce them” structure–the erosion of that structure is what Wildsavsky called “policy as its own cause.” In simpler terms, we might say that this erosion is a necessary consequence of “big government.”

Author: Steven M. Teles

Steven Teles is a Visiting Fellow at the Yale Center for the Study of American Politics. He is the author of Whose Welfare? AFDC and Elite Politics (University Press of Kansas), and co-editor of Ethnicity, Social Mobility and Public Policy (Cambridge). He is currently completing a book on the evolution of the conservative legal movement, co-editing a book on conservatism and American Political Development, and beginning a project on integrating political analysis into policy analysis. He has also written journal articles and book chapters on international free market think tanks, normative issues in policy analysis, pensions and affirmative action policy in Britain, US-China policy and federalism. He has taught at Brandeis, Boston University, Holy Cross, and Hamilton colleges, and been a research fellow at Harvard, Princeton and the University of London.