The interaction between the branches of
state governments occur under a variety of arrangements which, as opposed to
the singular federal government, offers empirical leverage as well as an
insight as to the effects of different institutional practices. In regards to
the federal bureaucracy, the capability of Congress in its oversight capacity
has been debated1 as has the courts power of judicial review over
the bureaucracy.2,3 Agencies are a stronghold of executive power, thus both the
legislative and judicial branches of government have an interest, maybe even a duty, to check
the power of agencies directed by a president or governor.
By observing variation between the
states, can the law-making body use its legislative powers to create access to
the courts and shift the burden of oversight to the judicial branch?
Judicial Access across the States
To create a
measure of ‘Judicial Access’ (JA) I coded the following variables from various provisions in administrative
procedure acts written by each state legislature that pertained to the
accessibility and actions of the court in cases against administrative
agencies:
Table 1.
Variable |
Definition |
|---|---|
Time Limit |
Is there a limit on when a case can be filed in court? |
Days |
Number of days to bring a case before time expires |
Venue |
Do all administrative steps have to be exhausted before appealing to court? |
Steps |
The number of proceedings through agency tribunals before appealing to court |
Review |
Are restrictions placed on the review powers of the court? |
Burden |
Who has the burden of proof in the courtroom? |
Scope |
How much delegation is given to the court in their decision? |
Payment |
Are there any legal payments awarded to non-agency litigants if they win? |
Costs |
Who bears the cost for preparing the record for the hearing? |
I then used a
Graded Response Model4 to assess each of my ordinal variables to
find which gives petitioners the greatest access to the courts and how much
power the court is granted by the legislature. The GRM assumes each variable
coding is a function of a latent variable and posts an estimation of that variable, in this instance judicial access. Providing for a wider scope of
review is a function of the state legislature wishing to grant wider judicial
access in the legislation.
The measure of what I have labelled 'Judicial Access' can be seen in the figure below. The darker blue states (such as Utah) have wider judicial access than those in light green (like Nevada). Those with wide judicial access may not have time limits, allow legal fees, costs and damages to be paid for the client, and place the burden of proof on a defending agency instead of a client.
Figure 1.
Data
I apply my measure to state court data
in order to assess whether increased JA leads to an increase in judicial
oversight of administrative actions.
Data used from the Court Statistics Project spans from 2012-2015 across
29 states.5 Available from this data is the percent of
administrative appeals cases a court hears each year. Using a time
fixed-effects model I assess the relationship between JA and the increase in
administrative agency appeals across the states.
I also apply a measure of
professionalism taken from the National Conference of State Legislatures that uses Squire’s measure.6,7 Here I expect a negative relationship
between professionalism and the percent of oversight cases as my theory posits a more professional legislature will not want to give more power to another branch of government if they already have the means of oversight themselves.
A series of controls is also included in
the model. Term limits and state court professionalism (Squire) to account for
further institutional factors.8 Ideological factors to account for include state ideology and a binary ‘South’
variable.9
Results
As can be seen from the fixed effects regression results,
judicial access is positive and significant in according to my theory.
All else considered, across states where there is a one unit increase in JA, there is a 5 percentage point increase in the percent of administrative appeals heard by the court that year, on average. This relationship is also depicted among the states across the years in the Figure 2.
Table 2.
All else considered, across states where there is a one unit increase in JA, there is a 5 percentage point increase in the percent of administrative appeals heard by the court that year, on average. This relationship is also depicted among the states across the years in the Figure 2.
Additionally professionalism is negative and significant which is
also to be expected (Figure 3). As state legislatures increase in a level of
professionalism, there is a 4 percentage point decrease in administrative
agency appeals cases heard by the courts.
Figure 2: Percent of Appeals Cases on Agency Appeals and Judicial Access over Years
Additionally, legislative professionalism is negative and significant which is also to be expected (Figure 3). As state legislatures increase in a level of professionalism, there is a 4 percentage point decrease in administrative agency appeals cases heard by the courts.
Figure 3: Percent of Appeals Cases on Agency Appeals and Legislative Professionalism over Years
The additional institutional and ideological controls are also significant in directions I would have expected apart from judicial selection methods. Elected judicial bodies do not have a significant coefficient. However, when a legislature is involved in the confirmation process, or selects the judges themselves, the judicial branch is less likely to hear oversight cases against administrative agencies. I would have suspected that judges moderated by a legislative approval may earned more trust in enforcing legislative intent. Instead, the Governor in most cases still selects these judges and maybe legislative approval is satisfactory leverage for the law-making body.
These results highlight the differentiation in state
governments' capabilities and lend credence to studies that are concerned with
ever encroaching executive power.10 Many governors are highly professional, and
yet legislatures woefully under resourced in comparison. That does not
necessarily mean law makers are unable to check an executive. My study promotes
that state legislatures can act on fire-alarm measures of oversight and even
have a brigade—in this case the judicial branch -in place to act. By crafting
legislation and molding courts' jurisdiction over administrative agencies,
legislatures can create wide access to the judicial branch to make it easier
for citizens and watchdogs to contest agency actions and ensure the bureaucracy
stays within its legislative boundaries.
Citations
1. Moe, Terry M (1987). “An
assessment of the positive theory of congressional dominance’”. In: Legislative
Studies Quarterly, pp. 475–520
2. Shipan, Charles R (2000). “The
Legislative Design of Judicial Review A Formal Analysis”. In: Journal of
Theoretical Politics 12.3, pp. 269–304.
3. Shapiro, Martin M. Who guards
the guardians?: judicial control of administration. Athens, GA: University of
Georgia Press, 1988.
4. Graded
response models as a form of IRT have been increasingly applied to the social
sciences (Samejima, 1969; Thissen and Steinberg, 1986; Samejima, 2010).
5. Court
Statistics Project: http://www.courtstatistics.org/
6. http://www.ncsl.org/research/about-state-legislatures/full-and-part-time-legislatures.aspx
7. Squire,
Peverill. "Measuring state legislative professionalism: The squire index
revisited." State Politics & Policy Quarterly 7.2 (2007): 211-227.
8. Squire,
Peverill. "Measuring the professionalization of US state courts of last
resort." State Politics & Policy Quarterly 8.3 (2008): 223-238.
9. Erikson,
Robert S., Gerald C. Wright, and John P. McIver. Statehouse Democracy: Public
Opinion, and Policy in the American States. Cambridge University Press, 1993
10. Boushey,
Graeme T., and Robert J. McGrath. "Experts, Amateurs, and Bureaucratic
Influence In the American States." Journal of Public Administration
Research & Theory, vol. 27, no. 1, 2017, pp. 85 - 103.