In an article published in the University of Michigan Journal of Law Reform, Arlene Susan Kohn Professor of Social Policy Samuel R. Bagenstos challenges the prevailing viewpoint that science and politics should be kept separate. He examines how institutional structures and legal rules can be designed to ensure scientific decision-makers act in ways that promote democratic ends and means. Drawing on his experience as General Counsel for both the U.S. Department of Health and Human Services and the Office of Management and Budget, Bagenstos uses public health regulation as a key example.
Bagenstos contends that decisions of whether, when, and how to defer or delegate to scientific decision makers are political by nature—and the choices made by these experts are themselves political in significant respects.
This is due in part to the existence of multiple scientific communities, each with its own perspectives and norms, which can lead to different recommendations for government decision makers to consider. Bagenstos explains how, even if all scientists from the relevant disciplines agree on a decision, there are still political questions that have to be considered. For instance, during the COVID-19 pandemic, decisions about which mitigation measures to adopt–and how strongly to encourage or mandate them—required balancing public health benefits against the impacts on “individual liberty, the economy, or other interests.”
Although delegating authority to scientific experts has a long democratic tradition, Bagenstos warns that without proper checks in place, this deference can undermine democracy and accountability. Some have advocated for agencies to adopt new processes to engage less organized or empowered members of the public. However, Bagenstos argues that promoting agency deliberation would be more effective in democratizing the administrative process. This includes increasing transparency, giving special deference to individuals likely to advance legislative goals, and rebuilding Congress’s own capabilities to engage with scientific expertise.
Bagenstos concludes:
“If public health regulators are distant from the people and act paternalistically, their actions will continue the erosion of public trust in scientific and regulatory institutions…we must shore up the democratic legitimacy of the enterprise as we work to reconstruct a new administrative state out of whatever the current Administration leaves behind.”
