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.  In fact, they are often to the left of the median Democrat.  And, although Republican Presidents appoint Republicans to manage federal agencies, the political appointees may often have to compromise to be effective managers. Members of the civil service cannot easily be fired or even reassigned. Through access to the generally liberal press, they can undermine an agency head through leaks or more general bad mouthing. While Republican agency heads could take some advantage of greater discretion, such an advantage would not be symmetrical across our two political parties.

Perhaps more importantly, federal agency discretion more clearly benefits the progressive agenda. Over time changes in technology or other events make many regulations obsolete, and businesses and their lawyers find workarounds. This fact cheers conservatives and libertarians, who believe that the market would often outperform the likely federal  updates. The right is also often more sympathetic if outdated federal regulation permits a greater role for the states,  because state regulation allows more opportunities for exit, more experiments, and better reflections of our diverse preferences in a continental republic. And partyism causes less gridlock at the state level, because many states are under unified party control and because state officials are better at striking compromises out of the national spotlight. Presidents George Bush and Barack Obama both observed on the basis of their own experience  that  partisanship is less strongly pronounced in state government than at the federal level.

As a general matter, modern progressives are not as sympathetic to the markets’ triumph over regulatory obsolescence and are more enthusiastic about uniform national solutions. Thus, executive discretion by its nature as well as in practice provides an asymmetrical advantage to the left-leaning party. Professor Sunstein’s proposed solution, offered in the spirit nonpartisanship, is in fact partyist.