I am inclined to believe that public comments provide the directly democratic input to agency rulemaking. This is particularly so if those comments provide substance to the agency’s cost-benefit analysis supporting the rule’s adoption or abandonment.
Before going forward with a major rule, most agencies must submit the rule to the President’s Office of Management and Budget. Does vigorous OMB oversight of agency rulemaking (from Reagan forward) add to the democratic-ness of an agency’s cost-benefit analysis and the review of public comments? Do courts provide sufficient oversight with judicial review; to wit, in their review that agency decisions stemming from cost-benefit analysis and comment review are not arbitrary and capricious?
Lest we move forward skipping too many assumptions: How much democratic-ness do we want from agencies? Are they supposed to be expert agencies or agencies of the popular will?
