Political Control Versus Impermissible Bias In Agency Decisionmaking : Lessons from Chevron and Mistretta Richard

Our government is designed so that policy decisions will be made by politically accountable officials. At the same time, the right to an unbiased decisionmaker is one of the most important guarantees of our judicial system.' Since most administrative agencies both make policy and adjudicate disputes, tension between these two core constitutional values inevitably arises in the administrative state. The courts unanimously accept at least three forms of political control of agency decisionmaking. First, Congress can enact statutes that establish substantive standards to govern agency decisionmaking. Second, agencies can promulgate rules that establish substantive standards to govern decisionmaking by their administrative law judges (ALJs).2 Finally, the President can nominate, and the Senate can confirm, agency decisionmakers who have strong views as to appropriate agency policies.' Each of these generally accepted mechanisms of political control influences agency decisionmaking, but no judge would use the pejorative term "bias" to characterize their effect. On the other hand, the courts have identified three situations that clearly give rise to impermissible agency bias, and have announced appropriate prohibitions. First, the decisionmaker cannot have a direct and significant financial interest in the outcome of an