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Maria Ponomarenko, Rethinking Police Rulemaking, 114 N.W. U. L. Rev. 1 (2019).

The field of Administrative Law typically focuses on federal agencies, but there are tens of thousands of state and local agencies that administer the law on matters of tremendous consequence. As Nestor Davidson recently put it, the field’s “myopic federal focus obscures a massive, submerged, and surprisingly vibrant domain of administration that exists at the local-government level.” Thinking about these other levels of administration can both illuminate the actual workings of important policy areas and prompt fruitful reflection on recurring administrative-law questions.

Maria Ponomarenko’s thought-provoking new article, Rethinking Police Rulemaking, accomplishes both of these worthy goals. One significant species of local administration, she reminds us, is policing. There are close to 18,000 law enforcement agencies across the country, and they make a range of policy choices of great consequence, including regarding the use of force, stop and frisk, enforcement priorities, and “the persistent creep of the surveillance state.” In Rethinking, Ponomarenko brings fresh perspective to debates over how to oversee police agencies. In particular, she challenges a longstanding idea that an administrative-law mainstay, notice-and-comment rulemaking, is the most promising solution for holding police more accountable.

In one sense, the vintage of this debate reveals that policing has not been overlooked as a species of state and local administration at all; scholars have been discussing the use of notice-and-comment rulemaking for agencies since the 1960s. Yet as Ponomarenko observes, rulemaking is just one tool in the administrative law toolbox. And “despite more than five decades of scholarship devoted to making the case for police rulemaking, there has been very little attention paid to how rulemaking would actually work in practice.” In Rethinking, Ponomarenko gives us reason to believe that rulemaking is a poor fit for policing’s ills and provides a sketch of more promising solutions.

The article begins by synthesizing the substantial existing literature on police rulemaking—both its origins and a more recent “rulemaking renaissance.” Ponomarenko then identifies four types of problems that beset the rulemaking idea. First, and “perhaps the biggest challenge,” police departments are not required to make rules and have little incentive to adopt them. Unlike other rulemaking agencies, which adopt rules to make it easy to govern the public, police enforce rules made by others; they lack authority to alter or even formally clarify the law themselves. The rules we care about for police are the rules they make to govern themselves. And for many reasons, police agencies lack incentives to adopt internal rules on challenging topics (like enforcement discretion, which would likely draw undesired attention).

All of that suggests that if we want police rulemaking, legislatures will have to mandate it. But that leads to a second set of challenges: how could legislatures isolate the policy choices that should be made through a rulemaking process? It’s coherent to talk about rules for decisions that involve concrete steps, like the adoption of new surveillance technologies. But most of the problems associated with policing, like the use of enforcement discretion or force, are part of gradually evolving practices for which it will be hard to specify either the trigger for rulemaking or the desired content of ensuing rules. Third, and related, it may be difficult for legislatures to determine the types of decisions that would benefit from public input, given that most of the prime topics for police rulemaking are internal rules (which, at the federal level, would typically be exempt from the Administrative Procedure Act’s notice-and-comment process).

Finally, and to my mind most fundamentally, Ponomarenko argues it is just not clear that rulemaking will provide the accountability benefits its proponents seek. The problem areas in policing contain few digestible “referendum moments” conducive to public input. Even on discrete questions, the public is at a significant information disadvantage when trying to assess what sorts of police rules will generate desired policy outcomes in communities. A Department of Justice , for example, ultimately concluded that the New Orleans Police Department’s lax secondary employment policy led to poor police service—but that connection is far from self-evident to a lay person. This discussion may resonate for administrative law scholars beyond the policing context, as we consider how much of the critique is not unique to policing. Rethinking’s take on the realistic limitations of public input, for one, resonates with existing concerns about rulemaking itself.

Part III of Rethinking considers alternatives to rulemaking to address governance problems in police departments. At least for large jurisdictions, Ponomarenko proposes “regulatory intermediaries” like police commissions or inspectors general. Building on the agency design literature, Ponomarenko posits that such intermediaries might help to solve the problems of incentives, information, and representative legitimacy that impede police accountability at present. Indeed, a few large cities have Inspectors General for police agencies in recent years.

One particularly praiseworthy aspect of Ponomarenko’s account is her clarity regarding what we know and what we don’t about administrative interventions. Like her analysis of rulemaking, her examination of regulatory intermediaries embraces the complexity and tradeoffs that such interventions might entail. While generally supporting the intermediary approach, she notes that cities that have established regulatory intermediaries have done so without a clear theory of what they should achieve, and that “the reality is that we know far too little about what it would in fact take for such an entity to be effective.” To build such knowledge, Ponomarenko suggests a research agenda for the study of police intermediaries that would assess their ability to (1) generate useful information about shortfalls in police practices; (2) supply the missing incentives to address those shortfalls; and (3) engage with affected stakeholders in reaching decisions.

One final insight in the piece is worth noting. Inspectors general and the like may not be realistic in small jurisdictions. There, Ponomarenko suggests that solutions might come from the state level. States already play a role in regulating policing—commissions on Police Office Standards and Training already set minimum standards for police training—and statewide entities could be given more active roles. A statewide audit bureau, for example, could mirror the work of inspectors general in jurisdictions where it wouldn’t make sense to have one. She grants that “states have not been particularly hospitable grounds for police reform,” but reminds us that prescriptions must be comparative, and “ordinary local politics has not been particularly conducive to effective regulation of policing either.”

Rethinking Police Rulemaking is an important read not just for policing scholars, but also for administrative law and state and local government scholars. For administrative law scholars, the piece’s fresh analysis of the potential and limitations of both rulemaking and regulatory intermediaries deserves attention. For state and local government scholars, the piece provides a deep dive into the available remedies for governance dilemmas that extend beyond policing. Spanning all of these fields, Ponomarenko’s article is an insightful, generative contribution, and I liked it a lot.

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Cite as: Miriam Seifter, Refining Administrative Law’s Lessons for Police, JOTWELL (April 2, 2020) (reviewing Maria Ponomarenko, Rethinking Police Rulemaking, 114 N.W. U. L. Rev. 1 (2019)), https://adlaw.jotwell.com/refining-administrative-laws-lessons-for-police/.