Rubber Stamps
Adam M. Samaha
Abstract
Rubber-stamping is more often alleged than understood. The basic idea involves an actor with formal authority following the views of another actor without serious second thought. Such arrangements are broadly disreputable yet terrifically common, and they lack thorough treatment in legal scholarship. Recent allegations regarding presidential autopens, the Department of Government Efficiency, and congressional acquiescence make the inquiry timely, but the relevant structural issues are more enduring than daily partisan controversies. This Article addresses rubber-stamping in government generally, and its contributions are conceptual, positive, legal, and normative. Altogether, the case against rubber-stamping in government, whatever its reputation, is surprisingly limited.
The Article first offers a working concept of rubber-stamping, while emphasizing boundary problems and empirical uncertainty. Second, the Article develops explanations and justifications for rubber-stamping beyond self-interested schemes, including rational designs for decision quality at tolerable cost and second-best adaptations to legal constraints and work overloads. Common complaints frequently distract us from those possibilities, and from deeper concerns about power and results. Eliminating rubber-stamping might be irrelevant on those scores, or make matters worse. Third, the Article explores current law on rubber-stamping, which is largely permissive yet not well-settled. Where the practice is legally disfavored, the demand for thoughtfulness seems modest and likely unenforceable. Finally, the Article compiles system-design options and small-scale tactics that may reduce rubber-stamping, to the extent we remain concerned. But the most effective interventions tend to be costliest (such as thoughtfulness audits and live explanations), while cheaper tricks have limited effects (such as sign-offs and waiting periods). Nothing will work without adequate decision resources. And the emergence of machines that automate reason-writing makes rubber-stamping easier to hide and harder to stop.
These considerations recommend targeted responses. We can set sensible priorities for anti-rubber-stamping efforts by thinking harder about the relevant concepts and empirical uncertainties, the most plausible explanations and justifications for official behavior, and the range of feasible interventions based on their likely efficacy and costs. At minimum, we can better appreciate that rubber-stamping is an arresting charge associated with both damaging and respect-worthy conduct, and that existing law and legal institutions leave space for both. That much mindfulness is enough to become smarter about government, which must manage rubber-stamping well to earn respect—and which we can make better without every government actor having second thoughts.
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Author information:
Adam M. Samaha
Inez Milholland Professor of Civil Liberties, NYU School of Law
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Recommended citation:
Adam M. Samaha, Rubber Stamps, 1 Indep. L.J. 1 (2025)