In Brown v. US Department of Education, 22-cv-00908, US District Court, Northern District of Texas (Fort Worth) U.S. District Judge Mark T. Pittman, a Trump appointee, declared the Biden administration's loan forgiveness policy unlawful. “In this country, we are not ruled by an all-powerful executive with a pen and a phone,” Pittman wrote in his order. “Instead, we are ruled by a Constitution that provides for three distinct and independent branches of government.”
This view of the administrative agency rules pervades contemporary conservative rhetoric. We saw this in oral argument just last week before the United States Supreme Court. In Axon v. FTC and SEC v. Cochran the air on 16th Street was thick with talk of tyranny. The two cases put the entire Roosevelt New Deal structure in doubt.
But Jed Stiglitz's the Reasoning State pushes the other way. He emphasizes that the Administrative Procedure Act has advanced the cause of reasoning in decision making. Similarly Cass Sunstein and Adrian Vermeule's Law & Leviathan defends the administrative state as a force for reason. - GWC
The Reasoning State presents a broadly interdisciplinary discussion and defense of the administrative state. Jed Stiglitz engages with history, political science, and psychology to argue that credible reasoning about policy matters, incentivized and enforced through external constraints, makes public institutions both more trustworthy and more trusted—and that, in the U.S. federal government, the institution with the most credible reasoning is the administrative state.
Stiglitz’s argument responds to the denigration of administration that pervades our public discourse and court opinions, which paint agencies as unaccountable, even dictatorial. In place of the deep state that so many fear, Stiglitz finds in American administration a crucible of reasoning overseen by many masters who keep it within many bounds. Recognizing that all policy decisions have political valences and involve value judgments, Stiglitz locates administrative legitimacy in the structures that keep agencies deliberating, explaining, and submitting to external review (especially by courts)—rather than in traditional claims that administration is a realm of neutrality and pure scientific expertise.
Stiglitz asks why we have set up our government with agencies, as reviewed by courts, making specific policy decisions, and suggests that this complex, the “reasoning state,” was designed to solve a legislative trust problem. Early republican legislators were big fish in a small and homogeneous pond, known by everyone—everyone who mattered to them, anyway, which in the early republic meant just the discrete and insular minority of the enfranchised. Personal social networks helped voters decide whether a legislator was trustworthy. But then both the electorate and legislative activity expanded and diversified. Modern constituents lack sufficient information to trust legislators’ decisionmaking process; and no external constraints make it reliably trustworthy. Legislators developed the administrative state to lend credibility to their actions: voters can get a fairly reliable sense of a legislator’s overarching, general policy preferences, but don’t have to guess about more particularistic decisions, which have been outsourced to the administrative state.
I am wary of “why” questions about social phenomena. The answers tend to assume that things turned out the way key actors predicted they would, which allows us to impute those effects back onto those actors’ intentions. But actions often have effects that actors neither wanted nor predicted, nor even considered; and there are often more actors in the mix than we recognize. The why format asks about intentions but leaves out a lot of the contingency, unpredictability, small-path dependency, and unintended consequences that pervade human affairs. Still, leaving intentions aside, Stiglitz gives us good reason to think that the administrative state has had the effect or function of producing more credible reasoning about policy matters than one could get elsewhere in our system.
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