The Public Trust: Administrative Legitimacy and Democratic Lawmaking
80 Pages Posted: 19 Sep 2022 Last revised: 30 Jan 2023
Date Written: September 5, 2022
Abstract
This Article argues that recent U.S. Supreme Court decisions invalidating agency policymaking based upon the major questions doctrine rely on a normatively and empirically mistaken notion of democratic popular sovereignty. Namely, they rely upon a transmission belt model that runs like this: democracy is vindicated by first translating and aggregating voter preferences through elections. Then, the popular will is transposed by members of Congress into the statute books. Finally, the popular will (now codified), is applied mechanically by administrative agencies who should merely “fill in the details” using their neutral, technical expertise. So long as statutes lay down sufficiently “intelligible principle[s]” that permit their application without significant discretionary remainder, regulation will carry democratic legitimacy because they who will the ends – the people – will the means.
In addition to a variety of empirical objections, the model carries several unsavory undemocratic implications: e.g., a Schmittian repression of social difference and an abdication of lawmaking authority to judges.
The Article suggests that models of democratic political representation serve as better criteria to assess agency legitimacy because they recognize and take advantage of the institutional mediation of democratic input and social conflict. They recognize, unlike pluralist, deliberative and transmission belt theories of democracy, that there will always be a gap between ruler and ruled and that there will always be an official making decisions that people may not like.
The Article then argues that administrative agencies themselves can serve as democratic representatives because they (1) incorporate citizen presence in their decision-making while (2) preserving the normative priority of the citizen. The Article revitalizes the oft-maligned trustee model of representation as an evaluative standard. Agencies' historical commitment to an inclusive notion of the public good, as well as their dedication to the public interest (qua beneficiary) over the often partial and self-serving commands of elected officials and powerful lobbyists (qua authorizers), make the trustee model an attractive starting point. With some democratic modifications that account for deliberation and debate about the meaning of the public good, the trustee model shows why agency decision-making has some strong democratic credentials. The Article concludes by offering some modifications to the legal doctrine used by courts to assess the legitimacy of agency action, to interpret agencies’ organic statutes, and shape the Presidential removal power.
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