Procedural Safeguards for Agency Guidance: A Source of Legitimacy for the Administrative State

Abstract

Administrative agencies increasingly announce important policies through guidance documents. While agency guidance can have a profound impact on individuals' behavior, generally agencies promulgate guidance with little public input and few procedural safeguards. Through the use of guidance agencies thus can circumvent the procedural protections applicable to other forms of administrative rule making that ensure the legal, economic, and political soundness of agencies' policies. Although a number of commentators have debated the merits of procedural reform for agency guidance, largely overlooked is the potential for procedural safeguards to enhance the legitimacy of the administrative state.

Procedural requirements oblige agencies to adhere to a decision-making process that comports with our ideas of legitimate government. Those administrative law scholars embracing the prevailing pluralist model of democratic legitimacy - majoritarianism - emphasize procedures that place agencies firmly under the control of politically accountable officials who are responsive to the majority will. Majoritarianism, however, rests on the questionable normative assumption that the majority will best serves the public interest. This premise neglects the possibility that public opinion may reflect fallacies in citizens' reasoning, and may disregard important considerations such as justice, equality, fairness, individual rights, and the interests of future generations. This Article offers an alternative model of legitimacy - the trustee paradigm - based on republican ideals that emphasize good government over accountable government. Rather than demand that agencies' regulatory policies honor the majority will, the trustee paradigm envisions a deliberative administrative decision-making process informed by both expert analysis and the exercise of moral powers of evaluation. The trustee paradigm therefore requires agencies to exercise their powers consistent with existing laws, with careful deliberation, and with loyalty toward the common good. This Article then applies the trustee paradigm, as balanced against concerns for government efficiency, to the evaluation and design of administrative procedures for agency guidance.

Keywords: administrative law, agency guidance, legitimacy, majoritarianism