States, Agencies, and Legitimacy

63 Pages Posted: 14 Mar 2014 Last revised: 1 Oct 2014

See all articles by Miriam Seifter

Miriam Seifter

University of Wisconsin Law School

Date Written: March 12, 2014

Abstract

Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as “administrative federalism,” now seeks to safeguard state interests in the administrative process and argues that federal agencies should consider state input when developing regulations. These ideas appear to be gaining traction in practice. States now possess privileged access to agency decisionmaking processes through a variety of formal and informal channels. And some courts have signaled support for the idea of a special state role in federal agency decisionmaking.

These developments have important implications for administrative law and theory. In particular, they bear on the paramount question of administrative legitimacy — the decades-long effort to justify the exercise of lawmaking power by unelected administrators in our constitutional democracy. A robust state role in the administrative process, this Article shows, is in tension with the models of legitimacy that have come to serve as administrative law’s North Star. Whereas the two reigning legitimacy models alternatively prize (1) centralized presidential control to ensure responsiveness to majority preferences, and (2) apolitical application of expertise, state input raises the specter of regional factionalism and home-state politics. Two types of solutions could alleviate this tension: reforming state involvement in the regulatory process, or updating legitimacy models. The Article concludes by charting both courses — identifying potential reforms and sketching possibilities for a new understanding of administrative legitimacy that would better accommodate the state role.

Keywords: administrative law, federalism, states, administrative federalism, legitimacy, presidentialism, expertise

Suggested Citation

Seifter, Miriam, States, Agencies, and Legitimacy (March 12, 2014). 62 Vanderbilt Law Review 441 (2014), Univ. of Wisconsin Legal Studies Research Paper No. 1323, Available at SSRN: https://ssrn.com/abstract=2408223

Miriam Seifter (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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