Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State
92 Pages Posted: 10 Feb 2004
From the birth of the administrative state, we have struggled to describe our regulatory government as the legitimate child of a constitutional democracy. We have sought to reconcile the administrative state with a constitutional structure that reserves important policy decisions for elected officials and not for appointed bureaucrats. Lately, we have become so fixated on the concern for political accountability that we have overlooked an important obstacle to agency legitimacy: the concern for arbitrary administrative decisionmaking. Perhaps more accurately, we have relegated this concern to "ordinary" administrative law - such as the Administrative Procedure Act (APA) - rather than "constitutional" administrative law - such as the nondelegation doctrine.
This dichotomous thinking colors the prevailing model of the adminisitrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation - the President. In this Article, I argue that the "presidential control" model cannot legitimate agencies. It rests on a mistaken assumption about the appropriate role of accountability - an assumption that tracks closely the preoccupation with majoritarianism as a first premise of legitimate government, pioneered by Alexander Bickel and now subject to debate among constitutional theorists. The presidential control model misleads us into thinking that accountability is all we need to assure ourselves that agency action is constitutionally valid. It is time for us to recognize that preventing arbitariness remains at the core of administrative legitimacy. One we do, we finally can begin to resolve some of the conventional puzzles of both "constitutional" and "ordinary" administrative law, as well as sketch the outlines of furture developments in this area.
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