The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State

96 Pages Posted: 1 Mar 2022 Last revised: 7 Nov 2022

See all articles by Daniel Walters

Daniel Walters

Texas A&M University School of Law

Date Written: February 26, 2022

Abstract

A perennial challenge for the administrative state is to answer the democracy question: How can an institution like the bureaucracy be squared with the idea of self-government of a sovereign people who have few direct means of holding agencies accountable for their actions? Scholars have long argued that this challenge can be met by bringing sophisticated thinking about democracy to bear on the operation of the administrative state. These works argued that various theories of democracy—pluralist, civic republican, deliberative, and minimalist theories, in particular—could explain how allowing agencies to make policy decisions could be consistent with core ideas of what democracy is.

There is a weakness in all of these theories, and one that is increasingly glaring in light of the deep political polarization surrounding American administrative law, as well as the institutional fragmentation that characterizes much of the administrative state. All of the conventional democratic theories in one way or another assume that the goal of democracy is to reduce or settle political conflict—only then is it coherent to speak of accountability to a single mass of people we call the demos. Relying on this shaky and unrealistic assumption to build an account of the administrative state’s democratic legitimacy has always been problematic, but the weakness of this standard approach is particularly glaring in light of our polarized, conflictual politics, which make it difficult to imagine the assumption ever being realized in administrative practice.

This article charts out a different way of looking at the democracy problem and provides a roadmap for reinforcing and building legitimacy in administrative processes. It draws on an overlooked theory of democracy—agonistic democratic theory—that assumes that political conflict is ineliminable and that every decision made in a democracy excludes some by its very nature. Recognizing this, agonism, instead of prescribing democratic processes to reduce conflict and undergird a settlement that maps onto the preferences of the people, turns the conventional approach on its head, seeking to build processes that unsettle decisions and promote friendly contestation over government policies. Agonism’s emphasis on conflict maintenance better fosters democratic legitimacy in a deeply divided, pluralistic society like ours, where it is impossible to please every constituency with government decisions. Moreover, its resistance to settlement provides built-in safeguards against growing authoritarianism and plebiscitary presidentialism that are falsely held out as possibilities for finally settling political conflict.

Turning from theory to practice, I argue that it is possible to imagine an “administrative agon” that incorporates agonistic elements into the institutions and practice of administrative law and public administration. The theory has prescriptions for a range of issues—from public participation to judicial review of agency action to the design and independence of agencies. In some of these areas, the agonistic democratic lens reveals ways that the administrative state may be working better than we think it is, at least on agonistic metrics. In others, it highlights deficiencies. By bringing agonistic democratic theory into conversation with the administrative state, I aim to challenge the growing malaise about how the administrative state can fit into our conflictual democratic politics, as well as to point the way to reforms that could make the administrative state more genuinely democratic in practice.

Keywords: administrative law, democracy, agonism, regulation

Suggested Citation

Walters, Daniel, The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State (February 26, 2022). Yale Law Journal, Vol. 132, No. 1, pp. 1-95, 2022, Texas A&M University School of Law Legal Studies Research Paper No. 22-51, Penn State Law Research Paper No. 3-2022, Available at SSRN: https://ssrn.com/abstract=4044675

Daniel Walters (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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