The Accountable Bureaucrat

91 Pages Posted: 29 Apr 2022 Last revised: 26 Apr 2023

See all articles by Anya Bernstein

Anya Bernstein

University of Connecticut School of Law

Cristina Rodriguez

Yale Law School

Date Written: March 26, 2022


Common wisdom has it that bureaucrats are unaccountable to the people they regulate and must therefore be closely supervised by elected officials or (perhaps ironically) the federal courts. For many detractors of the administrative state, as well as many proponents, agency accountability hangs on the concentrated power of the President in particular. This Article presents a different vision. Drawing on in-depth interviews with officials from numerous agencies, we show that everyday administrative practices and relationships themselves support accountability of a kind that neither elections nor judicial review alone can achieve.

Our interviews reveal that agency officials work within structures that promote the very values accountability is supposed to serve: deliberation, inclusivity, and responsiveness. Three primary features of the administrative state support this vision of accountability. First, political appointees and career civil servants, often presented as adversaries, actually represent complementary deci- sion-making modalities. Appointees do not impose direct presidential control but imbue agencies with a diffuse, differentiated sense of abstract political values and policy priorities tied to the elec- toral and civil-society coalitions that support the administration in power. Civil servants use ex- pertise and experience to set the parameters within which decisions can be made. Combining these different but interdependent approaches to policymaking promotes deliberation informed by pub- lic opinion and the public interest. Second, agencies work through what we refer to as a decision- making web, which facilitates continual justification and negotiation among officials with different roles inside the state. This claim stands in stark contrast to the strict hierarchy often attributed to government bureaucracy. We show how the principal-agent model gives way, more often than not, to the dispersion of decision-making power, which promotes the pluralistic inclusivity of views in a way hierarchical decision-making does not. Finally, numerous practices connect agencies directly and pervasively to the people and situations they regulate. Those required by law, like notice-and- comment rulemaking, are supplemented by varied other means by which agencies respond and adapt to the views of affected publics and the realities of the regulated world.

Our research provides crucial empirical evidence of how the everyday work of government gets done and gives the often-invoked notion of accountability some real content. It leads us to reject formalistic claims about what constitutes accountability in the abstract and to focus instead on the relationships, structures, and practices that actually promote accountability—features of the administrative state that help head off arbitrariness, incorporate multiple perspectives, and en- courage negotiated, provisional outcomes. These resources for promoting republican democracy within the bureaucracy, however, are neither inherent nor eternal: they must be actively nourished. This Article thus should change how we think about government accountability and inform how we structure our institutions to achieve it.

Suggested Citation

Bernstein, Anya and Rodriguez, Cristina, The Accountable Bureaucrat (March 26, 2022). 132 Yale Law Journal 3000 (2023), Available at SSRN:

Anya Bernstein (Contact Author)

University of Connecticut School of Law ( email )

Cristina Rodriguez

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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