Legitimizing Agencies

101 Pages Posted: 31 Mar 2023 Last revised: 21 Mar 2024

See all articles by Brian D. Feinstein

Brian D. Feinstein

University of Pennsylvania - The Wharton School

Date Written: 2023

Abstract

The project of bolstering the administrative state's perceived legitimacy is central to administrative law. To enhance agencies' legitimacy with the public, generations of judges and scholars have variously called for changes designed to insulate technocrats from political influence, involve interested members of the public, and subject agencies to greater political control. Despite the pitch of debate in elite legal circles, however, little is known about the views of ordinary citizens-the very people whose beliefs constitute popular legitimacy. This Article provides evidence of Americans' actual views concerning what features contribute to agencies' perceived legitimacy. It presents the results of a set of experiments in which each participant views a policy vignette with varied information concerning the structures and procedures involved in generating the policy. Participants are then asked to assess, by their own lights, the policy's legitimacy. The results support the century-old idea that empowering politically insulated, expert decision-makers legitimizes agencies. With the insulation of civil servants from appointees and the independent-agency form under strain, this finding implies that, for proponents of a robust administrative state, an independent and technocratic civil service is worth defending. There also is some evidence that public participation in agency decision-making bolsters agencies' perceived legitimacy. By contrast, the theory-influential on the Supreme Court-that greater presidential involvement enhances legitimacy receives no support.

Keywords: administrative agencies, independent agencies, civil servants, notice and comment, presidential administration

JEL Classification: H10, H11, H83, K23

Suggested Citation

Feinstein, Brian D., Legitimizing Agencies ( 2023). University of Chicago Law Review, Forthcoming, The Wharton School Research Paper, Available at SSRN: https://ssrn.com/abstract=4389050

Brian D. Feinstein (Contact Author)

University of Pennsylvania - The Wharton School ( email )

3641 Locust Walk
Philadelphia, PA 19104-6365
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
456
Abstract Views
1,973
Rank
135,276
PlumX Metrics