Administration as Democratic Trustee Representation

Abstract

The “folk” theory of democracy that typically justifies the administrative state cannot help but lead to a discourse of constraint. If agency action is only legitimate if it mechanically applies the will of the voters as transposed by Congress through statutes, then the norms guiding that action will inevitably restrain agency discretion. As a result, attempts to establish administration’s democratic credentials ironically obstruct the application of collective power. But this “folk” theory of democracy is bad theory. It is empirically incredible and, alarmingly, facilitates dangerous populist politics. Political theory instead suggests that a theory of democratic representation not only better explains legislative outcomes, but also deprives demagogues and deregulatory partisans of the fictions that prop up their agendas. After a brief survey of representative theory, this paper will demonstrate that a model of trustee representation adequately describes administration, reinforces its democratic credentials, and constitutes a space for politics in shaping the regulations that govern us all.

Keywords: administrative law, administration, democratic theory, legal theory, representation, trustee representation