The Submerged Administrative State

Abstract

The United States government is experiencing a reputation crisis: after decades of declining public trust, many Americans have lost confidence in the government’s capacity to perform its basic functions. While various explanations have been offered for this worrying trend, these existing
accounts overlook a key factor: people are unfamiliar with the institutions that actually do most of the governing—administrative agencies—and they devalue what they cannot easily observe. The “submerged” nature of the administrative state is, we argue, a central reason for declining trust in
government.

This Article shows that the administrative state is systematically submerged in two ways. First, administrative agencies are constrained in their communications with the public: it is difficult for them to publicize their own accomplishments and successes due to a range of legal, political, and resource constraints. Second, agency actions are frequently opaque: it is difficult for
the American public to perceive, comprehend, or trace policy outputs back to government action. Together, these factors have the effect of making Americans less aware of the work that the administrative state does, thereby undermining the public’s trust in government.

The Article then argues that it is time to unsubmerge the administrative state. Doing so has the potential to rebuild trust in government by bringing administrators and their expertise to light, revealing the extent of benefits provided by agencies, and bolstering public participation in agency processes. This approach comes with potential perils, including the dangers of propaganda, skewed agency priorities, and backlash, yet these dangers are outweighed by the necessity of bringing the administrative state to light.

Keywords: administrative law, regulation, policy feedback, trust in government, public relations, nudges, behavioral administrative law