All the Sovereign's Agents: The Constitutional Credentials of Administration

Abstract

At a time when citizens must rely on administration to tackle the urgent threats of global warming, a pandemic, and destabilizing inequality, critics both left and right would tear it down. Libertarian opponents denounce agency discretion as obnoxious to the rule of law and its norms of generality and neutrality. They argue that regulatory agencies violate the separation of powers and defy the principle of limited government. But their favored solution, a strict application of the non-delegation doctrine, would create a new, undemocratic separation of powers problem: ascribing to unelected judges responsibility for economic and social regulation. On the other hand, conservatives with a more authoritarian inflection would rescue agencies from their constitutional exile by placing them under more direct executive control. Bootstrapping agencies to the president’s electoral credentials, their solution carries Schmittian implications. Administration fares little better in the hands of the left. They blame it for a variety of ailments: the reification of social differences and the juridification of human nature; regulatory capture; depoliticization of the economy and the subsidization of financial capitalism; and, ultimately, populist politics. This paper will put administration on firm constitutional footing. It argues that critiques of the administrative state rely upon mistaken notions of popular sovereignty and the rule of law. First, they posit the law as the “will” of an organ-body democratic sovereign that is transcribed (however ham-handedly) by elected officials. Yet, as recent theory shows, there is no exogenous democratic will to transcribe. Second, they posit that this law can be uncontroversially applied by neutral judges and administrators. For them, the rule of law protects political equality through the unwavering application of abstract, general legislation. Critical theorists show, however, that the application of abstract law to concrete cases may only exacerbate inequality. Legal realists demonstrate that law is underdeterminate; unelected judges and administrators will inevitably find themselves smuggling outside values into their decision-making. By treating administration as part of representative government, however, agencies can gain constitutional credentials. If democracy aspires not to universal consent and a formalist understanding of law, but instead to democratic autonomy (Urbinati & Warren, 2008), then administration can be legitimate. Indeed, agencies already serve as fora for representative politics as citizens organize around rulemaking. They also act as representatives themselves. By providing points of entry into policymaking, independent agencies help constitutional democracies ensure that power can respond effectively to popular demands while always remaining an empty place.