Relational Fairness in the Administrative State

*Climenko Fellow and Lecturer in Law, Harvard Law School. For invaluable comments and discussion, I am grateful to Danielle Allen, Eric Beerbohm, Jacob Bronsther, Dan Carpenter, Cary Coglianese, Mariano-Florentino Cuéllar, Colin Doyle, Ben Eidelson, Greg Elinson, Blake Emerson, Richard Fallon, Tweedy Flanigan, Michael Francus, Owen Gallogly, Jacob Gersen, Jonathan Gould, Alex Gourevitch, Cody Gray, Hedayat Heikal, Michael Klarman, Spencer Livingstone, Josh Macey, Jenny Mansbridge, Martha Minow, Nicholas Parrillo, Francesca Procaccini, Sabeel Rahman, Arjun Ramamurti, Daphna Renan, Noah Rosenblum, Peter Salib, Peter Shane, Cass Sunstein, Susannah Barton Tobin, James Toomey, Richard Tuck, Wendy Wagner, Mark Warren, Sarah Winsberg, Bernardo Zacka, and Carly Zubrzycki. I thank Priya Menon for invaluable research assistance, as well as Regina Zeng, Hannah Genender, Lauren McNerney, and the rest of the Editors at the Virginia Law Review for all of their exceptional work.Show More

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The American administrative state suffers from widespread claims of normative illegitimacy because administrative agencies and their personnel are neither enshrined in the Constitution nor directly elected. As a result, Supreme Court Justices and commentators openly question whether agencies should be able to compel citizens to follow agency actions. Normative legitimacy is important to administrative agencies because it explains why people have moral duties to obey agency rules, including rules with which they may disagree, even though agencies lack the traditional hallmarks of democratic governance.

This Article answers the critics head-on by proposing a new theory of normative legitimacy for the administrative state called “relational fairness.” Relational fairness states that all persons potentially affected by agency action must have the opportunity to deliberate with the agency during administrative decision-making according to certain procedural, relational, and substantive values. In contrast to previous theories that attempted to legitimate agencies by connecting them to other political institutions, relational fairness articulates how the administrative state can attain normative legitimacy in its own right by establishing a new democratic relationship between agencies and citizens.

Although some courts have shown implicit concern for relational fairness, fully adopting the theory would lead to important doctrinal and policy changes to improve the legitimacy of the American administrative state. Relational fairness leads to a deferential form of arbitrariness review that reduces the ability of judges to insert their own ideological ends, reintroduces the importance of regulating agency ex parte communications, and unifies legal rules on valid agency usage of guidance documents. The theory also argues notice-and-comment rulemaking is illegitimate and advocates for alternative informal rulemaking structures to improve the legitimacy of agencies.

Introduction

Since the New Deal ushered in the contemporary administrative state, lawyers and scholars have attempted to legitimate its place in our democratic government.¹ 1.Michael P. Vandenbergh, The Private Life of Public Law, 105 Colum. L. Rev. 2029, 2035 (2005) (“Agencies are neither mentioned in the Constitution nor directly responsive to the electorate, leaving their democratic legitimacy unclear.”).Show More The task is difficult. Unlike Congress and the President, agency staff are not elected.² 2.U.S. Const. art. III. The Constitution does mention “[d]epartments” in the Opinions Clause, so the Framers perhaps contemplated the existence of some type of agency. Id. art. II, § 2, cl. 1. However, there is no substantive discussion of the form or structure such institutions should take.Show More Unlike the judiciary, the Constitution does not delineate the structure of agencies.³ 3.Edward H. Stiglitz, Delegating for Trust, 166 U. Pa. L. Rev. 633, 635 (2018) (“The administrative state is an awkward creature in our constitutional system—in the eyes of many, an unseemly chimera . . . .”).Show More The fact that agencies express power through methods that span the branches makes things even more problematic for their legitimation.⁴ 4.Administrative Procedure Act, 5 U.S.C. §§ 553–554. Some administrative action falls under the Take Care Clause. U.S. Const. art. II, § 3. The constitutional derivation of the independent agency and “mixed” agencies, which perform both rulemaking and adjudication, is more complicated. See Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935) (holding that the President has limited removal power over agency officials acting in a “quasi-legislative and quasi-judicial” capacity).Show More Executing laws is the province of the executive, rulemaking looks like legislation, and adjudications mimic the work of the judiciary.⁵ 5.“Administrative state” comprises the group of political institutions in government not located in Congress or the Executive Office that therefore have some insulation from these branches. This being said, as Datla and Revesz show, the level of agency independence from the branches is a matter of degree and not a binary variable. Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 772–73 (2013). “The administrative state” is commonly used to describe the post-New Deal conglomeration of independent and executive agencies and has its origin in nineteenth-century French and German writings on administration (“1’état administratif” and “die verwaltungsstaat,” respectively). Mark Rutgers, Beyond Woodrow Wilson: The Identity of the Study of Public Administration in Historical Perspective, 29 Admin. & Soc’y 276, 285–90 (1997); see also Dwight Waldo, The Administrative State (1948) (popularizing the term “the administrative state” to American audiences).Show More These features put the administrative state⁶ 6.For examples, see infra note 18.Show More in an uncomfortable position in our democratic system.⁷ 7.Cynthia R. Farina et al., Rulemaking in 140 Characters or Less: Social Networking and Public Participation in Rulemaking, 31 Pace L. Rev. 382, 385 (2011) [hereinafter Farina et al., Rulemaking in 140 Characters].Show More

Despite this problem of administrative legitimation, agencies express power to regulate seemingly every aspect of modern life.⁸ 8.John M. de Figueiredo & Edward H. Stiglitz, Democratic Rulemaking, in 3 The Oxford Handbook of Law and Economics 38 (Francesco Parisi ed., 2017).Show More In 2013, administrative agencies finalized over 2,800 rules.⁹ 9.Regulatory Information Database, U.S. Gen. Servs. Admin., https://www.reginfo.gov [https://perma.cc/7VVD-2U6Z] (last visited Mar. 12, 2023).Show More Fifty-one of those rules each had over $100 million in economic effects.¹⁰ 10.Bernardo Zacka, When the State Meets the Street 9 (2017).Show More Agencies are also responsible for regulating and administrating important programs, such as Medicaid, Medicare, Social Security, and the Veterans Health Administration, that directly affect the lives of millions. Bureaucrats make crucial decisions that govern citizens across the country, including deciding who is eligible for public services and how much of these services they will receive.¹¹ 11.K. Sabeel Rahman, Democracy Against Domination 144 (2016) (“[A]gencies are, in practice, the primary sites of policymaking, giving specificity and concreteness to broad legislative directives.”).Show More In short, agencies are the primary site of policymaking in contemporary democratic governance.¹² 12.Normative legitimacy is also called “moral legitimacy.” Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794–802 (2005).Show More

Do people who disagree with agency decisions still have moral duties to obey those actions? This is a question of normative legitimacy, which determines whether people have moral obligations to follow agency actions.¹³ 13.Descriptive legitimacy is also called “sociological legitimacy.”Show More Normative legitimacy is different from descriptive legitimacy, which describes why people subjectively believe they should follow agency actions.¹⁴ 14.Id.Show More It is also different from legality: whether rules are validly generated through the rule-generating conventions of a polity.¹⁵ 15.This definition is derived from John Rawls. John Rawls, Political Liberalism 224–26 (expanded ed. 2005) [hereinafter Rawls, Political Liberalism].Show More Normative legitimacy requires the justification of agency power over citizens and organizations such that these persons have a moral duty to comply with agency actions, even if they disagree with particular agency decisions.¹⁶ 16.See infra Part II.Show More Legal commentators have previously proposed multiple theories to legitimate administrative agencies. Although these previous theories are intuitively attractive, they all run into well-known problems.¹⁷ 17.See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 355 (2014) (“[C]an the Secretary of the Department of Agriculture legislate? He is not a representative body, let alone the constitutionally established representative body. So how can he be assumed to legislate with consent of the people? And if without their consent . . . how can his commands have any legal obligation?”); R. Shep Melnick, The Transformation of Title IX 251 (2018) (criticizing court-agency “leapfrogging” that incrementally increases agencies’ authority without requiring them to accumulate evidence, experience, or public input); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 (1994) (arguing that the post-New Deal administrative state is unconstitutional); see also Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 8–33 (2017) (discussing the recent attacks on the administrative state).Show More

The inability of lawyers and legal scholars to normatively legitimate agencies has led to fierce criticism that agencies conflict with our democratic government;¹⁸ 18.See, e.g., Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring) (stating that the major questions and nondelegation doctrines prevent “government by bureaucracy supplanting government by the people” (quoting Antonin Scalia, A Note on the Benzene Case, 4 Regulation 25, 27 (July/Aug. 1980))); Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 91 (2015) (Thomas, J., concurring) (referring to “an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 108 (2015) (Alito, J., concurring in part) (describing a U.S. Court of Appeals for the D.C. Circuit procedural innovation as “prompted by an understandable concern about the aggrandizement of the power of administrative agencies”); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) (“The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.”).Show More a view that is increasingly gaining traction on the Supreme Court.¹⁹ 19.140 S. Ct. 2183, 2207 (2020).Show More In his recent majority opinion in Seila Law LLC v. Consumer Financial Protection Bureau ruling that the structure of the Consumer Financial Protection Bureau (“CFPB”) violated the separation of powers,²⁰ 20.Id. at 2200.Show More Chief Justice Roberts wrote that the liberty of the citizenry was threatened by the Bureau’s independent director because the CFPB Director could “bring the coercive power of the state to bear on millions of private citizens and businesses.”²¹ 21.See supra note 19.Show More Other Justices have echoed the Chief Justice’s concern in multiple recent administrative law cases.²² 22.See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1758–66 (2007) (discussing shifts in administrative law doctrine as courts have shifted their operating theories of administrative legitimacy over the twentieth century).Show More

The longstanding inability to legitimate the administrative state has caused sweeping changes to administrative law as scholars and judges have searched for a theory to justify and structure agency policymaking.²³ 23.See Ronald M. Levin, Rulemaking and the Guidance Exemption, 70 Admin. L. Rev. 263, 268 (2018) (“[C]ourts have not developed a coherent theory as to what an interpretive rule is.”); Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051, 1065–66 (1995) (“[T]he arbitrary and capricious standard is relatively open-ended, and the Supreme Court has not given it more precise content.”); Louis J. Virelli III, Deconstructing Arbitrary and Capricious Review, 92 N.C. L. Rev. 721, 750, 751 n.116 (2014) (noting “the apparent difficulty experienced by the Court in articulating a consistent, coherent framework for explaining its reasoning” during hard look review).Show More The accumulation of these doctrinal changes over time has caused multiple areas of administrative law, including arbitrariness review and agency use of the Administrative Procedure Act’s (“APA”) exceptions to notice-and-comment rulemaking, to lack coherent organizing principles.²⁴ 24.See infra Subsection IV.A.2.ii (discussing persistent circuit splits and courts failing to provide a rule in cases regarding whether agencies correctly utilized APA exceptions to notice-and-comment).Show More At worst, these doctrinal shifts have led to persistent circuit splits and left courts confused when attempting to determine the governing rules for the cases before them.²⁵ 25.See Metzger, supra note 18, at 7 (arguing that the administrative state promotes good government and constrains executive power); Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State, 130 Harv. L. Rev. 2463, 2487–88 (2017) (endorsing a “pluralist” approach to legitimizing the administrative state and criticizing various “independence” theories); Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41, 44 (claiming that the administrative state provides benefits like government efficiency, coordinated policymaking, and energetic execution of the laws).Show More

While supporters of contemporary administrative governance have recently defended it on legal and policy grounds,²⁶ 26.See Blake Emerson, Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory, 73 Hastings L.J. 371, 375 (2022) [hereinafter Emerson, Liberty and Democracy Through the Administrative State] (“The Court’s most vocal defenders of the administrative state, Justice Kagan and Justice Breyer, tend to wave away the conservatives’ high-altitude critique of the regulatory state.”); see also Vermeule, supra note 26, at 2463 (focusing on the descriptive legitimacy of the administrative state); Cass R. Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State 3 n.5 (2020) (focusing on the legal legitimacy of the administrative state). But see Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 165–75 (2019) [hereinafter Emerson, The Public’s Law] (arguing for a democratization of agency policymaking partly on legitimacy grounds).Show More they have largely not addressed critics’ attacks on the normative legitimacy of the administrative state.²⁷ 27.See Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265, 271–72 (2019) (forgoing federal administrative legitimacy and looking to state administrative institutions for legitimacy); Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 989 (1997) (arguing there is no unified theory of democratic legitimation of the administrative state); Mark Seidenfeld, The Quixotic Quest for a “Unified” Theory of the Administrative State, in Issues in Legal Scholarship, 2005, at 15 (same); Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1381 (1984) (same).Show More The theoretical task is so daunting that some supporters of administrative governance argue that we should give up looking for a theory of normative administrative legitimacy.²⁸ 28.Camilla Stivers, Governance in Dark Times: Practical Philosophy for Public Service 10–11 (2008).Show More

This concession is a mistake. The Chief Justice in Seila Law is correct to worry about the power of administrative agencies because they exert vast powers over citizens and organizations in our society.²⁹ 29.See Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804, 811 (2014) (arguing that administrative law has been dominated by concerns about democratic control of agencies by Congress or the President); Peter L. Strauss, Legislation That Isn’t—Attending to Rulemaking’s “Democracy Deficit”, 98 Calif. L. Rev. 1351, 1357 (2010) (arguing that agency discretion is legitimated by judicial review).Show More Administrative power must be legitimated on normative grounds in democratic governance. The question is whether supporters of administrative governance can rise to this challenge to answer the Justices’ concerns. This Article addresses the concerns of the Chief Justice and recent critics head-on to generate a theory of administrative legitimacy that gives the administrative state a proper place in our democratic government.

Most previous theories of administrative legitimacy attempted to legitimate agencies through a “derivative” method of legitimacy, linking agencies to other institutions, such as Congress, the president, or courts.³⁰ 30.See infra Section II.E.Show More While intuitively appealing, legitimating agencies through other institutions runs into problems due to the distinctive structure and function of agencies.³¹ 31.Richard Stewart’s interest representation and Mark Seidenfeld’s civic republicanism are two notable exceptions. See infra Section II.D (critiquing civic republicanism); see infra Subsection III.A.1 (critiquing interest group representation). More recently, a few scholars, such as Blake Emerson, Sabeel Rahman, and Dan Walters, have also focused their analysis on agency structure and process. See infra Section III.D (discussing these recent theories).Show More Instead, this Article develops a “direct” theory of legitimacy that legitimates the administrative state on its own terms. Interestingly, one intuition underlying previous derivative theories is the belief that linking agencies to other institutions can indirectly connect agencies to citizens. Therefore, a promising route to directly legitimate agencies is to cut out the middle institution and focus on the structure of the actual relationship between agencies and citizens.

Surprisingly, lawyers and scholars have spent little time theoretically analyzing the direct relationships between agencies and persons when theorizing about the legitimacy of the administrative state.³² 32.See Anya Bernstein & Cristina Rodríguez, The Accountable Bureaucrat, 132 Yale L.J. 1600, 1607–09 (2023); Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Regul. 165, 191–200 (2019).Show More This being said, recent empirical work has highlighted the role that deeply embedded relationships between agency officials and persons serve to substantiate important administrative values, such as agency effectiveness and democratic accountability, in practice.³³ 33.See infra Section III.C.Show More The importance of the relationships between agencies and persons to our administrative state demands proper theorization.

This Article develops the theory of relational fairness to normatively legitimate administrative governance as part of our democratic government. Relational fairness states that all persons potentially affected by an agency action must have the opportunity to deliberate with the agency during administrative decision-making.³⁴ 34.See infra Subsection III.C.3.Show More The theory reveals that agencies stand in different normative relationships with persons based on whether a person is potentially affected by a prospective agency action. Relational fairness articulates how the administrative state itself should be structured to attain normative legitimacy based on its own relationships with members of civil society, rather than derivatively through its connections to other institutions.

Relational fairness contains three components: procedural values, relational values, and substantive safeguards. The theory begins with familiar procedural values to structure agency deliberation with affected parties as open, voluntary, equal in access, and ongoing. It continues with substantive safeguards that limit the potential results of agency deliberations according to certain constitutional and deliberative requirements. However, relational fairness departs from existing theories by shaping the interpersonal relations between agencies and affected persons on the grounds of equal status, respect, and good faith. Practically, including relational values in the theory allows relational fairness to address persistent political inequalities between persons in administrative policymaking that procedural and substantive reforms alone cannot solve.³⁵ 35.See infra Part IV.Show More

Although some courts have implicitly embraced relational fairness, fully adopting the theory would lead to important doctrinal and policy changes to improve the legitimacy of the American administrative state.³⁶ 36.See infra Subsection IV.A.1.Show More Importantly, relational fairness organizes the various parts of arbitrariness review based on whether a regulation is “arbitrary and capricious” from the perspective of affected persons. Surprisingly, focusing on the perspective of affected persons provides both justification and content for a deferential form of arbitrariness review that leaves less room for judges to insert their own ideological beliefs during judicial review.³⁷ 37.See infra Subsection IV.A.2.Show More

Relational fairness also demonstrates that the growing movement to improve administrative governance through a focus on internal administrative law has been hitherto blind to the profound effect that internal agency rules can have on the relationship between agencies and affected parties.³⁸ 38.See infra Subsection IV.B.1.Show More The doctrines of ex parte communications and the APA exceptions to informal rulemaking demonstrate this tension between relational fairness and internal administrative law. Instead of recent calls to enhance agency power in these areas, relational fairness advocates that Congress should require agency disclosure of ex parte communications to all affected parties and that federal courts should adopt a unified legal test to review whether agencies validly used an APA exception to notice-and-comment based on whether the agency action in question binds potentially affected parties.

Relational fairness reconceptualizes the value of public participation in administrative law.³⁹ 39.See infra Subsection IV.B.1.Show More The theory argues that members of civil society stand in distinct normative relationships with agencies, which should inform how we structure public participation during agency policymaking. When we view participation in this light, notice-and-comment rulemaking appears deficient on legitimacy grounds because of the political inequalities it generates for marginalized and geographically dispersed affected persons.⁴⁰ 40.See infra Subsections IV.B.2, IV.B.3.Show More Some congressional and agency reforms to notice-and-comment, such as negotiated rulemaking, serve as helpful guides to improve informal rulemaking, while others, such as most e-rulemaking efforts, fail to eliminate the problems in notice-and-comment.⁴¹ 41.See infra Section I.B.Show More

Relational fairness resolves multiple problems endemic to administrative law. These problems include the ability of agencies to generate moral obligations on citizens to follow agency rules, the tension between democracy and administration, and the mood of agency distrust that permeates administrative law.footnote_id_43_42 Relational fairness responds to Chief Justice Roberts and others concerned with agency power over citizens by showing how to properly structure the direct relationship between agencies and the persons they govern to legitimate agency power to govern. By normatively legitimating the administrative state, relational fairness allows agencies to take their place as part of our democratic government.

This Article unfolds as follows. Part I demonstrates the legal importance of normatively legitimating the administrative state and begins to construct a theory of administrative legitimacy. Part II contends that although previously proposed theories of administrative legitimacy are intuitively appealing, they each run into problems. Instead of seeking a pluralistic account of legitimacy that combines these theories, this Part identifies their underlying similarities to shape an alternative theory based on the direct relationship between agencies and persons. Part III creates the theory of relational fairness, which legitimates the administrative state from the bottom up by properly structuring the direct relationship between agencies and citizens based on the distinctive institutional features of agencies. Importantly, relational fairness can legitimate agencies as part of our democratic government once we embrace a conception of democratic participation that moves beyond merely viewing elections as sufficient for democratic governance.

Part IV discusses how some courts have already implicitly embraced relational fairness and demonstrates how to fully implement the theory in order to improve the legitimacy of the American administrative state. This Part explains how relational fairness should guide reform in multiple areas of administrative law, including arbitrariness review, ex parte communications, and the APA exceptions to informal rulemaking. It also argues that notice-and-comment rulemaking is deficient on legitimacy grounds and proposes potential reforms to improve the legitimacy of informal rulemaking. Part V rebuts three criticisms to applying relational fairness: inefficiency, regulatory capture, and the implementation of the theory.

1.  See, e.g., James O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government 6 (1978) (discussing the longstanding crisis of legitimacy surrounding the administrative state); James M. Landis, The Administrative Process 1 (1938) (discussing how the administrative state can improve modern governance); Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2383–84 (2001) (endorsing the trend toward greater presidential control over administrative agencies); Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511, 1515 (1992) (arguing that civic republican theory provides legitimacy for the administrative state); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1767, 1802 (1975) (arguing against the ability of the interest representation theory to legitimate the administrative state). ↑

2.  Michael P. Vandenbergh, The Private Life of Public Law, 105 Colum. L. Rev. 2029, 2035 (2005) (“Agencies are neither mentioned in the Constitution nor directly responsive to the electorate, leaving their democratic legitimacy unclear.”). ↑

3.  U.S. Const. art. III. The Constitution does mention “[d]epartments” in the Opinions Clause, so the Framers perhaps contemplated the existence of some type of agency. Id. art. II, § 2, cl. 1. However, there is no substantive discussion of the form or structure such institutions should take. ↑

4.  Edward H. Stiglitz, Delegating for Trust, 166 U. Pa. L. Rev. 633, 635 (2018) (“The administrative state is an awkward creature in our constitutional system—in the eyes of many, an unseemly chimera . . . .”). ↑

5.  Administrative Procedure Act, 5 U.S.C. §§ 553–554. Some administrative action falls under the Take Care Clause. U.S. Const. art. II, § 3. The constitutional derivation of the independent agency and “mixed” agencies, which perform both rulemaking and adjudication, is more complicated. See Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935) (holding that the President has limited removal power over agency officials acting in a “quasi-legislative and quasi-judicial” capacity). ↑

6.  “Administrative state” comprises the group of political institutions in government not located in Congress or the Executive Office that therefore have some insulation from these branches. This being said, as Datla and Revesz show, the level of agency independence from the branches is a matter of degree and not a binary variable. Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 772–73 (2013). “The administrative state” is commonly used to describe the post-New Deal conglomeration of independent and executive agencies and has its origin in nineteenth-century French and German writings on administration (“1’état administratif” and “die verwaltungsstaat,” respectively). Mark Rutgers, Beyond Woodrow Wilson: The Identity of the Study of Public Administration in Historical Perspective, 29 Admin. & Soc’y 276, 285–90 (1997); see also Dwight Waldo, The Administrative State (1948) (popularizing the term “the administrative state” to American audiences). ↑

7.  For examples, see infra note 18. ↑

8.  Cynthia R. Farina et al., Rulemaking in 140 Characters or Less: Social Networking and Public Participation in Rulemaking, 31 Pace L. Rev. 382, 385 (2011) [hereinafter Farina et al., Rulemaking in 140 Characters]. ↑

9.  John M. de Figueiredo & Edward H. Stiglitz, Democratic Rulemaking, in 3 The Oxford Handbook of Law and Economics 38 (Francesco Parisi ed., 2017). ↑

10.  Regulatory Information Database, U.S. Gen. Servs. Admin., https://www.reginfo.gov [https://perma.cc/7VVD-2U6Z] (last visited Mar. 12, 2023). ↑

11.  Bernardo Zacka, When the State Meets the Street 9 (2017). ↑

12.  K. Sabeel Rahman, Democracy Against Domination 144 (2016) (“[A]gencies are, in practice, the primary sites of policymaking, giving specificity and concreteness to broad legislative directives.”). ↑

13.  Normative legitimacy is also called “moral legitimacy.” Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794–802 (2005). ↑

14.  Descriptive legitimacy is also called “sociological legitimacy.” ↑

15.  Id. ↑

16.  This definition is derived from John Rawls. John Rawls, Political Liberalism 224–26 (expanded ed. 2005) [hereinafter Rawls, Political Liberalism]. ↑

17.  See infra Part II. ↑

18.  See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 355 (2014) (“[C]an the Secretary of the Department of Agriculture legislate? He is not a representative body, let alone the constitutionally established representative body. So how can he be assumed to legislate with consent of the people? And if without their consent . . . how can his commands have any legal obligation?”); R. Shep Melnick, The Transformation of Title IX 251 (2018) (criticizing court-agency “leapfrogging” that incrementally increases agencies’ authority without requiring them to accumulate evidence, experience, or public input); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 (1994) (arguing that the post-New Deal administrative state is unconstitutional); see also Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 8–33 (2017) (discussing the recent attacks on the administrative state). ↑

19.  See, e.g., Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring) (stating that the major questions and nondelegation doctrines prevent “government by bureaucracy supplanting government by the people” (quoting Antonin Scalia, A Note on the Benzene Case, 4 Regulation 25, 27 (July/Aug. 1980))); Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 91 (2015) (Thomas, J., concurring) (referring to “an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 108 (2015) (Alito, J., concurring in part) (describing a U.S. Court of Appeals for the D.C. Circuit procedural innovation as “prompted by an understandable concern about the aggrandizement of the power of administrative agencies”); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) (“The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.”). ↑

20.  140 S. Ct. 2183, 2207 (2020). ↑

21.  Id. at 2200. ↑

22.  See supra note 19. ↑

23.  See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1758–66 (2007) (discussing shifts in administrative law doctrine as courts have shifted their operating theories of administrative legitimacy over the twentieth century). ↑

24.  See Ronald M. Levin, Rulemaking and the Guidance Exemption, 70 Admin. L. Rev. 263, 268 (2018) (“[C]ourts have not developed a coherent theory as to what an interpretive rule is.”); Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051, 1065–66 (1995) (“[T]he arbitrary and capricious standard is relatively open-ended, and the Supreme Court has not given it more precise content.”); Louis J. Virelli III, Deconstructing Arbitrary and Capricious Review, 92 N.C. L. Rev. 721, 750, 751 n.116 (2014) (noting “the apparent difficulty experienced by the Court in articulating a consistent, coherent framework for explaining its reasoning” during hard look review). ↑

25.  See infra Subsection IV.A.2.ii (discussing persistent circuit splits and courts failing to provide a rule in cases regarding whether agencies correctly utilized APA exceptions to notice-and-comment). ↑

26.  See Metzger, supra note 18, at 7 (arguing that the administrative state promotes good government and constrains executive power); Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State, 130 Harv. L. Rev. 2463, 2487–88 (2017) (endorsing a “pluralist” approach to legitimizing the administrative state and criticizing various “independence” theories); Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41, 44 (claiming that the administrative state provides benefits like government efficiency, coordinated policymaking, and energetic execution of the laws). ↑

27.  See Blake Emerson, Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory, 73 Hastings L.J. 371, 375 (2022) [hereinafter Emerson, Liberty and Democracy Through the Administrative State] (“The Court’s most vocal defenders of the administrative state, Justice Kagan and Justice Breyer, tend to wave away the conservatives’ high-altitude critique of the regulatory state.”); see also Vermeule, supra note 26, at 2463 (focusing on the descriptive legitimacy of the administrative state); Cass R. Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State 3 n.5 (2020) (focusing on the legal legitimacy of the administrative state). But see Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 165–75 (2019) [hereinafter Emerson, The Public’s Law] (arguing for a democratization of agency policymaking partly on legitimacy grounds). ↑

28.  See Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265, 271–72 (2019) (forgoing federal administrative legitimacy and looking to state administrative institutions for legitimacy); Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 989 (1997) (arguing there is no unified theory of democratic legitimation of the administrative state); Mark Seidenfeld, The Quixotic Quest for a “Unified” Theory of the Administrative State, in Issues in Legal Scholarship, 2005, at 15 (same); Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1381 (1984) (same). ↑

29.  Camilla Stivers, Governance in Dark Times: Practical Philosophy for Public Service 10–11 (2008). ↑

30.  See Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804, 811 (2014) (arguing that administrative law has been dominated by concerns about democratic control of agencies by Congress or the President); Peter L. Strauss, Legislation That Isn’t—Attending to Rulemaking’s “Democracy Deficit”, 98 Calif. L. Rev. 1351, 1357 (2010) (arguing that agency discretion is legitimated by judicial review). ↑

31.  See infra Section II.E. ↑

32.  Richard Stewart’s interest representation and Mark Seidenfeld’s civic republicanism are two notable exceptions. See infra Section II.D (critiquing civic republicanism); see infra Subsection III.A.1 (critiquing interest group representation). More recently, a few scholars, such as Blake Emerson, Sabeel Rahman, and Dan Walters, have also focused their analysis on agency structure and process. See infra Section III.D (discussing these recent theories). ↑

33.  See Anya Bernstein & Cristina Rodríguez, The Accountable Bureaucrat, 132 Yale L.J. 1600, 1607–09 (2023); Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Regul. 165, 191–200 (2019). ↑

34.  See infra Section III.C. ↑

35.  See infra Subsection III.C.3. ↑

36.  See infra Part IV. ↑

37.  See infra Subsection IV.A.1. ↑

38.  See infra Subsection IV.A.2. ↑

39.  See infra Subsection IV.B.1. ↑

40.  See infra Subsection IV.B.1. ↑

41.  See infra Subsections IV.B.2, IV.B.3. ↑

42.  See infra Section I.B. ↑