The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State
abstract. A perennial challenge for the administrative state is to answer the “democracy question”: how can the bureaucracy be squared with the idea of self-government of, by, and for a sovereign people with few direct means of holding agencies accountable? Scholars have long argued that this challenge can be met by bringing sophisticated thinking about democracy to bear on the operation of the administrative state. These scholars have invoked various theories of democracy—in particular, pluralist, civic republican, deliberative, and minimalist theories—to explain how allowing agencies to make policy decisions is consistent with core ideas about what democracy is.
There is a weakness to these theories—a weakness exposed by the deep political polarization surrounding American administrative law and the institutional fragmentation that characterizes much of the administrative state. Each of the conventional democratic theories in one way or another assumes that the goal of democracy is to reduce or settle political conflict, and that it is coherent to speak of accountability to a single mass of people we call the dêmos only after conflict has been settled. Relying on this shaky and unrealistic assumption to build an account of the administrative state’s democratic legitimacy has always been problematic, but the weakness of this standard approach is particularly glaring in the light of our polarized, conflictual politics, which makes it difficult to imagine that the assumption would be realized in administrative practice.
This Article charts a different way of looking at the democracy problem and provides a roadmap for reinforcing and building legitimacy in administrative processes. It draws on democratic agonism, an overlooked theory of democracy that assumes that political conflict is ineliminable and recognizes that every decision made in a democracy must by its very nature exclude some people or perspectives from full inclusion in the governing dêmos. With this recognition, agonism turns the conventional approach on its head. Instead of prescribing democratic processes to reduce conflict and undergird a settlement that maps onto the preferences of the people, agonism seeks to build processes that unsettle decisions and promote friendly contestation over government policies, drawing the excluded back into a conflictual process of defining the dêmos anew. Agonism’s emphasis on conflict maintenance better fosters democratic legitimacy in a deeply divided, pluralistic society like ours, where it is impossible to please every constituency with government decisions. Moreover, its resistance to settlement provides built-in safeguards against growing authoritarianism and plebiscitary presidentialism that are falsely held out as possibilities for finally settling political conflict.
Turning from theory to practice, I argue that we can imagine an “administrative agon” that incorporates agonistic elements into the institutions and practice of administrative law and public administration. The theory has prescriptions for a range of issues—from public participation to judicial review of agency action to the design and independence of agencies. In some of these areas, the agonistic democratic lens reveals ways that the administrative state might be working better than we think, at least according to agonistic metrics. In other areas, it highlights deficiencies. By bringing agonistic democratic theory into conversation with the administrative state, I aim to challenge the growing malaise about how the administrative state can fit into our conflictual politics and to point the way to reforms that could make the administrative state more genuinely democratic in practice.
author. Associate Professor of Law, Texas A&M University School of Law. I am grateful for opportunities to workshop this Article at the University of Florida Levin College of Law, the Texas A&M University School of Law, the George Washington University Law School, and the Association of American Law Schools’ New Voices in Administrative Law workshop. I especially thank Cary Coglianese, Blake Emerson, Andrew Hammond, J. Benton Heath, Luke Herrine, Michael E. Herz, Ben Johnson, Neysun A. Mahboubi, Jane J. Mansbridge, Jud Mathews, Jon D. Michaels, David L. Noll, Todd Phillips, Shalini Bhargava Ray, Mark Seidenfeld, Jocelyn Simonson, Glen Staszewski, Karen M. Tani, and Wendy E. Wagner for their thoughts and suggestions, all of which greatly benefited the paper. I also thank Daniel A. Mejia-Cruz and the rest of the editorial staff at the Yale Law Journal for their extremely helpful suggestions and diligent work in preparing this Article for publication.
Introduction
James Oliver Freedman wrote almost a half century ago that the administrative state has faced a recurring sense of democratic crisis over its lifetime.1 That sentiment rings truer than ever today, as the administrative state finds itself under immense, perhaps even existential, political stress.2 This condition is evident in several parallel developments, any one of which would have been the nation’s leading political drama in a prior era.
There is, to start, the unprecedented attack on the administrative state from within the executive branch during the Trump Administration. Whether we call it “administrative sabotage,”3 “maladministration,”4 or “structural deregulation,”5 the bottom line is that President Trump opposed the administrative state, evidenced most clearly in his occasional allusions to the idea of a “deep state” out to thwart the will of the people.6 Although the Trump Administration failed to undermine the administrative state fundamentally,7 the wider populist antipathy toward government institutions that motivated the administration’s actions is alive and well, both domestically and internationally.8
A related but distinct line of attack persists in the federal courts. There, some judges have impugned the administrative state as antithetical to our constitutional democracy, the rule of law, and the liberties of individuals and businesses alike.9 A few have even discussed tearing out congressional delegation, the foundation for the administrative state, root and branch.10 At the same time, progressive activists critique the administrative state for its contributions to structural inequalities and its failures to use its authority to root out injustices.11 Progressive populists worry that “captured” agencies12 with cultures and personnel at odds with the current administration, like Immigration and Customs Enforcement, will resist the initiatives of the Biden Administration or the Congressional Progressive Caucus.13
These growing anxieties about the administrative state span the political spectrum and are in some sense epiphenomenal of deeper societal fracturing. The United States is fundamentally divided on key questions of national political valence,14 and various constituencies grow increasingly frustrated over the imperviousness of established institutions to fundamental change.15 These political tensions have thus drawn attention to problems concerning the democratic legitimacy of the administrative state—long-existing problems that our current conditions spotlight.
“Democracy,” from the Greek demokratía, concerns the legitimation of government by lodging control of the power (krátos) of the government with the people (dêmos).16 As the most practically important institution for making and implementing government policy,17 the administrative state is where we must look to know whether the dêmos truly controls government decision making. On its face, the administrative state seems to present democratic difficulties: it lacks any direct link to electoral inputs,18 and it possesses a stability and autonomy designed to make it resistant to democratic control.19 More fundamentally, it is not clear how, in a pluralistic, deeply fractured society like ours, the decisions that administrative agencies make could represent all or even most of “the people” most of the time. The perennial tension between administration and democracy—what I call the “democracy question”—increasingly feels unresolved and, perhaps, unresolvable. As a result, there is a real danger that frustration with the administrative state from all corners will only continue to grow until it experiences significant democratic delegitimation and institutional atrophy.20
Scholars have attempted to deal with the democracy question by drawing on a canon of traditional democratic theories.21 Their accounts have a common core: the idea that certain features of the administrative process help resolve or settle political conflicts that would otherwise make it difficult to say that administrative decisions represent the whole of “the people.” They argue, in other words, that the administrative state can serve as a site for “‘political will-formation’ in the public sphere,”22 although they differ on precisely how that process does and should take place. For instance, civic republicans and deliberative democratic theorists assert that certain features of the administrative process—including notice-and-comment rulemaking and agencies’ duty to provide reasons for their decisions—foster deliberation that, ideally, results in agreement (or, at least, in less disagreement).23 Other theories posit that administrative processes collectively function as a marketplace for influence by allowing all interested parties to participate.24 On this account, agencies set policy that is at least somewhat responsive to the expressed preferences of interested parties. Still other theories seek to ground administrative legitimacy in a more direct connection to electoral inputs on the theory that elections are a kind of democratic settlement (for a time, at least) and that bureaucrats are ultimately subject to presidential control.25
This Article argues that these standard approaches cannot democratically legitimize the administrative state. It is unrealistic to assume that disagreement over policy could be substantially ameliorated through administrative processes or through accountability to elected officials, such that it would be coherent to speak of a “general will” embodied in administrative action. Consider, for example, the experience of the Biden Administration’s vaccine-or-test mandates—a recent example of an attempted administrative settlement that proved to be anything but. Invoking long-standing statutory authority to issue emergency temporary standards, the Department of Labor (DOL), via the Occupational Safety and Health Administration (OSHA), issued a regulation affecting any employer with over one hundred employees.26 To decrease the risk that workers would expose each other to COVID-19, affected employers had to require their employees either to be vaccinated against the virus or to undergo weekly testing.27 There was immediate opposition to the rule.28 Just days after the policy was finalized, challengers in the U.S. Court of Appeals for the Fifth Circuit obtained a nationwide stay of enforcement of the policy.29 Although the stay was vacated by the Sixth Circuit,30 the Supreme Court intervened on short notice in a landmark shadow-docket opinion to hold that OSHA and DOL had likely exceeded their statutory authority.31 In the meantime, much of the population has stubbornly resisted the efforts of public-health experts to encourage vaccination,32 drawing the ire of “vaccinated America.”33 None of the traditional democratic justifications of administrative action could alter this deep well of resistance. President Biden’s election, to the extent that it was even accepted as legitimate,34 was not enough. Neither was the societal deliberation on vaccines or the voluminous record and thoroughly reasoned final rule issued by OSHA.35 Nor, apparently, was it persuasive to antivaxxers (or the Supreme Court) that a clear majority of people supported the rule.36 The idea that notice-and-comment processes could have led OSHA to a version of the policy that would have increased public acceptance of a mandate is similarly pollyannish. If democratic legitimacy is supposed to lead to substantial acceptance of government policy by an identifiable and singular “public,” then the administrative state clearly lacks democratic legitimacy.
These kinds of practical experiences of failure to ameliorate deep social conflict are underscored by the theoretical concern that the basic assumption of traditional democratic theories is a pipe dream in the context of administrative law. Social choice theory has long shown that under exceedingly minimal assumptions, a rational and stable form of preference aggregation is impossible, even in elections.37 Even when agencies try sincerely to aggregate the preferences of citizens, their efforts are guaranteed to devolve into arbitrariness. Deliberative theory seeks to avoid this problem by changing preferences rather than simply aggregating them.38 Yet, this project has its own problems born of ineradicable pluralism. As many commentators note, even though deliberative theories strive to be truly inclusive of all perspectives,39 in practice, the administrative state routinely makes decisions that are flatly rejected as illegitimate by one mainstream political or religious camp or another.40
Moreover, the standard answers to the democracy question—for example, rendering agencies subject to strict, hierarchical, principal-agent control by democratically accountable actors—are at odds with leading descriptive and empirical work about administrative institutions and processes.41 The picture that emerges from this work is of a bureaucracy engineered for conflict: it is often internally fragmented, interminably complex, and irreducibly diverse.42 Scholars generally praise these features of the bureaucracy, highlighting how they protect liberty or reinforce core constitutional values that underlie the separation of powers or lead to effective governance.43 Whatever the merits of these accounts, it is unclear how they are democratic defenses of the administrative state, and they are often orthogonal to the consensus-oriented project of democratic legitimation envisioned by conventional democratic theories.44 They paint a descriptive picture of an internally contest-prone administrative state that mires policy initiatives in layers of institutional combat—a picture that sits uncomfortably with the emphasis that stock democratic theories place on social consensus and public will.
These weaknesses of the traditional approaches to the democracy question might not doom the administrative state, but they do demand that we rethink democratic legitimacy and administration. We should no longer insist that some feature of the extant administrative state renders the decisions it makes congruent with the preferences or values of an identifiable dêmos that will accept and support those decisions. Rather, a convincing democratic theory must be consistent with the deep and enduring pluralism that marks American politics.
In this Article, I argue that agonistic democratic theory—agonism, for short—provides better democratic grounding for the administrative state than the conventional theories do.45 Agonism does not seek to elide political conflict through achievement or declaration of a consensus. Instead, it emphasizes the inevitability of conflict and builds democratic legitimacy around it.46 In essence, agonism turns the traditional democratic theories on their head: rather than asking what we should or must do to generate law that reflects widespread societal acceptance and then engineering administrative institutions to facilitate that buy-in, agonism finds legitimacy in “unsettlement” of the law.47 In the struggle against any temporary settlement on a particular law or policy, agonists find a different kind of democratic legitimacy—namely, the opportunity for winners and losers alike to practice democracy by defending and critiquing the status quo.48 In the commitment to this contestation, an actual dêmos is forged around a commitment to live together despite (or even because of) our irreconcilable conflicts. In short, agonists celebrate political conflict and seek to foster and sustain it, even when it does not emerge naturally.
Envisioning the administrative agon—that is, the administrative process as a meeting of administration and agonistic democracy—challenges us to rethink basic design features of the administrative state.49 The administrative agon would focus much more than existing administrative processes on forcing agencies to continually justify “settled” decisions and promote robust adversarial contestation.50 In exchange for this “unsettling” of decisions, which make it possible for multiple constituencies to “prevail,” agencies would be permitted to make decisions with far less procedural constraint than they currently can, which would in turn allow agencies to quickly pivot in response to the ebb and flow of political contest. To ensure that this contestation truly represents the diverse views of the dêmos, the administrative agon would also take far more seriously the perspectives of marginalized groups and individuals, giving them a voice in the decision making process even when they lack practical access to the levers of power.51 And, in contrast with theories that seek to clarify lines of authority tying administrative action to oversight by electorally accountable officials, the administrative agon would structure democratic legitimacy around a flattened bureaucratic hierarchy that fosters intra- and interagency competition.52 These design features would depart from conventional intuitions in many ways, but they also highlight the fact that certain existing administrative practices and institutions that have troubled theorists in the past are actually consonant with established democratic theory.
My account of the administrative agon proceeds as follows. Part I unpacks the democratic theories that have conventionally been invoked to justify the administrative state. In Part II, I highlight the many ways in which these conventional theories fail to provide a satisfying answer to the democracy question. Part III presents agonistic democratic theory as an alternative to conventional democratic theories. Then, Part IV develops a more practical account of the administrative agon, emphasizing features of the contemporary administrative process that are already agonistic while pointing the way to more thoroughly agonistic processes that have not yet been adopted or considered. Part V concludes by discussing payoffs for thinking about administration agonistically, as well as some of the drawbacks and limitations of such a conceptual shift.
For recent examples of articles, book reviews, and books claiming a crisis of democratic legitimacy in the administrative state, see Ryan Calo & Danielle Keats Citron, The Automated Administrative State: A Crisis of Legitimacy, 70 Emory L.J. 797, 845 (2021); Joanna L. Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal (2012); Philip Hamburger, Is Administrative Law Unlawful? (2014); Christopher S. Havasy, Relational Fairness in the Administrative State, 109 Va. L. Rev. (forthcoming 2023) (manuscript at 5-6), https://ssrn.com/abstract=4164125 [https://perma.cc/6324-T6K9]; Jeremy K. Kessler, The Struggle for Administrative Legitimacy, 129 Harv. L. Rev. 718, 719 (2016), which reviews Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (2014); Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (2013); K. Sabeel Rahman, Reconstructing the Administrative State in an Era of Economic and Democratic Crisis, 131 Harv. L. Rev. 1671, 1672 (2018), which reviews Jon D. Michaels, Constitutional Coup: Privatization’s Threat to the American Republic (2017); Jed Handelsman Shugerman, The Legitimacy of Administrative Law, 50 Tulsa L. Rev. 301, 302 (2015), which reviews Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012); and Louis J. Virelli III, Science, Politics, and Administrative Legitimacy, 78 Mo. L. Rev. 511, 511 (2013).
Cary Coglianese, Natasha Sarin & Stuart Shapiro, The Deregulation Deception 1 (U. Pa. Carey L. Sch. Pub. L. & Rsch. Paper Series, Paper No. 20-44, 2021) https://ssrn.com/abstract=3723915 [https://perma.cc/EVA9-A9LK]. Much of the failure stems from the fact that, to meaningfully undermine the administrative state, the Trump Administration would have had to promulgate a significant number of durable rules and regulations. This is an increasingly difficult task, especially for one-term Presidents. See Bethany A. Davis Noll & Richard L. Revesz, Regulation in Transition, 104 Minn. L. Rev. 1, 3, 5 (2019) (describing Trump’s use of “rollback tools,” such as the Congressional Review Act, and highlighting that “[f]uture presidents, including for these purposes Trump himself, will need to face the possibility that their regulatory output could be undone”). Indeed, that is just what has happened in the Biden Administration. See Tracking Regulatory Changes in the Biden Era, Brookings Inst. (Sept. 12, 2022), https://www.brookings.edu/interactives/tracking-regulatory-changes-in-the-biden-era [https://perma.cc/TFZ9-XGXN] (compiling regulatory changes, including actions rescinding Trump’s regulatory and deregulatory actions).
See Michael W. Bauer & Stefan Becker, Democratic Backsliding, Populism, and Public Administration, 3 Persps. on Pub. Mgmt. & Governance 19, 19 (2020). The idea of populism is often given a pejorative connotation, but the negative side emerges only when populists claim a mandate and veer into authoritarianism and xenophobia. See David Fontana, Unbundling Populism, 65 UCLA L. Rev. 1482, 1485-86 (2018).
See, e.g., West Virginia v. EPA, 142 S. Ct. 2587, 2617 (2022) (Gorsuch, J., concurring) (“[T]he Constitution’s rule vesting federal legislative power in Congress is ‘vital to the integrity and maintenance of the system of government ordained by the Constitution.’ It is vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’” (citations omitted)); City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting) (“[T]he citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, ‘in the public interest’—can perhaps be excused for thinking that it is the agency really doing the legislating. And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether Presidential oversight—a critical part of the Constitutional plan—is always an effective safeguard against agency overreaching.”). For academic commentary on these trends in judicial opinions, see Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 4 (2017); Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 Harv. L. Rev. 852, 869-71 (2020); and Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41, 41-45.
See Gundy v. United States, 139 S. Ct. 2116, 2135-42 (2019) (Gorsuch, J., dissenting) (arguing for a new test for nondelegation and urging its enforcement); Daniel E. Walters, Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect when We’re Expecting, 71 Emory L.J. 417, 419-41 (2022) (recounting contemporary debates on the Court about whether to resuscitate the nondelegation doctrine, which has otherwise rarely been invoked, in order to limit the power of the administrative state).
See Racism, Regulation, and the Administrative State, Regul. Rev. (Oct. 26, 2020), https://www.theregreview.org/2020/10/26/racism-regulation-administrative-state [https://perma.cc/NEC2-9K7B]; Symposium on Racism in Administrative Law, Yale J. on Regul.: Notice & Comment Blog (2020), https://www.yalejreg.com/topic/racism-in-administrative-law-symposium [https://perma.cc/LGH9-DWP4].
The idea of “capture” has long captured the imagination of observers of administrative agencies. It refers to the idea that “as a rule, regulation is acquired by the industry and is designed and operated primarily for its benefit.” George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3, 3 (1971); see also William J. Novak, A Revisionist History of Regulatory Capture, in Preventing Regulatory Capture: Special Interest Influence and How to Limit It 25, 25-48 (Daniel Carpenter & David A. Moss eds., 2014) (tracing the concept over time).
These concerns are not unfounded. See Zolan Kanno-Youngs & Charlie Savage, Trump Official’s Last-Day Deal with ICE Union Ties Biden’s Hands, N.Y. Times (Mar. 18, 2021), https://www.nytimes.com/2021/02/01/us/politics/cuccinelli-biden-ice.html [https://perma.cc/7VEV-KU6C] (reporting on a last-minute deal by Trump Administration officials with Immigration and Customs Enforcement union leaders to “tie Mr. Biden’s hands”). The broader phenomenon of “agency burrowing” has long been recognized, see Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U. L. Rev. 557 (2003), but it has been particularly notable in the most recent transition, see Alice Miranda Ollstein & Megan Cassella, The ‘Deep State’ of Loyalists Trump Is Leaving Behind for Biden, Politico (Jan. 19, 2021, 4:30 AM EST), https://www.politico.com/news/2021/01/19/trump-loyalists-burrowing-biden-460238 [https://perma.cc/3DQ3-LS5T].
For just a sampling of the voluminous literature on polarization, see, for example, Ezra Klein, Why We’re Polarized (2020); Alan I. Abramowitz, The Great Alignment: Race, Party Transformation, and the Rise of Donald Trump (2018); Daniel J. Hopkins, The Increasingly United States: How and Why American Political Behavior Nationalized (2018); Lilliana Mason, Uncivil Agreement: How Politics Became Our Identity (2018); and Ashley Jardina, White Identity Politics (2019). Increasingly, this polarization also bleeds into legal debates. See David E. Pozen, Eric L. Talley & Julian Nyarko, A Computational Analysis of Constitutional Polarization, 105 Cornell L. Rev. 1, 4-5 (2019).
See Can America Govern Itself? 2-3 (Frances E. Lee & Nolan McCarty eds., 2019); Frances McCall Rosenbluth & Ian Shapiro, Responsible Parties: Saving Democracy from Itself 1-3 (2018); Marc J. Hetherington & Thomas J. Rudolph, Why Washington Won’t Work: Polarization, Political Trust, and the Governing Crisis 48-50 (2015).
See Josiah Ober, The Original Meaning of “Democracy”: Capacity to Do Things, Not Majority Rule, 15 Constellations 3, 3 (2008); see also Sarah Song, The Boundary Problem in Democratic Theory: Why the Demos Should Be Bounded by the State, 4 Int’l Theory 39, 39 (2012) (noting that the idea of democracy presents questions of “rule” and about the “boundary problem” of who counts as part of the dêmos).
Owing to existing practices of congressional delegation, few statutes are self-implementing. See Glen Staszewski, Political Reasons, Deliberative Democracy, and Administrative Law, 97 Iowa L. Rev. 849, 853 (2012) (“Although an agency’s governing statute will sometimes identify certain factors that shall or shall not be taken into consideration, there will almost always be a host of other logically relevant considerations that are not specifically addressed by the agency’s statutory mandate.”). Most statutes leave great discretion to administrative agencies not only to enforce the law, but also to flesh it out through legislative and interpretive rules. See Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511, 1513 (1992).
See Joshua Ulan Galperin, The Life of Administrative Democracy, 108 Geo. L.J. 1213, 1216 & n.13 (2020) (collecting citations supporting the claim that “bureaucrats are unelected and therefore unaccountable”). This concern is nowhere close to convincing on its own, as the Constitution does not require that all officials be elected. But it has certainly become a frequently invoked trope.
See Christopher R. Berry & Jacob E. Gersen, Agency Design and Political Control, 126 Yale L.J. 1002, 1010-12 (2017). Even on the level of personnel, because the bureaucracy is committed to insulating its career civil servants from political control, it is almost hardwired to be impervious to the violent swings of factional democratic politics. See Parrillo, supra note 2, at 125-27 (discussing civil-service reforms that liberated bureaucrats from loyalty to fee payers). Indeed, these reforms have often effectively moderated political preferences in the career bureaucracy. See Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich. L. Rev. 53, 55 (2008) (arguing that the preferences of civil servants should be more moderate than those of elected and appointed officials).
Political scientists have long recognized that the legitimacy and efficacy of the administrative state is politically constructed, see Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928, at 11-13 (2001), and it therefore can be politically deconstructed, too.
Blake Emerson, Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, 102 Minn. L. Rev. 2019, 2027 (2018); see also William J. Novak, New Democracy: The Creation of the Modern American State 21 (2022) (noting the centrality of the “general will” for democratic theories of administration); Ganesh Sitaraman, The Great Democracy: How to Fix Our Politics, Unrig the Economy, and Unite America 95-96 (2019) (“For a democratic community to succeed, the people must be relatively united. There must be some degree of solidarity . . . . The central premise of democracy is that the people themselves should determine their own fate. We the people decide our future together.”).
See Seidenfeld, supra note 17, at 1529; Staszewski, supra note 17, at 886-87. Arguably, this “reason-giving” norm maps onto core features of administrative law, such as the notice-and-comment rulemaking process. See Jerry L. Mashaw, Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government 50 (2018).
See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 463-68, 485-91 (2003); see also Blake Emerson & Jon D. Michaels, Abandoning Presidential Administration: A Civic Governance Agenda to Promote Democratic Equality and Guard Against Creeping Authoritarianism, 68 UCLA L. Rev. Discourse 418, 423-31 (2021) (arguing that presidential administration has been a failed experiment that has made us less democratic and more authoritarian).
Tom Latek, OSHA Vaccine Policy Being Met with Resistance, Including from Two Kentucky Seminaries, Times-Trib. (Nov. 6, 2021), https://www.thetimestribune.com/news/osha-vaccine-policy-being-met-with-resistance-including-from-2-kentucky-seminaries/article_fb84eaa6-3e9e-11ec-be88-5751d1940ae7.html [https://perma.cc/LK5F-9BAD]. In fact, the resistance began even before the announcement of the rule, after President Biden asked the Occupational Safety and Health Administration (OSHA) to issue it. See Timothy Noah, Why Won’t the Chamber of Commerce Support Biden’s Vaccine Mandate?, New Republic (Sept. 14, 2021), https://newrepublic.com/article/163648/chamber-commerce-support-vaccine-mandate [https://perma.cc/U57W-NPRD].
See Daryl Austin, Opinion, COVID Vaccine Resistance Is Nothing New. Anti-Vaxxers Are as Old as Vaxxing Itself, NBC News (Nov. 27, 2021, 12:41 PM EST), https://www.nbcnews.com/think/opinion/covid-vaccine-resistance-nothing-new-anti-vaxxers-are-old-vaxxing-ncna1284828 [https://perma.cc/ESP4-M7RK] (reporting that thirty-two percent of Americans are unlikely to ever vaccinate against COVID-19).
See FiveThirtyEight Staff, 60 Percent of Americans Will Have an Election Denier on the Ballot This Fall, FiveThirtyEight (Oct. 17, 2022, 12:04 PM), https://projects.fivethirtyeight.com/republicans-trump-election-fraud [https://perma.cc/X369-H9BR] (documenting persistent and widespread “election denialism”).
Although there are innumerable examples of this phenomenon, ground zero has undoubtedly been in the immigration-policy debate over how to treat people who are present in the United States but lack documentation. Unable to rely on comprehensive immigration-reform legislation, the Department of Homeland Security tried to develop policies to extend legal status to some of these individuals, reversed itself to disallow legal status, then reversed itself again. See generally Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law (2020) (chronicling the convoluted and tumultuous recent history of immigration law and policy across presidential administrations). At each turn, the political pushback has been swift and contentious. See Kevin R. Johnson, Lessons About the Future of Immigration Law from the Rise and Fall of DACA, 52 U.C. Davis L. Rev. 343, 378 (2018) (noting the “political controversy” that attached to both Obama’s original Deferred Action for Childhood Arrivals (DACA) policy and Trump’s rescission); Zolan Kanno-Youngs, Biden Administration Fights in Court to Uphold Some Trump-Era Immigration Policies, N.Y. Times (Mar. 13, 2022), https://www.nytimes.com/2022/03/13/us/politics/biden-trump-immigration.html [https://perma.cc/N2G8-6U7U] (describing President Biden’s actions on immigration and the pushback the Biden Administration has received even from ostensible ideological allies).
See, e.g., Alejandro E. Camacho & Robert L. Glicksman, Reorganizing Government: A Functional and Dimensional Framework 2-3, 31-52 (2019) (discussing dimensions of “centralization, overlap, and coordination” in terms of agency and program design, all of which complicate hierarchical models of political control of the bureaucracy).
Anya Bernstein and Cristina Rodríguez have shown that the on-the-ground practice of administration is marked by complex systems of shared power between career and political officials. See Anya Bernstein & Cristina Rodríguez, The Accountable Bureaucrat, 132 Yale L.J. (forthcoming 2023) (manuscript at 23-33), https://ssrn.com/abstract=4067359 [https://perma.cc/HJT6-TAVR].
Here, Bernstein and Rodríguez’s recent account provides a notable exception, linking these institutional features to concepts of democratic accountability. Id. (manuscript at 42-45). Their account, however, draws on the general notion of democratic accountability and sets aside the need to adjudicate between different theories of democracy.
See infra Part III. Agonistic democratic theory has made small inroads into the broader legal literature. See, e.g., Jocelyn Simonson, Copwatching, 104 Calif. L. Rev. 391, 394-95 (2016); Bernadette Meyler, Accepting Contested Meanings, 82 Fordham L. Rev. 803, 816-18 (2013); Scott Skinner-Thompson, Agonistic Privacy & Equitable Democracy, 131 Yale L.J.F. 454, 457 (2021); Glen Staszewski, Obergefell and Democracy, 97 B.U. L. Rev. 31, 92-101 (2017).
See, e.g., Bonnie Honig, Political Theory and the Displacement of Politics 210-11 (1993) (discussing an agonistic embrace of a “politics of augmentation” that “acknowledg[es] the remainders of the will to closure, extending to them a magnanimity and gratitude that seem to be beyond the reach of most liberals and communitarians”); Chantal Mouffe, Agonistics: Thinking the World Politically 119-20 (2013) [hereinafter Mouffe, Agonistics] (describing a “crisis of representation” in democracies today and prescribing reforms to representative institutions that would “create the conditions for an agonistic confrontation where the citizens would be offered real alternatives”).
See infra Part IV. In her recent Harvard Law Review Foreword, Cristina M. Rodríguez hinted at the need to develop an agonistic model of administration to address current legitimacy crises. See Cristina M. Rodríguez, The Supreme Court, 2020 Term–Foreword: Regime Change, 135 Harv. L. Rev. 1, 8 (2021) (identifying “agonistic struggle” as a key part of what makes “regime change” democratically legitimate); see also Ashraf Ahmed & Karen M. Tani, Presidential Primacy Amidst Democratic Decline, 135 Harv. L. Rev. F. 39, 41-42, 45 (2021) (associating Rodríguez’s theory of regime change with agonism and acknowledging its potential benefits for thinking about administration and democracy, but questioning whether Rodríguez’s President-centric account is normatively desirable). Here, I take the next step of fleshing out that model, but my account differs from Rodríguez’s in critical respects. Much like Ahmed & Tani, supra, I resist Rodríguez’s celebration of presidential administration on agonistic grounds and point to the ways that agonism is better instantiated through decentered administration. See infra Part IV.