Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State
Bressman, Lisa Schultz
This Article argues that efforts to square the administrative state with the constitutional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legitimacy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation-the President. This Article contends that the "presidential control" model cannot legitimate agencies because the model rests on a mistaken assumption about the sufficiency of political accountability for that purpose. The assumption resonates with the premise, familiar in constitutional theory, that majoritarianism is the hallmark of legitimate government. This premise, brought to the fore by Alexander Bickel, now is questioned among constitutional theorists. Moreover, majoritarianism is not enough to legitimate administrative decisionmaking under our constitutional structure for the reason that it does not reliably address the concern for arbitrariness. This Article argues for a more direct focus on the concern for arbitrariness-ana pproach that has at its core a concern for good government, not simply "accountable" government in the post-Bickel, majoritarian sense of that word. The Article demonstrates how a more direct approach suggests new possibilities for resolving the time-honored problem of agency legitimacy and new ways of understanding the perennial puzzles of administrative lawar.