What, if anything, legitimates the administrative state? By “legitimacy” I refer not to any thick normative notion, but to sociological and public legitimacy1×1. For the sociological sense of legitimacy, and alternative senses — moral and legal legitimacy — see Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787 (2005). None of this is to say, of course, that the thinkers I will examine do not also address the legal (and to some extent moral) legitimacy of the administrative state; in truth the relevant arguments are interwoven and hard to disentangle. It is to say, however, that the case they make does not end with legal legitimacy and that each is self-consciously attempting to explain, and to understand, sociological legitimacy as a crucial political-psychology precondition for the administrative state’s success. We will see that Louis Jaffe puts this point with special clarity when he speaks of the “psychological[,] if not logical,” conditions for the administrative state’s legitimacy. Louis L. Jaffe, Judicial Control of Administrative Action 320 (1965); see infra p. 2472. — the ambient sense in the polity that, whatever grievous errors or injustices the administrative state may inflict in particular instances, its basic existence is acceptable, and the errors and injustices are jurisdictionally valid; they do not amount to reasons for rejecting the extant institutional arrangements altogether. In American legal theory there is a rich intellectual tradition — actually a field or domain of overlapping, conflicting, and competing traditions — that attempts to answer this set of questions about the administrative state, and the Harvard Law School has historically been central to the enterprise.
In what follows I will examine three fundamentally important attempts to solve the administrative state’s legitimation problem, offered respectively by James Landis, by Louis Jaffe, and by Elena Kagan. The solutions have a common theme and a common structure: Each appeals more or less explicitly to “independence.” Each attempts to find a remedy for public distrust of unchecked administrative power, and each attempts to do so by identifying “independent” institutions that will monitor and oversee the bureaucracy.
On closer inspection, however, the answers are not only different but also answer different questions. The problem is that independence is always a relational notion — independence of what, and from what? For Landis, the key idea is that certain expert agencies should be independent of presidential control (although, as we will see, many people have misunderstood why Landis thought that desirable). For Jaffe, delegation to agencies is legitimated by courts independent of the whole executive and administrative establishment altogether. For Kagan, the key idea is that presidential administration, combining Hamiltonian and technocratic features, succeeds when and to the extent that the presidency is independent of narrow interest groups, parochial legislators, and myopic line agencies. So Landis finds legitimation in agencies independent of the President, Jaffe finds it in courts independent of all executive officers, and Kagan finds it in a presidency independent of line agencies, interest groups, and the congressional committees that influence the independent agencies.
It is no accident that attempts to legitimate the administrative state hover or cycle restlessly among different senses of independence.2×2. For a somewhat different statement of this point, see Adrian Vermeule, The Administrative State: Law, Democracy, and Knowledge, in The Oxford Handbook of the U.S. Constitution 259 (Mark Tushnet et al. eds., 2015). The basic reason is that judgments about which sort of independence the administrative state should embody themselves draw upon a plurality of normative ideals — accountability, representation, expertise, legality, rationality or reasonableness, welfarist efficiency, and speed of adjustment to changing circumstances (executive “energy”), to name a few. Although each of these ideals has attractive claims, they are not mutually compatible, in the pragmatic sense that not all of them can simultaneously be satisfied by real-world institutions laboring under real constraints. Thus different arguments for independence and its public legitimating effects are really drawing upon different underlying ideals, each of which suffers when others are emphasized. As we will see, Landis, Jaffe, and Kagan each locate the risk of undesirable dependence and partiality in the very institutions others praise as guarantors of independence.
However, each of my theorists implicitly understands this, for each compromises their claims in institutional circumstances where the force of competing ideals becomes particularly strong. The result, in each case, is that each theorist ends up adopting a kind of roughly optimizing pluralism of values for the administrative state — a pluralism in which expertise, political accountability, and legalism all have some claims. The views of my theorists still differ in emphasis, of course; where real-world institutional judgments are concerned, there is irreducible scope for reasonable good-faith disagreement. But the basically optimizing character of those judgments is unmistakable. Put differently, each theorist ends up making implicitly marginalist judgments — “rather than having too much X, legitimation will increase overall if we trade some X for some Y,” where X and Y are institutional ideals. In this sense, my theorists may be seen as complementing each other rather than competing with one another. Each supplies the administrative state with a rough, nonideal, and aggregate form of legitimacy, one that does nothing perfectly but attempts to do many things decently well — where “well” means in a way that aims to generate a critical mass of public acceptance.
To be clear, I do not address here the distinct question whether this roughly optimizing pluralism of values does in fact succeed in generating a critical mass of public acceptance for the administrative state. I happen to believe that it does, and that outside of a largely elite discourse of “classical liberals,” libertarians, and nostalgists for an imagined common law past, the administrative state has never been more secure.3×3. There is a popular libertarian-constitutionalist discourse, in various media, which occasionally laments the fall of constitutionalism and the rise of the administrative state. This discourse (a) does not clearly distinguish complaints about the administrative state from complaints about the scope of government action generally (whether that action is effected through administration or legislation); (b) does not clearly distinguish complaints about the administrative state from complaints about the merits of policies; and, most importantly, (c) does not necessarily become a premise for voting decisions or other action, and is thus best seen as a form of quasi belief or cognitive consumption for entertainment — like believing in UFOs or watching dystopian movies. It is a conceptual mistake to think that complaints about the administrative state, even on constitutional grounds, are necessarily sociological evidence of the illegitimacy of the regime. Such arguments may also be conventional moves within the regime, which vent steam and thereby actually have a legitimating effect. If they result in more or less minor adjustments of legal and institutional rules — a bit more Office of Information and Regulatory Affairs (OIRA) oversight here, a bit less judicial deference there, and so on — that is a sign of the fundamental health, adaptability, and social legitimacy of the regime, not of crisis. In the brief compass of this Essay, however, I cannot defend these views.4×4. For discussion, see Adrian Vermeule, What Legitimacy Crisis?, Cato Unbound (May 9, 2016), “https://www.cato-unbound.org/2016/05/09/adrian-vermeule/what-legitimacy-crisis” [https://perma.cc/FVD7-DT77]. For speculation about how administrative law might look surprisingly unchanged during the Trump Administration, see Adrian Vermeule, Two Futures for Administrative Law, Yale J. Reg.: Notice & Comment (Nov. 30, 2016), http://yalejreg.com/nc/two-futures-for-administrative-law-by-adrian-vermeule/ [https://perma.cc/WR93-AVM6].
Before we turn to the theorists, two brief preliminaries — a word about delegation, and a word about methodology. As to delegation, each theorist takes it as more or less given that Congress often delegates expansively, in terms both vague and general (although Kagan, writing after the more specific delegations of the Great Society, understands that this is only a tolerable generalization). Each takes such delegation as a background condition of the administrative state, and also assumes that ongoing and active congressional adjustment of statutes is unlikely, for the very reasons that produced expansive delegation in the first place. On this set of premises, common to all three theorists, Congress’s de facto abdication blocks any simpleminded appeal to legislative oversight as the source of legitimation for the administrative state. The legitimation problem begins where Congress leaves off, as it were. (Although Congress may of course monitor the bureaucracy through committees, rather than through legislation, we will see that, for Kagan especially, that behavior is part of the problem, not part of the solution.) For my purposes, I need not decide whether these premises are correct; I will assume them to be so, in order to engage the legitimation problem on the terms they define and to examine the internal logic of my theorists’ views.
As for methodology, my approach is deliberately nonhistoricist. I make no effort to supply rich historical context for the theorists I will discuss, situating them within the debates and legal and political problems of their own eras. Instead I want to see what happens when we treat the theorists as though — counterfactually — they are in conversation with each other and with us, on the enduring structural problems of the administrative state and its institutional principles. The costs and benefits of this thought experiment are tolerably obvious; it risks distorting ideas by ripping them from their original setting, but it helps us identify exportable ideas and mechanisms that enhance our understanding in a different way.5×5. For the notion of “exportable mechanisms,” see Jon Elster, Alexis de Tocqueville: the First Social Scientist 9 (2009). There is also the academic division of labor to consider; legal historians and historians who happen to teach in law schools will carry forward the historicist project, whereas the comparative advantage of us lawyers lies, I believe, in the analysis of institutional problems that to some degree cut across the differences between historical eras.
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* Ralph S. Tyler, Jr., Professor of Constitutional Law, Harvard Law School. Thanks to Nina Mendelson, Martha Minow, Jeff Pojanowski, Daphna Renan, Cass Sunstein, Francisco Urbi-na, and participants in faculty workshops at Fordham University School of Law and Har-vard Law School for helpful comments, and to Jacqueline Trudeau for excellent research as-sistance.