Yale Law Journal
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.
The Yale Law Journal Company, Inc.
Originally published by The Yale Law Journal Company, Incorporated in the Yale Law Journal, Vol. 132, pp. 1-95 (2022).
Daniel E. Walters,
The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State,
Available at: https://scholarship.law.tamu.edu/facscholar/1666