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Criddle on Popular Representation in Agency Rulemaking

By Lawrence Solum

Evan J. Criddle (Syracuse University College of Law) has posted Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking (Texas Law Review, Vol. 88, 2009) on SSRN. Here is the abstract:

Do administrative agencies undermine popular sovereignty when they make federal law? Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty, and that federal law should resolve the apparent tension between regulatory practice and democratic principle by allowing the President to serve as a proxy for "the will of the people" in the administrative state. According to this view, placing federal rulemaking power firmly within the President's managerial control would advance popular preferences throughout the federal system.

This conventional wisdom is misguided. As political scientists have long recognized, the electorate's relative disengagement from the federal regulatory process prevents voters from developing coherent preferences about most questions of regulatory policy. Moreover, even if discrete preferences could be attributed to the people as a whole, the American presidency does not in practice serve as a reliable proxy for majoritarian preferences in the administrative state.

As an alternative to presidential "proxy representation," this Article argues that federal administrative law should seek to promote popular representation in agency rulemaking through "fiduciary representation." Like fiduciaries in private law, all federal officers exercise discretionary administrative authority for the benefit of those subject to their power, and all are bound by duties of purposefulness, fairness, integrity, solicitude, reasonableness, and transparency. Rather than focus on a representative's obedience to the ephemeral public will, fiduciary representation emphasizes agencies' responsibilities to act deliberatively and reasonably in promoting the public welfare. On this account, presidential administration is one plausible strategy for reconciling administrative lawmaking with popular sovereignty, but it is not necessarily the most promising strategy. Congress may counter-intuitively promote popular representation in the administrative state by vesting final rulemaking authority in unelected agency administrators rather than the popularly elected President.

Full post as published by Legal Theory Blog on April 03, 2009 (boomark / email).