All the Sovereign's Agents: The Constitutional Credentials of Administration

At a time when citizens must rely on administration to tackle the urgent threats of global warming, pandemic, and destabilizing inequality, critics both left right would tear it down. Libertarian opponents denounce agency discretion as obnoxious rule law its norms generality neutrality. They argue that regulatory agencies violate separation powers defy principle limited government. But their favored solution, strict application non-delegation doctrine, create new, undemocratic problem: ascribing unelected judges responsibility for economic social regulation. On other hand, conservatives with more authoritarian inflection rescue from constitutional exile by placing them under direct executive control. Bootstrapping president’s electoral credentials, solution carries Schmittian implications. Administration fares little better in hands left. blame variety ailments: reification differences juridification human nature; capture; depoliticization economy subsidization financial capitalism; and, ultimately, populist politics. This paper will put firm footing. It argues critiques administrative state upon mistaken notions popular sovereignty law. First, they posit “will” an organ-body democratic sovereign is transcribed (however ham-handedly) elected officials. Yet, recent theory shows, there no exogenous transcribe. Second, this can be uncontroversially applied neutral administrators. For them, protects political equality through unwavering abstract, general legislation. Critical theorists show, however, abstract concrete cases may only exacerbate inequality. Legal realists demonstrate underdeterminate; administrators inevitably find themselves smuggling outside values into decision-making. By treating part representative government, gain credentials. If democracy aspires not universal consent formalist understanding law, but instead autonomy (Urbinati & Warren, 2008), then legitimate. Indeed, already serve fora politics organize around rulemaking. also act representatives themselves. By providing points entry policymaking, independent help democracies ensure power respond effectively demands while always remaining empty place.