Notice & Comment

Ad Law Reading Room: Brian D. Feinstein, “Legitimizing Agencies”

Today’s Ad Law Reading Room entry is “Legitimizing Agencies” by Professor Brian Feinstein, which is forthcoming in the University of Chicago Law Review. Here is the abstract:

The project of bolstering the administrative state’s perceived legitimacy is central to administrative law. To enhance agencies’ legitimacy with the public, generations of judges and scholars have variously called for changes designed to insulate technocrats from political influence, involve interested members of the public, and subject agencies to greater presidential control. Despite the pitch of debate in elite legal circles, however, virtually nothing is known about the views of ordinary citizens—the very people whose beliefs constitute popular legitimacy.

This Article replaces supposition and projection concerning what features contribute to agencies’ perceived legitimacy with the first evidence of Americans’ actual views. It presents the results of a novel set of experiments involving over seven thousand participants, in which each participant views one of twenty-four policy vignettes with varied information concerning the structures and procedures involved in generating the policy. Participants are then asked to assess, by their own lights, the policy’s legitimacy.

The results show strong support for the century-old, seemingly shopworn idea that empowering politically insulated, expert decision-makers legitimizes agencies. With civil servants’ insulation from appointees and the independent-agency form under strain, this finding implies that, for proponents of a robust administrative state, an independent and technocratic civil service is worth defending. By contrast, the theory—influential on the Supreme Court—that greater presidential control enhances legitimacy receives no support.

These findings further imply that, given that the public’s views on legitimacy differ by issue area, institutional designers should be open to discounting trans-substantive principles in favor of bespoke, agency-specific designs. Finally, these results open a new agenda for administrative law: to increase agencies’ legitimacy at a time when the administrative state is challenged, institutional designers should elicit the views of a broad cross-section of society.

Debates in administrative law often center on the “legitimacy” of agencies and which institutional design features contribute to (or undermine) that legitimacy. Occasionally left unclear, however, is what it means for an agency to possess legitimacy. Under one popular view, an agency’s exercise of power is legitimate if members of the public view it as justified for reasons other than their narrow self-interest. That, of course, raises another question: What shapes the public’s perception that a given agency action is justified? Until we know the answer to that question, it’s hard to know what works to legitimate agency action.

Enter Feinstein’s article. Through survey data and the tools of social psychology, Feinstein uncovers important evidence about how the public judges the legitimacy of agency decisions. The answer? According to Feinstein, decisions by politically insulated, expert decisionmakers are more likely to be viewed as legitimate. By contrast, Feinstein uncovers little to support the view that presidential control of agency officials bolsters agencies’ perceived legitimacy. The article is a very fun read, and the results important. Everyone interested in the legitimacy question (and who isn’t?) should take a look.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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