Reason and Politics, by Michael A. Livermore
*This is the first post on a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here.
In his excellent book The Reasoning State, Jed Stiglitz undertakes a major task: to develop a justification for the administrative state that is both consistent with political theory and also helps explain the normative foundations of administrative law. His argument is that in complex democratic societies, legislatures face problems of trust, which they address by creating procedurally constrained administrative agencies that can deliver reasonable decision making that will be accepted by the public. In defending this view, Stiglitz draws from a broad set of methodological tools that includes careful empirical social science, formal modeling, and broad historical narrative.
Contemporary debates over administrative agencies break down into several general camps. Perhaps the largest is the technocratic camp. This view runs as follows: American society faces a variety of pressing social challenges that require governance; for reasons of expertise and bureaucratic efficiency, agencies are the institutions that are best poised to deliver that governance; therefore, agencies are generally good and ought to be defended. A sometimes corollary of the technocratic view is that political institutions are easily corrupted by wealthy special interests and the seductive lure of populists’ demagoguery.
The technocratic camp represents a kind of mainstream view, which is widely shared but somewhat diffuse. A second camp—let’s call it the legitimacy-crisis countermovement—is, by contrast, smaller but better organized. The countermovement is made up of various factions that include regulated industry, anti-state conservatives, and populist resistors to progressive policies, especially those that touch on racial or gender equity. What joins the countermovement together is opposition to the goals or instruments of much of contemporary social and economic policy. Their strategy is to disable any institution capable of delivering that policy. Accordingly, they attack the administrative state for the same reason that technocrats support it—because it the most effective governance institution that we have.
The story Stiglitz tells in The Reasoning State falls broadly into the technocratic camp, but in highly refined and much improved version. Most importantly, he explains how it may be that self-interested politicians would create and delegate power to agencies that are insulated from political pressure and embedded in an institutional environment that encourages reasoned, evidence-based decision-making. The work thus draws together the positive political theory of the McNollGast group—which seeks to explain the political foundations of administrative procedure—with more traditional defenders of the regulatory state who argue that this administrative procedure can orient agencies toward public-interested regulation.
There is much to find convincing in this story. There are good reasons for voters to distrust legislatures. Because of its constitutional status, it is extremely difficult for Congress to commit to the kinds of decision-making constraints that might shore up its legitimacy. Administrative procedure, such as requirements to collect and respond to public comments or engage in cost-benefit analysis, can help improve agency decision making. There is something immensely sensible about Congress drawing policy in broad strokes that voters can plausibly monitor while delegating to procedurally constrained agencies the task of filling in the details in areas that are beyond the attention of a reasonable voter.
Part of the goal in The Reasoning State appears to be to encourage defenders of administrative agencies to be less apologetic. There is no reason to accept claims that Congress is a superior lawmaking body, with recourse to agencies only accepted as a concession to the practical need for expertise and efficiency, with a cost paid in terms of democratic legitimacy. Rather, for Stiglitz, agencies have their own legitimacy-related virtues, many of which make up for the manifest shortcoming of the legislature.
A question left outstanding by the book is where to draw the line between legislative broad strokes and the details to be filled in via administration. The so-called “major question” doctrine, elevated to new heights in West Virginia v. Environmental Protection Agency and much touted by the countermovement, ostensibly rests on foundations that are not too far removed from the legislation/administration divide defended in The Reasoning State. The question in that case is whether the “best system of emissions reduction” to reduce greenhouse gas emissions, which are required by the Clean Air Act, can include efforts to switch electricity generation from fossil fuels to cleaner sources. For Chief Justice Roberts and the other conservative Justices, that was the kind of question that Congress did not want to leave to the agency. Opponents of the major questions doctrine see it as straightforward judicial aggrandizement, with conservative Justices using their majority to undermine a statute and an agency that they are ideologically predisposed against. According to the logic of The Reasoning State, whatever flaw exists in West Virginia v. EPA seems to be a case of improper line drawing, rather than an incorrect set of starting premises.
Another lingering question concerns the place of political participation in this story. The definition of politics offered in The Reasoning State (p.261) is fairly narrow:
Politics has always been a part of administration, and it will always be so. Where power is exercised, politics will be there. Yet politics is not a binary condition, and it – understood to indicate the importation of nonstatutory factors associated with elections or coalition maintenance into the administration of statutes – may play a more or less important role in various times and settings.
On this understanding, it would be desirable (although perhaps not possible) to banish politics from administration. But a more positive vision of politics—one that is not simply about “elections or coalition maintenance”—is possible. Perhaps the image of a deliberative democracy, with its open-minded and civil discourse over matters of public concern, has proven to be naïve. But directing the creative political energies of the public exclusively toward a Congress that is captured by special interests, and where those energies are sure to be frustrated, is both overly pessimistic and dangerous. Pessimistic about the positive potential of democratic politics; dangerous, if those energies ultimately turn outside legal channels to find their outlet.
A third camp in contemporary debates over agencies seeks to square this circle through the institution of the presidency. Most famously articulated by then-professor Elena Kagan in her paper “Presidential Administration,” the view is roughly that presidential supervision ties agency policymaking to the national electorate. Presidential candidates place their policy programs before the public, with the winner charged with carrying out that program, including by influencing agency decision making. Advocates of the unitary executive sometimes partake of this view, although their arguments are more typically offered in more formalist constitutional terms.
In Reviving Rationality, my coauthor Richard L. Revesz and I offer something of an extension of Justice Kagan’s view, arguing that administrative law and practice—including cost-benefit analysis and regulatory review by the Office of Information and Regulatory Affairs—creates a set of “guardrails” around political oversight of agencies. Presidential administrations are understood to have the power to set agency agendas and affect agency decision making, but within a structure that protects the place of expertise, analysis, and evidence. The guardrails reflect a balance between the appropriate, valuable role of politics and the demands of credible reasonableness discussed in The Reasoning State.
Even the most ardent defenders of presidential administration faced a difficult case when Donald Trump entered the White House. In Reviving Rationality, we discuss the many ways that the Trump administration crashed into and through the guardrails. The former President’s violation of a host of norms of good governance and civility led to social conflict, poor decision making, and severe damage to the prestige of the office. The task of the Biden administration has been to reestablish those norms and rebuild that prestige, a difficult undertaking when faced with a wearying global pandemic, a deeply divided public, and a complex and ill-understood macroeconomic situation.
The coronavirus pandemic and the related governance challenges also highlight the new challenges faced by the administrative state in an era of social media, the breakdown of mediating institutions like the press, the erosion of trust in professional expertise, and the attraction of negative partisanship in a polarized political environment. Vaccine skepticism and fierce opposition to simple public health measures such as masking are indicative of a broader breakdown. Today’s experiences may echo the loss of trust faced by legislatures near the turn of the 20th century. At that earlier moment of crisis, The Reasoning State argues, the solution was not to reform the legislature, but instead to create new institutions that could take up the governance task. It may be the current moment calls for a similarly radical approach.
In other work, I’ve argued that administrative law is best understood as evolving and adapting to its political environment. Over the course of U.S. history, there have been several distinct “party systems” that characterize organized politics. Party systems are periods in which the balance of power between the parties, the issues that dominate the political conversation, and ideological and partisan polarization are relatively stable. Transitions between party systems are often marked by watershed presidential elections, such as Andrew Jackson’s in 1828 and F.D.R.’s in 1932. Political scientist Byron Safer has called the current party system, which was initiated with the election of Bill Clinton, an era of “partisan volatility.” The contemporary party system has several defining features, including weak party organizations, strong partisan polarization, alternating periods of unified and divided government, an increasingly powerful executive, and the weakening of moderating institutions.
Transition between party systems are also often accompanied by changes in administrative law and practice. The spoils system gradually gave way to a professionalized bureaucracy, the Administrative Procedure Act, the innovations collected in Richard Stewart’s 1975 classic “The Reformation of American Administrative Law,” and then the cost-benefit state and administrative presidency. Each of these changes can be understood as articulating the program described in The Reasoning State of fostering agencies capable of offering credibly reasonable decisions, given the economic, social, and political circumstances of the day.
The era of partisan volatility has placed the administrative state under increasing pressure, and the current party system itself seems to be in an increasingly severe spiral, with deep mistrust across party lines, elections of (seemingly) increasing stakes, politicized courts, attacks on institutional stalwarts such as the Department of Justice, and efforts to undermine the legitimacy of the electoral system. Inevitably, a crisis point will be reached that will spell the end of the current system and the beginning of something new.
Whatever that is, I read The Reasoning State as providing reason for hope. Perhaps the recommendations offered at the end of the book—each moderate and sensible—will be sufficient to shore up the legitimacy of the administrative state in more or less its current form. But even if not, and a deeper transition is on the horizon, The Reasoning State reminds us that we have faced profound social, economic, and technological change in the past. Procedurally constrained agencies delivering credibly reasonable policy choices have served the country well. They, like elections and legislatures, are now a firmly emmeshed in our constitutional order. For those interested in defining and shoring up these institutions, The Reasoning State provides a blueprint. And for those who might despair at the current political moment, this book is also a welcome reminder of the possibilities of political ingenuity and innovation—much needed virtues if we are to continue to build and rebuild a society that, even if no utopia, is capable of at least muddling forward in the right direction.
Michael A. Livermore is Professor of Law at the University of Virginia School of Law.