Do Agencies Have the Capacity to be Reasonable?, by David E. Lewis
*This is the fifth post on a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here.
In Jed Stiglitz’s important new book, he argues that legislators delegate policymaking authority to administrative agencies because of agencies’ ability to solve a trust problem between voters and elected officials. Voters confronted with an increasingly complex world have a hard time determining whether political officials are acting in voters’ interest. Legislators delegate authority to agencies to solve this problem. Agencies can more credibly commit to choosing reasonable policies due to rules that promote fairness and procedural due process. This is a really important theory of legislative delegation and justification for the administrative state, but one wonders whether our political system can sustain the capacity necessary for agencies to make reasonable and trustworthy decisions.
Central to Stiglitz’s argument is the idea that agencies can be trusted make reasonable choices. But, as Stiglitz points out, trust in government has been on the decline for decades. If delegation increases trust, why is trust on the decline? Stiglitz correctly notes that the overall decline in trust in government is complicated and perhaps less steep than it would be if Congress had tried to make policy itself with the institution’s own pathologies. He points out that agencies are more esteemed than Congress itself. Interestingly, Stiglitz notes that changes internal to the administrative state are also important here. Agencies are less procedural, more politicized, and they have privatized in ways that can diminish trust.
What Stiglitz hints at but does not develop fully is the possibility that the “reasonableness” of the administrative state may be in decline because of diminished capacity. Observers, from Professors Paul Verkuil to Paul Light to Francis Fukuyama, have been raising the alarm about decaying capacity and government performance for some time. They point to an increasing rate of agency failures, including the 9/11 Terrorist Attacks, Hurricane Katrina, the 2008 housing crisis, Gulf Oil Spill, and failed COVID response. This raises the interesting question of whether there is a connection between a decline in trust and a lack of investment in administrative capacity.
There are many reasons to believe elected officials are underinvesting in capacity. First, legislators rarely get credit for building administrative capacity since the effects of such actions are often not realized until years in the future. During an era of insecure majorities, officials naturally focus on visible accomplishments than can be demonstrated before the election. Investments in the future are hard for voters to observe and difficult to connect to concrete outputs like rules or adjudications. Voters reward legislators for securing discrete benefits for districts and states but they do not reward them for efforts to focus on management per se. To borrow an analogy from government efforts to maintain physical infrastructure, voters will reward elected officials more for a new bridge (something they observe) than for maintenance on an existing bridge (something they cannot observe). They will support the legislator that intervenes to fix the collapsed bridge but not the legislator that works to maintain a bridge that does not collapse. This creates incentives for legislators to create new programs and agencies while neglecting the capacity of existing programs and agencies.
Of course, legislators are more likely to care about capacity for programs that provide immediate direct benefits to important and attentive constituencies. This is only a small fraction of agencies, however. Agencies engage in a range of activities, including preventing toxic spills, collecting data, securing loose nuclear weapons, and supporting rural development. These agencies also need proactive investment and when Congress ignores capacity, they risk decisions that appear unreasonable, ineffective, and sometimes catastrophic. Bipartisan efforts are required to do the hard worth of reauthorization, oversight, and performance improvement but such cooperation is more difficult to sustain.
A second reason to believe that elected officials are underinvesting in capacity are ideological developments related to the shape and function of the administrative state. Conservatives, at least since the 1970s, have expressed concerns about administrative policymaking, specifically government regulations. In this view, bureaucrats empowered with vague statutory mandates from Congress are promulgating rules that infringe on the rights of individuals and groups in violation of the Constitution and good policy. Along with legal concerns, conservatives prefer (and believe the Constitution imagines) a smaller and more limited national government, which they believe will better foster economic growth and individual flourishing. This leads conservatives to advocate the active deconstruction of the administrative state. Where there was once agreement about the need for a high performing bureaucracy that would serve Democrats and Republicans equally well, there is now substantial disagreement. This makes it difficult to sustain the bipartisanship historically necessary for major reforms and attention to the health of the bureaucracy across partisan administrations.
If Congress and the president are underinvesting in administrative capacity, this can influence both the quality of bureaucratic decisions and the reputation of government more generally. In an era of hyper-reelection seeking members, insecure majorities, and ideological opposition to the administrative state, it is natural to wonder how “reasonable” administrative decisions can be.
David E. Lewis is the Rebecca Webb Wilson University Distinguished Professor at Vanderbilt University.
 See Francis Fukuyama, Political Order and Political Decay (New York: Farrar, Straus, Giroux, 2014); Paul C. Light, A Government Ill Executed: The Decline of the Federal Service and How to Reverse It (Cambridge, MA: Harvard University Press, 2008); Paul R. Verkuil, Valuing Bureaucracy: The Case for Professional Government (New York, NY: Cambridge University Press, 2017).
 See Paul C. Light, “A Cascade of Failures: Why Government Fails and How to Stop It,” Brookings Institution Report, July 14, 2014 (https://www.brookings.edu/research/a-cascade-of-failures-why-government-fails-and-how-to-stop-it/).
 For a more elaborate discussion of these ideas see Nicholas Bednar, “The Public Administration of Justice,” Cardozo Law Review, forthcoming (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4189963). See also Nicholas Bednar and David E. Lewis, “Presidential Investment in the Administrative State,” Manuscript, Vanderbilt University (https://nbednar.com/wp-content/uploads/2022/06/Bednar-and-Lewis_Presidential-Investment-in-the-Administrative-State.pdf).
 See Andrew Healy and Neil Malhotra, “Myopic Voters and Natural Disaster Policy,” American Political Science Review 103(3):387-406 (2009).
 See Frances E. Lee, Insecure Majorities: Congress and the Perpetual Campaign (Chicago: University of Chicago Press, 2016).
 See David E. Lewis, “Deconstructing the Administrative State,” Journal of Politics 81(3):767-89.
 The public can pressure Congress to be attentive to performance, often with the help of external events like 9/11 or a presidential campaign but such attention tends to be episodic, often overwhelmed by other issues.
 See Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, NJ: Princeton University Press, 2008). See also Dean Reuter and John Yoo, eds. Liberty’s Nemesis: The Unchecked Expansion of the State (New York, NY: Encounter Books, 2016).
 Many Democrats also embraced the New Public Management (NPM) starting in the 1980s. This package of management principles emphasized a customer-focus, decentralization, market competition, performance measurement and other private sector management techniques. It reinforced the widespread belief that the administrative state was bloated and inefficient. It promised a path for cutting administrative costs while protecting programmatic spending. See Christopher Hood, “A Public Management for All Season?” Public Administration 69(1):3-19 (1991).
 For the argument about bipartisanship and capacity building see Alexander D. Bolton and Sharece Thrower, Checks in the Balance: Legislative Capacity and the Dynamics of Executive Power (Princeton: Princeton University Press, 2022).