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...He then elaborated the way in which legislative standards, administrative decisional procedures, and judicial review sought to ensure the instrumental rationality of administrators' decisions and thus reconnect unaccountable administrators with electorally accountable expressions of legislative will. But, Stewart argued, this "transmission belt" (3) view of administration and administrative law failed to describe the reality of administration. Hence the tools of administrative law had to fail in their crucial task of legitimating administrative action by making administrators accountable to law. Once it was recognized that administrative agencies were engaged, not in instrumentally rational implementation, but in the "essentially legislative process of adjusting the competing claims of various private interests affected by agency policy," (4) the transmission belt theory collapsed.
The heart of Stewart's article is then a description and critique of administrative law's attempts, primarily through judicial action, to reconceive the structure of agency accountability. By recognizing new interests based in legislative entitlements and broadening access to judicial review, courts, in Stewart's view, had reimagined agency accountability as a process of pluralist interest representation. The micro-politics of participation would substitute for the macro-politics of assembly decisionmaking. But Stewart was deeply skeptical about the success of this new paradigm of administrative legitimacy.
A host of problems beset the interest representation model. Agency interest balancing, detached from legislative bargaining, challenged core conceptions of democratic accountability. Moreover, Stewart doubted that this model could produce both fair and workable administrative processes. Many interests seemed destined to remain under-resourced and under-represented. And, accommodation or balancing of interests may be the antithesis of the development of stable and coherent administrative policies. Echoing Theodore Lowi's complaints about the lack of authoritativeness of American public law, (5) Stewart questioned the capacity of courts, as legal institutions, to supervise an administrative process understood as a process of micro-political bargaining. In one of the many prescient passages in the article, Stewart anticipated that judicial policing of interest representation was likely to produce ad hoc and unpredictable outcomes which would intolerably burden the making and execution of administrative policy. His beautifully-crafted, but dour, final sentence advised that "we can know only that we must spurn superficial analysis and simplistic remedies, girding ourselves to shoulder, for the indefinite future, the intellectual and social burdens of a dense complexity." (6)
Contemporary Anxieties
There is no escaping the overall impression left by Reformation. Understood as a project of making administrators accountable to the legislative will, administrative law was failing. The old transmission belt model was in tatters; and, whether others could see it or not, Stewart was clearly predicting that its successor, interest representation, would suffer a similar fate. But that was then and this is now. Has Stewart's "dense complexity" persisted, and along with it a sense of unease about the legitimacy of administrative action? Or has some new model of administrative accountability emerged to make administration both efficacious and legitimate?
This is hardly the place to rehearse the last thirty years of developments in American administrative law, but my sense is that little has improved and new problems have emerged. To a limited extent, the judiciary has retreated from the process-demanding and beneficiary-empowering jurisprudence of the 1960s and 1970s. (7) But few believe that this has had any substantial impact on the immobilizing potential of broad and vigorous participation in administrative processes backed by legal sanctions. (8) Indeed, representation reinforcing judicial review is constantly identified as a major culprit in the so-called "ossification" of the administrative process. (9)
To some degree, political accountability has been reimagined in a model that might be called "presidential administration." (10) Increased executive oversight over the federal bureaucracy through enhanced powers in the Office of Management and Budget was beginning as Stewart published Reformation, and presidentialism has since been reinforced judicially, both by Chadha's (11) invalidation of the legislative veto and by Chevron's (12) acceptance of implicit delegation of policymaking to administrative agencies that are subject, within the broad constraints of statutory authority, to presidential direction. To some degree, the recognition that presidents are elected by the people and are heads of administrations refurbishes the transmission belt, but attaches it to a more complex governmental machine. (13)
But presidentialism does not exclude, or even suppress, the demand for conformity to legislation. It sets the stage, instead, for a political power struggle between the executive and legislative branches for the hearts and minds of administrators. And because administrators clearly are beholden to two political principals, we cannot be certain that they are really accountable to either. "The President told me to do it" is simultaneously practically authoritative and legally irrelevant. That Ronald Reagan campaigned on regulatory relief for the automobile industry was as legally impotent in State Farm (14) as Bill Clinton's Rose Garden "authorization" of the FDA's regulation of tobacco in Brown and Williamson. (15) "Presidentialism" may have more descriptive than normative significance. And to the extent that presidents attempt to shift policy direction without a legislative mandate, their political direction can easily be viewed as undermining, rather than reinforcing, legal accountability. (16) Moreover, because presidential and congressional controls have in the past several decades relied importantly on analytic requirements audited by the Office of Management and Budget, these new forms of political accountability reinforce the torpidity of the administrative process ushered in by interest representation. (17)
The intellectual critique of the legal accountability mechanisms that Stewart rehearsed in Reformation has broadened and deepened in the thirty years since that article was published. For the critique of administrative law now takes place within a broader intellectual challenge to state-based liberal legality. Positions that were novel in 1975 have become virtually the default position for discussion of the legitimacy of public action.
That critique goes something like this: Public law--that is, administrative and constitutional law--mostly regulates regulators. It establishes the institutions and processes of governance and mediates between the claims of the state as a public collective and the claims of those individuals and private collectivities subject to state power. In liberal states, those in which individuals are seen as the basic unit of social and political value, the exercise of state power is conditional on respect for individual autonomy or moral agency. It must, therefore, be made accountable to those it governs. State power that lacks this liberal pedigree, state coercion without consent, or state action that undermines the necessary conditions for the maintenance of citizen autonomy, and with it the capacity for authentic consent, is illegitimate. It is the job of public law in liberal states to prevent or redress these illegitimate exercises of state power.
Put in terms of contemporary agency theory, in liberal states the people are the principals and government officials are their agents. Public law polices the principal-agent relationship and seeks to assure the accountability of agents to principals through myriad structural, procedural, substantive and remedial devices targeted at the standard state practices for the creation and implementation of state policies: legislation (or voting), administration and adjudication. The generic accountability devices that map onto these traditional state processes include: (1) periodic elections under conditions of open access to offices and majority rule and the political accountability of administrators to duly elected political officials; (2) hierarchical accountability within administrative bureaus; and (3) transparent and impersonal application of general norms using fair adjudicatory procedures.
Alas, few believe that these approaches do more than put loose boundary conditions around the exercise of official discretion. (18) The relationship between citizens' votes (perhaps even legislators' votes) and the output of the legislative process is notoriously weak. Bureaucrats defect from and subvert political accountability systems designed to regulate their conduct. Bureau administrators act on the basis of vague mandates and are, at best, subject to episodic oversight by political principals who often lack the relevant information necessary to monitor administrative performance effectively. Courts are bound by the law, but giving meaning to the law's commands outruns any cogent articulation of a necessary relationship between general legal norms and the outcome of particular cases.
Critiques of liberal legality's claims to legitimacy, premised on the ineffectiveness of voting, hierarchical political control and reason-giving to ensure real accountability, are ubiquitous. Depending upon the critic's disciplinary and political perspective, liberal legal processes are described as a mystification that provides symbolic comfort to the uninformed, a cover for interest group diversion of public resources to private ends, or an instrument of class, racial or gender oppression. On these accounts, accountability as control has failed and with it the liberal project of moral autonomy within a framework of collective action.
Although liberalism's critics often overstate their case, they rightly give rise to anxiety about the feasibility of the accountability project upon which so much of liberal legality depends. Control of government through hard law--"rights" to the franchise, institutional checks and balances, procedural regularity, and compulsory judicial jurisdiction--is surely incomplete. Hence it is not too surprising to find that these relatively familiar critiques of liberal legality's accountability narratives have been joined by a distinctive and relatively recent strain of "soft law" partisans, who find the "hard law" control story both myopic and dysfunctional. Myopic because accountability as control through hard law techniques misses much of the action. (19) Dysfunctional because "hard law" approaches both fail to implement more responsive and effective techniques for assuring accountability, and also may stifle soft law processes that can only flourish if shielded from the threat of hard law incursions. (20)
What I am calling the "soft law" critique is made up of diverse strands of both empirical and normative commentary. For some, an understanding of the effective processes of accountability in governance requires "decentering the state" (21) so that the foreground of our picture of governance institutions can accommodate the diverse modalities of norm creation and application that go on outside the purview of formal state institutions. Others urge on normative grounds that we abandon accountability through hierarchical control as inherently inconsistent with forms of responsive law that we would find both more effective and more satisfying. (22)
These ideas are sometimes suggested as reforms within existing bureaucratic processes (23) and sometimes as alternatives. (24) They march under varying trade names as scholars search for simple images that will capture their complex visions of how public law processes are being or could be transformed. But for now we might group these ideas as visions of accountability as responsiveness, encompassing within that notion both process responsiveness (processes that are discursive, interactive, open and participatory) and outcome responsiveness (decision outcomes that are contextual, spontaneous, experimental and revisable).
A multi-decade-long critique of command and control regulation in the United States, for example, has focused on the inefficiency of regulatory requirements. In some cases, the call has been for deregulation and a return to the market. In others, it has featured the insinuation of market-like devices into regulatory systems. (25) Critics of rule-bound public law regimes also suggest movement toward regimes that emphasize negotiation, trust, and the development of common normative understandings. (26) Whether in the development of environmental regulations or the treatment of drug offenders, reformers suggest that better, more effective, and more acceptable results can be effected by developing communities of interest that rely on techniques of social accountability to promote appropriate conduct.
As described, these softer law approaches need not be strongly competitive with standard public law accountability ideas. They could merely be a means of reform and reinforcement. Indeed, to the extent that soft law regimes already inhabit the interstices of hard law, recognition of their role and their contribution to accountability--exemplified by the reemerging norms literature (27)--could form an important part of the accountability project implicit in public law liberal legality.
But this optimistic view of careful institutional design to integrate responsive law into conventional public accountability regimes may describe a world that is not wholly available to us. Demands for hard law accountability are difficult to suppress. (28) And, authoritative resolution through hard law processes may stamp out interactive problem solving, stifle experimentation and stymie recursiveness. Being called to account by judges wielding legal rules (29) or by political controllers with urgent political demands (expressed through the inevitably clumsy vocabulary of legislative command or removal from office), can both delegitimate soft law accommodations and demoralize further efforts at responsible stewardship. Yet to abandon hard law controls in favor of soft law accommodations leads to precisely the conundra that Stewart saw in relation to the interest representation model--a fragmentation of authority that can as easily be described as the hijacking of public power by narrow interests as the legitimation of public authority through pluralist, participatory democracy.
While intellectual and political critique has continued to plague standard forms of public law administration, those standard forms have been losing ground in practice as well. At about the time Reformation was published, the political tide began to run strongly against "big government" in the Anglo-American world. Informed by intellectual commentary and concrete experience, both governing elites and ordinary citizens began to feel that modern "welfare" and "regulatory" states had over promised and underperformed. "Privatization", "deregulation", "contracting out" and "devolution" became the watchwords of governmental reform, and a "new public management" was created to try to align the theory of what had been "public administration" with the realities of governments who sought, in the now-fashionable image, "to steer rather than row." (30)
In many cases in the United States contracting out administration to states, localities, non-profits or for-profit firms is an undertheorized response to necessity. Most government departments and agencies at the national level in the United States have operated under some version of a hiring freeze, punctuated by substantial force reductions, for the past thirty years. There were approximately one-third fewer federal civilian employees in relation to the total U.S. workforce at the end of the Clinton administration than at the end of the Eisenhower Administration. (31) Yet over that period, the responsibilities of the federal government grew spectacularly. Technological advance helps, but governance remains a labor intensive enterprise. The only way to truly do more with less has been to borrow someone else's employees. Analysts estimate that for every federal civilian employee there are eight private, non-profit, state or local employees carrying out federal policies under varying forms of contractual, quasi-contractual or "mandate" arrangements. (32)
This situation is reminiscent of the way the fledgling United States fielded a navy both in its revolutionary struggle and the War of 1812. Unable to pay for a regular navy, it licensed privateers to work on commission. Everyone understood that regulation of...
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