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States, Agencies, and Legitimacy

Posted by on Monday, March 24, 2014 in Articles, Volume 67, Volume 67, Number 2.

3 – Seifter_67_Vand_L_Rev_443

Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as “administrative federalism,” now seeks to safeguard state interests in the administrative process and argues that federal agencies should consider state input when developing regulations. These ideas appear to be gaining traction in practice. States now possess privileged access to agency decisionmaking processes through a variety of formal and informal channels. And some courts have signaled support for the idea of a special state role in federal agency decisionmaking.

These developments have important implications for administrative law and theory. In particular, they bear on the paramount question of administrative legitimacy␣the decades-­long effort to justify the exercise of lawmaking power by unelected administrators in our constitutional democracy. A robust state role in the administrative process, this Article shows, is in tension with the models of legitimacy that have come to serve as administrative law’s North Star. Whereas the two reigning legitimacy models alternatively prize (1) centralized presidential control to ensure responsiveness to majority preferences, and (2) apolitical application of expertise, state input raises the specter of regional factionalism and home-­state politics. Two types of solutions could alleviate this tension: reforming state involvement in the regulatory process, or updating legitimacy models. The Article concludes by charting both courses␣identifying potential reforms and sketching possibilities for a new understanding of administrative legitimacy that would better accommodate the state role.