Mark Seidenfeld · September 2013
81 GEO. WASH. L. REV. 1397 (2013)
Since at least the mid-1980s, some scholars of United States administrative law have touted deliberative democracy as a promising theory to justify the modern administrative state. Those who advocate deliberative administration, however, have not easily incorporated the role of democratic politics into their models of that state.
This Article begins by reviewing the historical development of the most prevalent model of political influence on agencies—the presidential control model—and summarizes arguments supporting that model. It proceeds to criticize the presidential control model for failing to promote the goals of a deliberative regulatory state. It then presents deliberative justifications for the administrative state, but argues that agency rulemaking almost always involves value judgments that can be justified only by invocation of political control. Next, it reviews approaches to incorporating politics via public deliberation or agency expertise, but concludes that none set out a workable role for politics in the administrative state. Finally, the Article attempts to develop such a workable role, and ultimately suggests that, although political influence is essential, such influence must be structured and exercised carefully in order to maintain the deliberative advantages of administrative agencies.
