Each year, the Supreme Court hears roughly 65 merits cases. The administrative state, meanwhile, issues thousands of rules. Given this institutional reality, along with the inherent vagueness of the so-called major questions doctrine, the worst mistake an agency can make is to clip its own wings.
In a society as deeply divided as our own, it is fanciful to think that we will be able to deliberate our way to a consensus. To resolve the longstanding puzzle of the administrative state’s democratic legitimacy, we need to resist the neoliberal impulse to erase politics and, instead, design opportunities for genuine contestation.