Taking Democracy Seriously in the Administrative State

PUBLISHED

Daniel E. Walters (@DanielEWalters_) is Assistant Professor of Law at Penn State Law.

PUBLISHED

Daniel E. Walters (@DanielEWalters_) is Assistant Professor of Law at Penn State Law.

Whether we’re for the administrative state or against it, when we need a theory to do normative heavy lifting in our thinking, it is almost invariably a democratic theory. Scholars like Blake Emerson and Bill Novak, for instance, trace the origins of the modern administrative state to the explicitly democratic visions of reformers like John Dewey. At the same time, critics of the administrative state also ground their skepticism of administrative discretion in an account of democracy that emphasize the primacy of elected officials in taking all but the most ministerial of public actions.

It is striking, however, that in most discussions about the democratic bona fides of administration, or about how we might democratize agency processes, we rarely specify what we mean by democracy. Worse, perhaps the most widely shared beliefs about democracy—that there ought to be an identifiable public, or a demos, that deliberates its way to a consensus and controls the actions of the government—is fanciful in a society as deeply divided and inegalitarian as ours. In case after case, from the mask mandate on public transportation to the status of the Dreamers, administrative decisions do not earn the buy-in of roughly half of our polarized electorate, and the dissent (even from institutions, like rogue district courts) has become more obstinate.

If a working consensus among the public is a necessary pre-condition for democratic administration, it should not be surprising that there is such persistent malaise hanging over the institution. Acknowledging that fundamental disagreement over the regulatory policies and social benefits programs administered by the bureaucracy is inevitable is to accept that the operation of the administrative state implicates raw political power. Notwithstanding pervasive rhetoric about deliberative processes of notice-and-comment rulemaking and electoral mandates, there will be winners and losers in the outputs of the administrative state. But this fact need not lead us to reject the institution. In fact, the administrative state is essential to democracy, just not the form of democracy we are used to thinking about.

From Consensus to Contestation

We need to come to grips with the fact that consensus is illusory and cannot (and should not) be relied on to de-politicize and de-power the administrative state. But if consensus cannot do that work, then what legitimate reason can there be for exercising this power in a way that will create winners and losers? To be democratic, the state needs to supply some other kind of reason to keep people engaged in the shared enterprise of governing and being governed even when we do not agree with the decisions that rule the day. On the surface, this looks like an unresolvable paradox, and one at the heart of many of our contemporary crises of law and democracy. But it is not unresolvable.

In order to solve the paradox, it is necessary to widen our democratic lens to entirely extirpate the neoliberal impulse to erase politics. This is the central insight of agonistic democratic theory, and, as I argue in a forthcoming article, this tradition’s emphasis on ongoing contestation and unsettlement provide a theoretical foundation for a resolution of the longstanding puzzle of the administrative state’s democratic legitimacy.

While there are many strands of agonistic democratic theory, Chantal Mouffe’s thinking is particularly helpful in the context of administration. For Mouffe, disagreement is not just an empirical fact—it is constitutive of the very idea of democracy itself. As she explains, “once we understand that every identity is relational and that the affirmation of difference is a precondition for the existence of any identity … we can understand why politics, which always deals with collective identities, is about the constitution of a ‘we’ which requires as its very condition of possibility the demarcation of a ‘they.’” In other words, democracy is all about defining what the demos stands for and what it does not, and in those meaningful decisions, people and ideas in society are inevitably excluded and marginalized. Thus, it is not possible to realize a “full totalization of society … beyond division and power” no matter how hard we try to deliberate or aggregate our way to a working consensus beyond politics.

For Mouffe, the resulting instability in democratic politics cannot be eradicated, but we can harness the instability for the democratic good. Left untended, the instability tends to metastasize, resulting in oligarchical accumulation of power by the already powerful and, because of it, “antagonism” (i.e., violent conflict or civil war) from those persistently marginalized by decisions. Insisting that power is not operating here and that there is, or ought to be, a consensus only adds insult to injury and makes it more likely that we will slide into antagonism. But if we tend to this instability by making conflict and contestation central to democratic practice, we can transform antagonism into agonism: a “conflictual consensus” where we can coexist as mere adversaries rather than enemies. Institutionally, what this suggests is a need to design or facilitate opportunities for genuine contestation, including opportunities to unsettle decisions, and even institutions. As John Dewey wrote in The Public and Its Problems, seemingly anticipating the agonistic perspective in the context of administration, “the state must always be rediscovered.”

To be sure, one need not accept every twist and turn of this particular agonistic theory of democracy to recognize the appeal of a contestatory turn in democratic theory. Across the board, from constitutional law to criminal law to administrative law, the problem we face is the lack of opportunity for genuine contestation over the structural premises that have led to the accumulation of power and the exclusion of the perspectives of marginalized people. While our instincts are often to avoid or be indirect about political conflicts, this tendency must be unlearned if we are to reclaim an equal share in determining our collective political identity. Friendly contestation is the glue that holds a pluralistic democracy together in the long run.

The Necessity of Agonistic Administration

Abstract political theory aside, making administration more agonistic can help to solve several pressing problems plaguing the institution. In my article, I provide more details on the institutional implications of agonistic administration and possible reforms to familiar procedures like notice-and-comment rulemaking, but here I focus on the larger payoffs of an agonistic turn in thinking about administration.

First, by shifting our energy away from trying to engineer administrative procedures that will reduce conflict and towards procedures that amplify conflicts, we can reverse the spiral of delegitimation that is taking hold in the administrative state. Mouffe is right that our failure to confront conflicts has only made us more anti-social. As Amanda Ripley argues in her book on “high conflict,” when people confront conflict head on, they “become capable of comprehending that with which they still disagree. Like someone who learns a second language, they start to hear the other side without compromising their own beliefs. And that changes everything. Curiosity returns. Humanity revives. IQs go back up. Conflict becomes necessary and good, instead of just draining.” When it comes to the politically charged decisions that the administrative state is tasked with making—e.g., decisions about who will count as part of our political community or what kinds of sacrifices individuals will be expected to make for the sake of public health—we run the risk of high conflict when we pretend that any single administrative decision has any capability of conclusively resolving the issue and ending the debate.

Second, and relatedly, agonistic administration promises to reduce economic and social inequalities. While courts are responsible for much of the oligarchic quality of contemporary society, agencies are responsible for their fair share. It is hands-off antitrust enforcement by the Federal Trade Commission and the Department of Justice, for instance, that has enabled massive accumulations of economic and political power in the corporate sector. It is the faux neutrality and distributional agnosticism of cost-benefit analysis that has led to an inordinate emphasis on the costs of regulation in every administration. Baking contestation into administrative practice would make it far more difficult for these kinds of moves to be presented as neutral applications of expertise. And it would also open up space for Dewey’s positive and experimentalist project of “rediscovering the state.”

Third, agonistic administration provides built-in safeguards against the rising tide of authoritarianism in our politics. A bipartisan impulse when faced with the obvious democratic deficits of having unelected administrators making deeply political determinations is to render civil servants more accountable to political overseers, including the president. While there is a place for political control of the bureaucracy, it is also clearly a danger when combined with powerful leaders who could use the institution to agglomerate power for themselves. President Trump’s paranoid vendetta against what he termed the “deep state” illustrates the potential problem. An agonistic administrative state would push in the opposite direction by institutionalizing conflict even when a president would prefer to suppress it. And as Anya Bernstein and Cristina Rodríguez have recently argued, we do not necessarily sacrifice accountability by cultivating inter-institutional contestation and limiting the reach of the administrative presidency.

Making administration contestatory, and thus democratic, is a massive project that will require innovative and experimental institutional reform. But a necessary first step is recognizing that administration is not sequestered from politics and needs to be shaped by political action that represents the full spectrum of political possibilities. This is where a turn to agonistic democratic theory can help.

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