Brian D. Feinstein

The project of bolstering the administrative state’s perceived legitimacy is central to administrative law. To enhance agencies’ legitimacy with the public, generations of judges and scholars have variously called for changes designed to insulate technocrats from political influence, involve interested members of the public, and subject agencies to greater political control. Despite the pitch of debate in elite legal circles, however, little is known about the views of ordinary citizens—the very people whose beliefs constitute popular legitimacy.

This Article provides evidence of Americans’ actual views concerning what features contribute to agencies’ perceived legitimacy.It presents the results of a set of experiments in which each participant views a policy vignette with varied information concerning the structures and procedures involved in generating the policy. Participants are then asked to assess, by their own lights, the policy’s legitimacy.

The results support the century-old idea thatempowering politically insulated, expert decision-makers legitimizes agencies. With the insulation of civil servants from appointees and the independent-agency form under strain, this finding implies that, for proponents of a robust administrative state, an independent and technocratic civil service is worth defending. There also is some evidence that public participation in agency decision-making bolsters agencies’ perceived legitimacy. By contrast, the theory—influential on the Supreme Court—that greater presidential involvement enhances legitimacy receives no support.

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The concept of legitimacy exerts a talismanic pull in administrative law. Law students learn of claims that the field “suffers from a near-perpetual crisis of legitimacy” from a leading case book. Prominent scholars agree. Four decades ago, Professor James Freedman famously declared that administrative agencies face a “recurrent sense of crisis” that calls for “developing a theory of the legitimacy of the administrative process.” The drumbeat has only gotten louder in recent years. Incredibly, approximately 25–30% of administrative law scholarship published in the 2000s discusses the legitimacy of administrative agencies—a roughly threefold increase since the 1940s.

There is good reason for this emphasis. The New Deal consensus—under which opposing interests skirmish over specific regulations, and the political branches and courts occasionally modify or add procedural requirements, but do not challenge the fundamental premise that agencies validly exercise authority— has shattered. A major political party asserts that policymaking by regulatory agencies contributes to a constitutional “crisis” that “undermines” self-governance. Supreme Court Justices decry “a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure” and warn against “the danger posed by the growing power of the administrative state.” These concerns motivate, in part, the Court’s recent holdings that have eroded the power and independence of regulatory agencies. In this climate, the stakes for understanding how to buttress agencies’ legitimacy are considerable. 

Confronted with a perceived imperative to legitimize the administrative state, a wide array of judges and scholars look to agency structures and processes. While these actors agree that legitimizing administrative agencies is a worthy objective, their favored means to further this goal differ markedly. Their prescriptions generally can be classified into one of three distinct camps. One prominent paradigm considers agencies to be legitimate when they marshal their expertise. A second perspective holds that avenues for public participation legitimize decisions made by otherwise cloistered agencies. A third view, closely as sociated with Justice Elena Kagan and reiterated recently in Chief Justice John Roberts’s majority opinion in United States v. Arthrex, Inc., advocates for greater presidential control of agencies on the grounds that control by a democratically accountable president legitimates administrative decision-making.

Judges and scholars, claiming that their favored structures enhance agencies’ legitimacy, presumably invoke that term to mean something beyond baseline legality and distinct from simply agreeing with the policies that agencies with these structures ultimately produce. When the term is defined, the definition often maps on sociologist Max Weber’s concept of sociological legitimacy: the public’s belief that power is exercised in a manner that is justified, leading people to accept even those outcomes with which they disagree. But does the public actually think in this way? What administrative structures and procedures, if any, do Americans actually associate with administrative legitimacy? 

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This Article brings empirical evidence to bear on this debate. It presents a set of online experiments involving over nine thousand participants, in which each participant views a vignette concerning policymaking at an administrative agency. Each vignette emphasizes a different aspect of the policymaking process that influential actors claim enhances legitimacy. Participants are then asked to rate how legitimate they believe the agency’s decision to be. If the randomly assigned set of participants who view a vignette with information about a particular element rate the agency’s decision as more legitimate than the randomly assigned participants who view an otherwise identical vignette without this information, that finding would suggest that this element enhances the agency’s perceived legitimacy.

Importantly, the experiments do not define legitimacy for participants. For some people, information concerning administrative structures and processes may influence their view of the agency’s legitimacy. Others may simply consider outcomes with which they agree to be legitimate and those with which they disagree illegitimate.

Regardless of how participants conceptualize legitimacy, however, these experiments enable testing of the myriad claims that administrative lawyers make concerning how particular structures affect agencies’ legitimacy. In other words, they offer a means of shedding light on which doctrinal strand of administrative law, if any, has the better of the argument concerning how to bolster agency legitimacy in the eyes of ordinary Americans—under whatever vision of legitimacy those individuals adopt.

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This Article proceeds infour parts. Part I sets the scene by collecting and categorizing the literature’s myriad claims on how to increase agencies’ legitimacy. The Part begins by discussing how influential social theorists and legal scholars outside of administrative law consider popular acceptance as fundamental to legitimacy. It then presents a typology of the major legitimacy claims in administrative law scholarship. The Part classifies these claims into three broad paradigms: agency legitimacy is enhanced through empowering politically insulated technocrats, promoting public involvement, or strengthening the president’s role in agencies’ decision-making. 

Part II presents the research design of the experiments used to assess the three paradigms. Part III reports the results. One headline from these experiments is that structures designed to elevate technocratic civil servants are associated with greater perceived legitimacy across the board (although the size of the bump is modest). Mechanisms designed to enable public participation in agency decision-making also may be associated with greater legitimacy, although here many results fall short of conventionally accepted levels of statistical significance. By contrast, increased White House involvement yields no consistent effect. That finding is at odds with the view, which influential judges and scholars adopt, that greater presidential control enhances the administrative state’s legitimacy. Part III also shows that Americans can distinguish between whether a policy is legitimate and whether they personally support that policy.

Part IV offers a prescriptive blueprint for institutional designers. Whereas some commentators claim that an empowered, politically insulated civil service detracts from government’s legitimacy, the public appears to believe the opposite. Therefore, proponents of administrative governance ought to strengthen civil service protections—which have been under threat in recent years—as a means of buttressing an administrative state under strain.21 These proponents also should consider expanding avenues for public participation in agency decision-making, as public involvement also may bolster agencies’ perceived legitimacy.

As importantly, Part IV casts cold water on the dominant presidential administration paradigm. Judges and scholars who argue that greater presidential control—often at the expense of civil servants—increases legitimacy appear to have gotten it exactly backward. Instead, empowering expert decision-makers and shielding them from political actors may enhance legitimacy. At a time when courts and political leaders challenge the power and independence of the civil service, this finding provides a firm rejoinder.

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The Article ends with a call for future experimental research on agency design. Essentially, this study provides a proof of concept; claims concerning how specific administrative structures and judicial doctrine change the public’s perceptions of agencies are testable. Of course, there are other important values in addition to legitimacy; other design features aside from those related to expertise, participation, and presidential administration; and other administrative functions and subjects apart from those described in these vignettes. Accordingly, future research in the vein of this Article could mark a trail to enable leaders to optimize the design of administrative institutions in the public’s eyes.

For over one hundred years, administrative lawyers have endeavored to legitimize administrative agencies within the constitutional order. This project has progressed largely without evidence of what factors nonelite actors believe contribute to agencies’ legitimacy. That oversight is glaring, particularly because, for many participants in this discourse, popular acceptance is foundational to legitimacy. 

This Article presents experiments designed to elicit ordinary people’s views on what structures and processes contribute to administrative agencies’ legitimacy. From studying the responses of participants in these experiments, several noteworthy findings emerge. For one, elevating the role of politically insulated technocrats in agency decision-making is correlated with an increase in those decisions’ legitimacy with the public. For proponents of a robust administrative state, this finding shows that a politically insulated civil service—which has been challenged in recent years— is worth defending. Further, affording opportunities for public participation also may serve a legitimizing function, albeit with some uncertainty around this conclusion. By contrast, increased presidential involvement—which an ascendant set of scholars and judges claim legitimizes administration—has a mixed, seemingly vignette and participant-dependent relationship with perceived legitimacy.

For supporters of administrative governance, these findings should engender optimism. In the current political climate, a degree of cynicism about both experts and fellow citizens is common. Nonetheless, people appear to value the former group’s involvement in governance, and may value the latter group’s role as well. Accordingly, a turn away from presidential administration and toward expert-driven and participatory legitimation paradigms could improve confidence in administrative governance at a time when it is in short supply.