Legitimizing Agencies

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 presidential control. Despite the pitch of debate in elite legal circles, however, virtually nothing is known about the views of ordinary citizens — the very people whose beliefs constitute popular legitimacy.This Article replaces supposition and projection concerning what features contribute to agencies’ perceived legitimacy with the first evidence of Americans’ actual views. It presents the results of a novel set of experiments involving over seven thousand participants, in which each participant views one of twenty-four policy vignettes 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 show strong support for the century-old, seemingly shopworn idea that empowering politically insulated, expert decision-makers legitimizes agencies. With civil servants’ insulation 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. By contrast, the theory — influential on the Supreme Court — that greater presidential control enhances legitimacy receives no support.These findings further imply that, given that the public’s views on legitimacy differ by issue area, institutional designers should be open to discounting trans-substantive principles in favor of bespoke, agency-specific designs. Finally, these results open a new agenda for administrative law: to increase agencies’ legitimacy at a time when the administrative state is challenged, institutional designers should elicit the views of a broad cross-section of society