A civic republican justification for the bureaucratic state

Harvard Law Review

Volumn 105, Issue 7, 1992, Pages 1512-1575

  Seidenfeld, Mark ^a,b  

^a William Mitchell College of Law   (United States)

^b Florida State College of Law ^*

Author keywords

[No Author keywords available]

Indexed keywords

EID: 11944263707     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341745     Document Type: Article

References (19)

1. See, e.g., Federal Trade Commission Act, 15 U.S.C. § 45(a)(2) (1988) (requiring the FTC to "prevent persons . . . from using unfair methods of competition"); Federal Power Act, 16 U.S.C. § 824e(a) (1988) (requiring the FERC to set electricity transmission wholesale electric rates that are "just and reasonable" and not "unduly discriminatory"); Federal Communication Act, 47 U.S.C. § 303 (1988) (requiring the FCC to regulate broadcasting "as the public convenience, interest or necessity requires"); see also Peter L. Strauss, Legislative Theory and the Rule of Law: Some Comments on Rubin, 89 COLUM. L. REV. 427, 427-30 (1989) (describing the shift from congressional standard-setting to congressional delegation to agencies, which then set the standards themselves).
2. See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944).
3. See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-45 (1984); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565-69 (1980).
4. Legislation passed by Congress defines and limits agency power to act, and the agency must regulate in accordance with its enabling statute. The President cannot legally make a decision that Congress has entrusted to an agency; she can only try to persuade the agency to decide as she would like. See Morrison v. Olson, 487 U.S. 654, 691-96 (1988). The President has no direct authority over "independent agencies"; she can neither dictate her policies to them nor remove agency members, except for statutorily defined cause, and removal is reviewable by the courts. See Humphrey's Executor v. United States, 295 U.S. 602, 629-30 (1935). The President does have the authority to remove the heads of "executive agencies" at will but pragmatically this still does not give her the power to dictate agency policy. A President might face great political pressure if she removed an agency head for adopting a policy with which the President disagreed after the agency had developed a record and carefully explained how that policy furthered the enabling statute's goals. Cf. MARTIN SHAPIRO, WHO GUARDS THE GUARDIANS? 112 (1988) (noting that the participants in a rulemaking proceeding would be "outraged" if at the end the President simply told the agency which rule to adopt). Furthermore, the President might not want to replace the agency head if she otherwise considers the agency head to be effective. Finally, replacing the agency head will only have an effect if the President can be sure that she can get the Senate to approve the appointment of a replacement who will heed the President's command. See generally Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 587-91 (1984) (discussing presidential direction of agencies).
5. Legislation passed by Congress defines and limits agency power to act, and the agency must regulate in accordance with its enabling statute. The President cannot legally make a decision that Congress has entrusted to an agency; she can only try to persuade the agency to decide as she would like. See Morrison v. Olson, 487 U.S. 654, 691-96 (1988). The President has no direct authority over "independent agencies"; she can neither dictate her policies to them nor remove agency members, except for statutorily defined cause, and removal is reviewable by the courts. See Humphrey's Executor v. United States, 295 U.S. 602, 629-30 (1935). The President does have the authority to remove the heads of "executive agencies" at will but pragmatically this still does not give her the power to dictate agency policy. A President might face great political pressure if she removed an agency head for adopting a policy with which the President disagreed after the agency had developed a record and carefully explained how that policy furthered the enabling statute's goals. Cf. MARTIN SHAPIRO, WHO GUARDS THE GUARDIANS? 112 (1988) (noting that the participants in a rulemaking proceeding would be "outraged" if at the end the President simply told the agency which rule to adopt). Furthermore, the President might not want to replace the agency head if she otherwise considers the agency head to be effective. Finally, replacing the agency head will only have an effect if the President can be sure that she can get the Senate to approve the appointment of a replacement who will heed the President's command. See generally Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 587-91 (1984) (discussing presidential direction of agencies).
6. See, e.g., THEODORE J. LOWI, THE END OF LIBERALISM 92-126 (2d ed. 1979);
7. James O. Freedman, Delegation of Power and Institutional Competence, 43 U. CHI. L. REV. 307, 307-309 (1976);
8. Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276, 1279-80 (1984).
9. See FRANK J. GOODNOW, THE PRINCIPLES OF THE ADMINISTRATIVE LAW OF THE UNITED STATES 325-26 (1905);
10. A. A. Berle, Jr., The Expansion of American Administrative Law, 30 HARV. L. REV. 430, 441-42 (1917).
11. See JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 142-43 (1938).
12. See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY 288-89 (1965).
13. For the historical development of these justifications and models for administrative decisionmaking, see SHAPIRO, supra note 4, at 36-54; and Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1671-88 (1975).
14. See, e.g., MICHAEL J. PERRY, MORALITY, POLITICS, AND THE LAW 102-03 (1988);
15. Bruce A. Ackerman, The Storrs Lecture: Discovering The Constitution, 93 YALE L.J. 1013, 1032-43 (1984);
16. Frank I. Michelman, The Supreme Court, 1985 Term - Foreword: Traces Of Self-Government, 100 HARV. L. REV. 4, 17-77 (1986);
17. Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 45-48 (1985).
18. See generally Symposium, The Republican Civic Tradition, 97 YALE L.J. 1493 (1988) (detailing most aspects of civic republican theory).
19. This revival is part of a more general rekindling of interest in republicanism in constitutional history, see, e.g., DAVID F. EPSTEIN, THE POLITICAL THEORY OF THE FEDERALIST 4-7 (1984);