![handle is hein.journals/conlr56 and id is 1 raw text is:
CONNECTICUT
LAW REVIEW
VOLUME 56 DECEMBER 2023 NUMBER 1
Article
The Public Trust: Administrative Legitimacy and
Democratic Lawmaking
KATHARINE JACKSON
This Article argues that recent United States Supreme Court decisions
invalidating agency policymaking rely on a normatively unattractive and
empirically mistaken notion of democratic popular sovereignty. Namely, they rely
upon a transmission belt model that runs like this: democracy is vindicated by first
translating and aggregating voter preferences through elections. Then, the popular
will is transposed by members of Congress into the statute books. Finally, the
popular will (now codified), is applied mechanically by administrative agencies who
should merely 'fill in the details using their neutral, technical expertise. So long
as statutes lay down sufficiently intelligible principle[s] that permit their
application without significant discretionary remainder, regulation will carry
democratic legitimacy because they who will the ends the people will the means.
Although the transmission belt model comes in procedural, deliberative, and
populist varieties, each occludes the inescapable facts of political intermediation
and social conflict. No matter how participatory and rational, governance will
involve some officials somewhere making decisions that some citizens will dislike.
Even after citizen preferences are massaged by public reason or netted out through
compromise, it is impossible to speak of a single, identifiable popular will that is
capable of translation into legislative codes and regulations. Collectively, voters do
not behave in a way that makes them a plausible principle to a government agent.
Given these empirical problems, the transmission belt model carries several
unsavory undemocratic implications. For example, it can lead to a Schmittian
repression of social difference, should a demagogic leader claim to speak with the
(fictional) voice of the (fictional) people. It may lead to juristocracy, as judges and
technocrats claim unique insight into the substantive contents of public reason.
The Article suggests instead that models of democratic political representation
serve as better criteria to assess agency legitimacy. Theories of representation
recognize and take advantage of the institutional mediation of democratic input.
They protect and accommodate social conflict. They recognize, unlike pluralist,](ViewImageLocal?handle=hein.journals/conlr56&div=1&collection=&method=preview&ext=.png&size=3)
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