Direct Republicanism in the Administrative Process

David J. Arkush

Abstract

This Article offers a new response to an old problem in administrative law: how to secure sound, democratically legitimate policies from unelected regulators. The question stems from a principal-agent problem inherent in representative forms of government—the possibility that government officials will not act in the public’s best interests—and it is rarely absent from legal and policy debates. Major regulatory failures and the government’s responses to them have renewed its significance in recent years, as agencies implement new laws and adapt old ones, courts review their actions, and the White House and the Congress debate regulatory reform proposals.

Traditional models of democratic legitimacy in administrative law focus on holding agencies accountable to elected officials or increasing interest-group participation in the regulatory process. The models are valuable but fall short, largely because their representative nature replicates rather than remedies the core principal-agent problem. More recently, some scholars and reformers have attempted engage citizens directly in the regulatory process. These efforts have not circumvented the representation-based problems, and they have introduced new ones as well—the high costs and other complications of direct democracy that counsel in favor of representative forms of government.

This Article introduces a new model for democratic legitimacy, "direct republicanism," which attempts to combine elements of both representative and direct approaches. In a direct republican system, large panels of randomly selected citizens decide policy questions presented to them by government officials. In this way, citizens can act as their own representatives, the principals their own agents. The Article sketches an initial application of direct republicanism to the regulatory process in the form of "administrative juries."