Relational Fairness in the Administrative State

Abstract

The American administrative state suffers from widespread claims of normative illegitimacy because administrative agencies and their personnel are neither enshrined in the Constitution nor directly elected. Supreme Court justices and commentators openly question whether agencies should be able to compel citizens to follow agency actions. Normative legitimacy is important to administrative agencies because it explains why people have moral duties to obey agency rules, including rules with which they may disagree, even though agencies lack the traditional hallmarks of democratic governance.

This Article answers the critics head-on by proposing a new theory of normative legitimacy for the administrative state called “relational fairness.” Relational fairness states that all persons potentially affected by agency action must have the opportunity to deliberate with the agency during administrative decision-making according to certain procedural, relational, and substantive values. In contrast to previous theories that attempted to legitimate agencies by connecting them to other political institutions, relational fairness articulates how the administrative state can attain normative legitimacy in its own right by establishing a new democratic relationship between agencies and citizens.

Although some courts have shown implicit concern for relational fairness, fully adopting the theory would lead to important doctrinal and policy changes to improve the legitimacy of the American administrative state. Relational fairness leads to a deferential form of arbitrariness review that reduces the ability of judges to insert their own ideological ends, re-introduces the importance of regulating agency ex parte communications, and unifies legal rules on valid agency usage of guidance documents. Relational fairness also argues notice-and-comment rulemaking is illegitimate and advocates for alternative informal rulemaking structures to improve the legitimacy of agencies. Relational fairness shows how agencies can resolve the tension between agencies and democracy, mitigate persistent political inequalities in administrative policymaking, and remove the sense of agency distrust that has plagued administrative law for the past century.

Keywords: administrative law, separation of powers, democracy, legitimacy, equality, arbitrary and capricious, ex parte communications, guidance documents, notice and comment, informal rulemaking