The Administrative State, Inside Out
Cass Sunstein* | Vol. 26 | Online | Citation: Cass Sunstein, The Administrative State, Inside Out, 26 U. Pa. J. Const. L. Online (2024).
Are administrative agencies illegitimate? A threat to democracy? A threat to liberty? To human welfare? To defining constitutional commitments? Many people think so. But an understanding of the actual operation of the administrative state, seen from the inside, makes it difficult to object to “rule by unelected bureaucrats” or “an unelected fourth branch of government.” Such an understanding casts a new light on some large objections from the standpoint of democracy, liberty, and welfare; indeed, it makes those objections seem coarse and largely uninformed. What is needed is more conceptual and empirical work on welfare and distributive justice, and on how regulators can increase both.
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*Robert Walmsley University Professor, Harvard University. I am grateful to Victoria Yu for superb research assistance. An earlier version of this essay was presented at the Hoover Institution on January 14, 2023, at a conference on the legitimacy of administrative law, and I am most grateful to participants there, and especially Jack Goldsmith, for valuable suggestions and comments.