Wendy Wagner

What are the key ingredients for a more democratically-grounded administrative state? The answers vary, but most scholars advocate for some type of agency decision-making that resolves Congress’ mandates expeditiously, while also providing “reasons” for those decisions that draw on the best scientific advice, solicit views from all affected groups, and follow accountable procedures. Whatever specific theory one adopts for the “democracy question,” (P. 5) however, most scholars seem to agree that the end goal for agencies is to resolve an issue and then move on.

Daniel Walters turns that conventional thinking on its head in his provocative piece forthcoming in the Yale Law Journal, The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State. A primary goal for administrative decision-making, Walters argues, is not to reach closure on the issues agencies are asked to resolve, but rather the opposite. Agencies should strive to nurture and maintain deliberation and even disagreement, without worrying so much about whether there is a clear path out of the conflict.

Walters supports his argument by summoning a political theory that is likely unfamiliar to most legal scholars (or at least it was to me), called Agonistic Democratic Theory (or Agon for short). Agon accepts existing irresolvable differences of opinion as a given and endeavors to find a democratic way to resolve society’s problems incrementally, despite sharp disagreements. Agon is thus distinctive in “emphasiz[ing] the inevitability of political conflict and build[ing] democratic legitimacy around that conflict rather than attempting to elide it by achieving or declaring a settlement.” (P. 9.)

After providing a stunning synopsis of how Agon is situated against the other leading democratic theories for the administrative state, Walters explains how Agon offers a completely different framework for thinking about administrative legitimacy. Agon finds legitimacy in the “‘unsettlement’ of the law” rather than the converse. (P. 9.) Agencies, in other words, should be judged by whether they engage diverse interests meaningfully and review past decisions for needed changes, not on how swiftly and effortlessly they forge policies despite this disagreement. Walters acknowledges that Agon is not the only or necessarily the best theory for administrative governance; there inevitably will be cycling among theories. His point instead is that an Agon approach has been largely ignored, and yet in our divided government, this paradigm-shifting theory provides a way to reconceptualize and even redesign the much-maligned administrative state.

Agon also aligns much more closely with today’s bureaucratic realities. Rather than complain about the unsettled state of divisive regulatory decisions like Biden’s vaccine mandate, Agon helps us understand and even appreciate that a “winner-take-all” approach is not the best one for democracy. Perhaps OSHA should have initiated a more incremental approach at the outset rather than allow the courts to seize control, but regardless, the end goal for value-laden regulatory decisions must be an inclusive process that provides dissenters with an opportunity to contest the results.

The novelty of this new theory for administrative law is reason enough to celebrate The Administrative Agon. But more impactful is Walters’ ability to challenge our old assumptions in ways that are bound to spark rethinking about the regulatory state. For example, Walters itemizes a number of institutional problems that can now be moved from the “liability” to the “attribute” column, including agencies’ use of guidances and “regulatory sandboxes” as opposed to final rulemakings; civil disobedience by agency staff; overlapping and sometimes conflicting agency powers and responsibilities; agency nonacquiescence in judicial rulings; and circuit splits. Even coordination problems and messy interagency conflicts within the Executive Branch should be celebrated. Indeed, rather than simply serving as a transmission belt that fills in the statutory gaps with facts and details (ala Justice Neil Gorsuch), agencies can provide a forum for democratic dialogue that is otherwise missing in our separation of powers system.

On the flip side, Agon exposes even more serious problems with the administrative state than we previously realized. If the goal is to “celebrate political conflict and seek to foster it and sustain it,” (P. 10) then many agencies may be flunking the Agon test. EPA, for example, often strives to negotiate rules with industry and slip them into the Federal Register to get the job done. Agon tells us that this is exactly the wrong way for agencies to conduct their business. Similarly, Agon tells us that centralized presidential control and an obsession with interagency coordination undermine the values of Agon. Rather, Agon counsels that we should multiply “the sites at which political contestation and democratic mobilization can occur.” (P. 58.)

Agon also raises new worries for existing problems that Walters does not (yet) explore. Foremost in my own area is how to reconcile this intriguing new theory with the development of protective rules. In setting health and environmental rules, industry typically overpowers public interest groups during the first round of pre-NPRM and notice and comment. A dynamic, never-ending approach—no matter how subsidized the diverse interests—seems poised to tip still more power in industry’s favor due to the combined beneficial effects of delay and the inevitable exhaustion of thinly financed public advocates over time.

An Agon theory will also need to be more fully reconciled with the beloved “expertise” goal of agency decision-making. Under Agon, the agency would presumably enjoy greater judicial deference as long as the agency adopts a meaningful Agon-styled deliberation and provides political reasons for its decision. Yet this added deference on scientific issues could afford agencies with too much discretionary space in settings where vigorous participants and perhaps even agency staff are inclined to bend the science to their preferred ends. Distrust of the civil service could get worse rather than better if agencies are allowed to reach interim solutions based on political preferences that run afoul of established facts.

Agon even puts added pressure on administrative architects to consider the agency’s role in educating and informing the public, since agencies may sometimes exert an oversized role in influencing lay understandings of regulatory problems.

Perhaps the best response to these and other worries is to consider a narrower role for Agon, focused on agency decisions in which the public itself is deeply divided on moral grounds, like vaccine mandates or the role of critical race theory in administrative law. (P. 68.) Indeed, Walters gestures towards this possibly narrower conception himself by suggesting that Agon may not make sense for “technical areas” (P. 65), which could reach a large set of agency activities depending on the definition. In this narrower application, Agon provides two particularly valuable pay-offs for politically contentious decisions. The first, as discussed, is to unsettle our own thinking about the long-held assumption that consensus is the ideal end for all agency decisions. Second is to provide a valuable institutional blueprint for the agencies’ role in addressing decisions that are distinctive because of the seemingly unresolvable conflicts they raise among the general public. What fits in this new bucket of Agon-styled rules and what falls out is unclear. But Walters provides the needed theory and institutional architecture for designing a space for agencies to become vital institutional players in moving what might otherwise seem like hopeless public deliberations forward at a time when we are very much in need of exactly that kind of help. In Walter’s own words, “[i]f we cannot anytime soon change the fact that there are foundational disagreements in society about what administration and regulation should look like, then the only democratic theory that can provide a source of legitimacy in administrative action is one that acknowledges those disagreements and makes a place for them.” (P. 68.)