ABSTRACT
Professor Theodore J. Lowi is a leading mid-20th to early 21st-century political scientist whose book, The End of Liberalism (1969), provided a powerful critique of the treatment of pluralism in then contemporary political science. It promoted a substantial rethinking of the operation and role of public administration in the national political system. Lowi’s basic argument was that Congress had increasingly delegated its legislative power to federal agencies without clear standards for interpretation and implementation in violation of the “intelligible principle” doctrine established in J.W. Hampton, Jr. & Company v. United States (1928) and reinforced in Schechter Poultry Corporation v. United States (1935). In consequence, because politics in the U.S. flows to the point of policymaking, interest groups turned their lobbying efforts to obtain favorable governmental treatment from Congress to administrative agencies. Moreover, rather than agencies serving as neutral umpires of the public interest in the classical, though deeply flawed, pluralist model, they became captives and spokespersons for the interest groups whose policy objectives fell within their jurisdictions. In return, interest groups provided political support for these agencies and their policies. The second edition of The End of Liberalism (1979) bore the subtitle,
“The Second Republic of the United States.” In Lowi’s view, a major problem with interest group liberalism was that it shifted policymaking to an unelected and self-interested component of government, public agencies, or collectively “the bureaucracy.” Lowi’s prescription for righting the constitutional design of legislative supremacy was “juridical democracy,” which entailed curtailing standardless delegations of legislative power to the agencies and thereby reasserting the rule of law and the rule by law, in place of what had become government by administrative discretion. Lowi’s prescription deviates from the thrust of the Constitutional School
of American Public Administration by essentially contending that independent administrative power cannot be constitutionally legitimated and that the constitutional design demands legislative supremacy, not the equivalent of lawmaking by unelected career public administrators and their politically appointed bosses. Taken to its fullest conclusion, Lowi’s contention negates the idea that broad policymaking discretion by public administration can be
trative Procedure Act of 1946, the Freedom of Information Act of 1966, the Government in the Sunshine Act of 1976, and related statutes. Neither can the government’s administrative component be legitimized through representative bureaucracy or public and stakeholder participatory and representational approaches, such as manifested in the Federal Advisory Committee Act of 1972. Ultimately, the Constitution is premised on legislative supremacy and while the separation of powers places some limitations on congressional power, public administrative independence is not among them. A common critique of Lowi’s position is that given the scope of the con-
temporary federal government, broad administrative discretion is unavoidable, necessary, and in some respects even highly desirable. This is especially true when one considers the vast regulatory functions and other policy outputs associated with the administration of the federal government. For example, which is better positioned to set standards for clean air, water, and environmental sustainability: Congress or the Environmental Protection Agency? Which is better positioned to set standards for food and drug safety: Congress or the Food and Drug Administration? Even returning to the “intelligible principle doctrine” may be infeasible because clear intelligible principles often negate congressional majority support for legislation. That is why statutes are laced with such terms as “to the extent feasible,” “in the public interest,” “as necessary or convenient,” “expedient,” “fair,” “adequate,” “equitable,” “practicable,” “reasonable,” and “advisable.” Furthermore, as Morris Fiorina (1977) has argued, it can be in the electoral interests of members of Congress to avoid controversial policy choices by deliberately shifting them to the agencies. Contrary to Lowi’s view, since its decision in Chevron v. Natural
Resources Defense Council (1984), the Supreme Court has embraced the rule that when Congress has not clearly spoken to the meaning of key terms in statutes, the agencies are institutionally free to adopt any reasonable interpretation of them. As the Court explained in City of Arlington, Texas v. Federal Communications Commission:
Chevron is rooted in a background presumption of congressional intent: namely, “that Congress, when it left ambiguity in a statute” administered by an agency, “understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” … Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. … Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.
