Under the former model, "agency accountability is ensured by deploying various scientific, technical, and legal oversight processes to prevent agency staff from exercising discretion". But under the latter, "agency professionalism is viewed as a positive attribute that helps ensure the integration of technical expertise in rulemaking and serves as a buffer against undue influence by highly interested stakeholders".
I was interested to see the authors trace the deliberative-constitutive model back to the progressive era. There has certainly been a revival of interest in deliberation and civic republicanism in recent years, but its administrative-law roots are deeper than one might have thought at first blush.
I was also very interested by their take on the various efforts, most notably by Mark Seidenfeld and Henry Richardson, to incorporate deliberation in the administrative process: "By portraying civic republicanism as a process that primarily engages those citizens who are not already engaged in civil service, legal scholars understand civic republicanism as a theory of democracy writ large rather than a theory of administrative constitutionalism". This they see as a continuation of a broader trend to look outside the administrative agency for legitimacy.
A better approach would be based on an appreciation of the "discursive" role of the bureaucracy:
Proponents of a discursive role for civil servants contend that the discursive process itself legitimizes the outcome of the process through debate and deliberation. For postmodernists, it is only possible to construct a legitimate policy through such vetting. But it is not necessary to endorse this viewpoint to understand the value of a discursive approach. With the demise of pluralism in rulemaking, the bureaucracy can offset or mitigate industry dominance by reaching out to individuals and organizations in policy networks with differing points of view, rather than relying passively on whatever information comes in through the rulemaking process. Professional values serve to further enhance the assimilation and processing of this evidence into regulatory products.Part of their concern about the "demise of pluralism" is based on a perceived dominance of executive decision-making by powerful interests. It is worth noting that Cass Sunstein has a somewhat different view on this.
The abstract for the Shapiro, Fisher and Wagner article is as follows:
The discourse over the legitimacy of unelected administration has produced two paradigms. Administrative law scholarship has focused almost exclusively on a rational-instrumental paradigm that seeks to legitimate from the outside in, relying on political oversight, judicial review, and scientific and social methodologies to squeeze the discretion out of public administration. By comparison, public administration scholarship has focused on a deliberative-constitutive paradigm that seeks to legitimate from the inside out, relying on administrative expertise, deliberation, and reason giving to ensure reasonable decision-making. This paradigm accepts administrative discretion both as unavoidable and as necessary.The paper can be downloaded here.
Besides failing at its own goal of eliminating discretion, the rational-instrumental paradigm has produced rulemaking ossification, bureaucracy bashing, a misunderstanding of the role of science in administration, and a failure to build a comprehensive theory of administrative accountability, one which takes into account both paradigms. Despite these defects, contemporary administrative law scholarship and practice is so deeply enmeshed in rational-instrumental accountability that it is difficult for administrative lawyers to imagine that there is a complementary approach to legitimacy. Yet, the history of administrative law in this and other jurisdictions highlights the significance of the deliberative-constitutive paradigm. In light of the demise of interest group pluralism in rulemaking, and the scholarly dead end in which we find ourselves, it is time to recognize and develop the deliberative-instrumental paradigm.