Glen Staszewski (Michigan State University College of Law) has posted Political Reasons, Deliberative Democracy, and Administrative Law (Iowa Law Review, Vol. 97, No. 3, 2012) on SSRN. Here is the abstract:
The role of "political reasons" in agency decision making has tremendous importance for administrative law. The conventional wisdom posits that an agency’s policy decisions should be justified based on their substantive merits, rather than the preferences of public officials or other political considerations. Yet, the Supreme Court is closely divided on this issue, and prominent commentators have relied on the political control model of administrative law to argue that political reasons should play an enhanced role in agency decision making and that the judiciary should give agencies credit for justifying their policy choices on political grounds.
This Article argues that those scholarly proposals are fundamentally misguided because political control theories of administrative law are based on untenable conceptions of democracy and implausible empirical assumptions. It claims that deliberative theories of administrative legitimacy provide a superior alternative, and points out that deliberative democratic theorists have not provided a clear account of the proper role of political preferences in agency decision making. After providing such an account, the Article sets forth a concrete proposal for reforming administrative law that would improve the transparency of the administrative process and allow agencies to incorporate political considerations into their decision making, consistent with the basic principles of deliberative democratic theory. The Article also identifies several reasons to be wary of any reform proposal that would embrace a greater role for political reasons in agency decision making, and concludes that the best way of promoting agency legitimacy and deliberative democracy may be to retain the existing version of hard-look judicial review.