Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking

Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty.  The conventional wisdom is that federal law should resolve this problem by allowing the President to serve as a proxy for the “will of the people” in administrative rulemaking.  However, Professor Criddle suggests that a better solution for promoting popular representation in agency rulemaking is to extend private fiduciary duties to administrative agencies.

Professor Criddle begins by accepting the premise that federal agency rulemaking often diverges from the will of the electorate.  However, he rejects the notion that this inconsistency can be eliminated by equating the President’s preferences on questions of regulatory policy with the will of the people.  Empirical evidence has shown that presidents do not necessarily pursue administrative policies that are consistent with the views of the electorate.  Indeed, the notion that presidents might serve as reliable proxies for majoritarian preferences in agency rulemaking becomes indefensible once one acknowledges how little the public knows about agency rulemaking.

As an alternative to the presidential proxy argument, Professor Criddle proposes the adoption of a fiduciary model of popular representation.  Like fiduciaries in private law, all federal officers exercise discretionary administrative authority for the benefit of those subject to their power, and all are bound by duties of purposefulness, fairness, integrity, solicitude, reasonableness, and transparency.  Rather than focus on a representative’s obedience to the public will, fiduciary representation emphasizes agencies’ responsibilities to act deliberatively and reasonably in promoting the public welfare.