The Consent of the Governed: Against Simple Rules for a Complex World

Professor Farina argues that recent proponents of enhanced presidential power overstate the ability of the President to legitimize the regulatory state. It accuses pro-presidentialists of premising their claims on a conception of the will of the people that is neither an accurate description of how citizens actually participate in modern government nor an authentic constitutional understanding of how citizens would consent to public policy decisions. The paper concludes by insisting that no single mode of democratic legitimization can save the regulatory enterprise; rather, administrative law must look to a plurality of institutions and practices that contribute to an ongoing process of legitimizing the administrative state