A. Democratic Political Representation: A Summary

The “folk” understanding of representation often mimics the unfortunate transmission belt model.Footnote ⁴⁸ The people, as principals, direct their agents, their elected representatives, to do their bidding. Representatives transmit exogenous citizen preferences, the “bedrock for social choice,” in a linear, bottom-up process that translates their preferences into law.Footnote ⁴⁹ As a result, it is the task of political institutions to minimize the “agency costs” incurred when representatives disobey their orders—for example, through electoral sanctions.Footnote ⁵⁰ When working properly, the individual human representative disappears, drowned out by the loud transmission of public opinion into legal authority. Although a significant amount of political science scholarship relies on this model,Footnote ⁵¹ it, as explained above, has both empirical and normative drawbacks. It does not—and cannot—describe what is actually going on. If democracy requires perfect congruence between voter preference and law, no actually existing democracy can claim to be democratic.Footnote ⁵²

It is time to jettison the folktale. As political theorist Bryan Gartsen explains, “The impossibility of fully and completely representing the people's will is integral to the concept of representation itself.”Footnote ⁵³ Although it provides a framework “for realizing the democratic ideal of giving kratos to the dêmos, power to the people,”Footnote ⁵⁴ representation is not an institutional shorthand used only because direct, unmediated democracy is impracticable or otherwise undesirable.Footnote ⁵⁵ Unmediated rule, which perfectly transcribes the “will of the people” into law, would indicate presence, not representation.Footnote ⁵⁶ Instead, political representation is best understood as rule explicitly undertaken by and through mediators.

Although it does not promise that the will of the popular sovereign will govern, this scheme of institutional mediation can promise that decisions will be made by representatives acting in the name of allFootnote ⁵⁷ rather than by someone imposing their personal judgments on everyone else. To accomplish this “omnilateral” orientation,Footnote ⁵⁸ models of democratic political representation identify how citizens can participate in decision-making in a way that helps to (1) maintain the normative priority of the ruled over their rulers and (2) ensure that the ruled have some equally distributed role to play in their own governance. Thus, representative systems are often assessed according to how well they incorporate equal involvement in political decision-making—a fundamental norm that Urbinati and Warren call “democratic autonomy.”Footnote ⁵⁹ Representation vindicates democratic autonomy by allowing the otherwise absent citizens to be present during decision-making in some sense—that is, to have their interests considered evenhandedly, to have their authorization solicited with equal vigor, to enjoy an equal chance to have their ex-post judgments registered, and so on. For example, Runciman and Brito Vieira explain that citizens can be present in lawmaking if they are able to object to what is being done by their rulers.Footnote ⁶⁰ Representatives will decide in light of these possible objections, perhaps changing their choices and their behavior as a result. Citizens thus attend legislative sessions as specters to haunt the legislators.

There are many ways to accomplish citizen presence within the lawmaking process. Representation accommodates substantial institutional creativity.Footnote ⁶¹ The menu of techniques that can encourage citizen involvement and motivate lawmakers to take their citizens’ interests seriously is capacious. As a result, political theorists use a variety of models to describe democratic political representation. A successful representative democracy will exhibit many of them, often in combination and with overlap.Footnote ⁶² Shrewd institutional design will mix, match, and commingle different models to maximize democratic autonomy.

First, there is the “congruence,” “mandate,” “compliance,” or “principal–agent” model, which reproduces the transmission-belt theory addressed above. Sometimes, the best way to incorporate some citizens’ presence is to treat them and their representatives as principals and agents, their agency costs policed via electoral sanction. Yet it involves the issues addressed above.

Most other models, in contrast, make good use of the autonomous judgment deployed by representatives. Rather than deny representatives any independent causal role in governance, these models accept it. They prove particularly useful in circumstances where direct links between citizens and representatives, like regular voting, are difficult to operationalize. None of them, further, relies upon any pre-existing social consensus or homogeneous “popular will” to lend legitimacy to political decision-making. They also explain why the mere diversification of leadership positions—whether on the bench, in the boardroom, in the presidential cabinet, or in Congress—can be counted as a democratic improvement, all else being equal.

Descriptive representation holds, roughly, that “someone like me will pursue my interests.”Footnote ⁶³ Selected because of the characteristics they share with citizens (e.g., gender identity, religious beliefs, class, race, sexual orientation), descriptive representatives are motivated by personal reasons, not by the possibility of electoral sanction or constituent instruction. These representatives are left to decide how their identities will express themselves in the lawmaking process. This model, however, has some drawbacks. It risks essentialismFootnote ⁶⁴ and obscures the fact that interests can be endogenous to the political process rather than derived from exogenous empirical characteristics such as racial identity. Finally, any decision-making body that perfectly resembled the people would simply reproduce the people itself. It would not, therefore, be representation at all. Accordingly, some judgment must be exercised as to which people, which characteristics, and which interests merit descriptive representation. Those judgments are far from obvious and noncontroversial.

The gyroscopic model posits that citizens authorize representatives who can be trusted, without oversight or sanction, to pursue goals that the voters find attractive.Footnote ⁶⁵ Gyroscopic representatives, who reliably “spin on their own axes,” are understood as honestly motivated, skilled advocates who are therefore given discretion to deploy their judgment as they see fit. To illustrate, Ohio voters concerned about commercial exploitation might find representation in Massachusetts Senator Elizabeth Warren, a banking and financial law expert with credible commitments to working-class and consumer interests. The risks include (1) short-shrifting commercial interests and (2) pleasing only a radical base of supporters.Footnote ⁶⁶ Gyroscopic representation works best, therefore, in a system that draws representatives from many different viewpoints.

The trustee model of political representation, unlike the dyadic models described above, has a tripartite structure. It is, as a result, a highly mediated form of rule. A principal (party one) authorizes a trustee (party two) to act for a beneficiary (party three). For example, a voter may authorize a representative to use their best judgment while acting in the whole country's interest. This model, unlike the others, enables the representation of persons (both natural and fictitious) who cannot speak and act for themselves.Footnote ⁶⁷ As a result, a trustee can, for example, be said to act for “the people”—“the people” who cannot, normatively and empirically, act for themselves. Arguably, all members of Congress are trustee representatives. They are elected (authorized) by a particular geographic constituency yet make decisions that hold for the entire country and do so in the form of laws that will hold for generations to come.Footnote ⁶⁸

The absent beneficiary is made present (represented) through an obligation on the part of the trustee representative to act in its “best interests,” even when they conflict with the wishes of the authorizer.Footnote ⁶⁹ Using some logical deduction, we might tentatively hold that to act in someone's “best interests” means to act carefully and with the subjective belief that the action is in the beneficiary's interest and is not, at the very least, self-serving.Footnote ⁷⁰ Meanwhile, although the authorizing party can set the terms and scope of the trustee's authority, it retains no day-to-day control over them. As a result, the trustee enjoys an ominous amount of autonomyFootnote ⁷¹ when determining the beneficiary's best interests.

Admittedly, many associate trustee representation with the paternalism of Edmund BurkeFootnote ⁷² and James Madison.Footnote ⁷³ After all, it concedes to the trustee the authority to make decisions on behalf of other human beings who are capable of deciding for thesmelves. But we should not be so quick to jettison the model. The autonomy granted a trustee representative can enhance democratic autonomy in a few ways. First, trustee representatives can provide presence to citizens who cannot speak and act for themselves. They can represent those not yet born, the disenfranchised, children, the incapacitated, and so on. Even if such voices cannot, as a matter of physics or legal right, be present, they can nonetheless play a role in collective decision-making if someone speaks and acts for them. Trustee representatives can also speak and act for those wrongfully shut out of the political process because of economic and social inequalities. When political resources are stacked in a lopsided manner, when the marginalized are so overburdened by the demands of ordinary life that they cannot speak for themselves, only a trustee can give the marginalized any (admittedly ventriloquized) voice at all.Footnote ⁷⁴ Similarly, when matters are too complex for ordinary citizens to understand—let alone form a viewpoint about—only a trustee representative can act on their behalf.Footnote ⁷⁵ Of course, many would rather citizens speak and act for themselves. But, in an imperfect and unequal world, the trustee model is more democratically appealing than a model that prioritizes the voices of those with outsized power, wealth, and influence. During collective decision-making, a trustee can prevent the effacement of ordinary citizens and their interests. Further, acts that a trustee representative might undertake in the interest of disempowered beneficiaries might enable them to participate on their own behalves in the future.Footnote ⁷⁶

Moreover, the trustee model can, unlike other models of representation, provide an answer to what is, according to Thomas Hobbes and Bernard Williams,Footnote ⁷⁷ the first question of politics. The trustee's duty to act in its beneficiary's “best interests” imposes on it a duty to establish some amount of security and safety. Although, as explained below, a “best interests” determination is always contestable, it assuredly includes this minimum. Yet it is not obvious that citizens always know which actions might successfully stifle the outbreak of a deadly virus or defend against violent invasion. Moreover, presuming that citizens do have such knowledge, it is not obvious that citizens will possess sufficient collective capacity to act on it. Other models of representation nevertheless suggest that leaders follow voters’ myopic preferences, even if they are epistemically unsound or prioritize conflicting policy goals. In contrast, a trustee model lets experts be experts. This is not to argue that experts should remain insulated from critique and contestation. Expert trustees’ claims to act in the public interest, because both interpretive in nature and reliant upon imperfect knowledge, should face and respond to the crucible of citizen objection.Footnote ⁷⁸ Facts will always present with an Arendtian slipperiness;Footnote ⁷⁹ truth claims can always be challenged. But a trustee does not need to apologize for “following the science.” Instead, it is probably a trustee representative's duty to do so.Footnote ⁸⁰

Recently, representation has taken a constructivist turn.Footnote ⁸¹ Important scholars have now abandoned the idea that voters come to politics with ready-made preferences and interests. Instead, voters’ opinions are the result of successful appeals made by representatives. Representation is not a spatial concept, “re-presenting” voters located in geographical districts through appointed agents located in a governing body. Instead, representation is better understood as a communicative process whereby representatives call the represented into being by making claims that are accepted as representative by an audience. Emphasizing the tutelary aspect of democratic discourse,Footnote ⁸² a representative's claim to represent a constituency is considered successful if it is taken up by them by signaling their approval with a vote, a campaign contribution, and so on. Laudably, constructivists do not rely on organ-body sovereignty or the existence of a people with exogenous preferences or objective interests that a democracy should translate into law. Moreover, all theories of representation must involve some amount of interest construction as representatives predict how voters might respond to policies and craft their public appeals to secure citizens’ support. In particular, the trustee model, which counts on trustees to “interpret the group's interest, and in doing so put forth a claim to be representing it,”Footnote ⁸³ has constructivist traits.

Unfortunately, though, constructivist theories lead one to a normative dead-end.Footnote ⁸⁴ Either they are too relativist or they are too rationalist.Footnote ⁸⁵ They provide no way to distinguish successful manipulation from ordinary representation without also relying on standards of judgment that are perfectionist—viz, whether a voter's decision to take up the representative's claim is rationally correct or made only after fulfilling certain deliberative desiderata.

B. Representation and Lawmaking

If successfully implemented, models of democratic representation lend legitimacy to the outcome of representatives’ decision-making. These outcomes, including legislation, will be authoritative because they are the result of processes that vindicate democratic autonomy: their creation involves citizens in some way and in a manner that prioritizes them (including their preferences and interests), not the lawmakers. Such outcomes deserve our respect to the extent that they are the expression of democratic autonomy. As a result, there is good democratic reason to treat congressional lawmaking as authoritative. Regular elections, a near-universal franchise right, protections for free speech, and an increasingly diverse legislature lend it democratic credentials.

But congressional lawmaking is not democratically legitimate merely because it is congressional; it is legitimate because the procedures that yield legislation reflect democratic autonomy. Accordingly, federal statutes may be more or less justified depending on how well their procedures perform. If representative processes are skewed, legislation is accordingly less democratic and less justified. For example, legislation carries less democratic weight if large portions of the dêmos are excluded from participation due to onerous voting requirements and extensive gerrymandering. Legislation will carry less democratic weight if corruption or supermajority rules persuade lawmakers to regularly prioritize a favored elite at the expense of others’ equal claims for attention.

Moreover, since Congress holds no monopoly on representative institutions, the outcomes of other decision-making procedures likewise carry democratic weight. Indeed, representative systems explicitly discard the “formalist vestiges of prerogative, sovereignty, and even lordship … framed primarily around juristic conceptions of delegation, the separation of powers, the rule of law, and constitutional limitations.”Footnote ⁸⁶ Rather than locating power in a specific body, democratic representation permits the proliferation of rulemaking settings. State and local legislatures certainly enjoy democratic legitimacy. The processes used to select policy-setting executive leaders and judges may also respect democratic autonomy. If the standard is democratic legitimacy rather than constitutional formalism, Congress deserves primacy only if no other institution better instantiates democratic autonomy.

Moreover, if other representative institutions contribute to or elaborate upon its decisions, Congress's democratic credentials might grow even more authoritative. Congressional lawmaking in isolation does not maximize the amount of democratic autonomy that citizens might enjoy. Congress is but one (important) part of a representative system that includes both formal and informal representative processes occurring within and between multiple institutions.Footnote ⁸⁷ Bicameralism and presentment, for example, weave together three different representative institutions in the creation of statutes. The result, one hopes, is a greater level of democratic autonomy than each would yield on its own. These statutes prompt further representative processes—for example, implementation at the state level through local representatives; appointment of reviewing judges; interpretation by chief executives; and, as explained below, elaboration within agencies. Meanwhile, many rest upon both formal and informal representative processes involved in the selection of intra-party candidates and policies. Each step in the life of a statute, from drafting to enforcement, provides an opportunity to enhance its democratic credentials. Thus, to the extent that there is any kind of popular macro-agent, it is not an organic popular sovereign, an identifiable group person with a will of its own. It is instead the ongoing and immanent production of decisions made through representative processes that help vindicate the norm of democratic autonomy.Footnote ⁸⁸

Of course, those holding to a rigorous (idolatrous?)Footnote ⁸⁹ separation of powers doctrine and a strict interpretation of the Vesting ClauseFootnote ⁹⁰ will reject this intersection and accumulation of representative practices. But they can do so only at great cost. They must select from a set of undesirable conclusions. First, they could concede that Congress, although the only legitimate lawmaking power, may not be as democratic as one might like. Second, they could insist that Congress is maximally democratic, but only by adopting the unfortunate transmission belt model. This is the only model that attributes to Congress the power to speak full-throated with the “voice of the people.” Finally, they might prioritize the text of the Constitution (as they understand it) over democratic autonomy. This means that they must either (1) adopt a vulgar democratic legal positivism that prioritizes decisions made hundreds of years ago over those made in the present or (2) value the rights protected by constitutional constraints (like the separation of powers) over democracy itself.

C. Administration as a Representative Institution

Accordingly, representation can lend democratic legitimacy to all kinds of public decision-making, not just the laws passed by Congress—including actions taken by administrative agencies. There are a few reasons why this move makes sense. Administrators are part of a state conceived as separate from citizens, and the work they do is, at least notionally, on behalf of those citizens. As public policy scholar Anthony Bertelli puts it, “this is representation.”Footnote ⁹¹ Political representation makes space for administration's division of labor, a mediation that accommodates citizens’ expectation that an “intelligent, civic-minded state official [will] take care of problems.”Footnote ⁹² Those officials will invariably address questions of political import. Their decisions involve both “facts and value commitments, both ends and means”—all of which are “inextricably intertwined in political life.”Footnote ⁹³ These are precisely the types of questions with which representation is designed to deal. There is a morphological fit, in other words, between models of political representation and the role played by administration in governance.

Theories of representation can also open new avenues for research and reform. One common critique of the administrative state is that it has a “democracy problem”: it makes value-laden policy choices without the popular consent implied by elections. Democratic representation preempts this complaint because it does not require—indeed, often conspicuously excludes— citizens’ knowing understanding and prior approval of everything an official does in their name. Instead, it uses indicia of democratic autonomy to assess the democratic quality of an institution's output. As shown above, the franchise is far from the only mechanism that can be used to accomplish this. Administration's so-called “democracy problem” might be mooted as a result of the considered use of, for example, descriptive, gyroscopic, and trustee representation in the design of administrative institutions. The next section will demonstrate the fruitfulness of this approach by applying a trustee model.

More specifically, many models of democratic representation avoid the transmission-belt theory's organ-body sovereignty conundrum. As a result, they can suggest something meaningful about the democratic legitimacy of administrative action beyond whether or not it carries out the orders of a Congressional principal who itself is thought to follow the orders of “the people.” A theory of representation therefore allows administrative law scholars to transcend interminable theoretical debates that focus narrowly on the proper constraints to place on administrators as they interpret and apply implementing statutes. It allows for the possibility that administrative action is the product of democratic representation and therefore legitimate even if there is no crystal-clear statutory directive to implement. As a result, it suggests that there are ways to democratize administration beyond, as the U.S. Supreme Court has recently implied,Footnote ⁹⁴ holding Congress's feet to the fire and forcing it to codify policy in ever more exhaustive detail.

A. Conceptual Fit

First, the trustee model's tripartite framework reasonably describes administration's legal infrastructure: the model suggests that an authorizer (e.g., Congress, through statutes) authorizes a trustee (the agency, understood as a collective body) to take care of the interests of a beneficiary regarding some delimited subject (e.g., the people's health and welfare, consumers, racial minorities, and so on).

Further, the model expressly contemplates that the beneficiary is unable, for one reason or another, to act for itself. When it comes to the regulation of complex financial schemes and scientifically intensive public health interventions, this is precisely the public's circumstances. When an agency looks out for the interests of political minorities and the economically disadvantaged, it is looking out for those citizens whose political voices are silenced. Many administrative agencies pursue the interests of those shut out of the political process. For example, the Equal Employment Opportunity Commission (“EEOC”), the Department of Justice Civil Rights Division, the Federal Trade Commission (“FTC”), and the Consumer Financial Protection Bureau (“CFPB”) advocate on behalf of those subject to discrimination and without the resources necessary to mobilize on their own behalf. Relatedly, agencies can act for an entire country even though a country cannot, as a practical matter, act for itself. The model accommodates the constructivist and Hobbesian notion that there is no concept of “people” prior to politics.Footnote ⁹⁵ An agency dedicated to defense and security, for example, may carry out tasks in the (loosely defined) “national interest.” There may be no “nation” that can speak for itself and its interests, but the Department of Defense can do so in its stead.

Moreover, baked into the trustee model is the inevitable discretion wielded by administrators as they interpret and apply their statutory mandates. There are a few reasons why administration's decision-making autonomy is inevitable. First, the inherent ambiguity of agencies’ organizing statutes will require interpretation and elaboration. No amount of rule-tightening or definitional glossaries will ever remove all ambiguity from the law.Footnote ⁹⁶ Legal interpretations are commonly controversial and, even when the law's meaning is clear, how it ought to apply in unanticipated circumstances may not be obvious.Footnote ⁹⁷ Appealing to legislative intent will not eradicate the ambiguity. Ascertaining legislative intentions, which requires ascribing intentions to a collective agent, is also a matter of interpretation—one that involves linguistic ambiguities, problems of systemic coherence, and so on.Footnote ⁹⁸ And when law is indeterminate or underdeterminate,Footnote ⁹⁹ agencies must exercise interpretive discretion that cannot help but prioritize some values at the expense of others.Footnote ¹⁰⁰ A statutory instruction to evaluate drugs for safety and effectiveness doesn't tell administrators a lot about how much risk should be traded off for marginal increases in efficacy.

Second, given their expertise and experience, administrators will have greater understanding of the issues in question, and therefore enjoy an independent source of political influence over lawmakers.Footnote ¹⁰¹ Greater popular participation cannot expunge this source of autonomy. Citizens rarely know what regulations cover and consequently cannot evaluate them responsibly.Footnote ¹⁰² But their elected representatives may fare no better. Legislators’ capacity and incentive for oversight is limited, constrained to episodic formal investigations and debates focused on scandal rather than policymaking.Footnote ¹⁰³ Politically appointed agency officers may enjoy only a limited understanding of their duties.Footnote ¹⁰⁴ In contrast, agency officials’ expertise, connections to well-organized stakeholders, and reputation for effectiveness give them authority. They leverage this authority to shape the legislative process itself as they propose bills and amendments.Footnote ¹⁰⁵ As political philospoher Joseph Heath observes, the civil service “is often the source of highly effective policy entrepreneurship.”Footnote ¹⁰⁶

Finally, the model does not suppose that the beneficiary (e.g., the public) must vote for the trustee. The trustee's authority to decide on its behalf and in its interests is not necessarily electoral. Rather, it comes from a distinct party, one with authority to appoint the trustee. Administration's “unelected bureaucrats” can therefore find not exile from, but rather a home within, the trustee model.

B. Resonance with Fiduciary Theories of Government

In addition to the snug conceptual fit between the trustee model and actual administrative practice, extant literature applying fiduciary concepts to administration already exists.Footnote ¹⁰⁷ The theoretical overlap between these fiduciary theories and political trusteeship not only gives scholars interested in trustee representation a head start, but also demonstrates the plausibility of the project. Indeed, some of this pathbreaking scholarship is cited below. However, the trustee model of democratic political representation—at least as it is deployed here—differs from such fiduciary theories. Most importantly, whether addressing administration, the U.S. Constitution,Footnote ¹⁰⁸ the judiciary,Footnote ¹⁰⁹ the executive,Footnote ¹¹⁰ or otherwise,Footnote ¹¹¹ fiduciary theory does not attend to the justification of power as such.Footnote ¹¹² Inspired by Locke's liberalism, many focus instead on how that power ought to be limited by the (judiciary's)Footnote ¹¹³ application of fiduciary duties. It is a fungible theory that, as its advocates put it, applies to any relation of authority,Footnote ¹¹⁴ regardless of how it comes about. As a result, it shares the same weaknesses of many liberal and republicanFootnote ¹¹⁵ theories of government mentioned in the introduction of this article: it leaves unexamined the constitution of collective power. This neglect implies that such power is, although perhaps inevitable, au fond unjustifiable—a beast to be captured. In contrast, the trustee model of political representation can be part of a political framework that expresses democratic political autonomy. As illustrated in Habermas's analogy of democracy with the two-headed Janus,Footnote ¹¹⁶ it is part of the left-facing constitution of collective decision-making. Fiduciary theories, like many republican and liberal theories, are part of the right-facing constraints on that decision-making. Many of its proponents invoke it precisely because they, equating democracy with consent, are skeptical of democracy itself.Footnote ¹¹⁷ As explained above, however, democratic representation requires no such consent. At the extreme, a democratic theory requiring universal consent is an invitation to populism—or worse.

C. A Stronger Model of Representation

To the extent that any model of political representation requires that representatives exercise their own judgment when constructing and interpreting constituent interests, a model that recognizes and addresses the autonomy implied by such construction is more empirically accurate.Footnote ¹¹⁸ Because it is more accurate, it can help scholars to examine the normative implications of this autonomy. The trustee model may, therefore, be a better model of representative democracy than the others. This is the third reason for the selection of the trustee model.

To explain, recall the tutelary character of constructivist models. They describe how representatives mobilize voters’ political interests into existence. Such mobilization requires a representative to think and act independently of the electorate because the electorate is not as yet aware of these interests. Descriptive models of representation may also require representatives to autonomously construct constituent interests as they decide which aspects of their group merit attention and which ones do not. Even mandate models must build in room for a representative's independent judgment. Representatives face votes only every few years, and that vote contains very little information about voters’ preferences on particular policy issues—even if a constituency could form a coherent unified preference.Footnote ¹¹⁹ Yet each of these models has very little to say about the inevitable discretion wielded by representatives. Ironically, they therefore have very little to say about how representatives ought to go about their jobs and how citizens ought to evaluate them.Footnote ¹²⁰ The trustee model, however, is not so hobbled.

In fact, the obligation to act in the beneficiary's interest lays upon the representative a normative yardstick to measure how well representatives exercise their inevitable judgments. Recall that constructivist models’ desiderata fail to screen out successful voter manipulation. So long as voters seem to take up (or acquiesce to) the claims made, representation is judged a success. Similarly, a successful mandate representative will be judged a success upon election, even if they take up the most ill-advised and ill-informed voter preferences. A trustee model, on the other hand, might suggest that manipulation and blind obedience is a violation of the representative's duties to serve their beneficiaries’ interests. In failing to serve the public's interests, a representative is failing to represent the public. Whatever the representative is doing, it is not representation. The representative is instead perhaps acting in their own interests. Further, to assess the success of descriptive representatives beyond their descriptive characteristics, one cannot help but reach for the fiduciary standards suggested by trustee representation: Did they decide after proper research and investigation? Did they have good reasons? Did they try in good faith to articulate the interests of those like them, or did they act for self-interested or reckless reasons? Simply, the other-regarding duties laid on the representative are what makes them representative of others.

As a result, the trustee model furnishes a normative standard missing from other models of democratic representation. That standard should prove attractive to advocates of democracy. To illustrate its appeal, consider a trustee representative authorized to act on behalf of public health. Of course, the public interest, including the interest in public health, is subject to deep contestation. The notion of a public is fictional and socially constructed—but it is not entirely open-ended. Namely, it suggests that policymaking should not reflect the partial preferences of the few at the expense of the many.Footnote ¹²¹ Decisions have weaker claim to be in the public interest, and therefore to represent the public, if they reflect concern and respect only for a small portion of the population. In other words, the notion of the public interest is a principle of inclusion rather than exclusion.Footnote ¹²² As William Novak argues, the growth of government institutions oriented to the public welfare arose contemporaneously with the idea of universal citizenship ascribing equal rights to all.Footnote ¹²³ Consequently, the trustee serving the public makes present a greater swath of the population than a mandate representative who openly serves partial interests. At the very least, a commitment to the public interest forbids highly resourced private parties from hijacking the collective decision-making process to serve their own ends.Footnote ¹²⁴

The autonomy enjoyed by trustee representatives to decide and act in the beneficiary's interests brings additional democratic benefits. First, it respects the lack of consensus among the represented. It does not matter that citizens, both present and future, cannot form preferences regarding (or agree about) the actions that the representative should take. To act legitimately, it only matters that the trustee pursues their best interests as authorized (leaving aside, for the moment, how “best interests” and “authorization” are defined).Footnote ¹²⁵ Especially in situations where it is not obvious that government inaction is any more democratic than government action, the trustee representative's autonomy unshackles public officials from dangerous gridlock or inertia.

Furthermore, the conspicuous tripartite distinction it draws between the authorizers, the trustee, and the beneficiary is appealing because it prevents trustee representatives from convincingly claiming to speak with the “voice of the people.” Unlike other models, which might condone any action taken by lawmakers so long as they garner popular support, a trustee model prevents a ruler from claiming an identityFootnote ¹²⁶ with the ruled. As J.S. MillFootnote ¹²⁷ and de TocquevilleFootnote ¹²⁸ once pointed out, majority sentiment can quieten public debate. On the contrary, the trustee model emphasizes the non-identity between the ruling trustee and the governed beneficiary. It therefore invites constructive popular contestation where other models might smother it. Ironically, the thick institutional mediation separating the trustee representative and citizen beneficiary may encourage democratic feedback rather than suppress it. Of all the models of democratic representation discussed in this article, it is least susceptible to populist politics.

Representative independence from the electorate can also make them better advocates.Footnote ¹²⁹ They can therefore lend citizens priority and presence in decision-making that they would not otherwise enjoy. An attorney presenting a case on behalf of her client, for example, is expected to use both their expertise and their experience to secure outcomes that are superior to those that clients might achieve on their own. As Dewey once observed, although the man who wears the shoe knows best that it pinches and where it pinches, it is the shoemaker who can best judge how the trouble is to be remedied.Footnote ¹³⁰ Likewise, a trustee advocate within a legislative body, exercising independent judgment and expertise, can press the interests of a constituency more effectively than it can itself.

Finally, a trustee's obligation to pursue the public interest should gratify scholars with deliberative commitments. The idea of the public, a multitude of human beings existing coherently together, attends to the ways individual experience affects, and is affected by, broader social and economic conditions. It evokes the fact of human interdependence and, as a result, suggests that public norms should reflect the same kind of reflexivity and generality championed by social contract philosophers from Kant to Habermas. In any event, many participatory and deliberative models of democracy tacitly rely upon a version of the trustee model. Theories that promote the use of deliberative mini-publics, for instance, ascribe to them the kind of autonomy, informed advocacy, and other-regarding cognitive orientation attributed to trustees.Footnote ¹³¹ These bodies, acting for the population at large, deliberate and decide on which actions will be taken on its behalf. Members are instructed not to parrot popular views or pursue naked self-interest, but instead to bend their views according to the unforced force of the better argument.Footnote ¹³² They must imagine what the interests of others might be and how a proposed rule might impact them. And members are encouraged to endorse decisions that, thanks to deliberation's generality and reflexivity desiderata, articulate some notion of the public good. Some theories of legal interpretation would likewise find friendship with a trustee model of representation. Those that lean on deliberative norms rather than popular participation require decision-making officers to take everyone into account and give meaningful weight to their different points of view,Footnote ¹³³ or give “reasons calling on some understandable vision of the public welfare or purpose” and reasoned responses to public objections.Footnote ¹³⁴

Unlike deliberative theories of democracy, however, the trustee model incorporates the idea of the public interest without making any commitment either to its precise content or the acceptable ways in which contributors might participate in public reasoning. First, the trustee model is less sanguine about the possibility that trustees land on some rationally correct or unanimous answer to the question of the common good. A trustee's claim to authoritatively speak in the beneficiary's best interests is always provisional. Indeed, as explained in the next section, the idea of “the public interest” in trustee representation is a political, not a juridical, question. It accepts that citizens may object to, and should have the means to object to, the trustee's interpretation. A trustee is no Judge Hercules.Footnote ¹³⁵ Second, the idea of the public interest accepts reasons that are both “communicative” and “instrumental,” both value-based and technical. It therefore subjects both science and norms to political judgment. Further, the trustee model does not require that that the only reasons acceptable in the justification of collective decision-making are those that each and every citizen might or should accept. As a result, the trustee model may appeal to those skeptical of the legitimizing power of public reason.Footnote ¹³⁶

A. The Bounded Autonomy of the Trustee Representative

As mentioned above, a trustee representative enjoys autonomy in its decision-making. The trustee does not, however, operate without any constraints whatsoever. On the contrary, it is bound to act in the interests of its beneficiary.Footnote ¹³⁷ Only then can the trustee claim to give presence to the beneficiary in its decision-making. Some minimal, but meaningful, substantive conditions can be deduced from this basic obligation. First, as fiduciary theorists point out, the trustee cannot act in its own self-interest.Footnote ¹³⁸ If trustee representation consists of acting on behalf of another, trustees cannot act only for themselves. For example, the Social Security Administration, as a trustee, cannot steal resources set aside for entitlements in order to build lavish offices. Second, a trustee cannot act in such a way that no one could ever believe that it is acting in the beneficiary's best interests. The Center for Disease Control (CDC), as a trustee of the public health, cannot pour deadly poison into the public water supply. Third, the trustee must in good faith (actually) believe that the actions it is taking are in the beneficiary's interests. The Open Markets Committee of the U.S. Federal Reserve cannot unthinkingly and substantially increase interest rates without any reason to believe that its intervention will either stabilize prices or increase employment rates. Whatever good faith means, it is certainly not intentional or reckless disregard of the beneficiary's interests.

These sorts of obligations, under private fiduciary law, are typically enforced by courts in lawsuits. The Delaware Court of Chancery, for example, specializes in holding fiduciaries to their duties of loyalty (including good faith) and care.Footnote ¹³⁹ While courts may therefore be competent to police the political trustee's similar duties, there is reason for some skepticism. First, institutions more permeable to democratic participation might also enforce them—for example, electoral sanctions, legislative investigations, administrative ombudsmen, and so on.Footnote ¹⁴⁰ To the extent that a strict interpretation and application of these duties import a judge's personal values in a way that shapes outcomes, using these mechanisms may be more democratically desirable. There is no reason to believe, moreover, that courts are better placed than an expertly staffed review panel to assess the quality of care taken by a trustee making policy under conditions of economic, social, or scientific complexity.Footnote ¹⁴¹ Accordingly, if judicial review is appropriate, it probably should be deferential. The Delaware Courts themselves recognize their own lack of business acumen, for example, by implementing a highly deferential “business judgment rule.”Footnote ¹⁴² They refuse to intervene with corporate decision-making unless it is plainly reckless or self-serving. Furthermore, prophylactic measures might be taken to prevent the breach of such duties. “Good types” or “gyroscopes,” unlikely to breach, might be authorized as trustees through the use civil service tests, professional vetting, and so on.

B. Politicizing the Public and Its Interest

Notwithstanding these minimal constraints, the duty to act in the beneficiary's interest is left open. Indeed, the parameters are so vague that many might reject the trustee model at the outset because it does little more than encourage paternalistic policymaking by electorally unaccountable officials. As hinted at above, the notion of the “public” and its “interest” are indeed fictions, and the business of defining them might be monopolized by powerful actors. Further, both representatives’ and citizens’ honest beliefs about what serves the public's best interest routinely conflict. The open-endedness of the “best interests” calculation even drives some scholars to spurn fiduciary theories of government because it lends too much power to the institution granted the authority to define it.Footnote ¹⁴³ There is good reason, according to critics, for colonizers to have justified their colonization using fiduciary excuses.Footnote ¹⁴⁴ They also complain that it provides little traction into the question of what public officials ought to do.Footnote ¹⁴⁵ A procedural question about how much deference to lend the trustee is often really a substantive question about how the trustee ought to act.Footnote ¹⁴⁶

I suggest that this open-endedness is a feature, not a bug. This is because what is in a beneficiary's best interests is subject to construction and contestation; it is always permeable to democratic politics. Determinations about what's in the “public interest” is a constructed product of politics, not a precondition that establishes the need for politics.Footnote ¹⁴⁷ Contests about who ought to be included in the dêmos, where its interests lie, and how best to achieve them are the fuel that motor political discourse. Especially in conjunction with the highly mediated tripartite trustee model, citizens’ democratic instincts will accordingly drive them to critique trustees’ best interest determinations. To illustrate, consider an agency tasked to promote public education. Debates will arise over who, exactly, is included in this public and what, exactly, its best interests are.Footnote ¹⁴⁸ Is the public interest best served by targeting the education of minor children or adults? Is it best served by prioritizing elementary education or higher education? The maths and sciences or the humanities? The determination of “interest” is not the only thing politics needs to construct. It also needs to construct what it means by “public.” Indeed, “the functioning of representative democracy depends upon politicians being able to offer competing visions of the people to the people.”Footnote ¹⁴⁹ Are we a technologically advanced society dedicated to industrial innovation, or a society of letters and literature? Are we an agricultural heartleand or a cosmopolitan center of commerce? Often, our competing answers to these questions map on to our partisan cleavages. For example, are immigrants included in the dêmos? Is it in the interest of the dêmos to ensure a minimum standard for all students, or should we prioritize choice and competitive merit? Will we best achieve these goals through privatization or by funding public schools? Finally, because interests cantilever between objectivity and subjectivity, they require construction by political actors who can and should be challenged within democratic politics.Footnote ¹⁵⁰ The agency on public education might prioritize high-level reading skills because, objectively, reading is a prerequisite to satisfying and remunerative employment. But what about those who prefer working with their hands?

Stated more directly, the bests interests calculation is a political question, not a legal one. It should not be surprising, therefore, that the democratic politics surrounding administrative policymaking erupts during presidential elections. Selecting a president becomes a proxy for selecting, for example, the best interests of the public when it comes to immigration policy, climate policy, competition policy, and so on. So long as the trustee representative obeys its minimum substantive duties, courts should avoid interfering. Meanwhile, like most political questions, there is room for democratizing the answers. Additional institutions can lend citizens and their interests more presence within a trustee representative's decision-making. For example, trustees can accept public feedback and respond to public objections. Their decisions can be made transparent and publicly available. Further, if the trustee is not an individual, but a body, that body might be staffed by elected, gyroscopic or descriptive representatives. Using carefully designed representative systems, unlike direct participation mechanisms, can help ensure that proceedings remain efficient and elude capture by well-resourced interests.Footnote ¹⁵¹

C. Trustee Authorization

Finally, it is important to make clear what authorization purports to do—and what it does not. From Hobbes,Footnote ¹⁵² we know that authority is conferred by an author, the person who has the right to act. Within the context of trustee representation, this authorizer is recognized as having legitimate power to appoint a trustee to care for the interests of a beneficiary. It is also recognized as having the legitimate power to define the scope of a trustee's duties: to determine what is ultra vires and thus not an act of representation.Footnote ¹⁵³ Sometimes this legitimacy arises from a pre-existing normative relationship between the authorizer and beneficiary.Footnote ¹⁵⁴ For example, a parent might authorize a fiduciary to invest funds on behalf of a minor child. Unlike in a principal–agent model, this relationship is not identity: there is reason to treat authorizers as distinct moral agents whose interests may diverge from those of the beneficiary.Footnote ¹⁵⁵ Despite the relationship between parent and child, the trustee is not the parent's agent. In fact, to fulfill its duties, a trustee might find itself acting against the parent's express wishes. The parent might want the trustee to contribute trust funds to her pyramid scheme. The trustee, duty bound to act in the child's best interests, should refuse.Footnote ¹⁵⁶

Within the context of democratic politics, the capacity to authorize a trustee representative is usually attributed to a sovereign “people,” sometimes through a founding constitutional document.Footnote ¹⁵⁷ Of course, as Hobbes pointed out, “the people” does not exist prior to its representation. There is only the multitude.Footnote ¹⁵⁸ As a result, his analytical scheme of political legitimacy required the concurrent appointment of a representative and the creation of the people through that representative.Footnote ¹⁵⁹ A more democratically appealing option is for individual voters, each of whom has a claim to be part of “the people,” to authorize trustees by participating in elections.Footnote ¹⁶⁰ Specific individual voters jointly authorize members of Congress and the President, as trustee representatives, to decide collectively on the laws that best serve the people-as-beneficiary. Moreover, the model recognizes that the-people-as-beneficiary is a moral agent distinct from the-people-as-authorizers. As a result, these representatives might provide for the interests of those who cannot vote, those who voted for someone else, those who are not yet born, and so on. This gap also opens up space for various trustees’ rival claims to represent the interests of the people-as-beneficiaries. It thus is congenial to a constitution that separates powers and facilitates political opposition. For example, particular subsets of the population elect members of Congress. Another distinct subset elects the President. Both Congress and the President have authority to represent the people-as-beneficiaries, whose interests cannot be reduced to those of their (distinct) authorizers.

Of course, the boundaries of a trustee's authority are not always clear. Congress may be authorized by “the people,” acting through the Constitution, to regulate interstate commerce,Footnote ¹⁶¹ but hesitate over whether its authority includes firearm regulations that protect victims of domestic violence. At this point, one observation should be clear. Given the autonomy ascribed to the trustee, it should not simply take the authorizer's interpretation at face value. Its duty is owed to the beneficiary, not the authorizer. After all, the trustee representative is not representing the authorizer. It is representing the beneficiary. And the authorizer may have interests that conflict with those of the beneficiary. Because the trustee is duty bound to wield its authority in the beneficiary's best interests, it should reject any instructions that do not serve those interests. Accordingly, from the trustee's viewpoint, the question of authority often resolves, like any best interests determination, into a political question—not a legal one.

A. Coherence with Administrative Practice

The idea that an administrative agency is a trustee representative acting in the public interest fits comfortably with actual administrative practice. As Joseph Heath observes, “there is little disagreement that the civil servant should be committed to serving ‘the public interest,’ or ‘the general good’.”Footnote ¹⁶² The Interstate Commerce Commission, established in 1887, was charged by statute with “protecting and promoting the public interest” by establishing “reasonable and just” and non-discriminatory railway rates.Footnote ¹⁶³ Historically, courts have afforded autonomy to civil servants because they worked within institutions designed to evade capture by private, special, or pecuniary interests.Footnote ¹⁶⁴ Unlike courts, agencies self-consciously engage in general, all-things-considered policymaking that impacts a broad group of individuals rather than opine, as courts do, on the rights of particular parties.Footnote ¹⁶⁵ Furthermore, the development of public administration within the United States developed concurrently with social sciences that articulated a concept of public welfare and the public good.Footnote ¹⁶⁶

The case that administrative agencies are successful democratic trustee representatives is elaborated in more detail below.

B. The Benefits of the Trustee Model

Thus, the trustee model of political representation reasonably describes and therefore lends democratic credentials to administrative agencies. Citizens have “presence” within agencies not only because agencies respect their duty to act in citizen beneficiaries’ interests, but because extant law and culture encourage them to do so. Further, agencies’ best interests determinations are appropriately politicized, permeable to the input of citizens and their representatives. Moreover, citizens enjoy presence in the lawmaking process that results in agencies’ statutory authorization. One upshot of this conclusion is that it can explain why some agency actions that appear to be undemocratic may not be undemocratic at all.

Agency officials occasionally find themselves confronting elected lawmakers hostile to their mandates. The EPA, authorized to protect the public from pollution, might face representatives who would rather scrap its regulations because of the onerous burden they place upon businesses and landowners. Industry-aligned presidential political appointees might mobilize to erase EPA policy, and congressional hearings might commence with the aim to embarrass and delegitimize the EPA before the public. Driven by a democratic instinct, one might conclude that the EPA should capitulate. If this is the direction that popular winds blow, who is an unelected agency official to object? The trustee model explains why it should not—and why its refusal is democratic. The EPA, as a trustee representative, is no presidential mouthpiece. Nor is it the appointed agent of any particular congressional representative—or their wealthy constituents. The EPA is instead a trustee representative duty bound to serve the public interest identified in its statutory mandate. One reason that this kind of representation is so appealing is precisely because it stands firm in the face of both changeable popular opinion and the pressure applied by a highly resourced, self-interested minority. It provides a bulwark against populist inclinations. It provides representation for beneficiaries whose voices are not adequately represented by congressional and presidential politics. Thus, to radically undermine EPA policy (or burn it to the ground), lawmakers have to pass new legislation.

Another benefit of the model is that it suggests agencies are at least sometimes permitted to make policy that lacks clear statutory provenance. To illustrate, the Department of Education might implement a universal student loan forgiveness plan under a statute meant to address national economic emergencies. It does so knowing that a powerful industry lobby, using its plentiful cash reserves, routinely convinces lawmakers to block any and all legislation related to forgiving the debt of ordinary consumers. Rather than conclude that the Department's plan is egregious executive overreach, we might also consider that the agency attended to interests of those illegitimately excluded from a corrupt legislative process. As Emerson notes, proponents of New Deal agencies promoted them because they could protect people who, as a result of the complexity and inequality intrinsic in the modern economy, could not initiate action to protect themselves.Footnote ¹⁹⁸ “[G]iven the constant inequality generating pressures of the capitalist economy,” notes political theorist Kevin Olson, administration may be “required to maintain the conditions under which the sovereignty of citizens can be fairly and accurately translated into law.”Footnote ¹⁹⁹

Finally, administrative agencies can help to maintain constitutional representative democracy itself. Consider a scenario where a single party captures the executive and the legislature. That party then seeks to change election rules in its favor, securing power for years to come. An agency committed to civil rights might step in to protect the franchise, even if it seems to do so against democratic currents and even if such questions are deemed nonjusticiable “political” questions.Footnote ²⁰⁰ The trustee model can tell us why agency intervention is nevertheless democratic: it protects democratic autonomy, securing representation for those excluded from the political process. Consider also a U.S. Attorney General, a political appointee, countermanding the orders of a president to weaponize the Department of Justice in a bid to overturn the results of an election. Despite the President's appointment power, the U.S. Attorney General is not his personal lawyer. The Attorney General, rather, is authorized by the Judiciary Act of 1789 to represent “the people.” The U.S. Attorney General, if abiding by his duty to serve the people and its interest, can refuse and still deserve to be called democratic.