The Legitimacy of U.S. Government Agency Power

• Published date: 01 January 2015
• Date: 01 January 2015
• DOI: http://doi.org/10.1111/puar.12279

Daniel L. Feldman, professor of

public management at John Jay College of

Criminal Justice, served as a member of the

New York State Legislature for 18 years, as

a senior member of the staff of the New

York State Attorney General for six years,

and as special counsel for law and policy

for the New York State Comptroller for

three years. He has written f‌i ve books and

numerous articles on law and government.

E-mail: dfeldman@jjay.cuny.edu

The Legitimacy of U.S. Government Agency Power 75

Public Administration Review,

Vol. 75, Iss. 1, pp. 75–84. © 2014 by

The American Society for Public Administration.

DOI: 10.1111/puar.12279.

which she calls “empirical legitimacy,” and such belief

when based on “good reasons that withstand collec-

tive scrutiny,” which she calls “normative legitimacy”

(2014, 11).  is article suggests that institutional

behavior consistent with societal values—thus based

on “good reasons” that are very likely to “withstand

collective scrutiny”—over time will increase legiti-

macy, while behavior that is inconsistent with such

values will decrease it. It argues that the works of

Rohr and Fuller, when taken together, combine those

values in a manner that bureaucrats can and should

internalize. If they do, their behavior will enhance the

legitimacy of government agencies.

John Rohr taught public administration at Virginia

Polytechnic Institute and State University from 1979

until his death in 2011 (Cruikshank 2011). In several

seminal books, he illuminated the importance of

constitutional values in public administration and

in American society. Lon Fuller taught contracts and

jurisprudence at Harvard Law School from 1939 until

1972 (Summers 1984, 1). He of‌f ered a vision of law

as a tool for human purpose but reliant on secular

Every generation proposes its own theory of

American government administrative agency

legitimacy (see, e.g., Lowi 1993). Dwight

Waldo noted that “all states are administrative or else

they are not states” (1990, 73), and Kenneth Warren

said that “the administrative state today is legitimate

because it exists” (1993, 250).  eir comments

may have cast doubt on the value of the search for

sources of bureaucratic legitimacy, but in the present

era, when public trust in American government has

reached historic low points (Pew Research Center

2013),1 weakened conf‌i dence in government makes

that search more pressing. An amalgam of John Rohr’s

work in building a greater appreciation for American

regime values and the role of the constitutional oath

with Lon Fuller’s view of the proper role of law as

facilitating human endeavor and his explanation

of the limits of institutional competence can meet

that need by producing an appropriate balance of

constitutional and managerial values.

Jane Mansbridge distinguishes between the public

perception that an institution’s power is justif‌i ed,

 e Legitimacy of U.S. Government Agency Power

Daniel L. Feldman

John Jay College of Criminal Justice

Abstract: A synthesis of the work of two political and legal scholars, John Rohr and Lon Fuller, properly balances

constitutional and managerial values, supplementing other theories that of‌f er useful but insuf‌f‌i cient support for

American government agency legitimacy. Agencies ref‌l ecting that balance would strengthen their legitimacy—a

particularly valuable goal in an era of low conf‌i dence in American government. Rohr’s focus on the constitutional

oath of of‌f‌i ce and American regime values, and Fuller’s insistence that law must serve human needs, leave a great

deal indeterminate and discretionary but nevertheless set boundaries. Bureaucrats who risked or sacrif‌i ced their jobs

to avoid transgressing those boundaries of‌f er models of loyalty to the Rohr-Fuller balance of values.  e behavior of

of‌f‌i cials in the Of‌f‌i ce of the Comptroller of the Currency in thwarting measures that could have averted the f‌i nancial

crisis of 2007 of‌f ers a model of bureaucrats who violated those boundaries.

Practitioner Points

• Public servants in leadership roles should understand that they owe their deepest loyalty to the Constitution

and the people, not to their hierarchical superiors, Congress, or even the courts.

• Immersion in the great historic American constitutional controversies tends to inculcate constitutional values

(not constitutional law, which is a dif‌f erent thing), and is therefore a useful exercise.

• Rohr’s constitutional values (liberty, equality, property) sometimes compete with managerial values

(security, ef‌f‌i ciency).

• Public servants should maintain a strong and healthy skepticism of the excessive tilt in recent decades toward

managerial values.