The Legitimacy of U.S. Government Agency Power

Published date01 January 2015
Date01 January 2015
AuthorDaniel L. Feldman
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.
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.

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