Christopher S. Havasy | 77 Vand. L. Rev. 647

The administrative state is under attack. Judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that in scrutinizing the massive powers that agencies hold over citizens, these critics have a point. However, their solution—to augment the powers of Congress or the President over agencies to instill indirect democratic accountability—is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.

This Article excavates the nineteenth-century European intellectual history following the rise of the modern administrative state as inspiration to illuminate how agencies can improve their democratic credentials to justify their powers over the citizenry. While such thinkers might seem far afield of current public law discussions, this unlikely group of nineteenth-century legal and political theorists has already extensively theorized contemporary concerns about agencies coercing citizens without proper democratic accountability. These theorists, whom I call administrative “radicals,” presented a much bolder conception of the role of agencies in governance than contemporary critics. Instead of stripping agencies of their powers, the radicals proposed democratizing the administrative state so the citizens could instill direct democratic accountability over the agencies that coerced them. Importantly, the radicals influenced the first generation of American administrative law scholars, who looked to these radicals to figure out how to democratize the nascent American administrative state.