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Radical Administrative Law

Posted by on Saturday, April 20, 2024 in Articles, Volume 77, Volume 77, Number 3.

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.

The radical tradition inspires us to transform the relationship between agencies and the citizenry and rethink how agencies fit within the separation of powers and administrative law. Instead of viewing agencies as stuck in the middle of a perpetual tug-of-war between Congress and the President, the radical tradition encourages us to focus on agencies themselves by shaping the relationships between agencies and the citizenry to instill direct democratic accountability. Under this radical separation of powers framework, the people serve as the common source of accountability for Congress, the President, and the administrative state. In doing so, embracing radical administrative law mitigates scholarly and judicial concerns that have inspired the revival of the nondelegation doctrine, elimination of removal protections, and the expansion of the major questions doctrine. The radical tradition also reinvigorates discussions of political equality in administrative law and suggests a reduced judicial role in policing the substance of agency decisions.

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Christopher S. Havasy