The democratic political economy of Administrative Law

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

K. Sabeel Rahman-

The modern administrative state has always faced ongoing debates about the appropriate balance between administrative authority and procedural constraint. But we are in a new moment of political peril in this debate. A newfound skepticism of administrative power has shaped recent judicial decisions exploring limiting previous deference regimes and even suggesting a revival of the non-delegation doctrine. The defense of administrative agencies takes on even greater urgency in the current political moment, as the Trump administration, from its very outset, has sought the “deconstruction of the administrative state.” These critiques have more in common with the arguments made by conservatives in the 1930s that found a welcome audience in the early Hughes Court than they do with the critiques that followed the New Deal. Indeed, academic and journalistic defenders of the administrative state have warned about the risks of what Gillian Metzger has dubbed the new “anti-administrativism” movement.

But this moment of debate is about more than just the familiar clashes between “big government” and “free market” visions of political economy. These attacks on the administrative state—and the historical and current efforts to (re)build administrative institutions—are a critical frontline for our substantive moral values of democracy, equality, and inclusion.

The substantive valence of anti-administrativism

As I’ve argued elsewhere, the doctrinal and intellectual battles over principles like the separation of powers, the scope of liberty, and the appropriate balance between administrative authority and discretion and the more brazen and open political fights over deregulation, administrative agencies, and authority are linked. The former debates, intellectual and doctrinal discussions of administrative law and theory, comprise what we might think of as the “high politics” of anti-administrativism.

By contrast, there is a “low politics” of anti-administrativism, which turns less on principled views about constraint, liberty, and accountability, and instead evinces as a selective and opportunistic push for the dismantling and expansion of state power. Where deregulation and defunding align with the political priorities of the right, critics of the administrative state have paralyzed agency action. The Trump administration’s large rollback of environmental regulations and proposed 31% budget cut to the EPA and similar cuts at HUD are only two examples of deregulation as a way to aid industry and cut support state support for the poor and minorities. By contrast, when administrative power is necessary to further conservative political priorities—for instance, increased immigration detention—the Trump administration has been more than willing to unshackle agencies like ICE to terrorize communities of color with minimal oversight and supervision, expanding its authority to levy punitive fines, demand more funding, and try and bypass Congress and issue an executive order for a border wall. The contestation over administrative power, then, is framed in procedural and politically neutral terms, but in practice is anything but. Instead, anti-administrativism in practice has selectively deployed state power to coerce the poor and minorities and dismantled those agencies originally committed to reducing disparities of social and economic power.

Of course, a good faith debate about the size of government and the effectiveness of administration is possible and indeed welcome for a healthy regulatory state. But we must also be aware that there are vested interests that are served by this selective and opportunistic repurposing of anti-administrativist arguments. Indeed, over the course of the late twentieth century, the Chamber of Commerce and business interests seized upon Milton Friedman’s arguments about markets and the rise of public choice theory to dismantle New Deal era restraints on corporate power. Similarly, the opposition to civil rights and desegregation provided critical political force to late-twentieth century attacks on the administrative state. Southern Democrats combined uneven support for the New Deal with deep hostility to labor power and existential opposition to racial equality to limit the reach of the New Deal’s social contract, excluding women and workers of color. Similarly, in the 1980s push for deregulation, President Reagan successfully coupled a racialized vilification of “welfare queens” with a critique of “big government” to drive bipartisan reforms tightening access to welfare and slashing the social safety net.

The administrative state and the privileges and immunities of citizenship

These interactions between race, economic inequality, and the politics of administrative policy underscore how fights over administrative authority have often served as political proxies for a deeper struggle over the “privileges and immunities of citizenship.” If the administrative apparatus is one of the key ways in which we enforce visions of economic and social inclusion and protection—for example through safety net programs, worker and consumer rights, and civil rights enforcement—then the existence or dismantling of these institutions has huge implications for the degree to which membership in our democracy is equal—or not. Recognizing the substantive valence of the administrative state is critical not just for understanding the political origins and real-world impact of anti-adminsitrativism; it is also central to how we go about building or rebuilding the administrative state going forward.

First, this view suggests we need to (re)build administrative institutions as a key technology of democratic inclusion. If one of the key barriers to inclusion and democracy is the persistence of structural exclusion along economic, racial, and gendered lines, then realizing democracy as a moral matter requires institutions capable of acting on and reshaping those background structures. Without powerful state institutions that can, for example, monitor and enforce worker or consumer protections or curb corporate concentration or enforce civil rights, these aspirations to economic and social equality will be hard to meet. Arguably the historical rise of the administrative state was fueled by precisely this motivation to assert democratic, social control over the industrializing economy.

Second, we need to construct the exercise of administrative authority in more democratic and accountable ways—not by dismantling and limiting its reach, but rather by assuring the kinds of internal checks and balances needed to legitimize administrative authority and channel it to public purposes. We could, for example, directly require more inclusive stakeholder representation within agencies. Policy design can also create better levers for constituencies to get involved in developing policy and in monitoring its enforcement. In this way, “citizen audits” could chart the enforcement process going forward.These techniques are part of a broader shift in regulatory institutional design, from focusing just on policy outcomes and efficiency instead to the idea of “policymaking as power-building”.

Of course, an inclusive democracy will require a range of structural institutional reforms to our democratic institutions and our political economy as a whole. But the administrative state plays a key role in making real—or inhibiting—the on-the-ground realities of inclusion and democracy. This substantive and moral valence is critical to our understanding of the movements seeking to dismantle, or remake, the administrative state.

K. Sabeel Rahman is an Associate Professor of Law at Brooklyn Law School and President of Demos, a think-and-do tank dedicated to addressing issues of racial justice, economic inequality, and democracy.