The Trump Administration versus the Administrative State

Abstract

The current administration has created an crisis for democratic governance. Scholarly analysis seems stuck on analyzing the technocratic challenges to Trumpian rule rather than confronting the underlying, unspoken problem of a president who does not believe in the rule of law. The crisis we face is not new — it is a new iteration on an ongoing struggle within our form of government. By drawing analogies to other past crises involving the scope of Presidential power, we can more easily ‘see’ the Trump administration’s existential threat to the administrative state — a necessary first step for confronting its administrative excesses. Reflecting this reality, analogies between the Trump administration and the Nixon administration’s Watergate crisis are legion. Without in any way suggesting that those analogies are inappropriate, this paper instead direct attentions to two other administrations that also surfaced gaping holes in the existing edifice of administrative law: the Andrew Jackson Administration and the Franklin Roosevelt Administration. The message that emerges from this examination is that devising a law-based solution to plug the gaping hole that has been revealed (or created) in our legal edifice will take time, maybe a long time, and there will be many related crises along the way. You may have heard that history does not repeat but it rhymes. Today we are all poets. We just don’t know it.

Keywords: administrative law, crisis, democracy, legitimacy, public participation, civil service, abuse of power, spoils, checks and balances

JEL Classification: K00. K20. K23, K32, K40, K19