Minimally Democratic Administrative Law
60 Pages Posted: 27 Feb 2016 Last revised: 6 Apr 2016
Date Written: February 22, 2016
A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what democracy requires.
While several conceptions of democracy have influenced administrative law over the years, administrative law has never come to terms with a strand of democratic thought that I term democratic minimalism. Democratic minimalists argue that conventional theories of democracy set unrealistic benchmarks to evaluate government practices, because they expect more than is reasonable of citizens, leaders, and institutions. Accordingly, minimalists seek to offer a less ambitious, more attainable account of democratic governance that nonetheless captures core normative commitments.
This Article presents the first account of minimally democratic administrative law. The Article identifies the conceptions of democracy that have dominated thinking about administrative law to this point and highlights challenges to them before outlining a competing, minimalist conception of democracy. It then revisits contemporary debates over how courts should review agency action from a minimalist standpoint.
Keywords: administrative law, democratic theory, judicial review, hard look review, deference, interest group pluralism, civic republicanism, deliberative democracy, presidentialism
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