Further from the People? The Puzzle of State Administration
93 N.Y.U. L. Rev. 107 (2018)
69 Pages Posted: 10 Aug 2017 Last revised: 4 May 2018
Date Written: August 1, 2017
Civil society today vitally supplements the traditional legislative and judicial checks on the powerful federal executive branch. As many commentators have observed, individuals, interest groups, and media outlets actively monitor, expose, and impede federal executive misdeeds. But much of government administration now occurs in the states. State executive branches have burgeoned in size and responsibility in recent decades, and state and national leaders call for devolving even more power to the states -- often on the premise that state administration will be more engaged with or responsive to the needs of state citizens. Commentators, however, have devoted little attention to whether and how civil society constraints administration in the states.
This Article identifies and theorizes the role of civil society oversight at the state level. It finds that state agencies frequently lack the civil society check that commentators celebrate at the federal level. State agencies are, on the whole, less transparent than their federal counterparts, less closely followed by watchdog groups, and less tracked by the shrinking state-level media. Thus, despite the common refrain that state government is "closer to the people," the realities of state administration suggest the opposite is often true. This insight complicates certain tenets of federalism theory -- those that assume a close connection between state governments and their citizens -- while strengthening theories concerned about state-level faction. As a practical matter, civil society oversight is one factor that can help explain serious regulatory failures in the states -- and more optimistically, success stories. Finally, attending to civil society oversight can highlight reforms available to those who seek a state government that is more visible to and constrained by its people.
Keywords: administrative law, federalism, separation of powers, state and local government law
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