The Life of Administrative Democracy

44 Pages Posted: 7 Sep 2019 Last revised: 8 May 2020

See all articles by Joshua Galperin

Joshua Galperin

University of Pittsburgh - School of Law

Date Written: August 30, 2019

Abstract

Imagine if Congress, the President, and the industries they hoped to regulate all decided that neither politically isolated bureaucrats nor a popularly sanctioned President should wield the power to administer Congress’ laws, to make legislative-type policy, to enforce that policy, and to adjudicate disputes under it. Imagine if there were another experiment, one that has persisted, but few have noticed.

Imagine no longer. Overlooked by most, there is a model for federal administration that does not rely on isolated administrators or Presidential control, but instead on elected bureaucrats. Today, the United States Department of Agriculture houses over 7,500 elected farmer-bureaucrats sitting on over 2,000 administrative committees. This article explores the elected farmer committees in detail and provides the first and only complete look at the committees in the legal literature.

Providing local personnel in every corner of the country, the elected farmer committees began during the New Deal as an instrument to help transition the United States Department of Agriculture from an education and research organization into the vast regulatory agency that it is today. Though the power of the committees has shifted over the decades, they are indeed imbued with important administrative powers including policymaking, enforcement, and adjudication. The best evidence of their power is their forgotten role in the famous case Wickard v. Filburn. That case is remembered as a watershed for the Commerce Clause, but it began with an elected farmer committee in Ohio setting limits on Farmer Filburn’s wheat production, discovering that he was overproducing, and then levying the fine that Filburn challenged all the way to the Supreme Court and first year Constitutional Law classes.

It is not, of course, unusual that the actions of an administrative agency would lead to a long and important court battle. What is unusual is that the farmer committees are elected. Why did the New Deal leaders at USDA decide to rely on elected administrators instead of typical political appointment? This article argues that a combination of mostly unstated ideological commitments drove the unusual choice, including a Jeffersonian idealism about the virtuosity of farmers; a hope of instilling a more civic and deliberative democracy throughout farm country; corporatist and pluralist political cynicism; and patent elitism and racism.

Ultimately, this article argues that despite the lofty hopes of those who birthed the elected farmer committees over 80 years ago, the ideal of administrative democracy has tended more towards its worst traits and has failed to live up to its best because it has relied too heavily on majoritarian decisionmaking at the expense of thoughtful reason giving and meaningful deliberation. The elected farmer committees, then, provide administrative law a new relief against which to judge what is best and worst about the standard technocratic and Presidentialist models of administrative law.

Keywords: Administrative Law, Agriculture Law, Democracy, Democratic Legitimacy, New Deal, Majoritarianism, Presidentialism, United States Department of Agriculture, USDA, Elections, Electoral Administration, Electoral Bureaucracy, Administrative State, Bureaucracy, Separation of Powers, Jeffersonianism

Suggested Citation

Galperin, Joshua, The Life of Administrative Democracy (August 30, 2019). 108 Georgetown Law Journal 1213 (2020), U. of Pittsburgh Legal Studies Research Paper No. 2019-15, Available at SSRN: https://ssrn.com/abstract=3445507

Joshua Galperin (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

HOME PAGE: http://law.pitt.edu/people/joshua-galperin

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