The Death of Administrative Democracy

71 Pages Posted: 19 Mar 2020 Last revised: 27 Feb 2021

See all articles by Joshua Galperin

Joshua Galperin

Elisabeth Haub School of Law at Pace University

Date Written: February 24, 2020

Abstract

Everybody agrees. Everybody is certain. There are no elected bureaucrats.

That pervasive certainty must come as quite a surprise to elected bureaucrats.

The federal bureaucracy presents examples of administrative elections, but the most significant is the United States Department of Agriculture’s elected farmer committees. There are over 7,500 elected farmers sitting on over 2,000 committees, and these committees carry out paradigmatic administrative duties including policymaking and adjudication.

Taking for granted that administrators are unelected, judges have shaped an ascendant doctrine of Presidentialism. This doctrine presumes that the administrative state is only legitimate insofar as it is under the direct control of the President because the President is electorally accountable. Presidentialist doctrine is based on majoritarian legitimacy. Surprisingly, were Presidentialist doctrine applied to the majoritarian, elected, farmer committees, it would strike them down because they are tied directly to voters rather than indirectly through the President. This suggests a weakness in Presidentialism: The theory relies on administrative majoritarianism but rejects electoral authority untethered from the President.

This article argues that both Presidentialism and electoral administration are flawed. Both rely on a one-dimensional oversimplification of democracy. Rather than tidying-up democracy by fitting it into mere majoritarianism, judges and scholars should focus on a more robust notion of democracy animated by, and accountable through, elections, but also fundamentally reliant individual participation, reason giving, and deliberation. This ideal of democracy has a long pedigree, but the novel consideration of electoral administration provides new insights and support.

Suggested Citation

Galperin, Joshua, The Death of Administrative Democracy (February 24, 2020). 82 Pitt L. Rev. 1 (2020), U. of Pittsburgh Legal Studies Research Paper No. 2020-18, Available at SSRN: https://ssrn.com/abstract=3543777

Joshua Galperin (Contact Author)

Elisabeth Haub School of Law at Pace University ( email )

78 North Broadway
White Plains, NY 10603
United States

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