Has democratic governance and the rule of law been compromised by the continued growth of the administrative state?

Kenneth F. Warren

Journal of Chinese Governance, 2019, vol. 4, issue 1, 15-33

Abstract: To place the administrative state into perspective, I first present the theoretical justifications for America’s traditional form of government followed by the theoretical justifications for the administrative state, especially promoted by early public administration scholars. I then present the prevalent scholarly viewpoint that we live in an administrative state where public administrators exercise not only administrative powers, but legislative and judicial powers as well because Congress has irresponsibly delegated away vast legislative powers to agency administrators, while the courts have provided scant review by deferring too readily to administrative expertise. To these scholars, this has undermined our checks and balance system and violated the rule of law. Although there is considerable merit to this position, for the sake of providing some balance, I present a rather polemical, opposing argument. I hold that the administrative state notion distorts the true governing system in America because Congress, the courts, and the president are still viable players that have and can continue to provide, if necessary, sufficient checks on the administrative state. I provide the reasons why. I conclude by questioning whether we even have an administrative state, but even if so, I offer evidence to suggest that the administrative state is constitutionally sanctioned, politically legitimate, upholds the rule of law, and actually performs better than our traditional three governmental branches.

Date: 2019
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DOI: 10.1080/23812346.2018.1541657

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