Samuel R. Bagenstos (University of Michigan Law School) has posted Empowering and Fearing Government: Democratic Countervailing Power and the Future of the Administrative State (Building Democratic Capacity: Essays on Administrative Law’s Futures (Blake Emerson, Bijal Shah, K. Sabeel Rahman & Joshua Macey, eds.), forthcoming) on SSRN. Here is the abstract:
This essay examines three competing responses to the crisis of the administrative state in the Trump Era: libertarianism; proceduralist liberalism drawing on Charles Reich’s “New Property” and Naderite public interest law; and abundance liberalism. It traces the historical roots of each position and shows that the tension between empowering and constraining government has recurred since the consolidation of the modern administrative state during the Progressive and New Deal Eras. The second Trump Administration exposes critical weaknesses in all three camps. Abundance liberals must reckon with the vast harm an unconstrained executive can inflict. Proceduralist liberals must confront the reality that legalistic restraints function as “parchment barriers” that bind good-faith actors while failing to check those most prone to abuse. And libertarians must accept that robust government is both inevitable and necessary. Rather than searching for a single institutional fix, this essay proposes three theses: there is no permanent solution to this enduring democratic tension; judges cannot serve as the primary guardians of democratic governance; and reform should focus on cultivating independent sources of democratic power—including enhanced independent agencies, innovative fiscal federalism, and empowered civil society institutions—that can resist executive overreach while supporting vigorous, democratically legitimate governance.
Highly Recommended!
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