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39 - The Administrative State

from Part III. B - The Executive

Published online by Cambridge University Press:  27 March 2025

Richard Bellamy
Affiliation:
University College London
Jeff King
Affiliation:
University College London
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Summary

This chapter examines the relationship between the administrative state and constitutional values and structures with reference to German and American legal and political theory. It recovers from these intertwined traditions three analytical approaches to the administrative state. The first analytical approach understands the administrative state to implement the constitution. The second understands the administrative state to generate new constitutional structures and values. The third understands the administrative state to displace the constitution with patterns and practices of rule that lie outside of the existing governance framework. These frameworks foreground normative analysis of how the administrative state ought to relate to general democratic principles and the specific constitutional rules that institutionalize them. I argue for a differentiated and developmental understanding of the relationship between democracy, constitution, and administration. The concrete administration of democratic values should allow constitutional rules to shift in light of social and historical context. The administrative state should not be strictly limited by, but rather should facilitate critical interrogation of, the constitution’s current instantiation of democratic values. The administrative state can and should hold the constitution open for the introduction and proliferation of new institutional configurations and forms of public life.

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Publisher: Cambridge University Press
Print publication year: 2025

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References

Recommended Reading

Emerson, B. (2019). The Public’s Law: Origins and Architecture of Progressive Democracy, New York: Oxford University Press.CrossRefGoogle Scholar
Ernst, D. R. (2014). Tocqueville’s Nightmare: The Administrative State Emerges in America, 1914–1940, New York: Oxford University Press.CrossRefGoogle Scholar
Kagan, E. (2001). Presidential Administration. Harvard Law Review, 114(8), 22452385.CrossRefGoogle Scholar
Lee, S. Z. (2010). Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present. Virginia Law Review, 96(4), 799886.Google Scholar
Mashaw, J. L. (2012). Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law, New Haven CT: Yale University Press, 2012.Google Scholar
Michaels, J. D. (2018). Constitutional Coup: Privatization’s Threat to the American Republic, Cambridge, MA: Harvard University Press.Google Scholar
Rahman, K. S. (2016). Democracy Against Domination, New York: Oxford University Press.Google Scholar
Rose-Ackerman, S. (2021). Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France, New Haven: Yale University Press.Google Scholar
Scheuerman, W. E. (1994). Between the Norm and the Exception: The Frankfurt School and the Rule of Law, Cambridge, MA: MIT Press.Google Scholar
Skowronek, S., Dearborn, J. A., & King, D. (2021). Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive, New York: Oxford University Press.CrossRefGoogle Scholar

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