The foundations of the administrative state are being reshaped, both by the continuing transformations of administrative law doctrine by the courts and by the ambitions for restructuring the executive branch among the current presidential administration. But at the same time, a defense of existing administrative structures seems inadequate. There are very real questions about the degree to which our current administrative institutions can be repurposed or leveraged toward urgent egalitarian and democratic goals of racial and gender equity, combatting concentrations of economic power, and dealing with the accelerating pressures of the climate crisis, among other priorities. How then should we conceptualize at a foundational level a response to the troubling challenges to administrative power ascendant today, while also motivating a broader reimagining of more progressive administrative power going forward?
This Article offers a novel theorization of the administrative state, which helps crystallize the nature of the far right’s vision of administration as well as the contours of a potential progressive counter vision. The central argument of the Article is that we should understand fights over administrative capacity as fundamentally intertwined with the commitment to and possibility of a more inclusive vision of citizenship. Administrative institutions are central to counteracting domination—the concentration of unaccountable power among both state entities and private actors. The construction (or deconstruction) of administrative capacities are thus backdoor ways to dial up or dial down the possibilities for inclusive citizenship, whether through the creation (or destruction) of affirmative state protections against discrimination, economic exploitation, or proactive provision (or dismantling) of freedom- and equality-enhancing benefits programs. Similarly, the reality of inclusive citizenship turns in large part on the presence (or dismantling) of those administrative capacities premised on perpetuating relations of domination or subordination—such as through the unchecked application of immigration enforcement powers.
Highlighting the link between capacity and citizenship yields two important payoffs. First, this approach clarifies the nature of the threats to the administrative state ascendant today from what the Article terms “reactionary administration.” This emergent consensus on the right is not simply about “free markets”; rather, it is about a combination of dismantling and strengthening different administrative capacities to reassert unequal economic and social relations. Second, this emphasis on the relationship between capacity and citizenship also helps provide a clear normative framework for reimagining how administrative power and structure ought to be reconfigured going forward for more egalitarian and democratic ends.
This theorization helps reorient our broader debates in administrative law scholarship and advocacy for the current moment. We are no longer in the realm of the conventional clash between “big government” and “free markets”; rather the debate is a deeper one over what configurations of administrative power are needed to advance particular visions of social and economic inclusion or exclusion. This fault line runs through discrete debates over particular doctrinal shifts and policy initiatives. indeed, as this Article will also suggest, while it may be tempting to default to familiar administrative law values of procedural neutrality and “checks and balances” to push back against the likely excesses of reactionary administration, these discourses are insufficient to address the very real limitations of our current administrative infrastructure from a progressive viewpoint—and these conventional frames cannot rebuild the broader legitimacy of the administrative state in this moment of extreme polarization and attack. instead, administrative law scholars and reformers must offer an affirmative, alternative moral vision of the administrative state—a vision to which this Article contributes a framework and starting point.
