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Civil society today vitally supplements the traditional legislative and judicial checks on the powerful federal executive branch. As many commentators have observed, individuals, interest groups, and media outlets actively monitor, expose, and impede federal executive misdeeds. But much of government administration now occurs in the states. State executive branches have burgeoned in size and responsibility in recent decades, and state and national leaders advocate further expanding state authority. Underlying such calls is a notion that states are “closer to the people” than the federal government, and thus more attentive and responsive to the public’s needs. Yet commentators seldom question these premises, and there is scant attention to whether and how civil society constrains administration in the states.

This Article identifies and theorizes the role of civil society oversight at the state level. It finds that state agencies frequently lack the civil society check that commentators celebrate at the federal level. State agencies are, on the whole, less transparent than their federal counterparts, less closely followed by watchdog groups, and less tracked by the shrinking state-level media. These insights complicate certain tenets of federalism theory—those that assume a close connection between state governments and their citizens—while strengthening theories concerned about state-level faction. As a practical matter, civil society oversight is one factor that can help explain serious regulatory failures in the states—and more optimistically, success stories. Finally, attending to civil society oversight can highlight reforms available to those who seek a state government that is more visible to and constrained by its people.

In Response to: Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

This Essay responds to Jon Michaels’s claim, insightfully developed in his recent Article, that the administrative realm functions as a self-regulating ecosystem. Michaels’s claim rests on his description of a trio of administrative rivals that mirror the constitutional branches: The civil service manifests key rule-of-law qualities of the judiciary, agency heads mimic the partisan leadership of the presidency, and—of greatest interest here—civil society plays the “popular, deliberative” role of Congress. Michaels argues that this “administrative separation of powers” legitimates and appropriately constrains agency action. Further intervention by the constitutional branches, in his view, is generally unnecessary and destabilizing.

Michaels’s intriguing comparison between civil society and Congress raises important questions about the oversight function of each institution. I argue that substituting civil society for Congress runs the risk of replicating—and likely exacerbating—pathologies of inequality and exclusion that undermine oversight’s democratic value. Both Congress and civil society are prone to elitism and representational failures that fall short of constitutional ideals. Yet because their respective mandates, structures, and capacities differ, the two institutions are likely to perform better oversight in tandem than civil society could alone. Congressional oversight, I argue, may channel a different and somewhat more inclusive perspective than civil society alone. At the same time, civil society has advantages over Congress: It can give voice to political minorities, act more swiftly and decisively, and engage with agencies more consistently over time. Taking account of the flaws and attributes of each institution thus points toward a reorientation of Michaels’s model. Rather than casting the administrative sphere as self-regulating in isolation, we should focus on the complementary nature of the administrative and constitutional rivals.

Miriam Seifter, Complementary Separations of Power, 91 N.Y.U. L. Rev. Online 186 (2016).