This post is part of a series highlighting some of our favorite entries from the archives. Read the rest of the posts here.
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The American administrative state is in crisis. In recent years, the Supreme Court has dismantled core doctrines of administrative law; in recent weeks, President Trump and his henchmen have attempted to implement radical measures to reshape the executive branch. From mass purges of federal employees to tightening control over once-independent agencies, the Trump Administration’s sweeping overhaul of the executive branch signals a sharp consolidation of presidential power—undercutting democratic accountability and the rule of law to advance a reactionary agenda and serve the interests of oligarchs like Elon Musk.
These developments raise fundamental questions about democratic governance. At stake are not merely technical issues of judicial deference or organizational structure, but the government’s capacity to address public needs and uphold democratic principles. In this period of institutional upheaval, Law and Political Economy scholarship offers crucial insights. It helps us see how the American administrative state became what it is today. And, more importantly, LPE frameworks can help us imagine what it could become: an institution that advances democratic participation and economic justice. With that in mind, we’ve collected some of our most illuminating posts on administrative law and democratic governance.
Democratizing Administrative Law
The Democratic Political Economy of Administrative Law – K. Sabeel Rahman
Rahman reveals how debates over administrative power are about more than just technical questions of governance. He demonstrates how “anti-administrativism” operates on two levels: a “high politics” of doctrinal debates about liberty and separation of powers, and a “low politics” of selective dismantling that often targets agencies protecting vulnerable populations while expanding those that serve conservative priorities. Drawing historical parallels to how business interests and segregationists limited the New Deal’s reach, Rahman argues that fights over administrative authority are really proxy battles over the “privileges and immunities of citizenship.” His solution is to rebuild the capacity of administrative institutions while ensuring their accountability through internal checks and balances like inclusive stakeholder representation and citizen audits.
Reclaiming Notice and Comment – Matthew Cortland & Karen Tani
While corporate interests have long dominated the administrative “notice and comment” process, Cortland and Tani reveal how this procedural tool was repurposed by grassroots activists in the Trump era to fight deregulation. Through case studies of Medicaid work requirements and education policy, they show how marginalized communities have used public comments not just to create legal records for future litigation, but to mobilize “grassroots experts” and document the human consequences of administrative decisions. These techniques, they argue, do more than just challenge specific policies—they create an archive that makes visible the often-hidden human costs of administrative action. In a follow-up post, Tani, Cortland and Nancy Chi Cantalupo discuss organizing efforts that have followed in the wake of mass commenting efforts, focused on independently analyzing the contents of comments and ensuring their due consideration.
Critics of the Administrative State Have a History Problem – Sophia Z. Lee
Lee exposes a paradox in conservative challenges to the administrative state: while originalists seek to restore a 19th-century constitutional order to limit agency power, their historical evidence may be a Trojan horse. Through careful historical research, she demonstrates that in the 1800s, agencies—not courts—were the primary interpreters of constitutional questions, with the first published case of judicial review of federal administrative due process not appearing until 1863. This creates a dilemma for “foundationalists” who simultaneously champion originalism and robust judicial review of agency action, since the historical record suggests these goals are incompatible.
What Makes an Administrative Agency ‘Democratic’? – Katharine Jackson
In this post, Jackson offers a novel theoretical framework for defending agency power. Rather than seeing agencies as mere instruments of congressional will or viewing democracy solely through the lens of public participation, she challenges how we understand the concept of popular sovereignty itself. Drawing on constructivist theories of representation, Jackson argues that sovereignty should be understood not as a concrete “will of the people” but as a regulative ideal focused on equal participation. This reframing opens new possibilities for agency design: rather than rigid separation of powers, she suggests organizing agencies based on issue contentiousness, allowing for expert insulation when appropriate while ensuring democratic input on issues where the public is mobilized.
Taking Democracy Seriously in the Administrative State – Daniel E. Walters
While both defenders and critics of the administrative state invoke democracy, Walters argues they rule on an impossible ideal: the existence of public consensus in our deeply divided society. Drawing on Chantal Mouffe’s theory of agonistic democracy, he proposes reimagining administrative agencies not as consensus-building machines but as venues for productive conflict. Rather than trying to eliminate political disagreement through technical expertise or deliberative procedures, Walters suggests that agencies should institutionalize contestation—making conflicts explicit and giving marginalized voices genuine opportunities to challenge decisions. This approach, he argues, could help reverse the administrative state’s delegitimation, reduce inequalities perpetuated by seemingly neutral processes like cost-benefit analysis, and provide safeguards against authoritarianism by fostering institutional conflict even when presidents seek to suppress it.
The Future of the Administrative State
Cost-Benefit Analysis at a Crossroads: A Symposium
In this look at the future of quantitative policy evaluation, nine authors examine both the promise and peril of our current system of cost-benefit analysis. From the way it privileges wealth maximization over democratic values, to its systematic devaluation of human life during the pandemic, to it’s failure to adequately account for disability rights and racial justice, cost-benefit analysis as it is currently practiced distorts regulatory decision-making and reinforces existing inequalities. The symposium offered both critique and constructive alternatives: some propose strategies to incorporate distributional concerns or for more strategic political deployment of cost-benefit analysis by progressives, while others make the case for abandoning it entirely. After the Biden administration re-wrote the foundational guidelines for regulatory impact analysis, the Blog featured an exchange between Luke Herrine and Sabeel Rahman that considered how some of these suggestions and critiques did or did not make their way into the revised rules for cost-benefit analysis.
After Chevron: Political Economy and the Future of the Administrative State – K. Sabeel Rahman
In the wake of four landmark Supreme Court decisions dismantling key aspects of administrative power, Rahman argues that these technical doctrinal changes represent a profound shift in both political and economic power. Rather than seeing these cases—from Chevron’s demise to new constraints on agency enforcement in Jarkesy—as merely about government versus markets, Rahman argues they enable forms of social and economic domination by empowering well-resourced interests to challenge regulations through an unaccountable judiciary. Yet this crisis also represents an opportunity to reimagine the administrative state. Rahman calls for expanding agency capacity to tackle corporate concentration and systemic inequities while redesigning bureaucratic systems to make benefits more accessible and community participation more meaningful—moving beyond defending the status quo to envision what democratic governance could become.
Reconstructing the Administrative State – Blake Emerson
Emerson recovers a forgotten Progressive Era vision of democratic administration rooted in Hegelian political theory. While today’s regulatory state relies heavily on market-mimicking tools like cost-benefit analysis, Emerson shows how thinkers like W.E.B. DuBois, John Dewey, and Mary Parker Follett envisioned agencies as vehicles for collective self-governance—not just correcting market failures but actively fostering social equality through public participation. Drawing on historical examples from the Federal Trade Commission to the Tennessee Valley Authority, Emerson argues for reconstructing an administrative state that meaningfully engages affected communities while counterbalancing social inequalities.
How to Protect Federal Agencies Through Collective Bargaining – Asher Morse
As the Trump administration threatens renewed attacks on the civil service, Morse reveals how federal public-sector unions and collective bargaining agreements could serve as a crucial defense mechanism against “structural regulation.” Through detailed analysis of federal labor law, he shows how agencies can proactively build in protections against tactics like the first Trump administration’s attempted Bureau of Land Management relocation, which led to massive staff attrition. While the first Trump administration ironically demonstrated this approach’s power through union-empowering contracts at ICE and CBP, Morse argues that progressive agency leaders have been too hesitant to embrace similar collaborative bargaining strategies.
LPE Conference: Administering a Democratic Political Economy
Last year, the LPE Project organized a conference bringing together scholars to reimagine administrative law’s relationship to democracy and equality. Through panels examining structural injustice, economic inclusion, and industrial policy, participants explored how to move beyond traditional proceduralist approaches that have often harmed marginalized communities. The conference built on emerging LPE scholarship connecting administrative law to questions of power, race, and gender, seeking ways to make the administrative state a more effective tool for achieving democratic governance and economic justice.
