Blake Emerson, UCLA School of Law, has posted Executive (Administrative State), a contribution to the Cambridge Handbook of Constitutional Theory:
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, inspired by scholarship in public administration, political science and comparative law. 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. Here I contribute to a robust and growing literature on democracy and the administrative state, which treats welfare and regulatory agencies as potentially advancing rather than merely threatening popular self-government 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.--Dan Ernst
