The modern administrative state plays a vital role in governing society and the economy, but the role that politics should play in administrators’ decisions remains contested. The various regulatory and social service agencies that make up the administrative state are staffed with experts who are commonly thought to be charged with making only technocratic judgments outside the pressures of ordinary politics. In this article, we consider what it might mean for the administrative state to be antipolitical. We identify two conceptions of an antipolitical administrative state. The first of these—antipolitics as antidiscretion—holds that, in a democracy, value judgments should only be made by elected officials and that all administrators should do is carry out technical tasks calling for expertise. We argue that this conception is untenable because administrators inevitably make policy decisions that call for value judgments. On the other hand, a second conception—one of antipolitics as antifavoritism—is both realistic and desirable to expect of those who occupy positions of administrative power. This second conception holds that administrators, even though they make value judgments, should do so only with the aim of promoting overall public value, avoiding decisions made for narrow, self-interested reasons. We show that many doctrines of administrative law follow from an antifavoritism principle, as the law aspires to free the administrative state from decision-making that is baldly based on the interests of administrators and their partisan overseers or friends. Today, as the state comes under increasing threat from populist and authoritarian attempts to capture its power, distinguishing between the two conceptions of antipolitics—one unrealistic, the other imperative—can help to channel antipolitical impulses where they are most needed to preserve the integrity of administrative governance.
Administrative law, anti-politics, democracy, technocrats, anti-favoritism, administrative power
Common Knowledge (forthcoming)
Coglianese, Cary and Walters, Daniel, "Antipolitics and the Administrative State" (2023). Faculty Scholarship at Penn Carey Law. 3008.