The administrative state has been bedeviled by doubts about its democratic legitimacy and its questionable Constitutional provenance. Courts and scholars attack or shore up this weakness, but almost all proceed on the assumption that the administrative state is a modern leviathan unimaginable to the Founders. Consequently, questions about the role of politics in agency decisions assign a disfavored role to “pure politics” in rulemaking. This Book Review Essay challenges that assumption and its implications for the role of politics in administrative decisionmaking. Centering on a review of Jerry L. Mashaw’s new book, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law, the Essay describes the book’s argument that administrative governance began immediately upon the founding of the Republic. Mashaw uncovers a substantial body of internally developed administrative law, previously ignored by legal scholars, amounting to an unwritten administrative constitution. I contend that this has significant implications for the role of political oversight of administrative decisionmaking, lending it substantial legitimacy if coupled with greater transparency.
A Pragmatic Republic, If You Can Keep It, 112 MICH. L. REV. 905