The administrative state goes global

Classical works in the field of administrative law emphasized the problems that arise from endowing the executive branch with broad administrative discretion. Generally speaking, the conventional narrative of administrative law has conceptualized agencies as omnipotent decision makers with vast bureaucratic power. In his Ideology of Bureaucracy in American Law, Gerald Frug stated, “bureaucracy is the primary form of organized power in America today.” This organized bureaucratic power has been perceived as a threat to human freedom and to constitutional principles. Thus, controlling the discretion of unelected bureaucrats has been seen as the guiding principle of traditional administrative law. According to this approach, administrative law should be understood as an attempt to legitimize modern bureaucratic power by providing “a series of assurances that the legal system can overcome the perennial concerns about bureaucratic organizations” by ensuring that “bureaucratic organizations are under control.” This chapter challenges the traditional narrative of administrative law in two ways. First, it argues that the strong state-centric character of traditional administrative law, which associates bureaucratic power with the state apparatus and problematizes this power in the context of domestic constitutional law, disregards the increasingly globalized legal environment in which administrative action is embedded. Many local administrative decisions affect not only citizens but also foreign entities, such as investors, immigrants, and foreign laborers. Moreover, as a result of globalization processes, the state has lost its exclusive power to regulate matters that lie within the traditional realm of administrative law. In many areas, covering diverse topics such as trade, financial regulation, public health, and the environment, various international agencies have acquired increasing influence over domestic regulatory processes. The integration with the global arena, together with the economic promises it contains, requires the state, as will be elaborated below, to forgo some of its regulatory powers. Second, this decoupling between bureaucratic power and the state apparatus also challenges the mechanisms of control developed by administrative law to counter potential abuse of administrative power.