The title of this symposium—“Assuring Democratic Accountability in the Administrative State”—poses two challenges. The obvious—and substantive— challenge that I assume the organizers intended, was to seek ways to achieve democratic accountability. The other—the interpretive challenge—however, comes first: What do we mean by “democratic accountability?” Exploring democratic accountability in this way is what I want to attempt in this essay.

Lawmakers have long considered democratic accountability in the administrative state. The Constitution addresses—though hardly resolves—the question by establishing three co-equal branches and endowing each with distinct sources of authority. One hundred and fifty years later, the Administrative Procedure Act took more direct aim at administrative accountability by establishing procedures to open administrative decision-making to different types of participation. In recent years, the Supreme Court has focused on presidential control of administrative agencies. With the West Virginia v. EPA decision in June 2022, the Court shifted its emphasis from executive accountability to judicial oversight.

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