My new book, Is Administrative Law Unlawful?, argues that administrative power revives prerogative power. This is not, however, an entirely original thesis. On the contrary, it once was widely acknowledged by proponents of administrative power.
In 1887, when Woodrow Wilson was still a mere academic, he wrote an essay that served as a clarion call for administrative power. Revealingly, one of his themes was that reformers faced greater difficulties in modern democracies than they had in the monarchies of the past:
Once the advantage of the reformer was that the sovereign’s mind had a definite locality, that it was contained in one man’s head, and that consequently it could be gotten at. . . . Now, on the contrary, the reformer is bewildered by the fact the sovereign’s mind has no definite locality, but is contained in a voting majority of several million heads; and embarrassed by the fact that the mind of this sovereign is also under the influence of . . . preconceived opinions; i.e., prejudices which are not to be reasoned with because they are not the children of reason.
Exacerbating this problem was the diversity of the nation, which meant that the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of negroes.”