Bureaucracies & Democracies: The Role of Administrative Law in Democratic Backsliding

Abstract

A substantial body of work identifies the use of democratic processes and rhetoric to advance undemocratic agendas as the primary threat to contemporary democracy. Captured by terms such as Democratic Backsliding, Autocratic Legalism, Abusive Constitutionalism, and Executive Aggrandizement, the investigation of this phenomenon tends to focus on how formal, usually constitutional, changes to political structures have been used to concentrate power. But, recent work also points to the use of less obvious, incremental methods to accomplish similar goals either as a complement to constitutional changes or to prepare the field for more sweeping formal changes such as constitutional revision. We contribute to this work by (i) presenting a typology of sub-constitutional legal strategies used to concentrate power in the hands of the executive and (ii) exploring two understudied, “covert” methods of executive aggrandizement—the (ab)use of regulatory powers and interpretive authority.