Administrative Law in the Welfare State: Addressing the Accountability Gap in Executive Social Policy-Making.

摘要

With the rise of the welfare state, democratic, common law governments undertook a new proactive role as social welfare manager; allocating limited health, education, and social services benefits among competing public priorities. In spite of the important impact of this role on the lives of citizens, the various political, managerial, and legal mechanisms designed to hold executive social policy-makers accountable to the legislature have largely broken down. In this dissertation, I argue that our constitutional democracy permits courts to fill this accountability gap by acting as an accountability mechanism of last resort. I propose a new doctrine of administrative review for social policy and programs in which deference is based on evidence of accountability achieved within the policy-making process. Administrative review for accountability would allow courts to evaluate the legitimacy of the process by which social policy is created rather than interfering in the substance of social policy. My dissertation seeks to develop this administrative review doctrine within existing constitutional constraints including the separation of powers.