Abstract

http://ssrn.com/abstract=997045
 
 

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Procedures as Politics in Administrative Law


Lisa Schultz Bressman


Vanderbilt University - Law School


Columbia Law Review, December 2007
Vanderbilt Public Law Research Paper No. 07-12

Abstract:     
Legal scholars view administrative law as alternately shaped by concerns for procedural integrity and issues of political control, and therefore as consisting of largely conflicting rules. But they have overlooked that the Court may be elaborating administrative law, and more particularly, administrative procedures, for a political purpose - to ensure that agency action roughly tracks legislative preferences. Thus, rather than vacillating between procedures and politics, the Court may be striving to negotiate two sorts of politics: congressional control, exercised through administrative procedures, and presidential control, vindicated by presumptive judicial deference. Positive political theorists, meanwhile, have appreciated that administrative procedures can assist Congress in monitoring agencies. But they have not applied their theory to actual administrative law, and their assumptions about judicial behavior cannot predict such law. This Article combines the insights of legal scholars and positive political theorists to offer a better descriptive account and normative defense of the seminal administrative law cases. It shows that the Court has recognized a political use for administrative procedures, as positive political theorists might expect. It contends, however, that to truly understand administrative law, we must see the Court in a way more familiar to legal academics, as sincerely interested in producing acceptable rules for agency decisionmaking. The Court has claimed a role in mediating the strategic needs of both political branches for control of agency action. In so doing, the Court has matched the practical way that agencies operate with a normative theory about how they should operate in the democratic structure.

Number of Pages in PDF File: 60

Keywords: administrative agency, APA procedures, politics, PPT, democracy, constitutional legitimacy, separation of powers, Mead, Chevron, judicial review, accountability, rule-of-law, normative, Congress, President, legislative oversight monitoring, political science

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Date posted: June 28, 2007  

Suggested Citation

Bressman, Lisa Schultz, Procedures as Politics in Administrative Law. Columbia Law Review, December 2007; Vanderbilt Public Law Research Paper No. 07-12. Available at SSRN: http://ssrn.com/abstract=997045

Contact Information

Lisa Schultz Bressman (Contact Author)
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
615-343-6132 (Phone)
615-322-6631 (Fax)
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