The Administrative State and Its Law

25 Pages Posted: 24 Jan 2017  

Michael Greve

George Mason University - Antonin Scalia Law School, Faculty; American Enterprise Institute (AEI)

Date Written: January 23, 2017

Abstract

For understandable but also unfortunate reasons, the contemporary scholarly and public debate over “the administrative state” — a poorly defined term of convenience — has been marred by dramatic claims, ideological rancor, and arcane doctrinal quarrels that serve as placeholders for a grim clash of convictions. Expansive delegations of legislative powers, coupled with highly deferential judicial review and increasingly “unorthodox” forms of administration, have prompted scholars from opposing vantages to argue that all administrative law is an unlawful departure from constitutional government, or a thin veneer for an essentially “Schmittian” state beyond effective legal control (and a good thing, too).

This essay — written as an Introduction to a series of articles commissioned for a transatlantic law conference — argues that the stateside debate would greatly benefit from a comparative administrative law inquiry. In contrast to the acrimony over unchecked executive power in the United States, British scholars apprehend tendencies toward administrative juristocracy. In even sharper contrast, the German administrative law profession shares a firm conviction that is entirely possible to reconcile the demands of modern government with constitutionally grounded rule-of-law precepts. At a minimum, the comparative perspective greatly complicates facile stories of constitutional decay or the “modernization” of an archaic constitutional framework. It invites deeper reflection and opens a wider, perhaps more sober perspective on the American administrative state and its law.

Keywords: Administrative Law, Central Banks, Climate Change, Comparative Law, Constitutional Law, Delegation, Energy, European Union, EU, Financial Institutions, Germany, Judicial Review, Proportionality, United Kingdom, UK

JEL Classification: K23

Suggested Citation

Greve, Michael, The Administrative State and Its Law (January 23, 2017). George Mason Law Review, Vol. 24, No. 2, Forthcoming; George Mason Law & Economics Research Paper No. 17-04. Available at SSRN: https://ssrn.com/abstract=2904043 or http://dx.doi.org/10.2139/ssrn.2904043

Michael Greve (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

American Enterprise Institute (AEI) ( email )

1150 17th Street, N.W.
Washington, DC 20036
United States

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