73 Pages Posted: 29 Apr 2010
Date Written: May 2010
Administrative agencies wield a necessary but dangerous power. Some control of that power is constitutionally required and normatively justified. Yet widely discordant views persist concerning the appropriate means of control. Scholars have proposed competing administrative control models that variably place the judiciary, the President, and Congress at the helm. Although these models offer critical insights into the institutional competencies of the respective branches, they tend to understate the limitations of those branches to check administrative power and ultimately marginalize the public interest costs occasioned by second-guessing administrative choice. The “relative checks” paradigm introduced here seeks to improve upon existing models in at least two critical respects. First, it posits the existence of an optimal control point within the shared values of two sometimes competing missions in administrative law: that of promoting the public interest and that of legitimizing administrative power within our constitutional scheme. Next, the paradigm argues that the optimal control ideal can be best realized by tailoring both the source and degree of administrative control to particular types of administrative actions with sensitivity to the institutional competencies of the respective checking bodies. Prescriptively, this framework seeks to apportion control among the respective branches in a way that capitalizes on each branch’s competencies while democratically promoting the public interest. Descriptively, looking through a relative checks lens may also enhance our under-standing of existing administrative practices and the academic critiques thereof.
Keywords: administrative law, constitutional law, judicial review, presidential oversight, congressional oversight, separation of powers, checks and balances, administrative power
Suggested Citation: Suggested Citation
Rubenstein, David S., Relative Checks: Towards Optimal Control of Administrative Power (May 2010). William & Mary Law Review, Vol. 51, No. 6, 2010. Available at SSRN: https://ssrn.com/abstract=1596832