Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control
56 Pages Posted: 28 Mar 2013
Date Written: March 8, 2013
The idea of political control dominates our understanding of both what administrative law does and what it should do. This emphasis on political control, however, downplays the important ways that administrative law facilitates resistance to political control in administrative agencies. In this article, I offer studies of two instances in which agencies harnessed the power of seemingly standard administrative law litigation to resist the imposition of policies by political leadership. I classify these kinds of modes of resistance as instances of “litigation-fostered bureaucratic autonomy” and flesh out the mechanisms that drive the process. Acknowledging the role of such modes of resistance is critical to administrative law scholarship insofar as it casts some doubt on the empirical underpinnings of a principal-agent understanding of the function of administrative law. It also poses a potential challenge to the democratic justification of the administrative state, though I ultimately conclude that modes of resistance such as that demonstrated by litigation-fostered bureaucratic autonomy can help curb the excesses of political principals and encourage public-interest-minded deliberation about issues that are both highly technical and value laden.
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