Why Administrative Law Misunderstands How Government Works: The Missing Institutional Analysis

Abstract

Since 1903, when Bruce Wyman drew a distinction between external and internal administrative practice, administrative law scholarship has focused almost exclusively on political and judicial oversight. This perspective, which reflects rational choice institutionalism, ignores the influence of normative and discursive institutionalism, which can deter agency employees from acting in a self-interested manner.

The narrow focus has resulted in a failure to justify expertise, displacement of expertise, and deterioration of expertise. Displacement occurs because the White House operates under different institutional norms than agencies and employs a less robust discursive process. Despite Cass Sunstein’s recent defense of White House review, this analysis reveals the White House allows political considerations to influence its decisions to a greater extent than do agencies. This article, based on the 2013 Foulston Siefkin Lecture at Washburn University Law School, concludes administrative law scholarship should address these failures by ending the separation that dates back to 1903. I propose an institutional awareness can supply the missing internal analysis.