The Administrative State's Passive Virtues
59 Pages Posted: 18 Nov 2013 Last revised: 15 May 2015
Date Written: November 17, 2013
Fifty years ago, Alexander Bickel famously suggested that courts use tools like standing, ripeness and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the increasingly central role of administrative agencies in government, there have been no efforts to date to apply Bickel’s insights to the bureaucracy. This article remedies that deficit. The article provides a three-part taxonomy of administrative restraint and offers case studies from federal agencies including the Federal Energy Regulatory Commission, the Environmental Protection Agency and the Fish and Wildlife Service. It argues that agencies use restraint strategically for reasons similar to Bickelian courts: to avoid unnecessary conflict with other institutional actors. Moreover, like the passive virtues in the judicial arena, agency passivity is often normatively desirable and should be facilitated rather than undermined by reviewing courts.
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