Our Illiberal Administrative Law

47 Pages Posted: 27 Jan 2017 Last revised: 28 Jan 2017

See all articles by Douglas H. Ginsburg

Douglas H. Ginsburg

George Mason University - Antonin Scalia Law School, Faculty; U.S. Court of Appeals for the District of Columbia Circuit

Steven Menashi

George Mason University; New York University School of Law

Date Written: 2016

Abstract

In adopting the Administrative Procedure Act, the Congress intended to extend the liberal tradition - of limited government, checks and balances, and the protection of individual rights - to governance of the administrative state: The APA would give the public a way to get relief from administrative excess. Yet in the 70 years since it was enacted, evasive practices by the agencies and an increasingly deferential posture from the courts have combined to frustrate that purpose. The result is a legal regime that insulates agencies from correction and denies citizens redress. The illiberal aspects of this regime - presumptions that favor the government, unbounded delegations of authority, judicial deference on questions of law, the evasion of notice‑and‑comment rulemaking - do not arise from the APA itself but from the failure of courts and agencies to fulfill their obligations under the APA.

Keywords: administrative law, liberal, libertarian, deference, Chevron, Auer

Suggested Citation

Ginsburg, Douglas H. and Ginsburg, Douglas H. and Menashi, Steven and Menashi, Steven, Our Illiberal Administrative Law (2016). NYU Journal of Law & Liberty, Vol. 10, No. 2, p. 475, 2016, George Mason Legal Studies Research Paper No. LS 17-05, Available at SSRN: https://ssrn.com/abstract=2885012

Douglas H. Ginsburg

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

3301 Fairfax Drive
Arlington, VA 22201
United States

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

Steven Menashi (Contact Author)

George Mason University

3301 Fairfax Drive
Arlington, VA 22201
United States

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
202-596-7375 (Phone)
202-315-3462 (Fax)

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