Administrative Law in Flux: An Opportunity for Constitutional Reassessment

56 Pages Posted: 22 Feb 2017 Last revised: 25 Mar 2017

Date Written: 2017

Abstract

Now is an auspicious time to consider questions of administrative law with flexibility and rigor. Administrative law in the United States is being contested in intense debates, which go far beyond technical discussions among specialists. Administrative law has broken out of the backwater into the American public and political eye in ways that mirror broader and deeper disputes, divisions, and confusions over the rule of law as embodied in the American Constitution.

Our thesis is easy to state and difficult to elaborate. It holds that today’s administrative controversies reflect and refract more fundamental constitutional controversies; hence, they can be resolved only by reference to constitutional bedrock. We hope this paper will advance today’s American debates and help bridge America’s divides. But we also hope our ideas will find an audience among our friends in Europe, as they confront their own rule-of-law challenges. Today’s debates in the United States call to mind the Anglo-European origins of our Constitution, and they can be resolved only by reference to those origins. Administrative law in our tradition is not a mechanism for achieving political ends or constraining the size of government. It is, rather, a tool for improving government at any scale by furthering both administrative efficiency and administrative integrity. A sub-species of constitutional law, administrative law is a meta-law form: a law for governing the government, not private individuals. The ultimate ends of administrative law include ensuring fidelity to the commands of the sovereign demos, regularity in governing the demos, and the transparency to the demos of the nature and effects of the manifold activities government undertakes on its behalf. These logically interrelated aims — fidelity, regularity, transparency — are all presupposed by the idea that republican governments are accountable to their citizens. The concept of accountability serves as administrative law’s organizing principle.

In this paper, we seek to elaborate and defend our thesis in ways that mimic (but do not retrace) the thinking of America’s Founders. We hope to identify legal and logical reasoning that the Founders themselves would have emphasized if they, not us, had confronted today’s unusual moment for administrative law.

The paper has five parts. Part I explains how and why administrative law in the United States is in flux, noting that the intense debates on this side of the Atlantic are, at bottom, arguments over the nature and legitimacy of American constitutional government. After briefly encapsulating these debates, we review Supreme Court opinions that call for re-thinking administrative law and re-tethering it to the Constitution.

In Part II we introduce our contention that today’s controversies can be resolved only by eliciting administrative law from constitutional text, structure, and tradition. To help attain this goal, we offer an overview of certain defining elements of American constitutionalism — our characteristic ideas about constitutional law, common law, and legal logic. We then employ these elements to map out seven primary “jurisprudential forms.”

Part III builds on a signal advance in constitutional jurisprudence — the Supreme Court’s increasing invocation of “accountability” as a principle for structuring constitutional doctrine. Against this backdrop, we employ the jurisprudential forms of Part II to derive constitutionally grounded distinctions that can be used to define a small number of primary types of administrative proceedings. We propose these classifications as a lingua franca for administrative-law scholarship and adjudication; we claim they provide the beginnings of an answer for every difficult administrative law problem.

Part IV begins with Justice Thomas’s proposal for overhauling the constitutional testing of delegations of administrative authority. We conclude that the linchpin of the Thomas position — that America’s administrative law, like our constitutional law, is a law for governing the government, not private individuals — will prove persuasive as a matter of constitutional interpretation. Next, we explore what follows. Drawing on constitutional jurisprudence, we distill seven principles for structuring a liberal reformation rooted in constitutionally derived administrative classifications. We emphasize that what might at first appear as a cry for revolution is better viewed as a call for much-needed renovations to an existing regime.

Part V describes features of today’s landscape that make acrimony and misunderstanding the order of the day for administrative-law commentary, adjudication, scholarship, and reform initiatives. It concludes with an admonitory word about the implications of America’s administrative-law moment for our Supreme Court, our Congress, and our Nation.

Keywords: Administrative Law, Constitutional Law, Reform, Supreme Court, Thomas, Hamburger, Vermeule, Sunstein, Elements, Accounting, Accountability, Logic, Common Law

JEL Classification: H1, H11, K00, K2, K10, K20, K23, K4, K49, M40

Suggested Citation

Gasaway, Robert and Parrish, Ashley, Administrative Law in Flux: An Opportunity for Constitutional Reassessment (2017). 24 George Mason Law Review 361 (Winter 2017), Available at SSRN: https://ssrn.com/abstract=2920778 or http://dx.doi.org/10.2139/ssrn.2920778

Robert Gasaway

Kirkland & Ellis LLP ( email )

200 East Randolph Drive
Chicago, IL 60601
United States
(202) 879-5175 (Phone)

Ashley Parrish (Contact Author)

King & Spalding LLP ( email )

United States
(202) 626-2627 (Phone)

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