A Bureaucracy -- If You Can Keep it

Abstract

In this Harvard Law Review Forum response to Professor Gillian E. Metzger’s Foreword, Professor Sohoni argues that the dangers to the administrative state are likely greater than Professor Metzger admits. Professor Sohoni draws parallels between the Lochner-era dissenters and the modern dissenters challenging the administrative state, and she argues that the similar dogged persistence of these two groups may signal challenges for the administrative state in the future. She goes on to express her uncertainty about whether Professor Metzger’s proposal that the administrative state is constitutionally obligatory can sufficiently guard the administrative state against its critics. Professor Metzger’s account would, according to Professor Sohoni, sharply depart from historical and constitutional precedent and require the shaky assumption that delegation is both constitutional and mandatory in practice. Professor Sohoni concludes that while Professor Metzger’s account is intriguing, sizeable obstacles and difficult line-drawing problems beleaguer such an ambitious project.

Keywords: agencies, administrative law, chevron, gorsuch, lochner, holmes, anti-administrativism, administrative constitution