Administrative Law in an Era of Partisan Volatility
73 Pages Posted: 19 Nov 2018 Last revised: 5 Dec 2019
Date Written: November 5, 2018
Contemporary politics is characterized by a polarized national discourse, weak party organizations, volatile control of government, and an increasingly assertive executive. These political dynamics interact with a system of administrative law inherited from different political times that is ill-suited to addressing the risks of the current moment, which include threats to administrative values such as efficiency, impartiality, and expertise; to democratic values such as accountability, transparency, and participation; and, most generally, to the ability of the law to benefit social well-being through sound policymaking. In recent years, some legal scholars have become attuned to the interaction between administration and these features of the political environment. Unfortunately, administrative law itself has been slow to catch up, with potentially dangerous consequences for the stable functioning of the U.S. administrative state. Drawing from the political science literature that examines the interacting features of organized politics that generate stable party systems, we examine how prior administrative law regimes have responded to political transformations in the past. With this research in view, we find that administrative law as it stands today, which emerged during an earlier party system, is ill-suited to meet the challenges of modern politics. Time will tell whether courts will shape doctrine to better align administrative law with the needs of the times.
Keywords: partisan polarization, administrative law, Chevron deference, independent agencies
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