How the Administrative State Got to This Challenging Place

Daedalus, American Academy of Arts and Science, 2020

Columbia Public Law Research Paper No. 14-668

11 Pages Posted: 25 Aug 2020 Last revised: 26 Aug 2020

Date Written: July 16, 2020

Abstract

This essay has been written to set the context for a future issue of Daedalus, the quarterly of the American Academy of Arts and Sciences, addressing the prospects of American administrative law in the Twenty-first Century. It recounts the growth of American government over the centuries since its founding, in response to the profound changes in the technology, economy, and scientific understandings it must deal with, under a Constitution written for the governance of a dispersed agrarian population operating with hand tools in a localized economy. It then suggests profound challenges of the present day facing administrative law’s development: the transition from processes of the paper age to those of the digital age; the steadily growing centralization of decision in an opaque, political presidency, displacing the focused knowledge and expertise of agencies Congress created to pursue particular governmental ends; the thickening, as well, of the political layer within agencies themselves, threatening similar displacements; and the revival in the courts of highly formalized analytic techniques inviting a return to the forms of government those who wrote the Constitution might themselves have imagined. The essay will not be published until months after the November election. While President Trump’s first term in office has sharply illustrated an imbalance in American governance between law and politics and law, reason and unreason, that imbalance is hardly new; it has been growing for decades. There lie the challenges.

Keywords: Administrative law, Federal Government, Trump, digital government, regulation, deregulation, agencies, presidency, centralization, politicization, rulemaking, EOP, OMB

Suggested Citation

Strauss, Peter L., How the Administrative State Got to This Challenging Place (July 16, 2020). Daedalus, American Academy of Arts and Science, 2020, Columbia Public Law Research Paper No. 14-668, Available at SSRN: https://ssrn.com/abstract=3652727

Peter L. Strauss (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-2370 (Phone)
212-854-7946 (Fax)

HOME PAGE: http://www.law.columbia.edu/faculty/pstrauss.html

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