Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory

72 Pages Posted: 5 Feb 2021 Last revised: 12 Mar 2021

Date Written: February 4, 2021

Abstract

The values of liberty and democracy repeatedly arise in recent Supreme Court opinions on administrative law. The conservative Justices have argued that the power vested in government agencies threatens individual freedom and collective self-government. This Article critiques these Justices’ use of political theory. It shows that the Justices’ do not faithfully and even-handedly apply the complex tradition of American political thought on which they rely. They invoke several different and competing aspects of liberty and democracy to criticize the administrative state. But because the conservative Justices do not disentangle the various aspects of these two values from one another, they draw faulty inferences about how best to protect them. Furthermore, they do not acknowledge the ways in which properly structured administrative power promotes liberty and democracy. They thereby aggrandize judicial power at the expense of the elected branches without effectively promoting individual autonomy.

This Article argues for a more rigorous, tailored, and nuanced application of the values of liberty and democracy in public law. It demonstrates that the Court should not rely on these values to justify constitutional rules concerning the balance between legislative and executive power or to demarcate the boundary between governmental authority and individual freedom. Because liberty and democracy each have multiple and competing dimensions, it is impossible in these contexts for the Court to draw firm, generalizable conclusions about how these values on the whole will best be advanced. Even where certain liberty or democracy interests may be put at risk by legislative delegation to the executive or by legislative insulation of agencies, such arrangements at the same time promote other aspects of these same values. Given the stress the Court’s jurisprudence places on democracy, the elected branches are better qualified to order and balance the complex of liberal and democratic interests in the structure of the administrative state. The Court would, however, be justified in tailoring judicial deference so as to protect procedural fairness, which falls within the judiciary’s core institutional competence.

Keywords: administrative law, constitutional law, separation of powers, nondelegation, deference, unitary executive theory, political theory, democratic theory, legal theory, liberalism

JEL Classification: K23

Suggested Citation

Emerson, Blake, Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory (February 4, 2021). UCLA School of Law, Public Law Research Paper No. 21-10, Hastings Law Journal, Vol. 73, Available at SSRN: https://ssrn.com/abstract=3779457 or http://dx.doi.org/10.2139/ssrn.3779457

Blake Emerson (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Drive East
1242 Law Building
Los Angeles, CA 90095
United States

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