Legislative Administration

Abstract

A distinct feature of local administrative practice is that many of the entities responsible for “administering” various statutory schemes are not in fact agencies at all. In jurisdictions large and small, local legislative bodies, including municipal councils and county boards, engage in a great deal of “administrative” activity. They grant permits, approve zoning variances, and hear disciplinary appeals. And in performing these functions they, at least in theory, are subject to the same procedural requirements and substantive standards of review that would apply if the decisions were made instead by an administrative entity. The problem, as courts occasionally have recognized, is that the requirements of administrative law do not always translate neatly into the legislative sphere. Administrative law, for example, is notoriously ambivalent about the role of politics in agency decisionmaking. When administrative decisions are made by purely political bodies, however, one might reasonably wonder whether politics could legitimately play a greater role. This Essay examines the phenomenon of “legislative administration” and considers the degree to which it is compatible with the requirements of administrative law. It argues that although in some contexts, administrative law may need to adjust to accommodate the legislative process, in others, the answer may be to rethink the persistence of legislative administration itself.

Keywords: Local Administrative Law, Legislative Administration, Local Government Law