Americana Administrative Law
Forthcoming, 111 GEO. L.J. ___ (2023)
67 Pages Posted: 18 Mar 2022 Last revised: 12 Aug 2022
Date Written: March 8, 2022
On January 13, 2022, the Supreme Court blocked the Biden Administration’s vaccine-or-test mandate, a measure meant to save thousands of lives amid a one-in-a-century pandemic. Justice Gorsuch’s concurrence suggested that the Court’s decision vindicated the nondelegation doctrine, even if indirectly. Gorsuch argued that Congress could not be left to its own devices because open ended delegations corrupt congressional incentives. The Gorsuch concurrence marks the triumph of a new pitch for judicial self-empowerment this article calls “Americana administrative law.” Rather than hyping the threat of executive aggrandizement, nondelegationists are deploying cynical and declinist notions of Congress to justify judicial self-empowerment. The “Americana” in Americana administrative law comes from nondelegationists’ attempt to restore an idealized Congress that has never worked as cleanly as they suppose. Beyond the non-delegation doctrine, the administrative law literature often justifies judicial interventions with claims of congressional “gridlock,” partisanship, and decline.
This article has two main contributions. First, this article describes the rise of Americana administrative law from the “constitutional politics” around the nondelegation doctrine. I provide a genealogy for this approach and frame it as a pitch for judicial self-aggrandizement. Second, this article provides a corrective. The courts are neither above nor outside separation-of-powers conflicts. They are instead participants in the ongoing inter-branch contest for the ability to determine outcomes. Americana administrative law ignores much of what we know about Congress. Congress is an evolving body at the end of a centuries-long experiment with legislatures. It has developed “hard” and “soft” powers that allow it to realize its agenda and defend itself from the other branches. This article argues that the law and the literature should drop the pretense that judicial doctrine can “fix” an institution as complex as Congress.
Keywords: major questions doctrine, deference, nondelegation, administrative law, OSHA, separation of powers
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