Power Corrupts

44 Pages Posted: 6 Apr 2023 Last revised: 19 Jul 2024

Date Written: February 14, 2023

Abstract

Administrative agencies bear principal responsibility for keeping the federal government’s promises by giving effect in the real world to the laws Congress enacts. If administrative law’s goal was to help agencies fulfill this responsibility, its lodestar would be a thick concept of administration. But as a field, administrative law today neglects administration, focusing instead on power and the institutions that wield it, particularly the Supreme Court, the President, and Congress. This Essay traces the field’s reorientation from administration to power, beginning with the deportation cases that revealed thinner-than-acknowledged political will behind the Administrative Procedure Act (APA), through the misunderstood shift from adjudication to rulemaking, to the rise of presidential administration and the emergence of the Chevron doctrine. The cumulative effect of these developments has been to move administrative law’s focus up and out, away from the people and the operational needs of administration and toward the highest levels of federal policymaking and political power. The Essay argues that administrative law’s obsession with power corrupts the field and has led slowly but inexorably to the abandonment of the core work of administration: fairly and faithfully giving effect to the law in the real world. It concludes by offering some preliminary thoughts about how to recenter administration in administrative law.


Keywords: administrative law, administration, rulemaking, adjudication, judicial review, presidential administration, Chevron, Administrative Procedure Act, APA

JEL Classification: K23

Suggested Citation

Bremer, Emily S., Power Corrupts (February 14, 2023). 41 Yale Journal on Regulation 426 (2024), Available at SSRN: https://ssrn.com/abstract=4375200 or http://dx.doi.org/10.2139/ssrn.4375200

Emily S. Bremer (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
5746311511 (Phone)

HOME PAGE: http://https://law.nd.edu/directory/emily-bremer/

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