The Death of Administrative Law
48 Pages Posted: 13 Jun 2023 Last revised: 28 Jul 2023
Date Written: June 1, 2023
Administrative law is a system for enabling Congress to confer discretion on executive agents constrained by deliberative reason-giving obligations that tether executive implementation to a legislative plan. Requiring administrative agents to execute a deliberative procedure enables Congress to elicit the benefit of superior administrative expertise and evidence-gathering capacity while mooring agencies to the considerations that Congress chose to make relevant. But, across its recent administrative law decisions, the Roberts Court has evinced skepticism toward the traditional approach to legitimating and constraining executive discretion through deliberation. At the same time, the Court is increasingly imposing restrictive ex ante constraints, of its own devising, on administrative agencies. The substitution of ex ante constraints for ex post constraints undermines Congress’s ability to benefit from administrative discretion at the same time that it vitiates the deliberative incentives that administrative law has traditionally imposed on administrative agencies.
The modern settlement in separation of powers limited Congress from controlling the execution of the law directly but enabled Congress to provide for control mediated by an independent judiciary. The Court’s new hostility to administrative law challenges this settlement, with potentially dire consequences for the separation of powers. Even as the Court purports to limit the scope of congressional delegation to the executive, its retreat from traditional reason-giving requirements underwrites a substantial transfer of power from Congress to the President. Indeed, the Court’s antipathy to administrative law has intellectual roots in a dangerous theory of Article II, the implications of which go significantly further than has been acknowledged. Yet there is a better reading of Article II that centers on the deliberative rather than managerial character of the executive branch. The deliberative Article II supports congressional choices to guide executive discretion through administrative procedure.
Keywords: administrative law, Administrative Procedure Act, separation of powers, delegation, discretion, reason-giving, arbitrary and capricious, State Farm, Article II, unitary executive theory, political accountability, principal-agent theory
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