The Existential Challenge to the Administrative State

Abstract

A set of constitutional claims today strikes at the heart of the administrative authority of the federal government. Claims regarding administrative policymaking, interpretation, adjudication, and official removal variously reject agencies’ legal powers or their insulation from the President. These claims together pose an existential challenge to the administrative state. If they were all successful, agencies would cease to exercise independent, legally binding powers. 

This Article diagnoses and responds to this existential challenge. It shows how the discrete claims that comprise the challenge are each grounded in a legal theory that treats the administrative state as antithetical to constitutional structures and values. This existential challenge is not merely a creature of conservative constitutional politics, however. It is also facilitated by a judicial self-conception, transcending political ideology, that readily entertains and obliquely supports the categorical rejection of administrative authority.

Insofar as the existential challenge threatens core features of the administrative state, it presents the opportunity to consider why this state matters. The state under threat serves democratic-constitutional values, namely to protect the people against harm, to recognize the distinct public interests requiring protection, and to provide such protection in an impartial manner. While the administrative state does not always live up to these commitments, it gives our polity at least the capacity to realize them. To the extent the existential challenge succeeds, the people will lose core facilities of democratic law.

The Article therefore proposes some legislative, executive, and judicial reforms that would respond to the existential challenge while remedying some deficiencies of administrative law’s current rule structure. These include statutory rejection of the major questions doctrine, explicit statutory recognition of public rights to health, safety, and equality, curbing pre-enforcement judicial review, appointment of administrative officials by a special Article III court rather than the president or department heads, and a distributed rather than unitary approach to executive-branch management.

Keywords: administrative law, constitutional law, major questions, unitary executive, agency adjudication, Chevron deference

JEL Classification: K23