The Legitimacy of Administrative Law (original) (raw)
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The Quest for Legitimacy in American Administrative Law
Israel Law Review, 2007
In the United States, administrative law suffers from a perceived lack of legitimacy largely due to a lack of democratic accountability or what some have called a democratic deficit. These misgivings stem, in part, from a deep-seated American distrust of bureaucracy. This Article examines how the quest for legitimacy has led practitioners (and theorists) of administrative law to undertake four interrelated projects: the Accountability Project, the Rationality Project, the Transparency Project, and the Participatory Project all designed to create a substitute or shadow form of democratic legitimacy. Through an examination of these projects, I clarify how they try to address the democratic deficit, and whether they effectively do so. Specifically, this article investigates the impact of judicial review, informal rule-making, increased access to information, andpublic participation as efforts to meet the legitimacy challenge. Moreover it disputes the contention that the pursuit of democratic legitimacy is less consequential for administrative law than the need for bureaucratic rationality, by illustrating that bureaucratic rationality is but one component of a larger scheme intended to serve as a functional substitute for legitimacy. At bottom, because Americans do not share thefondnessfor the technocratic model displayed by many other legal systems, legitimacy projects have an enduring place in American administrative law. I. Introduction Administrative law is often seen as the stepchild of public law. In the United States, at least, the excitement centers around constitutional law, where visions of grand theory and public policy often clash.
Administrative Law: The U.S. and Beyond
Social Science Research Network, 2016
Administrative law constrains and directs the behavior of officials in the many governmental bodies responsible for implementing legislation and handling governance responsibilities on a daily basis. This field of law consists of procedures for decision making by these administrative bodies, including rules about transparency and public participation. It also encompasses oversight practices provided by legislatures, courts, and elected executives. The way that administrative law affects the behavior of government officials holds important implications for the fulfillment of democratic principles as well as effective governance in society. This paper highlights salient political theory and legal issues fundamental to the U.S. administrative state but with relevance to the design and application of administrative law in any jurisdiction.
Is Administrative Law Inevitable?
Law and Economics Workshop, 2009
Federal judges are strategic actors to be sure but, given the vast weapons available to legislators, courts seldom have the last word. 9 Administrative law is just politics by other means. Another common proposition in the literature tracks these different perspectives as well: Early administrative law scholars emphasized the ways in which administrative law was essentially structured as a form of common law. 10 Courts developed doctrine and an approach to judicial review that was, for all intents and purposes, judge-made; that is, it was either tangentially related to the organic statute or, in some cases, at cross purposes with the statute. Louis Jaffe and Kenneth Culp Davis, two iconic figures in the development of 20 th century administrative law, embraced this notion of an administrative common law. They, and others, saw the development as a sensible reaction to the myriad incentives pulling agencies in irresponsible directions; they also (although this was less conspicuous in this early literature) saw Congress as unable or unwilling to limit agency discretion. By emphasizing the "trans-statutory" nature of administrative law, traditional legal scholars thereby reinforce the point that courts in making administrative law sit outside the political process. 11 This elaborate conception of administrative common law is largely absent in the positive political theory (PPT) account. The focus of PPT is on legislative strategy, both ex ante, through the configuration of statutes and administrative processes (such as in the APA), 12 and ex post, through variegated mechanisms of legislative control. 13 From the perspective, then, of PPT there are two flaws in the grand account of administrative law: First, most of administrative law is actually the product of distinct statutory choices and, second, even what we can view as administrative common law, that is where the tether to the statutory charge is weak, this common law is forged in a political context. Both of these stories cannot be right. Courts cannot be both a transmission belt for the political choices of Congress and also be champions of the public interest and overseers and final judges over these choices. Yet, because these perspectives yield such divergent conclusions about the origins and functions of administrative law, there persists a very wide gulf in the 9 See text accompanying notes-infra.
Recovering American Administrative Law: Federalist Foundations, 1787-1801
The Yale Law Journal, 2006
By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was minimal and congressional statutes were either self-executing or so detailed as to preclude significant administrative discretion. Such administration as there was went on within executive departments under the exclusive control of the President, and judicial review of administrative action was virtually unknown. From this perspective the administrative state of the twenty-first century, with its independent commissions, combinations of legislative, executive, and judicial authority in administrative agencies, broad delegations of administrative discretion, limitations on presidential control of administration, and ubiquitous opportunities for judicial review of executive action, represents a radical transformation of original constitutional understandings. There is much truth in this conventional vision of nineteenth-century governance, but far from the whole truth. This Article begins a project of recovering the lost one hundred years of federal administrative law. For statutory sources, agency practice, and common law actions in the Federalist period reveal a quite different and more nuanced picture. From the very beginning some administrators were clothed with broad statutory authority, made general rules, adjudicated cases, were located outside of departments, and were tightly bound to congressional oversight and direction. And common law actions provided a judicial review that was often more intrusive and robust than we observe in contemporary practice. If there was an original understanding of the structure, function, and control of administration in early federal law, Federalist practices suggest that it was a much more complex and pragmatic understanding than our conventional account admits.
Federal Administration and Administrative Law in the Gilded Age
SSRN Electronic Journal, 2000
The dominant story of America's so-called "Gilded Age" describes an era of private excess and public corruption. In a rapidly industrializing society, private capital, in league with venal politicians, ran roughshod over a national state apparatus incapable of responding to the emerging social and economic needs of the day. Only toward the end of this era, with the passage of the Interstate Commerce Act of 1887, did the national government begin to break free from a laissez-faire ideology that was antithetical to state building in virtually all of its forms. Indeed, on this conventional account, the American administrative state, and with it administrative law, only began to emerge in the early twentieth century. And both remained underdeveloped until the New Deal constitutional revolution. There is much truth to this familiar narrative, but it is far from the whole truth. State capacities built steadily throughout the post-Reconstruction era. Congress created multiple new departments, bureaus, and programs, and federal civilian employment grew much more rapidly than population. Just as today, conflicts between political parties, the drama of electoral politics, and the vagaries of congressional lawmaking dominated the headlines. But the day-today activities of government were in the charge of administrative departments and bureaus. Operating under broad delegations of authority, administrators developed a rich internal law of administration that guided massive administrative adjudicatory activity and substantial regulatory action as well. Moreover, policy innovation at the legislative level depended heavily on the research and recommendations of existing administrative agencies. In short, if we look at legislative and administrative practice rather than at constitutional ideology or political rhetoric, we can see the emergence of a national administrative state and national administrative law before either had a name.
The Yale Law Journal, 2007
In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nation confounded their ambitions. While reclaiming democracy they also built administrative capacity. This Article examines administrative structure and accountability in the Republican era in an attempt to understand the "administrative law" of the early nineteenth century. That inquiry proceeds through two extended case studies: the Jeffersonian embargo of 1807-1809 and the multi-decade federal effort to survey and sell the ever-expanding "public domain." The first was the most dramatic regulation of commerce attempted by an American national government either before or since. The second began a land office business that dominated the political and legal consciousness of the nation for nearly a century. The embargo tested the limits of administrative coercion and revealed an escalating conflict between the necessities of regulatory administration and judicial review in common law forms. The sale of the public domain required the creation of the first mass administrative adjudication system in the United States and revealed both the ambitions and the limits of congressional control of administration in a polity ideologically devoted to assembly government. Together these cases describe the early-nineteenth-century approach to a host of familiar topics in contemporary administrative law: presidential versus congressional control of administration, the propriety and forms of administrative adjudication, policy implementation via general rules, and the appropriate role of judicial review. Perhaps most significantly, both the embargo episode and the efforts to privatize the public domain demonstrate the singular importance of internal administrative control and accountability in maintaining neutrality and consistency in the application of federal law. This "internal law of administration" remains both a crucial and an understudied aspect of American administrative governance. author. Sterling Professor of Law and Management, Yale University. My thanks to Anne MacClintock and to colleagues at Yale and elsewhere for helpful comments. Henry Liu, Eugene Nardelli, Rebecca Smullin, and Nicholas Stephanopolous provided energetic and creative research assistance. I am also indebted to the librarians at the Yale Law School and at the James E. Rogers College of Law at the University of Arizona for tireless assistance in locating obscure sources.
The Struggle for Administrative Legitimacy
It is telling that the winners of [Daniel] Ernst’s history are not the hardened legal realists whom we generally think of as building, and justifying, the New Deal state. Rather, Ernst turns the spotlight on reform-minded corporate lawyers, such as Charles Evans Hughes and John Lord O’Brian, who stepped back from the edge of realism. While accepting the necessity of the administrative state for managing a modern economy, they fought to imbue that state with a legalistic conception of “fair play” and a distinctively lawyerly form of expertise. These political and intellectual moderates would have agreed with Sunstein and Vermeule when they write that “[a] dose of legal realism . . . has its place, but . . . respect for the governing rules is not optional.” Just as for Sunstein and Vermeule, the APA evacuated administrative law of “any kind of ideological valence,” for Ernst, the “rule of lawyers” insulated the administrative state from becoming a weapon in the hands of any particular social or economic group. It apparently goes without saying — neither Ernst nor his protagonists say it — that the impartiality of the “rule of lawyers” admits one important exception. Under a “rule of lawyers,” the administrative state will persistently favor one socioeconomic bloc: lawyers and the interests they serve. From this perspective, Tocqueville’s Nightmare can be read as a narrative of regulatory capture: the capture of the administrative state by lawyers themselves. But while regulatory capture is generally understood as a threat to administrative legitimacy, Ernst suggests that lawyerly capture is its condition precedent. If he is right, important new questions come to the fore: how did lawyers win the struggle to equate administrative legitimacy with their control of the administrative state, and what exactly did they win by defining administrative legitimacy in this way? Ernst’s ingenious history not only forces us to ask these questions, but also helps us answer them.
The Enlightenment of Administrative Law: Looking inside the Agency for Legitimacy
2012
The discourse over the legitimacy of unelected administration has produced two paradigms. Administrative law scholarship has focused almost exclusively on a rational-instrumental paradigm that seeks to legitimate from the outside in, relying on political oversight, judicial review, and scientific and social methodologies to squeeze the discretion out of public administration. By comparison, public administration scholarship has focused on a deliberative-constitutive paradigm that seeks to legitimate from the inside out, relying on administrative expertise, deliberation, and reason giving to ensure reasonable decision-making. This paradigm accepts administrative discretion both as unavoidable and as necessary. Besides failing at its own goal of eliminating discretion, the rational-instrumental paradigm has produced rulemaking ossification, bureaucracy bashing, a misunderstanding of the role of science in administration, and a failure to build a comprehensive theory of administrative ...
The Uncertain Future of Administrative Law
Daedalus, 2021
A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance–a kind of provisional “rule” that invites its own revision–mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need of continual correction. Administrative law has the resources to ensure that the provisionality of guidance does not lead to the abuses that conservatives fear. But to deploy those resources–and to carry through the reforms of administrative organization that are their natural complement–progressives must rethink the...