Blake Emerson, Review of Elizabeth Fisher & Sidney A. Shapiro Administrative Competence: Reimagining Administrative Law

Abstract

Elizabeth Fisher and Sidney Shapiro’s important book is both innovative and traditional, and innovative insofar as it creatively reinterprets tradition. The argument is traditional because it centers administrative “expertise” as the cornerstone of bureaucratic legitimacy. At least since the Progressive Era, and arguably well back into the nineteenth century, Congress and the courts justified the delegation of policymaking power to administrative bodies in large part on the grounds of the practical, workaday experience, as well as technical skill, of public officers. The theory was most memorably articulated by James Landis’s The Administrative Process (1938), which defended independent regulatory agencies’ professional “expertness,” relatively confined subject-matter jurisdiction, and accountability to public opinion. In the wake of the New Deal, the expertise model underpinned the law’s understanding of administrative power, providing an all-purpose reason for courts to defer to agencies’ determinations of law, policy, and fact. That theory has come in for rounds of criticism over the years. It has seemed to many scholars as well as judges to ignore the important value choices that agencies must make above and beyond instrumental calculations about how to achieve well-defined goals. Theories of regulatory capture, interest-group pluralism, presidentialism, and deliberative democracy have offered alternative understandings of administrative legitimacy. On all of these theories something other than expertise is necessary to justify the significant power that unelected officials wield within a democratic-constitutional system. It seems that no one trusts an expert anymore. But nor have any of the competing theories successfully supplanted expertise as a broadly accepted, “neutral” basis on which to exercise administrative power. The problems of trust and legitimacy have reached almost epic proportions as the Supreme Court takes up constitutional challenges to administrative power and develops new doctrines to narrow agencies’ authority. At the same time, the American public fractures politically over whether to “follow the science” or rather “deconstruct the administrative state.” Now is the time, if ever, to rethink what US administrative law is about and how it ought to develop in the future.