Is Administrative Law at War with Itself?

Abstract

Recent Supreme Court jurisprudence in administrative law seems to embrace two competing visions of administrative legality and democratic legitimacy. On the one hand the Court is increasingly skeptical of congressional limitations on presidential powers of removal of administrative officers. This jurisprudence emphasizes the necessity for direct accountability of administrative officers to the president and responsiveness to presidential preferences as a fundamental requisite for democratic accountability in the administrative state. On the other, the Court is insistent that administrators provide reasons for their actions, reasons that respond to the language and purposes of their governing statutes and to the records compiled and arguments offered in participatory administrative proceedings. This jurisprudence reinforces a vision of democracy grounded in assembly government and deliberative processes. This article argues that the tensions between these two visions of legality and legitimacy are real, but that, properly understood, they articulate a complex accountability regime that seeks to make good on the Constitution's promise of democracy and the rule of law. These tensions and institutional complexities are built into our constitutional system and administrative law's attempt to manage them affirms rather than undermines the legitimacy of the American administrative state.