Modern Administrative State Research Articles

Who “We” are matters: the influence of organizational identity orientation on public participation in government

ABSTRACT Public participation in government remains far from ubiquitous despite calls for a modern administrative state defined by co-production. This research offers a new perspective on public participation by considering the relationship between organizational identity orientation (OIO) managerial views of the process and the frequency of engagement between local governments, citizens, and non-profits. Results show that in collectivistic public organizations, managers view participation as an important responsibility, even when it creates organizational inefficiencies. No direct link between OIO and frequency of participation is found. These findings point to a nuanced relationship between OIO, managerial beliefs, and organizational action.

Jurisdictional Relationships: Democracy and the Administrative State Through the Lens of Caring Society v Canada

This paper draws on theorists of jurisdiction to make visible how democratic self-government and the rule of law take effect in the modern administrative state. Through the lens of Caring Society v Canada, a Canadian human rights case about the funding of social services for Indigenous children, I explore an idea of jurisdictional justice that is inherently connected to the quality of democratic engagement and focuses attention on political, legal and human relationships. I argue that in the face of challenges posed by populist politics and the colonial administrative state, this relational understanding of jurisdiction provides resources for building a sense of legality that can sustain shared public meaning and promote practices of political accountability.

The Democracy Effects of Legal Polarization: Movement Lawyering at the Dawn of the Unitary Executive

The success of the conservative legal movement in reshaping the Supreme Court has unquestionably helped transform the substance of constitutional law in ways that advance the movement’s longstanding political agenda: reverse the civil rights-era constitutionalization of civil and social equality rights, and reduce government regulation of private sector business enabled by the modern administrative state. Less well understood is the movement’s role beyond the courts, and the range of ways it has shifted once shared norms that helped distinguish the practice of law from the practice of politics in the United States. This Article surfaces one example of that phenomenon, tracing the movement’s efforts beginning in the 1980s to advance a unitary exec-utive theory of constitutional power inside the Executive Branch. Inside the Department of Justice, these efforts functioned to kneecap a suite of post-Watergate ethics reforms designed to guard against cor-ruption or other misconduct by government lawyers. Outside the Department, aided by an increasingly polarized system of professional incentives the movement likewise pioneered, inadequate ethics ac-countability at the top of the profession functioned to undermine acceptance of professional norms more broadly. Among the norms most damaged: the belief that lawyers are bound by professional duties that transcend commitments to partisan loyalty. This recovered history in part underscores the extent to which judicial rulings are at best lag-ging indicators of legal revolutions. It likewise offers a case study of the structural consequences of theories of constitutional power engineered around circumstantial partisan interest. Above all, it illustrates how de-stabilizing the norms that support rule-of-law systems can weaken constitutional democracy across the board.

What Law Schools Must Change to Train Transactional Lawyers

Not all lawyers litigate, but you would not know that from the first-year curriculum at most law schools. Despite 50% of lawyers working in transactional practices, schools do not incorporate its legal doctrines or skills in the foundational first year. That the Progressives pushed through antitrust laws and the New Dealers founded the modern administrative state reframed how people use the law, particularly in transactional practices, and should be given equal weight as the appellate-based common law in any legal introduction. Nevertheless, the law school model created by Christopher Columbus Langdell in the 1870s remains dominant. As this review of fifty-four law schools’ required curricula shows, law schools have largely retained Langdell’s curriculum. This negatively affects young transactional lawyers because their critical first year does not show them the law as a preventative, problem-solving practice. This Article proposes fundamental changes to the way law schools prepare students to be transactional and other types of attorneys by reframing the first year from various common law topics to a focus on practice areas. This Article argues that it is faculty, fear, and funding that prevent fundamental change to the first year and other required curriculum even as change is necessary for the health of law schools and the legal profession. This Article concludes that, in the face of curriculum stagnation, the ABA accrediting body and bar examiners should recognize these changes by requiring and testing these “new” areas of law.

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

The Unitary Executive: Past, Present, Future

In what follows, we explore these two ambiguities about the opinion, which involve respectively the scope of its holding and its methodology. Our exposition comes in four parts. Part II explores the idea of a unitary executive with reference to text and history and also with reference to changed circumstances. We attempt to show the ambiguities in the founding era that gave rise to reasonable, competing understandings of what was and was not settled. We also attempt to show that the emergence of the modern administrative state can be taken both to fortify and to undermine the argument for the idea of a strongly unitary executive. Part III discusses the Court’s disparate, inconclusive encounters with that idea. Part IV turns to Seila Law and its striking treatment of Humphrey’s Executor, which it simultaneously preserves (for now) and perhaps hollows out, thus endangering many contemporary independent agencies. Part V discusses implications and constitutional method, showing that the decision rests crucially on contested normatively laden views about the meaning of high-level principles. In the end, Seila Law is best seen as part of a much broader effort, in prominent circles, to constrain the operation of the regulatory state in general and of apparently unaccountable institutions in particular by referencing a distinctive understanding of constitutional principles.

The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU\u2019s Weiss Ruling and the German Federal Constitutional Court\u2019s PSPP Ruling

The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (“BVG”) amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.

La moralidad del derecho administrativo en Estados Unidos: una visión comparada desde los principios generales del derecho administrativo en América Latina

The morality of Administrative Law is a proposal aimed to enable a rational administrative action towards the common good, as a reply to the recent critics about the expansion of the administrative state in the United States. Rather than dismantle the modern administrative state, Sunstein and Vermeule propose to use Fuller´s ideas about the “inner morality of the Law”, to build a system of general principles. This proposal connects with the general principles of Administrative Law, deeply recognized in the administrative procedure laws in America Latina, as well as in the good administration standards. Therefore, the morality of administrative law facilitates the comparative study between the modern Administrative Law in the United States and Latin America. &nbsp

Introduction: The Pasts & Futures of the Administrative State

Abstract To understand contemporary arguments about deconstructing and reconstructing the modern administrative state, we have to understand where that state came from, and what its futures might be. This introductory essay describes the traditional account of the modern administrative state's origins in the Progressive era and more recent revisionist accounts that give it a longer history. The competing accounts have different implications for our thinking about the administrative state's constitutional status, the former raising some questions about constitutionality, the latter alleviating such concerns. This introduction then draws upon the essays in this issue to describe three options for the future. Deconstructing the administrative state without adopting a program of across-the-board deregulation would entail more regulation by the legislature itself and would insist that Congress give clear instructions to administrative agencies. Tweaking would modify existing doctrine around the edges without making large changes. Reconstruction might involve adopting ever more flexible modes of regulation, including direct citizen participation in making and enforcing regulation.

Milestones in the Evolution of the Administrative State

Abstract The modern administrative state, as measured by the number of agencies, their budgets and staffing, and the number of regulations they issue, has grown significantly over the last hundred years. This essay reviews the origins of the administrative state and identifies four milestone efforts to hold it accountable to the American people: passage of the Administrative Procedure Act in 1946, the economic deregulation of the 1970s and 1980s, requirements for ex ante regulatory impact analysis, and the establishment of White House review. These milestones reflect bipartisan consensus on appropriate constraints on executive rulemaking, but they have not succeeded in stemming the debate over the proper role for administrative agencies and the regulations they issue. New milestones may include judicial interpretations, legislative actions, and extensions to executive oversight.

The American State Administrators Project: A New 50‐State, 50‐Year Data Resource for Scholars

AbstractWe present the American State Administrators Project (ASAP), a decades‐long survey of state agency leaders. This remarkable dataset provides a 50‐state chronological portrait of state administrative leaders, what they think, and what their agencies do. The dataset has traditionally been closely held but is now being shared with the broader scholarly community for the first time. We use this article to demonstrate the dataset's potential to advance theory and knowledge of the modern administrative state through the example of principal‐agent theory. As we show, the ASAP data allow us to reorient scholarship away from an empirical focus on how the president/governor, legislature, and other political principals try to influence the bureaucracy and toward a fuller appreciation of how bureaucrats formulate and administer public policy in a political environment. Such a refocusing is critical because it better recognizes the “agency” held by bureaucratic agents within modern governance.

Is the U.S. Supreme Court Becoming Hostile to the Administrative State?

Since the mid-1930s, the U.S. Supreme Court has been broadly supportive of the rise of the modern “administrative state.” In its decisions that have allowed Congress broad leeway in delegating quasi-legislative and quasi-adjudicative powers to executive agencies, permitted the creation of independent agencies, curbed judicial second-guessing of agency procedural choices, and, above all, extended broad deference to agency interpretations of their own statutes and regulations, the Court has been supportive of federal agency power and discretion. But this may be changing. In just the last few years, at least five of the current Justices have expressed, or joined expressions of, strong opposition to several of the key pillars of the modern administrative state — sometimes using strong and alarmist language. This essay reviews this shift and raises questions as to what it might portend.

When does the multiple principals hypothesis hold? The politics of U.S. agency policymaking autonomy

AbstractWhen the bureaucracy's political principals hold different preferences for policy, does this increase the bureaucracy's policymaking autonomy? Existing theory strongly suggests “yes.” We, however, argue that this pattern will materialize only when the bureaucracy's principals are all on the same side of the political divide. (i.e., unified government). Using data gathered from the American states at two time points, we capture preference divergence by measuring the ideological distance between the bureaucracy's key political principals—legislators, governors, and courts—on the common left–right dimension. We measure policymaking autonomy through multi‐faceted surveys of state agency leaders. In keeping with our argument, we demonstrate that greater preference divergence across the bureaucracy's principals is associated with increased agency policymaking autonomy under unified—but not under divided—government. The results shed new light on when, and why, the bureaucracy's political principals may provide an oversight check on the policymaking power of the modern administrative state.

Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect When We’re Expecting

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may all change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill in details or find facts triggering policies, which can. Whether observers’ view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects it to be highly consequential. While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, I show that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than are states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Court actually does over a series of cases, not in what it says it is going to do. Moreover, it suggests significant limitations in the ability of the Gundy dissent’s approach to provide any ex ante guidance to Congress, the lower courts, or even future Supreme Courts about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine.

THE FIDUCIARY SOCIAL CONTRACT

AbstractThe United States Constitution is, in form and fact, a kind of fiduciary instrument, and government officials acting pursuant to that document are subject to the background rules of fiduciary obligation that underlie all such documents. One of the most basic eighteenth-century fiduciary rules was the presumptive rule against subdelegation of discretionary authority. The rule was presumptive only; there were recognized exceptions that permitted subdelegation when it was specifically authorized by the instrument of agency, when it was validated by custom or tradition, and when it was necessary for accomplishment of the agent’s authorized purposes. To what extent might that third exception justify broad subdelegation of legislative authority by Congress to administrative agencies? Part of the answer, which is beyond the aims of this essay, depends on ascertaining the nature of the job entrusted to Congress under the Constitution, which means ascertaining the scope of Congress’s delegated powers. Another part of the answer depends on the extent to which expertise can and may serve as justification for entrusting others with tasks with which one has previously been entrusted. What would a responsible fiduciary approach to expertise—whether for purposes of advice or subdelegation—look like in the modern administrative state? The answer requires a careful examination of the idea of expertise and how it can be applied, and misapplied, in modern governance. This essay offers only the briefest introduction to that problem by trying to frame the questions that responsible fiduciaries need to ask before subdelegating authority. Such questions include: (1) What are the limits of the principal’s own knowledge? (2) What reason is there to think that gaps in that knowledge can, even in principle, be filled by experts? (3) Will application of expert knowledge lead in any particular instance lead to better decisions, given the ubiquitous problem of second-best? and (4) Have you picked the right experts, and will they actually apply expertise rather than using their claim to expertise as a cover for pursuing other goals? These questions in the context of the modern administrative state are just one aspect of a broader problem of nonexperts trying to evaluate—both before and after the fact—the work product of experts.

THE AMBIGUITY OF EXPERTISE IN THE ADMINISTRATIVE STATE

AbstractWhen the modern administrative state emerged in America during the Progressive Era, at the beginning of the twentieth century, it was typically grounded on the premise that administrative officials are experts who should be insulated from politics. This theory, combined with emerging ideas of scientific management, contributed to the intellectual justification for the administrative state. However, progressives never fully reconciled the tension between this theory and the democratic nature of American politics. Because of this ambiguity and tension in the progressives’ theory of expertise, the politics/administration dichotomy was abandoned shortly after the administrative state was constructed. The place of expertise in the administrative state is still ambiguous, even in the twenty-first century.

The Novice Administrative State: The Function of Regulatory Commissions in the Progressive Era

Researchers have long argued that politicians created the modern administrative state in order to bring “experts” into government, and especially into the regulation of business. Yet Progressive-Era politicians themselves rarely discussed the need for experts in creating one form of administrative governance, the independent regulatory commission. By examining the contemporary understanding of regulatory commissions, this article shows that they were intended to act as fact-finding bodies for courts and to substitute for vacillating juries in particular cases. The commission’s most important advantage was that it acquired “experience” over time not that its appointees were already academics or experts in a particular field. This article also shows that the appointments to these commissions did not demonstrate a desire for apolitical expertise. It makes the first examination of all members appointed to the Interstate Commerce Commission, Federal Trade Commission, Federal Power Commission, Federal Communication Commission, and the Securities and Exchange Commission in the period from 1887 to 1935. It finds that political and sectional balance, rather than independent expertise, were the most important criteria for these commissions’ members, at least until the late 1920s, after the end of the supposed Progressive Era.

Nondelegation Step Zero

The nondelegation doctrine, as a matter of both precedent and logic, properly distinguishes between delegations to administrative agencies and delegations to the President, imposing more vigorous scrutiny on the latter. The nondelegation doctrine vindicates the Article I Vesting Clause by preventing Congress from being divested of the legislative power. Its purpose is to reinforce Congress’s legislative supremacy in the realm of ordinary law, not to impede Congress’s ability to achieve legislative objectives by delegating regulatory authority to administrative agencies. At the same time, the nondelegation doctrine has a valuable role to play in constraining the delegation of broad powers to the President directly, a constraint that encourages delegation of regulatory authority to administrative agencies. The diffuse structure of the modern administrative state is a testament to the great success of the nondelegation doctrine, not evidence of its underenforcement. Indeed, the contemporary push to reinvent the nondelegation doctrine in an indiscriminate way would turn it into something closer to its opposite.

The brooding omnipresence of Carl Schmitt in contemporary jurisprudence: Reflections on William Scheuerman’s The End of Law: Carl Schmitt in the 21st century

Carl Schmitt, whatever his clear deficiencies as a human being and excesses in his overall thought, is, by any objective measure, one of the leading jurisprudential figures of the 20th century. And the questions he raised – about the inevitably of discretionary decision-making in the age of the modern administrative state; the breakdown of liberal parliamentarism; or the importance of that ‘emergencies’ must play in any cogent jurisprudential theory, to name only three – continue to resonate very much into the 21st century. William Scheuerman is at best ambivalent, if not hostile, to many aspects of Schmitt and Schmittian theory, but he presents Schmitt’s ideas with remarkable clarity that enables the reader to understand why it continues to be important to read and to wrestle with him.

Casting a Wide Net: The Federal Communication Commission’s Preemption of State Broadband Internet Regulation

In 2018, the FCC abruptly reversed course in the federal scheme for regulating the Internet. With its “Restoring Internet Freedom Order,” the FCC re-reclassified broadband Internet as an “information service,” and thus found it has no statutory authority to impose the net neutrality rules promulgated an earlier FCC in 2016. Nonetheless, the agency included a provision preempting state net neutrality laws or regulation. But it did so relying only on broad grants of regulatory authority and congressional policy. And in judicial review of that Order, the D.C. Circuit vacated the preemption portion of the Order, upholding the remainder of the administrative action. I argue that the FCC’s Order is a timely example of a modern administrative agency relying on expansive and broad statutory authority to preempt state law and getting it wrong. Doing so threatens to destabilize the already delicate balance of federalism implicated when the federal government implements its constitutional authority to preempt state law. Not only did the agency preempt state law after finding no statutory authority to impose the very laws it was preempting but arguably it relied on a broad reading of its delegated authority to do so. When exercising the power of preemption, special care is required for agencies no less Congress. This order simply does not pass muster. Ultimately, I argue the analysis the agency presented is informative as to the implications of the modern administrative state with federalism concerns.