Our Illiberal Administrative Law
Administrative law governs the processes by which government agencies issue regulations and decide cases — two procedures called, respectively, rulemaking and adjudication. The statute setting out those procedures, the Administrative Procedure Act of 1946 (APA), 1 also provides that final agency actions are subject to judicial review. That is, a person aggrieved by an agency’s decision — whether in the form of a rule of general application or of the final order in a specific case — may petition a court to set aside the agency’s action on the ground that it is “arbitrary, capricious, an abuse of discretion, or otherwise” unlawful, unauthorized by the statute the agency administers, or unconstitutional.2 In sum, then, the APA regulates agency conduct and makes the courts the guarantors of their adherence to the processes mandated by the Congress.
The court that hears most challenges to administrative agency actions is the U.S. Court of Appeals for the District of Columbia Circuit. Last year, two Harvard Law School professors wrote an article entitled Libertarian Administrative Law, in which they argued that the D.C. Circuit “seeks to use administrative law to push and sometimes shove policy in libertarian directions, primarily through judge-made doctrines that lack solid support in the standard legal sources.”3 They accuse the court, and several judges in particular, of infidelity to the teachings of the Supreme Court and of overturning agency decisions based upon ideological and therefore essentially lawless grounds. That article elicited a scholarly rejoinder from a professor at the University of Virginia Law School, who concluded that “[n]one of the administrative law decisions [the Harvard team] discuss” — “with one possible exception” that the author felt “not qualified to assess” — “is a substantial departure from the [Supreme] Court’s precedents.”4 To that judgment, one might add that the Harvard team, in their zeal to uncover a libertarian conspiracy, evince little understanding of libertarianism. For example, they focus upon Cook v. FDA,5 in which the D.C. Circuit held the FDA was statutorily bound to prevent the importation of drugs used to carry out the death penalty by lethal injection that the agency had determined were misbranded and unapproved. 6 According to the Harvards, that decision followed not from the text of the Food, Drug, and Cosmetic Act, 7 but from the particular judges’ libertarian opposition to the death penalty. 8 Yet neither libertarians in general — nor the author of Cook in particular — oppose the death penalty.9 Throughout the article, the purported evidence of a libertarian conspiracy is similarly thin.
