What We Talk About When We Talk About the Rule of Law in the Administrative State
When I told people that I studied administrative law, they used to roll their eyes at me. “The most boring subject in the world,” they’d quip. Lay people imagine dusty tomes, drab offices, and filing cabinets full of yellowing paper. Lawyers recall the Federal Register with its close-type print and inscrutable regulations. Administration puts you to sleep. It’s grandma getting her Social Security check, bank transfers clearing through SWIFT, and accurate warnings on drug labels. This is hardly the province of drama and romance.
No longer. Five years ago, Gillian Metzger devoted her Harvard Law Review Foreword to “The Administrative State Under Siege.” “Anti-administrativism,” she remarked, was ascendant in politics, scholarship, and even judicial opinions. In its most extreme form, it attacked administration as “unlawful.” Jeffrey Pojanowski has observed that, “[t]oday, there is a sense that th[e] pragmatic consensus [that governed administrative law in the past] is becoming unstable.” Scholars agree: “challenges to administrative governance currently claim center stage,” and have “gain[ed] more judicial and academic traction than at any point since the 1930s;” “so much in administrative law and theory” is suddenly “up for grabs.”
The current attack on the administrative state revolves around a series of interlocking claims about administration’s excesses and improprieties. Administrative state skeptics contend, inter alia, that administrative agencies improperly mix adjudicatory, executive, and legislative functions; that administration springs from an unconstitutional delegation of law-making to actors outside of Congress; that the administrative state, at least insofar as it includes independent agencies and other functionaries endowed with “for cause” removal protection, is designed in such a way that it unjustifiably insulates government actors from presidential control; that administrative law judges inside agencies lack full judicial power but nevertheless adjudicate fundamental rights; and that administrative law lets the federal government serve as a judge in its own cause.
Underlying these many criticisms is one overriding critique: that the administrative state is constitutionally unsound. The analysis is usually formalist and textual. The written Constitution supposedly says that there should be three branches, and each should have specific powers. But the administrative state runs roughshod over those prescriptions. And while some administrative state skeptics may be motivated more by policy outcomes than constitutional theory, the most prominent modern critics speak in a “constitutional register,” and claim to be “animate[d]” by “genuine constitutional concerns.”
This formalist lament is finding a friendly reception in the federal judiciary. Lower courts, especially the D.C. Circuit, have occasionally embraced anti-administrative formalism for years now, and Justice Thomas has always been open to it. But, for the first time since the 1930s, a majority of the Supreme Court seems ready to embrace central elements of this attack. Recent decisions in Seila Law, Arthrex, and West Virginia v. EPA have adopted a sophistic conception of the separation of powers—disconnected from the Constitution’s text, the government’s structure, and our country’s history—to generate false problems about the place of agencies in government and motivate thoroughgoing reforms in the name of “legality.” New challenges have been filed and even minor cases can spin out vituperative judicial screeds. The problem of the rule of law in the administrative state suddenly seems urgent.
