Practical lesson (Text 2)


At the cost of oversimplifying, we can sketch three prominent frameworks for thinking about administrative law and the legitimacy and shape of the administrative state today. These three sketches are ideal types, and even thinkers I flag as representative may not agree with all the doctrinal particulars under any one heading. This section will explore the frameworks’ competing approaches to judicial review of questions of substantive law, procedure, and policy. Identifying these competing approaches to this triumvirate of questions will help situate the fourth, neoclassical alternative that has been emerging in recent years.

  1. Jurisprudential Context

Before identifying the competing approaches to judicial review of administrative action, it is first useful to situate these stances in terms of a broader jurisprudential context.

A useful lens through which to view these rival approaches to American administrative law comes from, of all places, turn-of-the-twentieth-century British constitutional scholar Albert Venn Dicey. Dicey’s Introduction to the Study of the Law of the Constitution was a seminal text for Commonwealth public lawyers and famously, or infamously, contrasted the rule of law in the common law tradition with what he saw as the despotism of Continental public law, exemplified by the French droit administratif.

Dicey’s shadow extended to debates about administrative law in the United States. Leading “legalist” critics of the expanding administrative state in the first half of the twentieth century drew on Diceyan ideas to argue that common law courts were necessary to secure liberty and protect against arbitrary agency action.

Early modern debates about the rise and shape of the American administrative state offered a choice between a court-centric Diceyan vision and a progressive alternative that relied on the energy and expertise of agency policymakers. This argument is not of merely historical interest, however, and viewing Diceyan ideas only in terms of opposition to administrative governance obscures their enduring legacy. As insightful scholars have recently emphasized, arguments today about judicial review of agency action are attempts to reconcile, or overcome, the “Diceyan dialectic” between legislative supremacy and the rule of law after the rise of the administrative state.

Professor Matthew Lewans has argued that Diceyan constitutional
theory — which identifies (a) legislative supremacy and (b) the rule of law as its two foundational principles — excludes legitimate administrative authority “by stipulation.” Under the Diceyan framework, ultimate legal authority flows from a supreme legislature whose dictates courts authoritatively interpret, thereby preserving the rule of law. In this classical understanding, an administrative agency is not the legislature, whether we define it as Congress in the United States or Queenin-Parliament in the United Kingdom. Nor are administrative agencies “‘ordinary’ courts” charged with ensuring actions of legal officials are subordinate to law; rather, they consist of the very officials who must be subordinate to the rule of law.
As neither ultimate lawmakers nor duly constituted courts, administrative agencies are the excluded middle under the logic of traditional, Diceyan constitutionalism.Yet there they are. What to do about this, we shall see, is a persistent question underlying arguments today about the legitimacy of administrative governance and the relationship between courts and agencies.

B. Administrative Supremacy
Administrative supremacy sees the administrative state as a natural,
salutary outgrowth of modern governance. In its strongest form, it sees the role of courts and lawyers as limited to checking patently unreasonable exercises of power by the administrative actors who are the core of modern governance. To the extent that durable, legal norms are relevant, the primary responsibility for implementing them in administrative governance falls to executive officials, who balance those norms’ worth against other policy goals. Today, the work of Vermeule demonstrates this approach in almost platonic form.
A slightly more interventionist strain recognizes the importance, indeed the constitutional necessity, of the administrative state, but concludes that courts can have a larger role in ensuring the legitimate and effective operation of those engines of governance. The courts do not operate primarily under the appellate model of reviewing the substance of the policymaking choices or ensuring the agency has chosen the best legal interpretation of the statute it administers. Rather, judicial interventions should provide incentives for effective governance or manage salutary checks and balances within the administrative state. Such an approach, exemplified by contemporary scholars like Professors Gillian Metzger and Jon Michaels, has antecedents in thinkers like James Landis.
What these approaches share is an unapologetic embrace of the
administrative state and a confident rejection of challenges to its legitimacy. This framework, whether grounded in consequentialist or constitutional considerations, informs the pro-administrativist approach to judicial review.This section explores such an approach to judicial review of questions of legal substance, procedure, and policymaking.
1. Review of Legal Interpretations — Substance. — Administrative
supremacy in its purest form advocates deference across the board to agency interpretations of statutes and regulations. Regarding statutes,