A thread on what’s going on in this odd (or, as @t_streinz put it, “quirky”) essay. Owing to my association with @nyuiilj, I’ve been a longtime consumer of US administrative law scholarship, which I found incredibly generative of ideas for the study of int’l institutions. /1
I think US admin scholarship tends to break down according to whether you believe: 1. that the administrative state is a practical necessity; and 2. that administrative governance suffers from something like a “deficit” of democratic legiitimacy. Like this:
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The top-left box I associate with first-wave critical legal studies, particularly Frug’s 1984 piece The Ideology of Bureaucracy. jstor.org/stable/pdf/134…. /3
The bottom-left captures many views. It’s @nicholas_bagley’s critique of process legitimacy (repository.law.umich.edu/cgi/viewconten…), @GillianMetzger2’s HLR Foreword (harvardlawreview.org/2017/11/1930s-…), Rubin’s embrace of bureaucracy (books.google.com/books?id=wLQ22…’s Schmittian admin law. /4
The top-right is the originalist-libertarian fusion associated with Justice Gorsuch. In some circles (though not at the parties I go to), this view is widely shared to the point of being intuitive. And it may now claim a five-justice majority on the Supreme Court. /5
The bottom-right is mainstream admin law. It’s Stewart’s Reformation article (jstor.org/stable/pdf/134…). This view takes seriously the need for legitimation. It’s been engaged in a decades-long project to render the admin state consistent with democratic ideals. /6
The mainstream approach deserves criticism. It can present falsely as ideologically neutral (cf. @HLCentrists). And the obsession with legitimacy can turn into a preoccupation with controlling, over enabling, the bureaucracy, as @nicholas_bagley notes. BUT... /7
The treatment of administrative governance as a “permanent problem” opens up space for self-critical state-building, which draws from the lefthand side of my handy four-box chart above. The state is something to be constantly revised to meet new problems or legitimacy demands. /8
This process of revision can be self-critical, even openly so. As I say in the paper, many of the “models” generated by administrative law scholarship, whether Stewart’s interest pluralism or @JodyFreemanHLS’s collaborative governance, raise as many problems as they answer. /9
The most creative work broadly challenges our received ideas of bureaucracy and democracy. I’m thinking in particular of @dorfonlaw & Sabel’s work (scholarship.law.cornell.edu/facpub/120/) and @OrlyLobel’s Renew Deal (papers.ssrn.com/sol3/papers.cf…), among other examples. /10
In this way, the mainstream approach genrates ideas about governing and organization that apply beyond admin law. That open-ended, critical, and constructive approach is what I found so useful when doing my own work on int’l institutions (eg, papers.ssrn.com/sol3/papers.cf…). /11
(I used Fuller’s “spirit of the Federalist Papers” to label this critical-constructive approach. Take or leave it. I thought it helpful & it reflects my effort to rescue Fuller from arid legal-theory debates and recast him as “political political theory” (cf @JeremyJWaldron))/12
What does any of this have to do with Gundy v US? Well, the stakes today are just too high to treat the admin state as a “permanent problem.” The Gundy dissent suggests that admin law is now in the hands of judges who see neither necessity nor legitimacy in the admin state. /13
The dissenters’ threat to resurrect the nondelegation doctrine is significant. The fading of that doctrine enabled the modern admin state. And it spurred the need in admin law to experiment with alternate forms of legitimacy. It’s what made US admin law uniquely generative. /14
The appropriate response from progressives is probably to shift to the bottom-left corner of my chart. Defend admin governance by playing down its legitimation problems. Metzger’s defense of the admin state as constitutionally necessary is one example. /15
This is not necessarily a bad thing. As Bagley has pointed out, the liberal-left’s concern with legitimacy is all to easily hijacked by a conservative, deregulatory agenda. But I do think we may be seeing the end of a distinctive style in US admin law, marked by ... /16
... an uneasy marriage between policy-relevant, mainstream scholarship and sustained critical inquiry. I don’t have a handy normative response. But I think that we should mark what was useful about this style of engagement, in case we want to resurrect it later. /17
