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This book, by two of the world's leading administrative law scholars, reimagines administrative law as the law of public administration by making its competence the focus of administrative law. Grounded in extensive interdisciplinary, historical, and doctrinal analysis, Fisher and Shapiro show why understanding both the capacity and authority of expert public administration is crucial to ensure the legitimacy and accountability of the administrative state. To address the current precarious state of administrative law, they support a new study of the administrative process by an Attorney Generals Committee on Administrative Procedure leading to a revised Administrative Procedure Act (APA). This book is a must-read for anyone interested in administrative law and its reform.

The state we are in -- Expert administrative capacity -- Administrative accountability -- Enlightened foundations -- Debating administrative law : from the spoils system to the new deal -- The emergence of administrative law and the limits of legal imagination -- The narrowing of the administrative law imagination -- Administrative competence and the Chevron doctrine -- Hard look review -- Conclusion : towards an enlightened administrative law.

Full-text available at SSRN. See link in this record. ; The constitutionality of legislative preclusion of judicial review has received considerable attention from constitutional and administrative law scholars. We join this debate by proposing a new approach: a standards-based theory of judicial review based on two fundamental principles. First, whenever government officials make decisions involving the application of legal standards, the rule of law - and hence the rule of law safeguards of due process and judicial review - attach. Second, with the exception of those cases in which the Constitution itself contemplates standardless official discretion, legislative delegations of authority to government actors must contain legal standards that guide and control discretion. Because the availability of judicial review is tied to the existence of standards and standards are in most instances constitutionally required, the standards-based approach supports a broad right to Article III judicial review that would encompass most administrative decisions, including decisions concerning government benefits. We are not the first scholars to argue that the Constitution requires Article III review of government benefit decisions (or other agency action), but the standards-based approach offers a novel and, we believe, more coherent and workable approach to these fundamental constitutional issues. In support of these conclusions, we demonstrate how the Court's current approach to preclusion is plagued by doctrinal incoherence that ultimately permits Congress to curtail or dispense with this essential rule of law safeguard. We also explain how a standards-based approach can be reconciled with constitutional text and Supreme Court authority, noting in particular that Marbury v. Madison, the seminal opinion concerning the rule of law, indicates that Article III review of the government benefit decisions of the Executive Branch is constitutionally compelled.

Full-text available at SSRN. See link in this record. ; In recent years, the requirement that administrative agencies provide adequate reasons for their decisions has come to play a central role in judicial review of agency decisions. While the increasing importance of this requirement has been recognized, no systematic study of its history and doctrinal basis has been undertaken. Grounded in a survey of court of appeals decisions reviewing agency action, and a careful review of Supreme Court decisions, this article proposes that the requirement is best understood as a form of heightened scrutiny of the rationale of agency decisions and that the doctrine of separation of powers requires such scrutiny because of the unique position of administrative agencies in terms of the constitutional structure of government. The separation of powers conception of the reasons requirement derives from an analysis of political values underlying administrative law, the evolution of various models of judicial review, and the history of the reasons requirement itself. The article begins by considering the political values underlying our governmental structure and describes the apparent conflict between two competing sets of values. 'Liberal' values restrict government action in order to preserve individual freedoms and are reflected in the Constitution through principles such as representative government, separation of powers, and due process. 'Progressive' values promote government action in order to relieve social problems, and are implemented through delegation of legislative and judicial powers to unelected administrators functioning outside of the political and constitutional limitations originally established for the exercise of those powers. Thus, administrative law jurisprudence is faced with the difficult task of accommodating two sets of conflicting values. The article then examines the Supreme Court's efforts to accommodate liberal and progressive values through its articulation of the scope of judicial review of agency ...

Full-text available at SSRN. See link in this record. ; Under the Supreme Court's current due process jurisprudence, due process applies only when government actors deprive a person of a protected interest in life, liberty, or property, and government benefits are property only when has an entitlement to the benefit. Thus, Congress or a state legislature can preclude the application of the Due Process Clause simply by declining to create an entitlement to a government benefit. Given the centrality of rule of law principles to the constitutional order, it is disquieting that such a basic rule of law safeguard as due process is dependent upon political discretion, just because the interest at issue is a governmentally created one. Early due process decisions suggest an alternative approach to due process that has the potential to solve the seemingly intractable dilemma of how to extend due process to government benefit decisions without implicating a substantive constitutional right to them. This approach, which we call the standards-based approach, encompasses two fundamental principles. First, the Constitution requires due process whenever the allocation of government benefits is constrained by legal standards whether or not there is a legal entitlement to the benefit, although the scope of procedural requirements will vary with the nature of the decision and the interest involved. Second, the legislature may decide whether or not to provide government benefits, but once it chooses to provide benefits, it is constitutionally compelled by the rule of law to provide statutory standards for the allocation of those benefits, except in limited circumstances controlled by the political question doctrine. The standards-based approach provides solid constitutional foundations for the rule of law. Except in narrow areas where the Constitution permits standardless political discretion, governmental regularity requires legal standards that guide and control the execution of the law. Once legal standards are in place, it is ...

Full-text available at SSRN. See link in this record. ; Given the centrality of rule of law principles to the constitutional order, we have never been entirely comfortable with current legal doctrines which leave basic rule of law safeguards for government benefits, such as welfare, licensing, and government employment, dependent upon legislative or administrative discretion, just because the interest at issue is a governmentally created one. Under current doctrines, a legislature can preclude the application of the Due Process Clause by declining to create an entitlement to a government benefit and, under the Court's current Article III jurisprudence, it can foreclose judicial review of administrative benefit decisions, except perhaps for constitutional issues. An extensive historical analysis of both due process and judicial review doctrine reveals that the contingent character of current rule of law jurisprudence results from the Supreme Court's relatively recent decision to adopt a rights-based approach to rule of law rather than a duty-based approach which is also suggested in many of the Court's earlier decisions. A duty-based approach reflects the Hohfeldian nature of duties as the counterpart of legal rights. This duality would permit courts to separate the analysis of whether a person has a substantive right to a given interest from the analysis of whether the government's treatment of that interest is subject to legal standards that public officials have a duty to observe. Under a duty-based approach, it is the presence of a legal duty that triggers the application of due process and the availability of judicial review. The duty-based approach eliminates the current contingent nature of rule of law because it requires rule of law protections whenever government officials are subject to legal standards and requires legislatures to establish such legal standards except where the Constitution permits standardless political discretion. Further, because due process and Article III judicial review are both ...

This article's investigation into the "agency for legitimacy" proceeds in five steps: Part I introduces the concept of "administrative constitutionalism," which encompasses the debate over what should be the role and nature of public administration to ensure its legitimacy. It then lays out the elements of the rational-instrumental and deliberative-constitutive paradigms and explains how they contribute to administrative constitutionalism respectively from the outside-in and inside-out. Part II provides a brief history of administrative constitutionalism, which reveals there have been ongoing tensions between two paradigms—and thus between outside in and inside out accountability—since the 1880s. Part III elaborates on the authors' argument that the current emphasis on the rational-instrumental model has been administrative constitutionalism unsustainable. Part IV argues that acknowledging and developing the deliberative-constitutive paradigm will strengthen administrative constitutionalism by admitting the existence of agency discretion and by looking for realistic ways to make it accountable. Finally, Part V offers a case study in how the deliberative-constitutive paradigm can contribute to administrative constitutionalism. ; The Kay Bailey Hutchison Center for Energy, Law, and Business