American administrative law has long been characterized by two distinct traditions: the positivist and the process traditions. The positivist tradition emphasizes that administrative bodies are created by law and must act in accordance with the requirements of the law. The process tradition emphasizes that agencies must act in accordance with norms of reasoned decisionmaking, which emphasize that all relevant interests must be given an opportunity to express their views and agencies must explain their decisions in a public and articulate fashion. In the twentieth century, American administrative law achieved a grand synthesis of these two traditions, with the result that deficiencies from the positivist perspective – such as very broad delegations of discretion to agencies – were acceptable, as long as process norms were vigorously enforced. Professor Peter Strauss and other architects of this synthesis never envisioned that the process tradition could completely displace positive law. In recent years, however, commentators have begun to argue that the process tradition can take on a life of its own and can function as a complete substitute for the positivist tradition. This can be seen in a variety of contexts where traditions of legislative supremacy are weak, such as multinational treaty regimes and various forms of "presidential administration." This Essay offers some grounds for skepticism about the long-term prospects of an administrative law based solely on the process tradition. When acting in the positivist tradition, courts function as agents of sovereignty. Their judgments, assuming they are perceived as being faithful to the law, are backed by the sovereign power of the state, which means they are likely to be obeyed. The process tradition rests on norms of reasonableness, as to which reasonable people may disagree. Especially where judicial review is weak or nonexistent, internal review institutions are unlikely to have enough institutional capital to impose their judgments about reasonableness on other government actors. Enforcement of administrative law norms may come to be seen as merely a matter of contestable opinion. Instead of acting as a check on administrative abuse, administrative law may devolve into a rationalization for the exercise of raw power.
Thomas W. Merrill,
Presidential Administration and the Traditions of Administrative Law,
Colum. L. Rev.
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