Document Type

Working Paper

Publication Date

2020

Center/Program

Center for Constitutional Governance

Abstract

This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice. The 2018 term provided the Court with a chance to put its might where its mouth was. Yet administrative law’s denouement did not come; established administrative law doctrines remain in force, albeit narrowed.

The 2018 Term cases demonstrate that the Roberts Court is deeply divided on administrative law along clear ideological lines. The cases also illuminate several core analytic themes and tensions in the Roberts Court’s administrative law jurisprudence, in particular disagreements over: the relationship of law and policy; formalism and nonformalism; the role of history; and administrative common law versus Administrative Procedure Act originalism. Taking a further step back, two contrasting frames emerge from the Roberts Court’s 2018 term administrative law opinions.

One is radical, with a categorical and uncompromising formalism, commitment to limited government and aggressive judicial review, insistently originalist stance, and rejection of contemporary judicial review doctrines as at odds with traditional understandings of judicial power and the meaning of the APA. The other is incrementalist and common law in character, encompassing justices with a broader range of views about constitutional structure and administrative government but united in their unwillingness to disrupt existing governance regimes, at least not all at once.

Which of these analytic frames will ultimately prevail still remains an open question, but incrementalism was plainly the victor in the 2018 Term’s administrative law decisions. That is significant, but should also not obscure that there was unity across the Court in urging greater judicial scrutiny of administrative action. Moreover, despite invocations of the importance of bureaucratic expertise, these decisions share the concerns with unaccountable, aggrandized, and arbitrary administrative power that characterize the Roberts Court’s administrative jurisprudence more widely. Notably lacking is reference to the ways that the administrative state operates to constrain power, render it accountable, and advance individual liberty. Absent a more balanced view of the administrative state, the Roberts Court is unlikely to develop a coherent approach to administrative law.

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