Document Type

Working Paper

Publication Date

2021

Center/Program

Center for Constitutional Governance

Abstract

The growing reliance on guidance – a kind of provisional “rule” that invites its own revision or qualification – marks a break in the development of the administrative state on the order of the transition from regulation by case-by-case adjudication to regulation by notice-and-comment rulemaking in the 1960s and 1970s. Where rulemaking aimed to correct social shortsightedness by the application of science in the service of law, guidance enables lawful action in the public interest when both science and law are recognized as themselves in need of continual correction. Guidance is the kind of law of which uncertainty admits.

The centrality of guidance to contemporary administration, in turn, calls into question politically progressive defenses of the administrative state. These defenses ground the legality and legitimacy of administrative decisionmaking in the technical authority of professional administrators and the democratic authority of their political superiors, two forms of authority that are harmonized and largely self-disciplined by internally-generated hierarchical norms, which also serve as a shield against intrusive judicial review. Today, such deference to authority and hierarchy seems incautious, even reckless. Even when understood as a strategic bargain, necessary to protect the autonomy of the administrative state from a judiciary suspected – often rightly – of congenital animosity to administration itself, the progressive defense resembles a pact with the devil.

The emerging law of guidance, and the reality of uncertainty to which it responds, points toward a different, and more defensible, conception of the administrative state: one that is aware of its own fallibility; that routinely invites challenges to its technical and political authority; and that continually responds to these challenges with reasons that are legible to the courts and to the public at large.

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