One of the perennial academic rituals of administrative “law” is to explain its compatibility with the rule of law. As surely as seasons pass, academics muster their formidable intellectual resources to reassure us, and themselves, that in pursuing administrative power, they have not abandoned the rule of law.
A more immediate justificatory project might be to explain the constitutionality of the administrative state. But notwithstanding valiant efforts, its constitutionality remains in doubt. So a fallback measure of its legitimacy seems valuable.
From this perspective, even if the administrative state is not quite constitutional, it can enjoy legitimacy under traditional common law ideas about the rule of law. Jurisprudence thus comes to the aid of aspirations for legality. But can the rule of law rescue the legitimacy of administrative power?
The historical difficulty is that the rule of law is not an old common law ideal. The other difficulty, based in contemporary realities, is that administrative power is unruly. It is so unruly that it cannot easily be fit under any rubric of law or even rules.
Administrative Law | Law | Rule of Law
Philip A. Hamburger,
Our Unruly Administrative State,
N.Y.U. J. L. & Liberty
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/4199