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The Administrative State in the Twenty-First Century: Deconstruction And/Or Reconstruction

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The Administrative State in the Twenty-First Century: Deconstruction And/Or Reconstruction Dædalus Journal of the American Academy of Arts & Sciences Summer 2021 The Administrative State in the Twenty-First Century: Deconstruction and/or Reconstruction Mark Tushnet, guest editor with Peter L. Strauss · Susan E. Dudley Sean Farhang · David E. Lewis Bernard W. Bell · Cary Coglianese Beth Simone Noveck · Aaron L. Nielson Christopher J. Walker · Avery White Michael Neblo · Jeremy Kessler Charles Sabel · Cass R. Sunstein · Neomi Rao Dædalus Journal of the American Academy of Arts & Sciences “The Administrative State in the Twenty-First Century: Deconstruction and/or Reconstruction” Volume 150, Number 3; Summer 2021 Mark Tushnet, Guest Editor Phyllis S. Bendell, Managing Editor and Director of Publications Peter Walton, Associate Editor Heather M. Struntz, Assistant Editor Committee on Studies and Publications John Mark Hansen, Chair; Rosina Bierbaum, Johanna Drucker, Gerald Early, Carol Gluck, Linda Greenhouse, John Hildebrand, Philip Khoury, Arthur Kleinman, Sara Lawrence-Lightfoot, Alan I. Leshner, Rose McDermott, Michael S. McPherson, Frances McCall Rosenbluth, Scott D. Sagan, Nancy C. Andrews (ex officio), David W. Oxtoby (ex officio), Diane P. Wood (ex officio) Inside front and back covers: Charlie Chaplin and Chester Conklin struggle to repair the giant machinery of an idle factory in the 1936 silent film Modern Times. Film distributed by the United Artists Corporation; image held by the Bettman Archive, courtesy of Getty Images. Contents 5 Introduction: The Pasts & Futures of the Administrative State Mark Tushnet 17 How the Administrative State Got to This Challenging Place Peter L. Strauss 33 Milestones in the Evolution of the Administrative State Susan E. Dudley 49 Legislative Capacity & Administrative Power Under Divided Polarization Sean Farhang 68 Is the Failed Pandemic Response a Symptom of a Diseased Administrative State? David E. Lewis 89 Replacing Bureaucrats with Automated Sorcerers? Bernard W. Bell 104 Administrative Law in the Automated State Cary Coglianese 121 The Innovative State Beth Simone Noveck 143 Deconstruction (Not Destruction) Aaron L. Nielson 155 Constraining Bureaucracy Beyond Judicial Review Christopher J. Walker 172 Capturing the Public: Beyond Technocracy & Populism in the U.S. Administrative State Avery White & Michael Neblo 188 The Uncertain Future of Administrative Law Jeremy Kessler & Charles Sabel 208 Some Costs & Benefits of Cost-Benefit Analysis Cass R. Sunstein 220 The Hedgehog & the Fox in Administrative Law Neomi Rao Dædalus Journal of the American Academy of Arts & Sciences Nineteenth-century depiction of a Roman mosaic labyrinth, now lost, found in Villa di Diomede, Pompeii Dædalus was founded in 1955 and established as a quarterly in 1958. The journal’s namesake was renowned in ancient Greece as an inventor, scientist, and unriddler of riddles. Its emblem, a maze seen from above, symbolizes the aspiration of its founders to “lift each of us above his cell in the labyrinth of learning in order that he may see the entire structure as if from above, where each separate part loses its comfortable separateness.” The American Academy of Arts & Sciences, like its journal, brings together distinguished individuals from every field of human endeavor. It was chartered in 1780 as a forum “to cultivate every art and science which may tend to advance the interest, honour, dignity, and happiness of a free, independent, and virtuous people.” Now in its third century, the Academy, with its more than five thousand members, continues to provide intellectual leadership to meet the critical chal- lenges facing our world. Dædalus Summer 2021 Issued as Volume 150, Number 3 © 2021 by the American Academy of Arts & Sciences. Editorial offices: Dædalus, American Academy of Arts & Sciences, 136 Irving Street, Cambridge MA 02138. Phone: 617 576 5085. Fax: 617 576 5088. Email: [email protected]. Library of Congress Catalog No. 12-30299. Dædalus publishes by invitation only and assumes no responsibility for unsolicited man- uscripts. The views expressed are those of the author(s) of each essay, and not necessarily of the American Academy of Arts & Sciences. Dædalus (ISSN 0011-5266; E-ISSN 1548-6192) is published quarterly (winter, spring, summer, fall) by The MIT Press, One Rogers Street, Cambridge MA 02142-1209, for the American Academy of Arts & Sciences. An electronic full-text version of Dædalus is available from amacad.org/daedalus and from The MIT Press. Dædalus is published under a Creative Commons Attribution-NonCommercial 4.0 International license (CC BY-NC 4.0). For allowed uses under this license, please visit https://creativecommons.org/licenses/by-nc/4.0/. Members of the American Academy please direct all questions and claims to [email protected]. Advertising and mailing-list inquiries may be addressed to Marketing Department, MIT Press Journals, One Rogers Street, Cambridge MA 02142-1209. Phone: 617 253 2866. Fax: 617 253 1709. Email: [email protected]. To request permission to photocopy or reproduce content from Dædalus, please contact the Subsidiary Rights Manager at MIT Press Journals, One Rogers Street, Cambridge MA 02142-1209. Fax: 617 253 1709. Email: [email protected]. Corporations and academic institutions with valid photocopying and/or digital licenses with the Copyright Clearance Center (CCC) may re produce content fromDædalus under the terms of their license. Please go to www.copyright.com; CCC, 222 Rosewood Drive, Danvers MA 01923. Printed in the United States by The Sheridan Press, 450 Fame Avenue, Hanover PA 17331. Postmaster: Send address changes to Dædalus, One Rogers Street, Cambridge MA 02142- 1209. Periodicals postage paid at Boston MA and at additional mailing offices. The typeface is Cycles, designed by Sumner Stone at the Stone Type Foundry of Guinda CA. Each size of Cycles has been sep arately designed in the tradition of metal types. Introduction: The Pasts & Futures of the Administrative State Mark Tushnet To understand contemporary arguments about deconstructing and reconstructing the modern administrative state, we have to understand where that state came from, and what its futures might be. This introductory essay describes the traditional ac- count of the modern administrative state’s origins in the Progressive era and more recent revisionist accounts that give it a longer history. The competing accounts have different implications for our thinking about the administrative state’s constitution- al status, the former raising some questions about constitutionality, the latter alle- viating such concerns. This introduction then draws upon the essays in this issue to describe three options for the future. Deconstructing the administrative state with- out adopting a program of across-the-board deregulation would entail more regu- lation by the legislature itself and would insist that Congress give clear instructions to administrative agencies. Tweaking would modify existing doctrine around the edges without making large changes. Reconstruction might involve adopting ever more flexible modes of regulation, including direct citizen participation in making and enforcing regulation. residential adviser Stephen Bannon might have simply been coining a phrase rather than outlining a program when he said that the Trump admin- P istration was interested in “deconstructing the administrative state.”1 Yet by replacing the familiar term deregulation with the unfamiliar deconstruction, Ban- non captured a wider discomfort with how the modern administrative state was operating. That discomfort manifested itself in many forms: concern about the “ossification” of the process of adopting important regulatory rules across many domains, for example, and recognition that new regulatory tools could be more effective than traditional methods of prescriptive (“command and control”) reg- ulation.2 This issue of Dædalus explores what deconstruction and its obverse re- construction of the administrative state might be–and whether either is called for. In their contributions to this volume, Susan Dudley and Peter Strauss lay out in some detail their accounts of the administrative state’s emergence in the Unit- ed States, situating the ensuing discussion of reconstruction and deconstruction.3 Here I offer my highly simplified version–quite a bare sketch of those develop- © 2021 by the American Academy of Arts & Sciences Published under a Creative Commons Attribution- 5 NonCommercial 4.0 International (CC BY-NC 4.0) license https://doi.org/10.1162/DAED_e_01856 Introduction: The Pasts & Futures of the Administrative State ments as I understand them. The sketch is accurate enough, I believe, to orient nonspecialists to what follows and to cause specialists only minor discomfort. The first story was told by the scholars who created the academic field of administrative law: Felix Frankfurter, James Landis, and, to a lesser degree, John Dickinson. Drawing on arguments made by an earlier group of Progressives, they found the origins of the administrative state in the late nineteenth century and ar- gued that accommodating contemporary reality to the classical vision of U.S. con- stitutionalism required altering the latter so that the “new fourth branch” could fit within the Constitution. The second is a revisionist story offered by contem- porary historians and legal scholars who have retrieved a longer history of the ad- ministrative state, dating to the early nineteenth century. For these scholars, the modern administrative state has always fit within the Constitution. The Progressive
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