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When the legal historian William Novak states, “the United States is distinctly a ‘legal or jural state,’”1 what does this mean? One very simple understanding is that the Constitution and the legal concepts contained in it are the supreme law of the land. Richard Epstein’s argument for the “classic liberal constitution” that “prized the protection of liberty and private property under a system of limited government”2 is one example of this. Phillip Hamburger’s framing of American government through legal concepts such as adjudication and legislation is another.3
On February 29, 2017, President Trump issued Executive Order 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States.’”1 The purpose of this simultaneously ambitious-sounding and dull-sounding Order was to demand the reconsideration of a 2015 regulation – the “Waters of the United States” rule, known as the “WOTUS” rule. The rule adopted a definition of the term “waters of the United States” that defined the jurisdiction of the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) under the Clean Water Act.2 On signing the Executive Order, Trump remarked “a few years ago the EPA decided that navigable waters can mean every puddle or every ditch … it was a massive power grab.”3
As the law of public administration, judicial review is fundamental. As Louis Jaffe stated in 1965, the “availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purposes to be legitimate or legally valid.”1 As a forum for active and authoritative accountability, it ensures the worthiness of the administrative state to be recognized. But judicial review for the sake of judicial review is not prima facie meaningful. If it is to be a form of meaningful accountability,2 it must take both administrative authority and capacity into account. As we have said in Chapter 1, the legitimacy of the administrative state depends not only on the legal authority to act, but on the administrative capacity to implement statutory mandates.
For the anxious administrative lawyer, the problem is this – if expert administrative capacity is a complex set of knowledge and institutional practices, is it possible for administrative law to truly ensure that public administration stays within its authority and is properly held to account? Is the only solution to trust in the judgment of expert administrators? Does that not carry a whole range of threats? Is the only real answer to constrain that power and limit it to a set of specific tasks?
In 1975, a young administrative law scholar, Richard Stewart, published “The Reformation of American Administrative Law” in the Harvard Law Review.1 His 150-page narrative is a grand portrayal of a dramatic shift in the nature of administrative law. According to this narrative, the traditional understanding of administrative law, which Stewart called the “transmission belt model,”2 was “essentially a negative instrument for checking government power,”3 aimed at the management of “the problem of discretion.”4 Harkening back to the idea that the New Dealers saw expertise as a solution for this discretion, Stewart allowed that expertise “could plausibly by advocated as a solution to the problem of discretion,” but only if the “agency’s goal could be realized through the knowledge that comes from specialized experience,”5 which Stewart doubted was possible.6
The last chapter showed how ideas of administrative competence were entangled with debates over good government in the Founding and the Federalist period. Not only that, the first structures of administrative capacity were being developed at that time. At the end of the chapter, we pointed to how the construction of the Pensions Building in the 1880s reflected a series of commitments that can be traced back to the end of the eighteenth century. The building was a late nineteenth-century construction, but its shape and structure were the product of nearly a century of pensions administration, and more importantly, the democratic aspiration for such a scheme.
In the first half of the 2010s, the sociologist Arlie Russell Hochschild spent five years conducting field research in Southwest Louisiana on what she saw as the Great Paradox.1 As she explained, “I had imagined before I came [to Louisiana] that the more polluted the place in which people live, the more alarmed they would be by that pollution and the more in favor of cleaning it up. Instead I found Louisiana to be highly polluted and the people I talked with to be generally opposed to any more environmental regulation and indeed, regulation in general.”2 That opposition has led to support for political movements aimed at “deconstructing the administrative state.”3 Many of the people Hochschild interviews are Tea Party voters. Their views are not a world away from those who deny the legitimacy of the administrative state that we touched on in Chapter 1.
As Professor James Boyd White once observed, the “life of imagination work[s] with inherited materials and against inherited constraints.”1 “The greatest power of law,” he continued, “lies not in particular rules or decisions but in the way … it structures sensibility and vision.”2 The reader has seen this insight in operation in the preceding pages.
Administrative competence exists because government cannot be done through the articulation of rules alone. It requires expert administrative capacity – not only to execute a set of legislative mandates, but also to articulate what those mandates mean. This capacity transforms expectations such as those for clean water, clean air, and safe workplaces into realizable realities. Such capacity is not amorphous. It must be fit and proper. It must act in accordance with the rule of law. Judicial review of how an agency interprets its statutory framework is important. Done properly it contributes to meaningful accountability by fostering active administrative competence.
In 1974, Harold Leventhal, a judge of the District of Columbia (DC) Circuit of the Federal Court of Appeals, wrote that “[t]he law of the environment now seems suddenly ablaze, a development which has taken place essentially within the last five years.”1 As seen in Chapter 7, the subject of Leventhal’s comment was the legislation that had been passed in those five years because it required “administrative implementation through rules and orders rooted in technical expertise and inquiry.”2 It was not just that, however. As also seen in Chapter 7, there were calls for more responsive government – government that fulfilled the democratic wishes of the American people.3
Expertise is not a new concept for administrative lawyers. One of the major justifications for the administrative state is the expertise it brings to governing. Felix Frankfurter once opined that “expertise is the lifeblood of the administrative process”1 and few administrative lawyers would doubt him. It is a term that plays a pivotal role in administrative law reasoning.2
We ended Chapter 1 with a rallying cry to administrative lawyers to expand their imagination. While our language was stirring, delivering on that inspiration is not easy. In a 2010 New Yorker article, a former clerk of US Supreme Court Justice Stephen Breyer was quoted as saying of the justice: “Believe it or not, the thing that most excites him is administrative law.”1 The clerk’s claim reflects a general assumption that administrative law is the most dull of legal subjects – one that is often rated one of the “most boring classes and the one that the student is most clueless about at the end of the course.”2 Antonin Scalia, another US Supreme Court judge with a strong affinity for the subject, once described it as “not for sissies” given how unexciting it was.3