Administrative agencies bear principal responsibility for keeping the federal government’s promises by giving effect in the real world to the laws Congress enacts. If administrative law’s goal was to help agencies fulfill this responsibility, its lodestar would be a thick concept of administration. But as a field, administrative law today neglects administration, focusing instead on power and the institutions that wield it, particularly the Supreme Court, the President, and Congress. This paper traces the field’s reorientation from administration to power, beginning with the deportation cases that revealed thinner-than-acknowledged political will behind the Administrative Procedure Act (APA), through the misunderstood shift from adjudication to rulemaking, to the rise of presidential administration and the emergence of the Chevron doctrine. The cumulative effect of these developments has been to move administrative law’s focus up and out, away from the people and the operational needs of administration and toward the highest levels of federal policymaking and political power. The paper argues that administrative law’s obsession with power corrupts the field and has led slowly but inexorably to the abandonment of the core work of administration: fairly and faithfully giving effect to the law in the real world. It concludes by offering some preliminary thoughts about how to recenter administration in administrative law.
Ad Law Reading Room is a bit late to the party on this one, as “Power Corrupts” made waves on Twitter when it was posted and quickly picked up a coveted “download it while it’s hot!” from Larry Solum’s Legal Theory Blog. But if you haven’t come across it yet, this short-ish piece (Bremer calls it “not a law review article”) is well worth the read. “Power Corrupts” is tricky to summarize. It’s part cri de coeur, part intellectual history of how the field of administrative law arrived at where it is, and, as Bremer has said, part preview of her next several projects. But it’s all fascinating. Do as Professor Solum says and give it a download!
The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.