The ABA Section of Administrative Law and Regulatory Practice is excited to announce that Professor Cass Sunstein will be keynoting the annual ABA Administrative Law Conference, this Friday, November 21st. His remarks will focus on the grand narrative in administrative law:

For many decades, administrative law has been clouded, or perhaps haunted, by a Grand Narrative. According to that narrative, the Supreme Court has abdicated. It has allowed the modern administrative state to breach the safeguards established by Article I, Article II, and Article III. The Court permitted the breach of Article I by authorizing Congress to delegate broad discretionary authority to agencies (and thus to become legislators). The Court permitted the breach of Article II by authorizing Congress to create independent agencies, immunized from presidential control. The Court permitted the breach of Article III in two ways: (1) by giving Congress broad authority to allow administrative agencies to engage in adjudication, unprotected by the Constitution’s tenure and salary provisions and (2) by granting interpretive authority to such agencies. In recent years, the Court has acted as if the Grand Narrative is essentially right. Thus it has sharply cabined Congress’ power to create independent agencies; imposed new constraints on Congress’ power to allow agencies to adjudicate; signaled the vitality of the nondelegation doctrine; insisted on independent judicial interpretation of law; and invoked the separation of powers, through the major questions doctrine, to limit the exercise of discretionary power by agencies. The Grand Narrative also affects other areas of administrative law, including “arbitrary or capricious” review. There are other grand narratives about administrative law (originalist, Burkean, Thayerian, and pragmatic), and they might well be more compelling; but in the current era, they are not nearly as grand, or as influential, as the Grand Narrative. Law has multiple equilibria, and the current equilibrium, if it can be called that, is one in which the Grand Narrative is on the ascendency.

You can register for the conference here. Here is the conference program. Due to the government shutdown, we decided to shorten the program to one day and offer registration and CLE credit (pending approval) free of charge to anyone interested in attending.

We already have nearly 1,200 registrants, and we hope you’ll join us!

Image Credit: Kathleen Dooher