Last month I participated in a terrific symposium organized by the Hastings Law Journal on administrative law in the Trump Administration. I just posted to SSRN a draft of my written contribution to the symposium issue, entitled Operationalizing Internal Administrative Law, which is based on my remarks at the symposium and coauthored with Rebecca Turnbull.
Here’s the abstract:
As part of the Hastings Law Journal’s Administrative Law in the Age of Trump Symposium, this Essay argues that administrative law should stop fixating on federal courts. While court-centric external administrative law serves an important role in administrative practice, it is far from sufficient to safeguard against agency overreach. After all, the vast majority of agency actions never make it to court. Instead, this Essay builds on recent suggestions that federal agencies can leverage internal administrative law to self-discipline and check abuses of power. By surveying internal administrative law in action in various regulatory contexts and drawing substantially from the important work of the Administrative Conference of the United States, this Essay seeks to operationalize the concept of internal administrative law to demonstrate its critical safeguarding role for agency actions that often escape judicial review.
The current draft of the essay is available here. Comments are definitely welcome!