Over the last few years, I’ve been contemplating a book project that explores the world of agency action that is insulated from judicial review and what that phenomenon means for the field of administrative law and regulatory practice more generally. A couple years ago I scoped out the need for this project in an essay—Administrative Law Without Courts—that was as part of a terrific UCLA Law Review symposium to which Jon Michaels kindly invited me to participate.
My goal was to use my sabbatical semester last spring to crank out the proposal and much of the book. And then COVID-19 hit, and like most of us the projects piled up. I transitioned to online teaching this summer, my work as chair of the ABA Administrative Law Section began, and I discovered I am a pretty mediocre elementary-school teacher for our four kids who have been learning mostly from home since March.
This summer, however, Charles Calomiris and Michael McConnell invited me to present the book proposal at a Hoover Institution interdisciplinary regulation conference, which forced me to finalize the proposal. Mark Tushnet invited me to contribute an essay that framed the book project for a special interdisciplinary issue of Dædalus on the future of the administrative state. And I now have a contract with Cambridge University Press and a goal to complete a full draft of the book in 2021.
I’ve gone ahead and a posted to SSRN a working draft of my framing essay for the Dædalus special issue here. Here is the abstract for that essay:
As part of this special issue of Daedalus, the Journal of the American Academy of Arts and Sciences, that assesses the twenty-first-century administrative state in the United States, this Essay argues that the modern regulatory state—and the field of administrative law that studies it—are in need of “deconstruction.” To be sure, this Essay does not advocate for a “deconstruction of the administrative state” that President Trump’s chief strategist likely envisioned when he grabbed headlines with that declaration shortly after the election. The administrative state plays a vital role in modern governance—a role that should be strengthened and improved, not dismantled entirely. Nor does this Essay embrace the field’s and the reformers’ fixation on courts as the core bulwark against agency overreach. That is because so much of bureaucracy is beyond judicial review. Federal agencies regulate us in many meaningful, and sometimes frightening, ways that either evade judicial review entirely or are at least substantially insulated from the courts’ purview.
This Essay makes two contributions to this deconstruction debate. First, the concept of bureaucracy beyond judicial review is undertheorized. It should not be limited to the conventional account of agency actions that statute or judicial doctrine precludes from judicial review. Instead, the concept should also encompass agency actions technically subject to judicial review yet effectively insulated from such review. It should also include the agency policymaking space created by judicial deference doctrines as well as the judicially unreviewable role that federal agencies play in drafting the laws that delegate agencies power in the first place. Second, appreciating this phenomenon of bureaucracy beyond judicial review should encourage us to rethink theories and doctrines in administrative law. If judicial review provides no safeguard against potential abuses of power in most regulatory activities, we must turn to other mechanisms to protect liberty and the rule of law. All three branches of the federal government must play their roles. As should civil society and the agencies themselves.
I’m so grateful to the countless scholars, agency officials, judges, regulatory practitioners, and policymakers who have already provided helpful feedback on this project. And I look forward to workshopping it and receiving more feedback in the coming year. Comments are definitely welcome!