As I mentioned in my AdLaw Bridge series post last week, I’m slowly catching up* on highlighting the Jotwell Administrative Law Section reviews from the last couple months as part of this series. Here is another terrific Jotwell review, this one by Mark Seidenfeld of Political Parties and Presidential Oversight by Michael Livermore, which was recently published in the Alabama Law Review.
Here’s a summary of the article from the SSRN abstract (the paper is available on SSRN here):
The intimate, and often underappreciated, relationship between political parties, the presidency, and the administrative state has profound consequences for the functioning of these three institutions at the heart of American political life. Failure to draw out and illuminate this connection has led to an incomplete understanding of administrative law—both descriptively in what the law does and can do, and normatively in what it should do. In particular, courts and commentators have not grappled with the fundamental shift experienced by political parties over the past several decades—from traditional party organizations that were locally focused and ideologically diverse to today’s high-tech, polarized, and nationally oriented parties. This transformation was strongly influenced by the growth of administrative agencies and the modern presidency, and has important implications for the practical realities of presidential control over agencies, for the normative justifications supporting the President’s prominent role in the administrative state, and for the struggle over control of agencies between the President and Congress. This Article maps out the intersection of President, administration, and contemporary parties and proposes “responsible party administration” as a normative framework to evaluate how well institutional arrangements and judicial doctrines forward administrative values such as expertise, coherence, and legality while accommodating a system of regulated rivalry in which two programmatically distinct parties compete for the reins of the administrative state.
Entitled Rethinking Parties and Politics in Administrative Law, Seidenfeld’s Jotwell review of the piece is also well worth a read. Here’s the bottom line from the review:
What is most impressive about “Political Parties and Presidential Oversight” is its endeavor to incorporate the structure and role of current political parties into the debate on fundamental questions of administrative law. Livermore does not have all the answers, and the answers he provides are often contingent on current party practices. But, this Article provides an excellent start to this endeavor first by cogently reviewing and analyzing various theories of political parties in government, and then carefully identifying ways in which the theory of responsible party government can illuminate tradeoffs inherent in the administrative state. It is a must read for those who think about how to incorporate politics into the current administrative.
I’m a big fan of Livermore’s work—both his traditional administrative law work and his scholarship on environmental law. For instance, he has a new paper on SSRN entitled The Perils of Experimentation, which is forthcoming in the Yale Law Journal and is definitely worth a read.
* Thanks to my research assistant Brooks Boron for helping me put together this post.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.