Law and Fact in Administration

Over the course of the twentieth century, the administrative state grew under the auspices of a functionalist understanding of constitutional and statutory provisions allocating decisions among the three branches of the federal government. That understanding eschewed well-defined limits on the roles of the branches in favor of a flexible approach that allowed the branches to adapt more or less cooperatively to the demands of a complex world. In recent decades, the Supreme Court has gradually, tentatively begun to roll back these accommodations and draw sharper lines around the branches’ respective powers.

The law-fact distinction is an important tool for allocating decisions between agencies and the courts. What has gone underappreciated is the extent to which the modern conception of the law-fact distinction makes it an awkward tool for the Court’s project. It was forged alongside the modern administrative state, using the realist premises that blended the powers the Court is now striving to separate. Unrevised, the law-fact distinction will react with the new formalist doctrines to produce unstable compounds. The reaction will distort the authorities on which the Court relies and undermine the rule-of- law values that administrative law is meant to serve.

This Article identifies two approaches to distinguishing law from fact. It shows that a functional approach that marginalizes factfinding pervades administrative-law doctrines across time. And it suggests that an alternative, formalist approach—one that defines “law” more narrowly—will make the Court’s recent formalist turn more feasible and legally defensible.