Every year the Harvard Law Review publishes its Foreword — a prominent scholar’s take on the Supreme Court’s latest term and the law generally. This year’s author is Gillian Metzger, a giant of administrative law. And her article is quite provocative — 1930s Redux: The Administrative State Under Siege. Here is the first sentence: “Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal.” And from there, she proceeds to challenge the efforts of “anti-administravist” members of the judiciary, academy, and Congress to question today’s administrative law. Professor Metzger’s Foreword is timely and worth a read; she’s a very smart scholar.
That said, the Harvard Law Review gave me an opportunity to respond. My title? Confessions of an “Anti-Administrativist.” The gist is that sometimes there are good reasons to express skepticism about today’s administrative state. We should not be reluctant to say so.
Here is my first paragraph:
You got me, I confess: I’m an “anti-administrativist.” Of course, I am not entirely sure what that means, and I certainly do not embrace all criticisms of the administrative state. But I do think administrative law is a work in progress and has its share of problems. From this year’s Foreword, I learn that makes me an anti-administrativist. But you know what? You probably are an anti-administrativist too! And if you aren’t, well, you should be. The truth is that the administrative state is not “under siege” because some sinister cabal has started singing from old hymnals. Instead, it is because administrative law can be better as a matter of procedural fairness, substantive outcomes, and compliance with statutory and constitutional law. Recognizing that the administrative state has value but that it also is fallible and sometimes loses its way is the essence of anti-administrativism — at least the anti-administrativism I confess to.
This was a fun essay to write and I appreciate the opportunity. So give the Foreword a read — and then my response! Mila Sohoni (another very smart scholar) also has an excellent response: A Bureaucracy — If You Can Keep It. You should also definitely read what Mila has to say (and that admonition applies to more than just this response).