Today’s Ad Law Reading Room delivers a twofer (you’re welcome). The first entry is “Presidential Administration After Arthrex,” by Noah A. Rosenblum & Roderick M. Hills, Jr. The second is “Science and Politics in Public Health Regulation,” by Samuel R. Bagenstos.

Here is Rosenblum and Hills’ abstract:

The federal government employs over 2 million civilian workers, all but a few thousand of whom enjoy forms of tenure and insulation from presidential control. This permanent bureaucracy is the dreaded “deep state,” with deep experience of governmental processes and a many-layered structure defined by statutes and regulations. Pursuant to law and court decisions, the deep state routinely makes findings of fact, policy determinations, and conclusions of law, sometimes independent of the president. But the Supreme Court’s recent decision in United States v. Arthrex risks unsettling this arrangement by forcing the bureaucracy to conform to a simplistic, hierarchical vision of presidentialism, which could undermine the finality of bureaucratic decisions. This Article proceeds on the theory that the Court did not intend to radically overthrow our longstanding system of government. It offers alternative readings of Arthrex, narrow and broad, to show how the case risks unsettling the existing law of agency design. Through narrow formalism, Arthrex could become a requirement that some executive branch decisions make a presidential pit-stop before hitting the road to judicial review; alternatively, a broad conception of executive power would move all discretionary decisions into the president’s reach. This Article reconstructs the threat Arthrex poses to administrative government and shows how a middle road could reconcile presidentialism with the Constitution, statutory law, and bureaucracy. Our alternative reads Arthrex through the lens of Myers v. United States and its foundational distinction between politics and administration. This approach should be congenial to presidentialists, and it offers a principled way to distinguish cases where the president may exercise control of the bureaucracy to realize his policy from those where law may appropriately limit him to mere supervision in the name of good administration.

And here is Bagenstos’s:

This essay challenges the common framing of regulation as a choice between “science” and “politics.” Through an examination of contemporary public health controversies, the essay demonstrates that the decision to defer to scientific expertise is itself inherently political, requiring democratic justification and accountability. The essay makes three main contributions. First, it shows how even supposedly “pure” scientific decisions in public health regulation invariably involve value judgments and policy choices. Second, it argues that delegation to scientific experts can serve rather than impede democratic goals, particularly when the public seeks to address complex, evolving problems that require specialized knowledge. The essay examines how Congress has repeatedly chosen to empower scientific decision-makers through various institutional mechanisms while maintaining democratic accountability. But third, the essay also identifies significant democratic risks in deferring to scientific expertise. These include the tendency of specialized agencies to become distant from ordinary citizens, the risk that scientific disciplines may systematically undervalue certain public concerns, and the problem of public health paternalism that can erode trust and accountability. Rather than responding to these challenges through additional procedural requirements that might further hamper effective regulation, the essay suggests institutional reforms to promote transparency, deliberation, and meaningful democratic oversight of scientific decision-making.

The essay concludes that the key question is not whether to choose science or politics, but how to design institutional arrangements that allow scientific expertise to advance democratic goals while maintaining appropriate accountability. This analysis has implications beyond public health regulation, offering insights for administrative law and democratic theory more broadly.

In some ways these articles could not be more different. Rosenblum and Hills’ paper grapples with the implications of a big Supreme Court case, unearthing lost ways of thinking to chart a path forward. Bagenstos’s is a more philosophical reflection on long-felt tensions within the administrative state that also abounds with examples drawn from a particularly regulatory field. Yet both grapple with topics—the relationship between expertise and politics, science and democracy—that are both enduringly important and appear particularly timely today. And both succeed in developing richly nuanced positions that helpfully enable us to move past the extremes.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.