Judicial Review of Administrative Discretion: How Justice Scalia and Breyer Regulate the Regulators

Judicial Review of Administrative Discretion: How Justice Scalia and Breyer Regulate the Regulators

Judicial Review of Administrative Discretion: How Justice Scalia and Breyer Regulate the Regulators

Judicial Review of Administrative Discretion: How Justice Scalia and Breyer Regulate the Regulators

Synopsis

An enduring question for democratic government is how much power or administrative discretion should be afforded to unelected bureaucracies. Clayton compares how Supreme Court Justices Breyer and Scalia have addressed the topic of administrative discretion through various administrative law opinions to show how their contrasting methods of legal reasoning and statutory interpretation have enabled and constrained regulatory power. His research identifies themes of Breyer's and Scalia's jurisprudence and reveals the extent to which they defer to agency decisions varies and contradicts both Justices' stated positions on judicial review, legal reasoning, and statutory interpretation to some degree.

Excerpt

If we delegate too much decision making authority to experts,
administration and democracy conflict. We lose control. Yet if we
delegate too little authority, we also find democracy weakened.

—Justice Breyer, Active Liberty: Determining our Democratic
Constitution

Many public administration scholars have explored the implications of administrative discretion within a democratic and constitutional republic (Davis 1960, 1969; Dodd and Schott 1979; Frederickson 1993; Keiser 1999; Lowi 1979; Schoenbrod 1993; Selden 1997; Selden et al., 1998; Wood and Waterman 1991). Broadly speaking, the focus of these studies is how to control and/or reconcile the concept of power infused within an unelected bureaucracy. An enduring question regarding administrative discretion is how to make the bureaucracy efficient and effective while also ensuring accountability through democratic values of representation and fairness. In other words, how much administrative discretion is appropriate and how best to regulate the regulators?

Friedrich (1940) and Finer (1941) succinctly framed the argument regarding how public administrators should operate and be held accountable within a democracy over 70 years ago. According to Friedrich, the politics-administration dichotomy put forth by Goodnow (1900) was outdated and unrealistic as public administrators routinely and necessarily influence and affect policy. For Friedrich, the demands of government require bureaucratic and technical expertise and call for significant amounts of administrative discretion to ensure government agencies operate effectively. Friedrich advanced a novel approach for . . .

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