Administrative Law in an Era of Partisan Volatility

By Livermore, Michael A.; Richardson, Daniel | Emory Law Journal, January 1, 2019 | Go to article overview

Administrative Law in an Era of Partisan Volatility


Livermore, Michael A., Richardson, Daniel, Emory Law Journal


Introduction

Debates about the relationship between politics and administration are as old as modern bureaucracies, extending at least back to foundational figures such as Woodrow Wilson and Max Weber.1 Early notions of a strict dichotomy between politics and administration that helped justify the vast discretion granted to administrative agencies in the early to mid-twentieth century have given way to an understanding of the inseparability of administration and politics in any complex legal regime.2 In recent years, some legal scholars have become particularly attuned to the interaction between administration and features of the political environment, such as divided versus unified government and political polarization.3 Unfortunately, administrative law itself has been slow to catch up, with potentially dangerous consequences for the stable functioning of the U.S. administrative state.

A recent Supreme Court administrative law intervention illustrates this claim. In Lucia v. SEC, the Supreme Court held that the SEC's administrative law judges (ALJs) are subject to selection through the Appointments Clause rather than the independent civil service system.4 Shortly thereafter, the President issued an executive order removing all ALJs from the competitive civil service process and subjecting them to political appointment by agency heads.5 The administrative law doctrine announced in Lucia, which was limited to the SEC, was transmuted almost immediately through political channels to apply broadly across the government.6 This move occurs against a political backdrop that includes the growth of presidential administration, an increasingly polarized electorate, the declining institutional efficacy of political parties, and a pattern of wildly shifting governing coalitions.7 The seemingly technical constitutional holding in Lucia is given life by this political context, where the consequences of upsetting a longstanding compromise that insulates agency adjudicators from partisan influence will be felt.

This interaction of politics and administrative law is nothing new. Professor Jerry Mashaw's work in recovering the "lost era" of American administrative law documents how the changing landscape of American politics over the course of the Republic's first one hundred years were tracked by fundamental transformations in administrative law and practice.8 When the Jeffersonian Era of Good Feelings gave way to Jacksonian democracy, for example, that shift was accompanied by a change in administration that moved away from an emphasis on governance by "men of good standing" and toward a spoils system that supported mass political mobilization.9 Legal changes, including a decline in the importance of qui tam actions and the extension of personal immunity for official acts, followed these political and administrative changes.10 Similar linked transformations in political organization, administrative form, and legal doctrine have been a consistent feature of the U.S. system ever since.

Indeed, the standard administrative law narrative-which continues to be embodied in the leading treatises and casebooks-essentially tracks doctrinal developments against the backdrop of the waxing and waning of the New Deal coalition.11 The 1932 election brought a realigned and ascendant Democratic Party to power with a mandate to combat the Great Depression. New Deal legislation created a massive administrative apparatus that, while building on prior forms, was something new in American political life. Administrative law as it is taught and practiced today-from the non-delegation cases to the Administrative Procedure Act and its subsequent interpretation-remains shaped by doctrine that arose from a legal order in constant conversation with the administrative necessities and political realities of that time.12

If contemporary politics do not (yet) rise to the level of crisis represented by the Great Depression, they nonetheless require a reckoning. …

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