This synthesis is the product of historical evolution, in which elements with different origins co-evolve, in the manner of the components of what would become the human eye, as they are enlisted into the service of a common function. We present it as a fully integrated whole to highlight its basic institutional and doctrinal commitments. Here, in outline, are the essentials: Externally, or at the outer boundary of the administrative state, Congress delegates authority to administrative agencies and the president directs how agencies wield it.
Internally, this authority triggers processes of deliberation and decision conforming to the professional habits and norms of the scientific and legal experts who work within individual administrative agencies and supervisory institutions, such as the Office of Management and Budget OMB. Thanks to this layer of professional mediation, the ultimate expression of congressionally delegated and presidentially directed authority— administrative decisions—can be expected, most of the time, to be both scientifically rational and legally valid.
Energetic and continuing presidential direction, meanwhile, ensures that administration is not frustrated by the bureaucratic torpor and rivalry common to large organizations, and that decisions have the necessary democratic pedigree, even when they are far removed, in time and effect, from what Congress might have contemplated when first delegating authority to a particular agency.
The synthesis of presidentialism and professionalism is effected by and embodied in internal administrative law: a body of norms, growing out of the practice of administration itself, that harmonizes the demands of political will, legal regularity, and scientific rationality.
In the progressive account, internal administrative law is hierarchical: within agencies, it subordinates lower-level decisionmaking to higher-level review, with the head of the agency as the ultimate authority; within the executive branch, it subordinates agencies to the direction of the president.
Institutionally, the routine operation of these nested hierarchies is policed by superor meta-agencies—such as the OMB and, within it, the Office of Information and Regulatory Affairs—housed within the Executive Office of the President. Because presidentialism and professionalism continually imbue administrative decisions with democratic legitimacy, legal validity, and scientific rationality, courts lose their centrality as the guardians of the constitutional conformity of the administrative state.
Partisans of the progressive synthesis rarely disclaim the virtues of judicial review altogether, but they focus on its vices: the tendency of courts to subordinate the rationality of the administrative process to their own professional and political preferences. These limits warrant a general policy of judicial deference to administrative decision-making. Whatever its merits as a response to anti-administrative attacks, the progressive synthesis is deficient in important ways.
First, it is conceptually incomplete, if not incoherent. As has been manifest since the New Deal, decision-making by political directive and decision-making by expertise proceed by different methods.
They may reach the same or compatible solutions, but they may not. The synthesis provides no process or principles for systematically reconciling them. Instead, following the promptings of doctrine, it assumes that both can be exchanged into the common currency of hierarchy and made interchangeable. But as the countless conflicts between the previous administration and the professional staffs of the agencies attest, the reality is otherwise.
In fact, courts are routinely called on to decide whether, in a particular case, deference is owed to hierarchical authority of one kind or another, political or professional.
Familiar tensions are recast, not overcome. These tensions point to a second and politically salient defect of the synthesis: its limited resources for responding to presidential overreach.
For the progressive synthesis, the chief threat to constitutional democracy continues to be, as it has been since the New Deal, a conservative judiciary and, more generally, the frustration of decisive and synoptic leadership, whatever its origin.
Expansive defense of doctrines of judicial deference to administrative hierarchy responds to the first danger, while defense of the authority of the Executive Office of the President to supervise, coordinate, and direct decision-making across the administrative state responds to the second. But when the corrective of an empowered White House itself becomes a threat—perhaps the threat—to democratic, lawful, and effective administration, these responses become worse than useless.
A third deficiency goes to the inadequacy of the progressive synthesis as a response to uncertainty. The synthesis validates authority in its various forms while seeking to coordinate their exercise. Uncertainty calls authority in all its forms into question. It does not, to be sure, simply devalue expertise or political leadership.
But it emphasizes the role of the expert and the political leader as organizers of open-ended inquiry, rather than as repositories of tried-and-true solutions that must merely be adapted to new contexts. If not by the progressive synthesis, how then can administrative law help make professional expertise and political control usefully commensurate, in ways that improve the capacity of the administrative state to respond to uncertainty, conform it to minimal liberal democratic norms, and limit the dangers of presidential overreach?
We offer a provisional answer to this question in the form of an alternative doctrinal program and a reminder of the fundamental need for organizational reform. Our programmatic alternative treats uncertainty not simply as a challenge to be met, but as a guide.
Uncertainty is the great leveler. In revealing the limits of current knowledge, it limits the claims of authority—all forms of secular authority at least—and presses authorities of all sorts into a more or less open inquiry that continually updates the nature of a given problem and its provisional solutions. Such inquiry, moreover, regularly brings to light the interdependence of disparate types of authority, as political action is found to have technical prerequisites and vice versa.
The alternative program emphasizes that judicial review, despite its susceptibility to ideological capture and prolonged history of anti-administrativism, remains an indispensable tool for resolving conflicts between presidentialism and professionalism, sociopolitical and sociotechnical reason-giving.
We agree with the progressive view that this doctrine should be reformed, not least to avoid formalistic maneuvering on all sides that leaves administrative action less susceptible to post-issuance input, learning, and revision on the fly. But we part company with the progressive synthesis when it comes to the availability and scope of judicial review of guidance. The traditional argument against the reviewability of guidance begins in prudence but ends in formalism: guidance is said to lack the finality and ripeness necessary for effective and lawful judicial review under the Administrative Procedure Act APA , the Constitution, and the common law.
The objection to this argument is that guidance is so well-suited to regulating in an uncertain world precisely because it encourages participants in the administrative process to act now : to experiment with new technologies and methods of organization, to share information, and to give reasons why other participants should act differently in light of these experiments and information exchanges. If a proposed guidance regime is legally or practically flawed, and that flaw is presently known, it should be presently addressed.
Otherwise, the resulting regime risks discouraging the exploration and experimentation it is meant to foster. With respect to the scope of judicial review, the progressive synthesis endorses and would extend a body of doctrine that focuses on whether guidance documents are permissible interpretations of preexisting statutory and regulatory provisions. Instead of asking how well-considered, responsive to objections, and consistent with prior explanations agency reason-giving is, these doctrines encourage judges to determine only whether administrators are offering minimally reasonable interpretations of the statutory and regulatory provisions that authorize them to regulate at all.
This formalism may well limit the extent to which judges interpose their own views for those of administrators, but it does so at the price of obscuring and thus tolerating or even encouraging incompetent or self-serving decision-making. Our alternative program would refocus courts and agencies on what some commentators have called process review : review of the chain of reasoning that has led an agency to adopt and maintain a particular guidance regime.
When an agency departs from prior explanations or presumptions, or chooses to maintain them despite objections, process review asks whether the agency has acknowledged its departures or refusals to change course and whether it has given plausible reasons for its choices.
So described, process review is distinct both from procedural review, which asks whether a guidance document is so impactful that it should have been issued by more onerous procedures such as notice-and-comment rulemaking , and from outcome review, which asks whether a guidance document is substantively reasonable in light of the evidence the agency had at its disposal.
Happily, there are resources in current law that permit judicial review of agency action under uncertainty to take the form of process review and, in doing so, improve the quality of administrative reason-giving.
State Farm Mutual Automobile Insurance , nicely exemplifies the sort of process inquiry we favor. Another doctrinal resource that already encourages process review is the Skidmore framework. These latter standards are today most vociferously defended by progressives.
Recently, however, judges and scholars from across the political spectrum have begun to explore the possibilities of Skidmore anew. In the Kisor decision, Justice Elena Kagan, whose defense of Clintonian presidential administration has become a keystone of progressive thinking, wrote an opinion narrowing the scope of Auer deference, much to the disappointment of progressive scholars.
These threshold questions, somewhat analogous to ones that already confine the application of Chevron in statutory interpretation, effectively move away from the formalism of Auer and back toward the more holistic Skidmore endeavor of calibrating the degree of deference to the persuasive quality of agency decision-making.
Going further, the alternative program would extend Skidmore to notice-and-comment rules, displacing the Chevron framework altogether and thus limiting agency incentives to regulate in a more inflexible manner when guidance would do. Of course, the pursuit of Chevron deference is not the primary reason that agen cies regulate by notice-and-comment rulemaking.
Statutory requirements and judicial expectations, as well as genuine desire for public input, all drive agencies to ward the notice-and-comment process, at least some of the time. Finally, the alternative program would recommend that hard-look review and the Skidmore inquiry, both understood as process rather than outcome tests, be used more or less interchangeably.
Together these recommendations recast judicial review, at least with respect to guidance and thus action under uncertainty, as asking not whether agency decisions possess a sufficiently hierarchical pedigree to merit deference, but whether they give reasoned explanations for action or inaction.
Our alternative program is not, however, simply a call to recenter the courts. We recognize that internal administrative law and organizational reform are vital complements to process review as a means of improving agency reason-giving. The progressive synthesis, however, is drawn to a peculiarly hierarchical conception of internal administrative law. By embedding administration in hierarchy, the synthesis seeks to reconcile presidentialism and professionalism and, in doing so, justify a more limited role for the courts.
But under uncertainty, this approach imputes a burden of certitude on technical and political authorities that neither can bear. Internal administrative law as quality control is always relative to the kind of decisions whose quality is in question. When, as was the case when Mashaw did his empirical research, the public interest was served by the hierarchical application of fixed rules to decide the validity of individual claims, internal administrative law aimed to improve the quality of the information available to the hierarchy and the reliability of its treatment of that information.
But when, as is increasingly the case, the public interest under uncertainty is served by full and fair ventilation of reasons for action in changing contexts that resist hierarchical control, internal administrative law turns to improving the quality of those processes. Thus, one of the most thorough recent case studies of internal administrative law documents such a shift, showing how the Environmental Protection Agency replaced an unworkable standard-setting procedure—which advanced from regulatory goal-setting to the choice of regulatory means in the familiar hierarchical or principal-agent sequence—with a nonhierarchical process that invites criticism of emergent decisions at each stage of their development.
Note that an administrative agency is not a part of the United States judicial system though they may7 be subject in various circumstances to judicial review. Courts and administrative agencies are independent. Their functions also differ. Statutes have delegated administrative agencies executive power to administer legislative authority. The primary function of administrative agencies is to exercise the executive power delegated to them by statute.
Ginsberg, W. Note that the administrative system substitutes administrative agencies for courts in making many decisions in the federal agencies. Such administrative agencies also determine definition of individual rights in administrative systems. However, there can be Court review of administrative decisions. For example, in Benedict v. The Board denied the application on grounds that husband was not actually engaged in performance of his duties as a police officer when he was shot.
The court observed that in determining a question the board should have considered all available information and facts. The court concluded that the officer was performing his duty as a police officer in preventing his son from firing, and hence, his widow was eligible for pension. Generally, administrative procedures are less complex and legalistic than judicial procedure. Such proceedings, however, are bound by basic evidentiary limits.
Ruffin v. Clinton, S. Note that strict rules of evidence do not necessarily apply to administrative proceedings while they must in a court of law. According to the Seventh Amendment of the US Constitution, in lawsuits where the value in controversy exceeds a specified amount the parties are entitled to demand a jury trial in an action for damages.
Curtis v. Loether, U. However, the right preserved by the Seventh Amendment is not applicable in administrative proceedings. Administrative agencies can either be agents of the executive or independent agencies. Administrative agencies cannot be considered courts but can act as quasi-judicial bodies when the statute permits.
This quasi-judicial power of the administrative agencies encourages quick decision makings in relatively minor or exceedingly complex disputes. The decisions of administrative agencies can be reviewed by the state or federal courts if the administrative agency does not comply with the required due processes , if the parties involved are not given the opportunity for full and fair hearing or, if there is any abuse of discretion.
Usually, before suing in civil court, the parties must exhaust all appeals within the agency. This type of judicial reviewing by the courts tends to eliminate the flexibility of the administrative agencies in resolving actions and in disputes.
Therefore, to avoid this difficulty, most of the enabling statutes for administrative agencies are worded broadly to enable the administrative agencies to exercise wide discretion in decision making.
In Delta Found. United States , F. Administrative Procedure Acts are legislation designed to give uniformity to the rule making and adjudicative proceedings of the administrative agencies both in federal and state level.
Following the federal lead, most of the states also passed similar statutes during the late s and early s. The Act also guarantees the right of judicial review to any person suffering legal wrong because of any agency action. Under the APA, all agency action is either rulemaking or adjudication. Its emphasis on transparency, fairness, and access to the courts has resulted in the accountability, efficiency, and acceptability of the decision making of government.
The basic purposes of the APA are:. Generally, statutes enacted after the Act cannot supersede or modify its provisions. However, an agency has the discretion to afford parties with procedure that is more than required by the Act.
The direction and control of the office will be on an executive officer called the director. The director will be appointed by the governor subject to the confirmation of the Senate.
In the beginning, I had trouble finding it interesting. I suppose I regarded administrative law as the laws of government offices, with little relevance to civic life--worse yet, as laws that restrict civic life--whereas criminal law connects to people through mass media reports, and civil law directly involves the buying and selling of products. Another reason why I kept administrative law at arm's length is that there is no actual law titled "Administrative Law. That being said, our lives are structured in such a way that requires us to be in close contact with administrative law, from the cradle to the grave.
For example, when a child is born, a birth registration has to be submitted based on the Family Register Act, and when someone dies, a report of death must be made. In order to drive a car, you need a driver's license, as required by the Road Traffic Act, and if you drive without a license, you are subject to criminal penalties.
If you are building a house, you have to apply for a building certification based on the Building Standards Act, and have it confirmed. Throughout our lives, we are in a close relationship with administrative activities. In fact, it can even be said that we live our lives while being restricted by administrative laws. I decided that since it is unavoidable, I might as well deal closely with administrative law. In administrative law, there is a principle called the "principle of administration by law.
The right to exercise or not exercise administrative authority must all be stipulated in laws. To put it another way, if you read the laws carefully, you will naturally understand the structures and the contents of the laws. It is similar to the concept of "no punishment without law" in criminal law. The concept of "no punishment without law" and the "principle of administration by law" are two completely different ideas, but they share the basic concept of protecting citizens from the power of the state.
Also, the idea that to work as a public prosecutor, all you need is the compendium of laws, as a public prosecutor who was my senior liked to say, is something you can also say about the world of administrative law.
Administrative laws are laws that stipulate the authority of administrative power, and are certainly not just laws that serve government offices. The purpose of administrative law is said to be to serve the public interest.
I find the term "public interest" to have a certain connotation that makes it hard to approach. When I explain this concept to my students, I use the term "administrative purpose" rather than "public interest. You would expect anyone to be able to drive freely as long as they have the technical knowledge needed to do so, but if those without the technical knowledge or without knowledge of traffic rules get behind the wheel, they may cause accidents, posing a risk to people's lives and property.
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