Hoover Institution (Stanford, CA) – The Hoover Institution’s newly established Center for Revitalizing American Institutions (RAI) has released its inaugural essay series in anticipation of the center’s upcoming public launch this week.
The essay series, Legitimacy of Administrative Law, was prepared for a conference held in January, which was chaired and spearheaded by senior fellow and legal scholar Jack Goldsmith.
The series investigates the various facets of contemporary administrative law in the United States, delving into crucial topics such as the legitimacy and accountability of an administrative state within a constitutional democracy characterized by a tripartite framework and the separation of powers among its legislative, executive, and judicial branches.
The series also presents debates regarding claims about the detrimental impact of administrative law’s disproportionate emphasis on power and associated harms linked to excessive administrative authority.
Additionally, the series explores the “major questions” doctrine, a principle articulated by the US Supreme Court in 2022. This doctrine marks a departure from almost four decades of precedent, challenging the practice of deferring to executive agencies’ interpretations of statutes under their administration. Under the major questions doctrine, executive agencies are advised to abstain from wielding power and authority in matters of national significance unless expressly delegated such authority by the US Congress.
The four essays in the series are as follows:
The Administrative State, Inside Out
By Cass R. Sunstein, Harvard Law School
Abstract: In the United States, are administrative agencies illegitimate? Many people think regulatory agencies overstep their authority—and in some ways, they might be right. But an understanding of the actual operation of the administrative state, seen from the inside, makes it exceedingly difficult to object to “an unelected fourth branch of government.” Such an understanding casts a new light on some large and abstract objections from the standpoint of democracy, liberty, and welfare.
Power Corrupts
By Emily S. Bremer, Notre Dame Law School
Abstract: Administrative law today neglects administration, focusing instead on power and the institutions that wield it, particularly the Supreme Court, the president, and Congress. Tracing the field’s reorientation—from the New Deal–era cases that revealed the thin political will behind the Administrative Procedure Act to the emergence of the Chevron doctrine—this paper argues that administrative law’s obsession with power corrupts the field.
Administrative Harms
By Philip Hamburger, Columbia Law School
Abstract: Administrative power imposes serious wounds on the United States, its Constitution, and its citizens. Therefore, a persuasive defense of administrative power would need to respond to these harms, showing that it is constitutional and otherwise desirable, notwithstanding its many costs. If the administrative state is defensible, it will be necessary to wrestle with all the damage it incurs.
The Major Questions Doctrine: Right Diagnosis, Wrong Remedy
By Thomas W. Merill, Columbia Law School
Abstract: The Supreme Court’s “major questions” doctrine has been attacked as an attempt to revive the nondelegation doctrine. The better view is that this statutory interpretation responds to perceived failings of the Chevron doctrine, which has governed court-agency relations since 1984. This article criticizes the major questions doctrine and proposes modifications to the Chevron doctrine that would partially correct its failings while preserving the traditional interpretive role of courts.
About the Center for Revitalizing American Institutions (RAI)
In the words of its founder, Herbert Hoover, the Hoover Institution exists in large part to “support the Constitution of the United States, its Bill of Rights, and its method of representative government. . . . With these purposes as its goal, the Institution itself must constantly and dynamically point the road to peace, to personal freedom, and to the safeguards of the American system.” In renewed pursuit of this mission, the Hoover Institution has established its first-ever permanent center, devoted to revitalizing American institutions and to addressing current challenges they are facing.
From its founding, America has developed an array of institutions to preserve and advance our nation’s liberty and prosperity. Yet, today, many citizens have lost confidence in those institutions, challenging their legitimacy and compromising their missions. In an objective, nonpartisan spirit, the Center for Revitalizing American Institutions (RAI) will draw on the Hoover Institution’s scholarship, government experience, and convening power to study the reasons behind the crisis in trust facing American institutions, analyze how they are operating in practice, and consider policy recommendations to rebuild trust and increase their effectiveness.