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11/17/2017

Mila Sohoni: A Bureaucracy -- If You Can Keep It
Michael Ramsey

Recently published, in the Harvard Law Review Forum, Mila Sohoni (University of San Diego Law School): A Bureaucracy -- If You Can Keep It (131 Harv. L. Rev. F. 14 (2017)) (invited response to Gillian E. Metzger, The Supreme Court, 2016 Term — Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017).  From the introduction (footnotes omitted):

In her Foreword, Professor Gillian Metzger portrays the administrative state as laid under siege by an array of judicial, political, and academic attackers. Expertly curating and deftly dissecting a century’s circus of intellectual debate and political conflict, the Foreword demonstrates the myriad ways in which today’s struggles over administrative government reprise the turmoil of the New Deal period.

Indeed, the parallels between the present moment and the 1930s may extend further than she draws them. The history of that era suggests how the “rhetorical antipathy” towards the administrative state that Metzger carefully documents and critiques may yet cross over from the realm of rhetoric to the realm of reality. That, of course, only makes it that much more urgent to answer the central question addressed by the Foreword — the question of how to respond to the
“anti-administrativist” complaint that the federal bureaucracy is extralegal, unconstitutional, and tyrannical.

Metzger’s response is the provocative rejoinder that the administrative state is not merely constitutionally permissible and not merely constitutionally beneficial, but also constitutionally obligatory. This argument diverges in critical respects from long-held conceptions of the administrative state’s constitutional status and role. It is bold in its premises and startling in its possible implications. It aims to break the siege — to quell, at once and en masse, the renascent attacks upon administrative government. But her argument for a constitutional obligation of administrative government pivots upon the threshold assumption that the Supreme Court will continue to regard broad delegations as constitutionally permissible — a point about which I do not feel as sanguine. And even if delegation doctrine persists in its present form, the full contours of the contingent constitutional obligation posited by Metzger seem to me to be both potentially enormous and — at the same time — hard to trace with precision. At the brass-tacks level, it is difficult to map out what exactly honoring the constitutional obligation of administrative government would require in the many and varied contexts in which it might be pitted against countervailing targeted arguments that regulatory power ought to be restrained. Politicians, scholars, lawyers, and judges gave us the modern administrative state; whether we can keep it remains to be seen. 

Also responding to the Foreword in the Forum is this essay from Aaron L. Neilson (BYU): Confessions of an “Anti-Administrativist”.

Unsurprisingly, two principal targets of Professor Metzger's Foreword are originalists Clarence Thoams and Philip Hamburger; the Forum does not, as yet, have an originalist response.