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05/11/2021

New Book: "Administrative Law Theory and Fundamentals" by Ilan Wurman
Michael Ramsey

Recently published: Administrative Law Theory and Fundamentals: An Integrated Approach (Foundation Press 2021), by Ilan Wurman (Arizona State).  Professor Wurman has posted the Introduction on SSRN; here is the abstract: 

New casebooks can be hard to justify. Many legal doctrines and their canonical cases are well established. But few fields are more in need of fresh thinking than administrative law. My new casebook, Administrative Law Theory and Fundamentals: An Integrated Approach, newly out with Foundation Press, seeks to provide such thinking. To my knowledge, it is the only administrative law casebook with the words “theory” and “fundamentals” in its title. And the reason might be that there is at present no coherent theory regarding the nature of administrative power. And the debates surrounding administrative power, on the part of both proponents and opponents of administrative government, have stalled.

The new casebook proposes a theory of administrative power that better explains constitutional text and structure, as well as historical and modern practice, than competing accounts. It argues that there are “exclusive” powers that only Congress, the President, and the courts can respectively exercise, but also “nonexclusive” powers that can be exercised by more than one branch. This theory of “nonexclusive powers” allows students and scholars of administrative law to make more sense of—or better critiques of—administrative concepts such as delegation, quasi-powers, judicial deference, agency adjudications, the chameleon-like quality of government power, and of the separation of powers more broadly. This five-page introduction seeks to situate this theory within the existing administrative law scholarship.

And from the conclusion (footnotes omitted):

This theory of nonexclusive and exclusive powers advances the field of administrative law. It explains why the concept of “quasi-legislative” and “quasi-judicial” power is appealing, but ultimately erroneous. It explains the “chameleon-like” quality of government power. It explains why Congress must authorize agencies to promulgate “legislative rules,” which are nonexclusive legislative power, but not interpretative rules or policy statements, which are executive power simply. It explains what Chief Justice Marshall meant when he wrote that Congress cannot delegate power that is “exclusively
legislative” in nature, but it can delegate to other departments power that it could have exercised itself, namely, the power to fill in the details pursuant to a more general provision. The theory better explains Chevron deference, once it is acknowledged that in most Chevron cases agencies are not actually interpreting law, but rather making policy—that is, exercising nonexclusive legislative power.  And the theory explains why most, but not all, administrative  adjudications are constitutional. In summary, administrative law is in need of a serious rethinking and clarification—and my new casebook lays the necessary groundwork. It takes formalism and originalism seriously, but concludes that much, although not all, of the administrative state may be constitutional after all.