Toward an Architecture of Administrative Adaptation
146 Pages Posted: 26 Mar 2002
Date Written: March 5, 2002
Traditional administrative law sees its core, the Administrative Procedure Act, from only one very confining point of view: as an appliance of judicial "checking" of bureaucratic power pursuant to a neotraditionalist adaptation of the separation of powers. The political history of the Act and, indeed, the separation of powers tradition as a whole, suggest this is a radically incomplete understanding of that core. Both of these are, in short, far more eclectic than traditional administrative law admits. Leading out of the nineteenth and into the twentieth century, American Progressivism mounted a sustained attack on the institutional face and rhetoric of the separation of powers, and various reactionary forces coalesced as a result. By the coming of the New Deal, these two forces were clearly allied against one another and were the formative influences that produced the text of the APA. That text reflects an essentially incomplete agreement between those contending factions, and any interpretation that makes sense of the whole Act within the eclectic separation of powers tradition must begin from this incompleteness. I argue that a bifurcation of the Act into "internal" and "external" senses of its provisions would make the most sense of this political history, the APA's text, and the relationships between the judicial, political, and administrative systems within the larger constitutional traditions housing them.
JEL Classification: N41, N42, N43, N410, N420
Suggested Citation: Suggested Citation