Milestones in the Evolution of the Administrative State

Published by D├Ždalus

June 15, 2021

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Abstract

The modern administrative state, as measured by the number of agencies, their budgets and staffing, and the number of regulations they issue, has grown significantly over the last hundred years. This essay reviews the origins of the administrative state and identifies four milestone efforts to hold it accountable to the American people: passage of the Administrative Procedure Act in 1946, the economic deregulation of the 1970s and 1980s, requirements for ex ante regulatory impact analysis, and the establishment of White House review. These milestones reflect bipartisan consensus on appropriate constraints on executive rulemaking, but they have not succeeded in stemming the debate over the proper role for administrative agencies and the regulations they issue. New milestones may include judicial interpretations, legislative actions, and extensions to executive oversight.


"The four milestones reviewed in this essay reflect bipartisan consensus on appropriate constraints on executive rulemaking, but they have not succeeded in stemming the debate over the proper role for administrative agencies and the regulations they issue. New judicial interpretations, legislative actions, and extensions to executive oversight could emerge as the next milestones of constraint on the administrative state. "

Susan E. Dudley

Director, Regulatory Studies Center
Distinguished Professor of Practice, Trachtenberg School


Essays in this Special Issue of Dædalus

  • Introduction: The Pasts & Futures of the Administrative State -- Mark Tushnet (Academy Member; Harvard University)
  • How the Administrative State Got to This Challenging Place -- Peter L. Strauss (Academy Member; Columbia Law School)
  • Milestones in the Evolution of the Administrative State -- Susan E. Dudley (George Washington University)
  • Legislative Capacity & Administrative Power Under Divided Polarization -- Sean Farhang (University of California, Berkeley)
  • Is the Failed Pandemic Response a Symptom of a Diseased Administrative State? -- David E. Lewis (Vanderbilt University)
  • Replacing Bureaucrats with Automated Sorcerers? -- Bernard W. Bell (Rutgers University)
  • Administrative Law in the Automated State -- Cary Coglianese (University of Pennsylvania)
  • The Innovative State -- Beth Simone Noveck (New York University)
  • Deconstruction (Not Destruction) -- Aaron L. Nielson (Brigham Young University)
  • Constraining Bureaucracy Beyond Judicial Review -- Christopher J. Walker (The Ohio State University; American Bar Association)
  • Capturing the Public: Beyond Technocracy & Populism in the U.S. Administrative State -- Avery White (The Ohio State University) & Michael Neblo (The Ohio State University)
  • The Uncertain Future of Administrative Law -- Jeremy Kessler (Columbia University) & Charles Sabel (Columbia University)
  • Some Costs & Benefits of Cost-Benefit Analysis -- Cass R. Sunstein (Academy Member; Harvard University; U.S. Department of Homeland Security)
  • The Hedgehog & the Fox in Administrative Law -- Neomi Rao (U.S. Court of Appeals)

About Dædalus

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Representing the intellectual community in its breadth and diversity, Dædalus explores the frontiers of knowledge and issues of public importance.

Dædalus was founded in 1955 and established as a quarterly in 1958. The journal’s namesake was renowned in ancient Greece as an inventor, scientist, and unriddler of riddles. Its emblem, a maze seen from above, symbolizes the aspiration of its founders to “lift each of us above his cell in the labyrinth of learning in order that he may see the entire structure as if from above, where each separate part loses its comfortable separateness.”

Drawing on the enormous intellectual capacity of the American Academy of Arts and Sciences, whose members are among the world’s most prominent thinkers in the sciences, humanities, arts, and social sciences, as well as the professions and public life, each issue of Dædalus features multidisciplinary, authoritative essays centered on a theme or subject.