submitted by Lou Virelli
Administrative Law in a Time of Chaos
On Tuesday, August 7th, approximately twenty administrative law scholars gathered to discuss the current state and role of administrative law. Nearly all of those present contributed to the discussion, but three of the participants were asked to present ideas that were then used as a springboard for broader discussions.
Professor Charlton Copeland from the University of Miami School of Law started the conversation by thinking about what it means for a government to be chaotic and explaining that it is important to be clear about the meaning of the term and its consequences. He explained that he is interested in understanding how President Trump is like prior assertive, disruptive presidents and how he is different because it is those differences that allow us to better investigate administrative law’s capacity to respond. He argued that Congress’s unwillingness to provide a meaningful check on the president promotes chaos, as does President Trump’s willingness to exploit rather than overcome polarization in a way not seen by contemporary presidents, who at minimum pay lip service to an obligation to govern broadly.
Professor Vanessa Zboreak from Wake Forest University School of Law next noted that, even as public comment periods have become shorter and more difficult to participate in, many federal agencies’ discourse about public participation extols their commitment to stakeholder input and transparency. This inconsistency, which she termed “democratic doublespeak,” is reflective of the patterns of misinformation that characterize our broader political moment. But beyond that, doublespeak from agencies further complicates public perceptions of the truthfulness and legitimacy of the administrative state, past and present.
Finally, Professor Rebecca Bratspies from CUNY School of Law noted that Administrative Law in a Time of Chaos is an apt title for this panel. Current events call into question the notion that we have something that could be called “administrative law”—which is a system in which those tasked with managing or being responsible for running parts of the government view themselves as having an obligation to do (or refrain from doing) something because of the duly-enacted laws governing how they are to exercise the power delegated to them. Without the constraints on the exercise of executive power imposed by the APA, the entire edifice that we fondly think of as “a government of laws and not of men” collapses into mere autocracy. Trying to wrap regulation by tweet in the hollowed out shell of delegated authority does a disservice to constitutional legitimacy, to democracy, and ultimately to America as a nation.