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Alexandra Sinclair and Joe Tomlinson: Deleting the Administrative State? – UK Constitutional Law Association

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But this mistakenly generalizes from the extraordinary to the ordinary. To abandon the positivist tradition of administrative legislation, and allow massive swathes of the administrative state to be taken over by a presidential administration topic solely to the constraints of public opinion, would invite arbitrariness and oppression in an enormous number of regulatory contexts that fly under the radar screen of media attention and public opinion. See Posner & Vermeule, supra notice 29, at 105 (“[I]t is inevitable, given the background conditions of the executive state, that the norms governing judicial evaluation of agency motion will be embodied as free standards and adjustable parameters.”); see also Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv.

The primary point is that the Chevron doctrine may be seen as a blending of positivism and process evaluation, which is the important thing characteristic of the grand synthesis achieved by twentieth century administrative law. The Essay proceeds as follows. Part I describes how administrative legislation within the United States advanced to mirror each the original positivist custom and a more recent course of tradition. Part II surveys examples of executive coverage­making that strikes beyond authority delegated by democratically elected legislatures—most prominently in the United States the emergence of presidential administration—and the invocation of the method tradition, commonly generalized in terms of the norms of transparency and account­capability, in an effort to confer legitimacy on these efforts. Part III raises questions about whether these efforts to legitimize aggressive executive policymaking … Read More

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