Critics of the Administrative State Have a History Problem

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Sophia Z. Lee –

For the first time in nearly a century, the conservative scholars, judges, lawyers, and advocacy groups challenging the constitutional foundations of the modern administrative state have reached a critical mass. At stake is the structure of American government and its ability to address issues at the heart of political economy, from countering corporate power to protecting workers and the environment.

But these critics may be inviting in a Trojan Horse. Because most of them locate the Constitution’s meaning at the time of its ratification (an approach known as originalism), history plays a central role in their challenges. These days, they blame the administrative state’s fall from constitutional grace on the Progressive Era. However, as I argue in a forthcoming article, returning to 19th century administrative law would smuggle in an unwelcome consequence: largely eliminating judicial review of the constitutionality of agency action. As a result, they may have to choose between their originalist attack on the modern administrative state and preserving a type of court review they value highly.

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