Is Administrative Law at War with Itself?

Abstract

Dick Stewart's classic 1975 article, The Reformation of American Administrative Law, sought to find a satisfying and comprehensive rationale for the legitimacy of our vastly expanded and expanding administrative state. His article ends with the following marvelous, but almost despairing, sentences:

The instinct for satisfying integration may remain a vain shuttlecock between no longer tenable conceptions of administrative legitimacy and the exigent difficulties of the present, which have so far eluded a consistent general theory. Given "the undefined foreboding of something unknown," we can know only that we must spurn superficial analysis and simplistic remedies, girding ourselves to shoulder for the indefinite future, the intellectual and social burdens of a dense complexity.'

Since Dick wrote those rather unsettling lines, much has changed. But one thing has stayed the same: a consistent general theory of administrative legitimacy still eludes us. Indeed, I want to argue in this brief Article that the two main directions of development in administrative law since 1975 seem deeply contradictory.