Administrative law is the legal framework that governs how the administrative state exercises its authority. Its current trajectory is reducing the administrative state's capacity to govern effectively.
The Framework's Function
Administrative law — the body of law governing how agencies make rules, conduct adjudications, and exercise the delegated authority that Congress has granted them — is the legal architecture that mediates between Congress's broad statutory mandates and the specific regulatory decisions that govern behaviour in every domain the administrative state touches. The Administrative Procedure Act's requirements for notice-and-comment rulemaking, reasoned explanation, and judicial review provide the accountability framework that prevents arbitrary agency action while allowing the expert, responsive governance that statutory mandates require. The Chevron doctrine — the judicial deference to agencies' reasonable interpretations of ambiguous statutory language that allowed agencies to apply their expertise in the domains they regulate — was the legal mechanism that reconciled judicial oversight with agency expertise for forty years.
The Supreme Court's Loper Bright decision, which overruled Chevron, has significantly changed the balance between judicial oversight and agency expertise in administrative law. Courts will now independently interpret ambiguous statutory language rather than deferring to agency interpretation, which means that the policy choices embedded in agency statutory interpretation are subject to judicial review that is less deferential to agency expertise than the Chevron framework required. The governance consequence is an administrative state whose authority to make the expert policy judgments that regulatory governance requires is increasingly subject to judicial second-guessing by courts whose expertise in the specific regulatory domains they are reviewing is significantly less than the agencies they are overseeing.
The administrative law architecture is the legal framework that determines whether the administrative state can govern effectively. The current trajectory of Supreme Court decisions — reducing agency deference, constraining agency authority, requiring explicit congressional authorisation for significant regulatory action — is reducing the administrative state's capacity to address the complex, rapidly changing governance challenges that require the expert, responsive regulatory action that the administrative state was built to provide.
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