Tuesday, January 12, 2016

The Struggle for Administrative Legitimacy

Jeremy K. Kessler

My review of Dan Ernst's eye-opening Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940 is now out in the Harvard Law Review, along with Mark Tushnet's illuminating response. The review argues that Ernst's book exemplifies two, somewhat related trends in the legal academy. The first trend is the strikingly historicist nature of recent attempts to defend the legitimacy of the modern administrative process from its libertarian and originalist critics. In addition to Ernst's own work, prominent examples include Cass Sunstein and Adrian Vermeule's recent article, Libertarian Administrative Law, and Jerry Mashaw's Creating the Administrative Constitution

The second trend is the emergence of a new "legal history of administrative governance." This sub-field breaks with the currently dominant legal history of "social movements," as well as the study of American political development, by questioning not only the distinction between law and politics but also the distinction between state and society. 

Tocqueville's Nightmare highlights the empirical promise of the legal history of administrative governance, while revealing the relative weakness of historicist defenses of administrative legitimacy. This weakness, I argue, stems in large part from an empirical and normative misinterpretation: Ernst, Sunstein, Vermeule, and other historicists tend to treat evidence of the capture of the mid-century administrative state by politically moderate lawyers as testifying to a popular consensus on that state’s legitimacy. Mark responds that recourse to the "intellectual history of the administrative state" would temper my conclusion.

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