Symposium: A future without the administrative state? exploring the administrative state.

• Author: Hawley, Erin Morrow

The administrative state today "wields vast power and touches almost every aspect of daily life." (1) There's no question that the Founders would have been surprised by the current administrative state. (2) By and large, however, both the academy and Article III judges are either reluctant or enthusiastic devotees of the administrative state. A variety of arguments have been put forward to situate the Fourth Branch within the constitutional fabric, from constitutional moments, (3) to the Supreme Court's pragmatic recognition that, given government as we know it, "Congress simply cannot do its job absent an ability to delegate power under broad general directives." (4) As Jeff Pojanowski puts it in this Symposium, "Th[e] administrative state is here, and, absent radical and unlikely changes in the scope of federal power, it is not going away." (5)

Yet a number of Supreme Court Justices have expressed concerns about the "danger posed by the growing power of the administrative state." (6) As a result, the Court has been increasingly open to structural challenges to the administrative state in the last few terms. (7) In particular, the Court has focused on the level of deference due administrative regulations. (8) It has resurrected the major questions doctrine, (9) recommended overturning the Auer doctrine, (10) and individual Justices have even questioned the constitutionality of Chevron deference. (11)

It is time to consider the administrative state afresh given the Supreme Court's renewed interest in challenges to the status quo. In this vein, the Missouri Law Review Symposium seeks to advance the academic discussion by looking closely at questions regarding the contours of the administrative state and, in particular, examining reasonable alternatives to Chevron deference.

Professor Hamburger begins by further developing his claim that modern administrative law is unconstitutional and addresses concerns raised by scholars in response to his book Is Administrative Law Unlawful? (12) Professor Hamburger first counters arguments that the royal prerogative power was unlimited. (13) He argues instead that such power was at times bound by statute, and that in all events, the extralegal (meaning power exercised by administrators outside of the law) nature of the prerogative power remained problematic and was addressed by English constitutional ideals, providing a basis for American constitutional concerns over extralegal power. (14) Professor Hamburger also responds to the claim that the existence of local and non-royal extralegal "administrative" power in seventeenth- and eighteenth-century England establishes that the English constitution did not in fact develop to limit extralegal administrative power. (15) Professor Paul Craig, for example, argues that such power was approved of by Parliament and by English courts and that this legitimate power, and not the prerogative power, was the antecedent of contemporary American administrative law. (16) Professor Hamburger responds that English constitutional ideals condemned the prerogative power and were deployed mostly against centralized prerogative power. (17) In the U.S. Constitution, however, the...