"Relative Checks": Towards optimal Control of Administrative Power
2010; Routledge; Volume: 51; Issue: 6 Linguagem: Inglês
ISSN
0043-5589
Autores Tópico(s)Judicial and Constitutional Studies
ResumoABSTRACT Administrative agencies wield a necessary but dangerous power. Some control of that power is constitutionally required and normatively justified. Yet widely discordant views persist concerning the appropriate means of control. Scholars have proposed competing administrative control models that variably place the judiciary, the President, and Congress at the helm. Although these models offer critical insights into the institutional competencies of the respective branches, they tend to understate the limitations of those branches to check administrative power and ultimately marginalize the public interest costs occasioned by second-guessing administrative choice. The paradigm introduced here seeks to improve upon existing models in at least two critical respects. First, it posits the existence of an optimal control point within the shared values of two sometimes competing missions in administrative law: that of promoting the public interest and that of legitimizing administrative power within our constitutional scheme. Next, the paradigm argues that the optimal control ideal can be best realized by tailoring both the source and degree of administrative control to particular types of administrative actions with sensitivity to the institutional competencies of the respective checking bodies. Prescriptively, this framework seeks to apportion control among the respective branches in a way that capitalizes on each branch's competencies while democratically promoting the public interest. Descriptively, looking through a relative checks lens may also enhance our understanding of existing administrative practices and the academic critiques thereof. TABLE OF CONTENTS INTRODUCTION I. CONTEXTUALIZING ADMINISTRATIVE POWER WITHIN OUR CONSTITUTIONAL STRUCTURE A. Congressional Delegation of Authority B. The Policy-Making Power II. LEGITIMIZING ADMINISTRATIVE POWER THROUGH OVERSIGHT AND CONTROL A. Judicial-Control Model 1. The Legitimizing Judiciary 2. Critiques of the Judicial-Control Model a. Judicial-Realist Critiques b. The Indeterminacy of Law c. The Problem of Political Independence d. The Problem of Checking-the-Checker and the Balkanization of National Policy e. Other Normative Critiques B. Presidential-Control Model 1. Presidential and Oversight 2. Critiques of the Presidential-Control Model C. Congressional-Control Model 1. Congressional Oversight and 2. Critiques of the Congressional-Control Model D. Themes and Lessons of Existing Administrative-Control Models III. DEVELOPING A RELATIVE CHECKS PARADIGM A. Reconceptualizing the Administrative Puzzle 1. Missions 2. Fronts and Players 3. Revisiting the Questions B. Foundational Principles C. Tailoring Review Toward Control 1. Optimal Point 2. Need for Tailored 3. Source and Degree Dimensions 4. Type of Administrative Output 5. Combining the Elements IV. RELATIVE CHECKS IN ACTION A. Source of B. Degree of 1. Chevron Doctrine 2. Hard-Look Doctrine CONCLUSION INTRODUCTION Administrative agencies wield a necessary but dangerous power. (1) Some control over that power is constitutionally required and normatively justified. (2) But widely discordant views persist concerning the appropriate means of administrative control. The problem is complex, and the stakes are escalating: Congress recently armed agencies with unprecedented sums of money; (3) President Obama is restructuring executive review of agency policy in response to perceived failures of the Bush administration; (4) and the financial and health industries are targeted for sweeping regulatory growth. …
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