Summer 2021 Bulletin

Deconstruct? Reconstruct? Dædalus Debates the Administrative State

Charlie Chaplin and Chester Conklin struggle to repair the giant machinery of an idle factory in the 1936 silent film Modern Times. Film distributed by the United Artists Corporation; image held by the Bettmann Archive, courtesy of Getty Images.

While COVID-19 cases and mortality surged in spring and summer 2020, the U.S. government seemed to lack the capacity to respond. Mixed messaging and insufficient testing, ventilators, personal protective equipment, and contact tracing raised disturbing questions about the will of the executive and the health of the Centers for Disease Control and Prevention. But were these challenges particular to the pandemic? Or, as one author asks in the newest issue of Dædalus, “is the failed pandemic response a symptom of a diseased administrative state?”

Debates surrounding the role, effectiveness, and even constitutionality of the administrative state are not new. Indeed, while presidential advisor Stephen Bannon’s vow in 2016 to pursue the “deconstruction of the administrative state” may have brought the concept to the forefront for many Americans, debates around this so-called fourth branch of government have persisted since its origins in the late nineteenth century: Who controls it? What limits should it face? And is it time for significant change?

The Summer 2021 issue of Dædalus on “The Administrative State in the Twenty-First Century: Deconstruction and/or Reconstruction,” guest edited by Mark Tushnet, features fourteen essays by scholars in the fields of law, political science, public policy, public administration, governance, and ethics on the future of the modern administrative state – the more than two million civilian employees working largely in government agencies and institutions such as the Centers for Disease Control and Prevention and the Environmental Protection Agency. Three options emerge for the future of the administrative state: deconstruction via regulation and control by the legislature; tweaking, which would modify existing doctrine without making significant changes; and reconstruction, which might involve adopting ever more flexible modes of regulation, including direct citizen participation in making and enforcing regulation.

Peter Strauss and Susan Dudley, in their contributions, provide detailed accounts of the administrative state’s emergence in the United States, situating the ensuing discussion of deconstruction and reconstruction. As the administrative state has grown, with the “alphabet agencies” that were created during the New Deal and a second proliferation of agencies in the 1960s and 1970s, new problems posed by technological, economic, and social change challenge institutions that are ill-adapted to deal with them.

In addition to such challenges, conventional wisdom suggests that party polarization leads to legislative gridlock, disabling congressional oversight of agencies and eroding their legitimacy and accountability. In his essay, however, Sean Farhang complicates, both empirically and normatively, the relationship between Congress and administrative power in the era of divided government. And David Lewis, in his contribution, questions the relationship between the executive and administrative agencies. He examines the Trump administration’s poor pandemic response through a survey of thousands of federal executives, which showed that while many had a low opinion of that administration, years of neglect, culminating in regular and severe administrative failures, are also to blame.

Increasingly, federal agencies employ artificial intelligence (AI) and rely on digital automation powered by machine learning (ML) algorithms. Bernard Bell argues that the opaqueness and nonintuitive nature of AI threaten the core values of administrative law: that persons be judged individually, that administrative regulations reflect means-end rationality, and that decisions be transparent and subject to external review. Yet Cary Coglianese suggests that a highly automated state and the responsible use of ML algorithms could result in more accurate and data-driven decisions. The challenge, however, will be ensuring that the automated state is also an empathic one. In order to take advantage of the power of new technologies for governing, Beth Noveck argues that the federal government will need, first and foremost, to invest in training public servants to work differently to prepare them for the future of work in a new technological age.

So where do we go from here? Aaron Nielson contends that the administrative state should be deconstructed (though not destroyed) and identifies where theory and practice diverge – and offers solutions with realistic chances of adoption. The result, he suggests, should not be the destruction of the administrative state, but rather the development of higher-quality federal policy. Christopher Walker agrees that there is a need for deconstruction, and develops the concept of bureaucracy beyond judicial review, looking to provide safeguards against bureaucratic overreach and abuse. And Avery White and Michael Neblo, in their essay, find that while government administration is necessary in a complex modern society, the existence of such a powerful bureaucracy undermines the legitimacy of American government, and they suggest incorporating deliberative democratic practices.

Despite a long-smoldering debate between progressive defenders and conservative critics of the administrative state, Jeremy Kessler and Charles Sabel argue that neither side has adequately confronted the growth of uncertainty and the spread of guidance. They suggest that in response to deep changes in the circumstances of decision-making, administration has begun to purposefully adapt to, and might well emerge better equipped to meet, the demands of a volatile world. Cass Sunstein, in his contribution, calls the American administrative state a cost-benefit state. But while a cost-benefit state can provide safeguards against decisions based on presumptions, perceived political pressures, and arbitrary decisions, it also needs to focus directly on human welfare. And in her essay, Judge Neomi Rao draws on her experience as Administrator of the Office of Information and Regulatory Affairs to examine the “constitutional muddle” of how federal agencies operate, arguing that agencies often exist in substantial tension with the Constitution.

The Summer 2021 issue of Dædalus on “The Administrative State in the Twenty-First Century: Deconstruction and/or Reconstruction” features the following essays:

Introduction: The Pasts & Futures of the Administrative State
Mark Tushnet (Academy Member; Harvard University)

How the Administrative State Got to This Challenging Place
Peter L. Strauss (Academy Member; Columbia Law School)

Milestones in the Evolution of the Administrative State
Susan E. Dudley (George Washington University)

Legislative Capacity & Administrative Power Under Divided Polarization
Sean Farhang (University of California, Berkeley)    

Is the Failed Pandemic Response a Symptom of a Diseased Administrative State?
David E. Lewis (Vanderbilt University)

Replacing Bureaucrats with Automated Sorcerers?
Bernard W. Bell (Rutgers University)

Administrative Law in the Automated State
Cary Coglianese (University of Pennsylvania) 

The Innovative State
Beth Simone Noveck (New York University)     

Deconstruction (Not Destruction)
Aaron L. Nielson (Brigham Young University)

Constraining Bureaucracy Beyond Judicial Review
Christopher J. Walker (The Ohio State University; American Bar Association)

Capturing the Public: Beyond Technocracy & Populism in the U.S. Administrative State
Avery White (The Ohio State University) & Michael Neblo (The Ohio State University)

The Uncertain Future of Administrative Law
Jeremy Kessler (Columbia University) & Charles Sabel (Columbia University)

Some Costs & Benefits of Cost-Benefit Analysis
Cass R. Sunstein (Academy Member; Harvard University; U.S. Department of Homeland Security) 

The Hedgehog & the Fox in Administrative Law
Neomi Rao (U.S. Court of Appeals)


“The Administrative State in the Twenty-First Century: Deconstruction and/or Reconstruction” is available on the Academy’s website at Dædalus is an open access publication