The Roberts Court and Administrative Law

Administrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for “execution. ”Several factors have led to administrative law’s currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction. In the process, they have deeply enmeshed administrative agencies in political battles—indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on parts of the national bureaucracy. These bold assertions of administrative authority stem in part from Congress’s inability to address pressing problems, with political polarization, intense partisanship, and near parity between the main parties often leading to legislative gridlock.

The contemporary political climate also means that fights over administrative actions have become fierce and unrelenting. Moreover, the combination of these two developments—aggressive administrative advancement of presidential agendas in a deeply partisan and polarized world—has spurred a significant uptick in politically charged administrative law litigation, epitomized by the dramatic expansion in red state and blue state lawsuits challenging executive branch actions they oppose. In addition, conservative groups have put sustained efforts into fostering academic attacks on core features of administrative government, efforts that have provided the intellectual scaffolding for today’s doctrinal disputes. And, finally, there is the Trump administration’s emphasis on selecting judges who are receptive to these conservative attacks on administrative governance in court.