Peter L. Strauss, Columbia Law School, has posted How the Administrative State Got to This Challenging Place, which is forthcoming in Daedalus, American Academy of Arts and Science (2020):
This essay has been written to set the context for a future issue of Daedalus, the quarterly of the American Academy of Arts and Sciences, addressing the prospects of American administrative law in the Twenty-first Century. It recounts the growth of American government over the centuries since its founding, in response to the profound changes in the technology, economy, and scientific understandings it must deal with, under a Constitution written for the governance of a dispersed agrarian population operating with hand tools in a localized economy. It then suggests profound challenges of the present day facing administrative law’s development: the transition from processes of the paper age to those of the digital age; the steadily growing centralization of decision in an opaque, political presidency, displacing the focused knowledge and expertise of agencies Congress created to pursue particular governmental ends; the thickening, as well, of the political layer within agencies themselves, threatening similar displacements; and the revival in the courts of highly formalized analytic techniques inviting a return to the forms of government those who wrote the Constitution might themselves have imagined. The essay will not be published until months after the November election. While President Trump’s first term in office has sharply illustrated an imbalance in American governance between law and politics and law, reason and unreason, that imbalance is hardly new; it has been growing for decades. There lie the challenges.–Dan Ernst