In the penultimate week of the Political Studies Program, fellows will examine how policy is translated through the administrative state and the courts. Over afternoon sessions, led by legal scholar Adam J. White, fellows will explore how the Executive, the federal agencies, and the courts interact to advance — and sometimes stymie — what Publius called, “the steady administration of the laws.” In charting the transformation of judicial and administrative power from the Founding to today, fellows will reflect on the nature of expertise in modern administration, the challenge of political accountability, and role of the courts as a check on Executive power.

Adam White on Reforming the Administrative State

Faculty

Adam J. White

Adam J. White is a Resident Scholar at the American Enterprise Institute, and an Assistant Professor at George Mason University’s Antonin Scalia Law School, where he also directs the Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School.

Preview the Syllabus by Week/Session

Readings:

  • The Declaration of Independence (1776)
  • James Madison, “Vices of the Political System of the United States” (1787)
  • Alexander Hamilton, Federalist 67, 68, 70, 71, 72, 76, 77
  • James Madison, Federalist 37
  • President George Washington, First Inaugural Address (1789)
  • President George Washington, Second Inaugural Address (1793)

Questions:

  1. What failures of administration were highlighted by the Declaration of Independence, and by Madison’s memorandum?
  2. What does Hamilton’s defense of the presidency imply about his view of good administration?
  3. How did the Federalist’s view of administration relate to its view of legislation?
  4. In Madison’s description of the difficulties of “vague” laws in Federalist 37, what is the role of administration in clarifying the meaning of laws?
  5. What do Washington’s inaugural addresses suggest about his view of constitutional administration?

Readings:

  • James Landis, The Administrative Process (Yale University Press, 1938), pp. 1–5
  • Woodrow Wilson, “The Study of Administration,” Political Science Quarterly, Vol 2 (1887), pp. 197–222
  • Lochner v. New York (1905)
  • Pierce v. Society of Sisters (1925)
  • L.A. Schechter Poultry Corp. v. United States (1935)

Questions:

  1. What are the shortcomings of our original Constitution, according to Landis?
  2. What is the relationship between administration and democracy, according to Wilson?
  3. What rights did the Supreme Court defend in Lochner and Pierce?
  4. Why did the Supreme Court strike down the National Industrial Recovery Act’s rulemaking provision in Schechter Poultry?

Readings:

  • Antonin Scalia, “Regulatory Reform—The Game Has Changed,” Viewpoint (January/February 1981)
  • President Ronald Reagan, Executive Order 12,291 (February 17, 1981)
  • Antonin Scalia, “A Note on the Benzene Case,” American Enterprise Institute Journal of Government and Society (1980)
  • Antonin Scalia, “Judicial Deference to Administrative Interpretations of Law,” Duke Law Journal, No. 3 (June 1989)
  • Jack Goldsmith, “The Accountable Presidency,” The New Republic, February 2010

Questions:

  1. According to Professor Scalia, what “game” had “changed” in 1980—and how?
  2. What problems did President Reagan’s executive order attempt to solve?
  3. Why was Scalia so wary of courts striking down statutes or rejecting agencies’ interpretations of statutes?
  4. How and why did conservatives reconsider their view of executive power in the 1970s and 1980s, according to Goldsmith?

 

Readings:

  • Peter Shane, “Trump Shouldn’t Be Able to Fire Fauci for Contradicting Him,” Atlantic (2020)
  • Greg Weiner, “Expertise and Prudential Politics,” Law & Liberty (2020)
  • Yuval Levin, “The Coronavirus Crisis Shows Experts Aren’t Enough,” Wall Street Journal (2020)
  • Antonin Scalia, “Rulemaking as Politics,” University of Chicago Law School (1982)
  • Herbert Storing, “The Crucial Link: Public Administration, Responsibility, and the Public Interest,” Public Administration Review, Vol. 24 (1964), pp. 39-46

Questions:

  1. What is the proper role of expertise in administration?
  2. When the president and one of his advisors disagree, what should each do?
  3. Is constitutional administration primarily a matter of politics or expertise?

Readings:

  • President Biden, “Modernizing Regulatory Review” (2021)
  • Department of Transportation v. Association of American Railroads (2015) (Thomas, J., concurring)
  • Baldwin v. U.S. (2020) (Thomas, J., dissenting)
  • Roman Catholic Diocese of Brooklyn v. Cuomo (2020)

Questions:

  1. Will President Biden’s proposed reforms to regulatory review promote expertise in administration?
  2. How do Justice Thomas’s recent opinions on administrative law differ from Scalia’s earlier views?
  3. What does the Cuomo case teach us about administration, democracy, rights, and religion?

 

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