Sponsored Post: Changes in Administrative Law

The following post is by Todd Rakoff, Byrne Professor of Administrative Law at Harvard, and Gillian Metzger, Stanley H. Fuld Professor of Law at Columbia, and is sponsored by West Academic.

Administrative law has risen from being a domain of the cognoscenti to the subject of daily headlines. Conservative complaints about the Obama administration’s exercise of executive power—and the corresponding liberal complaints about the Trump administration’s exercise—have become the stuff of ordinary debate. For us, involved for the last year in revising Gellhorn and Byse’s Administrative Law for its soon to be published 12th edition (along with our co-authors Peter Strauss, Anne Joseph O’Connell, and David Barron), this ferment has been both problem and opportunity.

On the one hand, we have had to revise—or at least check for change—much more of the book than the mere passage of a few years since the last edition might suggest; and we have had in many instances to signal the possibility, but not yet the accomplishment, of yet more fundamental change. We have a new Supreme Court Justice, and he has in the past expressed definite, and negative, views of the Chevron doctrine. How will his views combine with the trend many scholars have already noted for the Court to downplay Chevron? We have bills pending in Congress that would, if passed, revise much of the rulemaking process used for major regulations. Do we portray the present notice-and-comment process simply as still dominant? As being challenged? As likely to survive? Even without new legislation, what do we say about the two-for-one Executive Order? And in our new chapter on statutory interpretation, included so that the book can be used for “Legislation and Regulation” courses, how do we handle what is now Scalia’s legacy?

On the other hand, the ferment in the field, and its headliner status, has allowed us to reach students where they live. This is true in the particular: we can include materials that allow for the discussion of current issues such as the procedural posture of the DACA program, or the constitutionality of the government’s decreeing its no-fly lists. And it is true in the general, too: if there is one thing the experience of the last few years has shown, it is the need for, and value of, principles of governmental behavior that apply across the inevitable change of political regimes. And that, of course, is the fundamental domain of administrative law.