“Breaking The Grip Of The Administrative Triad: Administrative Policymaking Under A Necessity-Based Doctrine”

Michael R. Harris, University of Denver

Abstract

The justification for the modern American administrative state is built on a belief that (1) limited congressional delegation, (2) cabined executive discretion, and (3) properly exercised judicial deference is akin to the system of checks and balances established by the nation’s Founders. In this Article, I propose that the time has come to rid ourselves of this legal fiction, particularly as it has developed in two well-known (and highly criticized) lines of administrative cases: the Supreme Court’s Chevron jurisprudence and the D.C. Circuit’s cases wrestling with the use (or misuse) of non-legislative rules by agencies. In its place, I propose the creation of a “Necessity Doctrine.” Unlike the Constitutional branches of government, agencies are tasked with a much narrower objective within our system: to enable the enforcement of congressional directives through application of expertise, practicality, broad stakeholder input, and inclusion of political considerations. To restore the value of administrative process, we must limit the exercise of that process to those matters that necessitate the use of these bureaucratic tools, and deny the urge to rely upon agencies as an easy surrogate to properly exercised judicial and legislative power.