Tyranny and Administrative Law

The Federalist Papers define “tyranny” as “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many.” This definition would seem to include the modern administrative agency, which exercises all three powers. To avoid tyrannical agencies and their illegitimate exercise of power, judges and academics look to administrative law. Its procedures and requirements, such as public comment, judicial review, agency reason-giving and deliberation, and executive oversight, saddle agencies with checks and balances and, therefore, legitimacy. Yet unease with the administrative state continues; indeed, it seems to be in a constant crisis of legitimacy, suggesting that administrative law’s quest for legitimacy has not succeeded.

This Article argues that this crisis of legitimacy stems from the inherent conflict between the assumptions underlying those of administrative law and the Constitution. These sets of assumptions differ profoundly over political actors’ motivations and human nature, rationality in political and administrative decisionmaking, and the role of executive lawmaking in a democracy. This Article compares The Federalist Papers and administrative law and scholarship to uncover those differences. But this Article does not engage in an “originalist” critique of administrative law. Instead, it shows that administrative law’s crisis of legitimacy inevitably proceeds from its jarring discontinuity with deep assumptions underlying our constitutional structure.