The Judicial Response to the Presidential Polarization of the Administrative State

Abstract

From the late 20th century through today, the relationship between the administrative state and the judiciary has undergone major changes. The same period has seen presidential administrations seek to make use of bureaucratic power to implement their public policy initiatives without having to obtain the approval of Congress. After reviewing the evolution of judicial oversight of the administrative state, the essay argues that the federal courts now make use of an ad hoc approach for determining the scope of judicial oversight of the administrative process. The essay argues that the use of this ad hoc approach has done serious damage to the administrative state, providing insufficient guidelines for presidential administrations to make use of bureaucratic power to implement public policy initiatives.