On "Libertarian" Administrative Law: A Public Choice Approach

• In Event: Judicial Decision-Making and Public Policy: Insights from Recent Research

Abstract

Legal scholars Cass Sunstein and Adrian Vermeule have argued that recent developments in administrative law that seek to impose limits on the scope of administrative discretion and judicial review of of agency actions should be characterized as politically "libertarian" in purpose and content. These involve such issues as nondelegation, the major questions doctrine, standing requirements, and the scope of judicial review of regulation. Sunstein and Vermeule characterize these as ideological in nature, because they regard efforts to impose restrictions on the foregoing as politically-motivated attacks on post-New Deal era administrative jurisprudence. Sunstein and Vermeule underestimate the sea change that occurred in American administrative law in the early twentieth century. What they regard as a recent ideological movement is instead an effort to recapture limits on the executive branch's discretionary authority that predate the advent of the administrative state in the United States. Scholars of administrative law should examine these judicial efforts in a broader historical context rather than dismiss them as judicial ideology. This paper employs both public choice theory and legal analysis to defend this approach.

Author

• Scott Boykin, Kennesaw State University