introduzione: The Pasts & Futures - Ricerca sull'intelligenza artificiale specializzata al MIT

introduzione: The Pasts & Futures
of the Administrative State

Mark Tushnet

To understand contemporary arguments about deconstructing and reconstructing
the modern administrative state, we have to understand where that state came from,
and what its futures might be. This introductory essay describes the traditional ac-
count of the modern administrative state’s origins in the Progressive era and more
recent revisionist accounts that give it a longer history. The competing accounts have
different implications for our thinking about the administrative state’s constitution-
al status, the former raising some questions about constitutionality, the latter alle-
viating such concerns. This introduction then draws upon the essays in this issue to
describe three options for the future. Deconstructing the administrative state with-
out adopting a program of across-the-board deregulation would entail more regu-
lation by the legislature itself and would insist that Congress give clear instructions
to administrative agencies. Tweaking would modify existing doctrine around the
edges without making large changes. Reconstruction might involve adopting ever
more flexible modes of regulation, including direct citizen participation in making
and enforcing regulation.

P residential adviser Stephen Bannon might have simply been coining a

phrase rather than outlining a program when he said that the Trump admin-
istration was interested in “deconstructing the administrative state.”1 Yet
by replacing the familiar term deregulation with the unfamiliar deconstruction, Ban-
non captured a wider discomfort with how the modern administrative state was
operating. That discomfort manifested itself in many forms: concern about the
“ossification” of the process of adopting important regulatory rules across many
domini, Per esempio, and recognition that new regulatory tools could be more
effective than traditional methods of prescriptive (“command and control”) reg-
ulation.2 This issue of Dædalus explores what deconstruction and its obverse re-
construction of the administrative state might be–and whether either is called for.
In their contributions to this volume, Susan Dudley and Peter Strauss lay out
in some detail their accounts of the administrative state’s emergence in the Unit-
ed States, situating the ensuing discussion of reconstruction and deconstruction.3
Here I offer my highly simplified version–quite a bare sketch of those develop-

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ments as I understand them. The sketch is accurate enough, Credo, to orient
nonspecialists to what follows and to cause specialists only minor discomfort.

The first story was told by the scholars who created the academic field of
administrative law: Felix Frankfurter, James Landis, E, to a lesser degree, John
Dickinson. Drawing on arguments made by an earlier group of Progressives, Essi
found the origins of the administrative state in the late nineteenth century and ar-
gued that accommodating contemporary reality to the classical vision of U.S. con-
stitutionalism required altering the latter so that the “new fourth branch” could
fit within the Constitution. The second is a revisionist story offered by contem-
porary historians and legal scholars who have retrieved a longer history of the ad-
ministrative state, dating to the early nineteenth century. For these scholars, IL
modern administrative state has always fit within the Constitution.

The Progressive story takes the 1887 creation of the Interstate Commerce Com-
mission as the symbolic dawn of the modern era. The story identified a number
of social and economic developments that, according to Progressives, had weak-
ened the ability of the traditional institutions of government to provide effective
governance. Technological change, again symbolized by the railroad but encom-
passing what we now refer to as information technology (the telegraph and the
telephone), generated new problems: exploitation of workers and farmers, for
esempio, and new political possibilities enabled by “yellow journalism.” So did
rapid urbanization and immigration; the modern city was overcrowded, rife with
environmental dangers and crime.

The Progressive story asked: what institutions were best suited to dealing with
these problems? Their answer had a negative side–not the existing system of leg-
islatures, courts, and political parties–and a positive one–the new administra-
tive agencies guided by professionals deploying the findings of contemporary sci-
ence. Courts failed because they could intervene only episodically, when someone
happened to bring a case before them. The cases the judges saw gave them a view
of randomly selected parts of more general problems, and sometimes solving the
problem at hand would perversely make things worse elsewhere. And to the ex-
tent that problems like workplace safety came to the courts’ attention, the judges
lacked both the expertise and the capacity to impose appropriate solutions: Essi
might find railroads liable when they failed to provide workers with the equip-
ment to allow them to disconnect and reconnect railroad cars safely, but they
could not prescribe that the railroads use any particular system for doing so, even
when engineers knew what the best system was.

Legislatures were inadequate in part because, dominated by politicians whose
primary interest lay in holding on to power rather than advancing the public good,
they failed to address new problems as they appeared–or at least failed to do so
rapidly enough. By the time a problem became politically salient, the Progressive
story had it, too much social damage had been done. A more nimble and self-starting

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Dædalus, the Journal of the American Academy of Arts & SciencesIntroduction: The Pasts & Futures of the Administrative State

body that could identify problems rapidly–and without concern for whether vot-
ers cared about it enough to pressure their representatives–was needed. Further,
even when legislatures did address real problems, they lacked the expertise to
come up with the right solutions. Again, agencies staffed by professional experts
in specialized fields would do better.

On this account, legislatures would do best by identifying some general field
of regulatory concern (such as prices for shipping goods by railroad, workplace
sicurezza, environmental degradation), creating an agency to deal with that field, E
instructing the agency to develop regulations that best promoted public welfare.
That latter instruction received the doctrinal label delegation. The Progressives ar-
gued that delegations probably had to be stated in quite general terms, such as
“public convenience and necessity” or, in a modern statute, “requisite to protect
the public health with an adequate margin of safety.”4 Congress could legislate
in more detail, and sometimes did so, Ma, according to the Progressive account,
broad delegations of regulatory authority were both inevitable and constitution-
ally permissible.

The breadth of the Progressive idea of science as the guide to public policy de-
serves special note. To them, science provided answers not merely to technical
engineering problems but to all sorts of social ills. Economists could determine
a “fair” rate of return on investment, Per esempio. Sociologists could devise pro-
grams that would address the “root causes” of urban crime. Labor relations spe-
cialists knew how to mediate disputes between employers and workers in ways
that would avoid strikes.5 As I suggest later, contemporary arguments about
whether or how much the administrative state should distinctively “follow the
science” flow in part from a similarly expansive understanding of what science
can tell us.

For students of administrative law, the first important revisionist work was
William Novack’s The People’s Welfare: Law and Regulation in Nineteenth-Century
America (1996), which illuminated a history of robust regulation at the state level
well before 1887. Che cosa, Anche se, of the national level? Writing in 1982, political sci-
entist Stephen Skowronek described the national government in the nineteenth
century as a state of “courts and parties.”6 Several decades later, historian Brian
Balogh wondered about the “mystery of national authority” during that same pe-
riod.7 More recently, Anche se, legal scholar Jerry Mashaw found a “lost” history of
the administrative state.8 Mashaw described scattered but persistently recurring
forms of national regulation starting in the early republic that looked almost ex-
actly like the forms of administrative governance that the Progressives celebrated.
Other legal scholars have identified broad delegations of authority from Congress
to executive branch officials from that same early period.9

These stories matter today because the Progressive story has come to generate
a response in the register of deconstruction.10 If, as that story holds, the modern

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150 (3) Summer 2021Mark Tushnet

administrative state does not fit within traditional U.S. constitutionalism, and if,
as is surely true, the Constitution was not formally amended to address that state’s
novelty, it follows for deconstructionists that important aspects of the adminis-
trative state must be revised. For them, the Constitution demands that Congress
make major policy choices that, in the Progressive story, it has (improperly) dele-
gated to administrative agencies, and that courts rather than agencies determine
the scope of regulation that Congress has authorized. The revisionist story, in con-
trast, suggests that the contemporary administrative state is one of many possibil-
ities that the original Constitution enabled. A deconstructed administrative state
would of course be within the wide bounds the original Constitution created, Ma
so is the modern administrative state, and so would a reconstructed administra-
tive state. The revisionist story, questo è, shifts our attention from constitutional
limits on the administrative state to the policy choices open to us today.11

F rankfurter, Landis, and Dickinson wrote about the administrative state in

the 1930s. By then, modern administrative agencies had become part of the
landscape. The New Deal produced a new group of “alphabet” agencies,
the SEC (Securities and Exchange Commission) and the NLRB (National Labor
Relations Board) being the most politically prominent. Conservatives assailed
these agencies as unconstitutional and then, after the Supreme Court rejected
their constitutional arguments, shifted attention to what came to be known as ad-
ministrative law, a theretofore marginal legal category.

The attack combined several themes.12 The first sounded in good-government.
As each new agency was added to the system, a body of law developed about that
agenzia, without any attention to how that body of law was related to the law gov-
erning other agencies. Courts applied a plethora of “standards of review” that
differed in verbal formation and sometimes in practical application. Sometimes
the courts gave an agency’s findings great weight; at other times they found facts
anew. Reformers sought a unified body of administrative law, eventually codified
as the Administrative Procedure Act (APA), that would be, as the term was, “trans-
substantive”: questo è, the same no matter what subject matter the agency dealt with.
The other theme was straightforwardly political. The new administrative
agencies were out of control, dedicated to a transformation of the national econ-
omy that voters never truly endorsed. Suggestively, the initial proposals were to
impose a uniform set of standards across all agencies. Then, as they proceeded
through the legislative process, the proposals were pared down: the “traditional”
agencies like the Interstate Commerce Commission and the Federal Trade Com-
mission were dropped from the proposals’ coverage, and aggressive judicial over-
sight was to attend only the actions of New Deal agencies.

President Franklin Roosevelt understood the Walter-Logan bill that reached
his desk in 1941 as a challenge to the New Deal–and vetoed it. The good-govern-

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Dædalus, the Journal of the American Academy of Arts & SciencesIntroduction: The Pasts & Futures of the Administrative State

ment and political forces that had produced the bill remained in place, Anche se,
and Roosevelt promised a study to develop a statute that unified administrative
law without threatening the advances, as he saw them, of the New Deal. The out-
come was the APA, which for more than three-quarters of a century has provided
the legal foundation for the administrative state.13

S tability in the basic document, Ovviamente, does not mean that the adminis-

trative state has been static. As Dudley and Strauss show, a second prolifer-
ation of administrative agencies occurred in the 1960s and 1970s: the Equal
Employment Opportunity Commission (1965), the Environmental Protection
Agency (1970), and the Occupational Safety and Health Administration (1970),
among others.

The politics associated with administrative law changed as well. As administra-
tive law scholar Richard Stewart has argued, the Progressive account of the admin-
istrative state’s rise, with its focus on expertise to advance the public good, ended
in the 1930s just as that politics was about to change.14 Rather than seeing politics
as devoted to advancing the public good, scholars began to see it as the venue for
interest group bargaining and administrative agencies as one of the forums for
that bargaining. As such, they became targets for “capture” by the industries they
regulated. Reformers developed several responses, the most important of which
were expanded notions of standing to challenge agency action, which brought
new players into the bargaining game, and creating agencies with economy-
wide jurisdiction, which made them less susceptible to capture by any specific in-
dustry. Then, to recreate the synoptic view of problems that agencies were sup-
posed to take, the president began to assert greater powers of supervision.15

The upshot is clear. The politics associated with administrative law came to re-
semble that associated with legislation: administrative agencies became bogged
down in exactly the same morass that legislatures were. They became inflexible,
unable to respond nimbly to new problems, and committed to established rou-
tines that had “worked” before even when they might not work well today. Neomi
Rao’s contribution to this volume identifies several important pathologies she as-
sociates with the contemporary politics affecting agency operation.16

Strikingly, the contemporary economic and social landscape appears to many
observers quite similar to the regulatory domain that Frankfurter and Landis de-
scribed as characterizing the late nineteenth century. Its most prominent feature,
perhaps, is rapid technological development, for which “the Internet” and “the
new social media” are shorthand. Demographic changes too are part of the land-
scape. Immigration changed the nation’s largest cities in the late nineteenth cen-
tury, and recent waves of immigration have changed smaller cities and even some
rural areas. The urbanization of the late nineteenth century is paralleled by a wid-
ening rural-urban gap in the twenty-first.

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150 (3) Summer 2021Mark Tushnet

E, important for our topic, contemporary forms of governance seem ill-
suited to deal with today’s landscape. The critiques the Progressives leveled against
courts and legislatures remain on the table. Courts proved to be innovative in de-
veloping what civil procedure scholar Abram Chayes called “public law litigation”
over school desegregation and prison.17 More recently, courts have entered “uni-
versal” injunctions, some of which aim at restructuring national policies rather
than the state and local ones with which Chayes was concerned. Universal injunc-
tions remain quite controversial, and they have proven more effective in blocking
policy than in developing it. As of today and probably for the foreseeable future,
these innovations are unlikely to spread broadly enough for courts to become gen-
eral regulators in response to novel challenges.

Legislatures are gridlocked, unable to address new problems with anything like
the alacrity that (some think) they demand. Legislators devote attention to prob-
lems that catch the public eye rather than those with deep roots that are largely in-
visible until they erupt into some policy disaster. And as I have already noted, IL
administrative agencies that Frankfurter and Landis saw as solutions to judicial and
legislative failures are themselves caught up in what legal scholar Thomas McGarity
has called “blood sport politics,” unable to act quickly in response to new challenges
and equally unable to produce stable policy responses when they manage to act.18

And finally, the idea of disinterested scientific expertise has come under sus-
tained assault from all sides. Some of the challenges are retrograde, as with cli-
mate change denialism, while some are purportedly sophisticated, as with post-
modernist critiques of science. Some, Anche se, have substantial merit, mostly
because technocrats have in fact claimed that science provides more answers to
public policy problems than is possible.

I offer what will surely be a controversial example: the public policy response
to the COVID-19 pandemic. Epidemiologists and medical doctors gave us their
best estimates of the risks associated with various policy options (border closings,
mask mandates, temporary or prolonged curfews, and shutdowns) in light of the
information available to them when they estimated the risks. Economists gave us
their best estimates of the economic costs and, as Cass Sunstein emphasizes in
his essay in this volume, ballpark estimates of the costs to human life and health
associated with each option.19 Neither epidemiologists nor economists, Anche se,
could tell us which policy we should adopt, in part because their estimates were
inevitably fuzzy and, under the circumstances, should have changed as informa-
tion accumulated and in part because, notwithstanding the economists’ best ef-
forts, only devoted technocrats believe that costs to the economy and costs to hu-
man life and health can be measured by a single metric. Technocratic-driven poli-
cy choices, which of course have to be implemented through politics, proved to be
unstable in the face of public skepticism about how much the experts really could
tell us. “Following the science” can bring policy-makers to the point where they

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Dædalus, the Journal of the American Academy of Arts & SciencesIntroduction: The Pasts & Futures of the Administrative State

could make reasonably well-informed choices, but “the science” could not and
did not tell them what choice to make.

P erhaps, Poi, today’s administrative state is at a point structurally similar

to the one the government had reached in the late nineteenth century: new
problems posed by technological, economic, and social change, thrown at
a governance system whose institutions are ill-adapted to deal with them. If so,
what institutional responses might there be? After noting the possibility that the
current situation is hardly as dire as deconstructionists and reconstructionists
suggest, I describe the available institutional responses as deconstruction, tweak-
ing, and reconstruction, acknowledging that the categories are not separated by
sharp boundaries.

Forse, as Sunstein suggests, we should recommit ourselves to the Progres-
sives’ technocratic vision, in the contemporary form of a comprehensive cost-
benefit state. To Sunstein, skeptics about monetizing all sorts of costs and benefits
are simply mistaken. On this view, students of the modern administrative state
should do their best to show legislators and those they represent that cost-benefit
analysis produces regulatory decisions that are better than any available alterna-
tive. Here David Lewis’s observation that the modern administrative state has
been battered by decades of criticism of its performance comes into the picture.20
We should tout such major successes of regulation as the dramatic improvement
in the nation’s air quality to show that the modern administrative state works
rather well. The point generalizes: regulating well is the best way to vindicate
technocrats’ claims about the contributions they make to public welfare.

If the administrative state is not working well, Anche se, what to do? Presto
lavoro, Stewart glimpsed the possibility of deconstruction but thought that it could
not take the forms most prominently offered by the administrative state’s conser-
vative critics.21 Those forms were deregulation and privatization. Both would re-
move the state entirely from the domain of regulation.

Today, I think, we should focus on the administrative part of “deconstructing the
administrative state.” Deconstructing that state would mean dramatically scal-
ing back the activities of administrative agencies without becoming committed in
principle to no regulation at all. In a deconstructed administrative state, govern-
ments could regulate but would have to do so through detailed legislation rather
than through delegations to administrative agencies. Privatization would mean
not the complete transfer of authority to private corporations, but rather the de-
sign and interpretation of contracts between governments and those companies.
The law of privatization would focus on what contract terms would best accom-
plish the purposes lying behind privatization, which typically involve taking ad-
vantage of entrepreneurs’ incentives to find cost-effective methods to achieve
public-regarding goals such as safety or education.

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150 (3) Summer 2021Mark Tushnet

Tweaking the administrative state today is a modestly conservative program
to scale back judicially imposed additions (in the guise of interpretations) to the
Administrative Procedure Act. In their contributions to this Dædalus issue, Aaron
Nielson and Christopher Walker describe different routes to retrieving the APA’s
original goals of constructing an administrative law that gives proper scope to reg-
ulatory authority within bounds set by Congress, and Sean Farhang, in his essay,
describes how tweaking is already occurring.22 Placed in the argument developed
here, tweaking is motivated by the adverse effects of importing the interest-group
model of policy development into administrative law. Reducing the scope of “pub-
lic interest” standing to initiate or challenge administrative action would enhance
the agencies’ independent expertise. Taking seriously the APA’s requirement that
rules be accompanied (only) by a short description of their purposes would allow
agencies to replace efforts to “litigation-proof” their rules by providing extremely
detailed explanation with efforts to develop better regulation. E, as Lewis em-
phasizes in his essay in this volume, tweaking the administrative state by fund-
ing it adequately would allow managers to get on with the work of regulating
BENE.

E fforts to deconstruct and tweak the administrative state have models to

build on. Reconstruction, in contrast, requires more imagination, even
speculation. Artificial intelligence and automated regulation, discussed by
Bernard Bell and Cary Coglianese in this volume, provide some hints of possibili-
ties and might soon give us something like a proof of concept about a reconstruct-
ed administrative state.23 So do Beth Noveck’s descriptions in her essay of recent
uses of big data in regulatory design and enforcement.24

An implicit exchange between Walker and Charles Sabel and Jeremy Kessler
illustrates some possibilities. Both essays note that regulators have begun to use
“guidance” documents–formally, statements about an agency’s plans for imple-
menting its interpretation of the statutes it is charged with enforcing–as forms
of regulation. Though, in form, guidance documents merely state intentions, IL
targets of regulation, facing the possibility that they will have to mount an expen-
sive defense of their practices, have strong incentives to conform to the agency’s
interpretations, which thereby have the same effect that a full-fledged regulation
would. Except, as Walker observes in his essay, under current interpretations of
the APA, targets who could readily challenge a statutory interpretation embodied
in a regulation face substantial obstacles in obtaining judicial review of an inter-
pretation offered in a guidance document. Echoing many others, Walker would
tweak the current regime by expanding the opportunities to obtain judicial review
of regulation by guidance.

In their essay, Sabel and Kessler, in contrast, place guidance in a broader
framework.25 As I have already noted, the Progressive themes of rapid technolog-

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ical change have reemerged in thinking about reconstructing the administrative
state. Sabel and Kessler see regulation by guidance as an innovative response to
such change. Administrative law in its current form makes it time-consuming and
costly for an agency to regulate by rule–one source of ossification. By the time
an agency can work through rule-making, the problem it is trying to address will
have changed shape. Regulation by guidance, Sabel and Kessler argue, restores the
nimbleness and flexibility that modern governance requires.

Ma, in their view, it offers more. Retrieving ideas offered a century ago by Pro-
gressive philosopher and political theorist John Dewey, they argue that regulation
by guidance is one of a family of alternatives to command-and-control or pre-
scriptive regulation that can yield policies that can be adjusted to produce increas-
ingly beneficial outcomes. They see regulation by guidance as similar to a more
familiar form: regulation by output rather than input. Regulation by output sets
goals that regulated companies or other regulated entities must reach–levels of
pollution emitted, for example–and lets the regulated entity figure out how to
reach them. The Deweyian insight is that the agency can then observe the choices
the companies make and use that information to push forward more prescriptive
regulations. Similarly with regulation by guidance: agencies can see how the enti-
ties they regulate respond to the incentives the guidance documents provide and
deploy their expertise to evaluate the effectiveness of alternative responses, Poi
move to more prescriptive regulation, or to less regulation, if experience shows
that things are going reasonably well.

One feature of a reconstructed administrative state, Poi, might be building
the process of learning-by-doing into the state’s institutions. Ma, we might ask,
who is to do the “doing”? One feature of the blood-sport politics of contemporary
administrative law is deep contention over who gets to be a member of the lead-
ership of today’s alphabet agencies. Combine this with the “deliberative deficit”
Avery White and Michael Neblo identify in their essay and the imaginative possi-
bilities for substantial institutional innovation open up.26

White and Neblo put on the table the possibility of regulation by an administra-
tive law parallel to the citizens’ assemblies and similar bodies that have been used
to develop policies across a range of topics. Within this framework, a “modest”
program would have a central body prescribe regulatory goals and have citizens’
assemblies devise implementation techniques appropriate to their local circum-
stances. That program can be founded upon the Deweyian idea that ordinary peo-
ple combine common sense with local knowledge in ways not readily accessible to
regulators more removed in time and space from the point of implementation.27
A more ambitious program would take participatory budgeting exercises as
a model. The legislature would single out a relatively discrete problem, ad esempio
waste-water pollution at some industrial facilities. Groups of citizens would meet
locally (both where the plants are located and where the plants’ products are con-

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150 (3) Summer 2021Mark Tushnet

sumed), discuss and debate regulatory proposals, and send the one they adopt to
the next level, where another citizens’ assembly would debate the various propos-
als they received, adopt one, and again send it up to the next level, ultimately with
a single policy adopted, perhaps by a regulatory agency or a legislature, but per-
haps instead by a “grand” national citizens’ assembly.28

A variant would use a single, relatively small citizens’ assembly as the sole deci-
sion-maker. In this model, a host of such assemblies is convened. Each deals with
a single regulatory problem, defined narrowly (such as disposition of polluted
waste water from fracking operations) or broadly (such as enhancing air quality in
specified locations).29 Members, who we can describe as “members of a regulatory
agenzia,” are chosen at random from the general population, compensated appro-
priately for their time, provided with general information about the problem, au-
thorized to call upon whatever experts they think will be helpful, and–crucially–
charged with coming up with fully enforceable regulations. With a large number
of these “participatory regulatory agencies,” every citizen would have some op-
portunity to be a lawmaker in some regulatory domain, satisfying at least some
definitions of democracy, through a deliberative process.

O f course I have pushed the suggestions from the contributions to this

Dædalus issue far beyond the limits of any individual essay. Yet in my
view, serious consideration of deconstructing and reconstructing the ad-
ministrative state requires highly speculative proposals coupled with small-scale
efforts to provide proof of concept.30

The modern administrative state emerged in the late nineteenth century and
took its current form in the late twentieth century. It was shaped by economics,
technology, politica, E, Ovviamente, the U.S. Constitution. If it is to be reconsid-
ered–defended anew, deconstructed, or reconstructed–those same forces will
come into play, or perhaps better, have already come into play. From my narrow
perspective as a constitutional lawyer, the next step will be to see whether or how
any new form of the administrative state can be accommodated to the existing
Constitution, or an amended one.

about the author

Mark Tushnet, a Fellow of the American Academy since 2002, is the William
Nelson Cromwell Professor of Law, Emeritus, at Harvard University. He is the au-
thor of The Constitution of the United States of America: A Contextual Analysis (2nd rev.
ed., 2015), Advanced Introduction to Comparative Constitutional Law (2014), and Routledge
Handbook of Constitutional Law (with Thomas Fleiner and Cheryl Saunders, 2012).

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Dædalus, the Journal of the American Academy of Arts & SciencesIntroduction: The Pasts & Futures of the Administrative State

endnotes

1 Stephen Bannon quoted in Philip Rucker and Robert Costa, “Bannon Vows a Daily Fight
for ‘Deconstruction of the Administrative State,’” The Washington Post, Febbraio 23,
2017.

2 Thomas O. McGarity, “Some Thoughts on ‘Deossifying’ the Rulemaking Process,” Duke
Law Journal 41 (6) (1992): 1385–1462. Some scholars have questioned the “ossification”
thesis, but it seems well-confirmed if limited to “major” regulations.

3 Susan E. Dudley, “Milestones in the Evolution of the Administrative State,” Dædalus 150
(3) (Estate 2021); and Peter L. Strauss, “How the Administrative State Got to This
Challenging Place,” Dædalus 150 (3) (Estate 2021).

4 The latter is a reorganization of the words in a key provision of the Clean Air Act.

5 I find the labor example particularly telling. William Leiserson, a Wisconsin economist
who was indeed a specialist in mediation, was a prominent early member of the NLRB.
Within a few years, the NLRB became the locus of explicit political contention, at first
between the American Federation of Labor and the Committee on (later Congress of)
Industrial Organizations and then, more obviously, between labor and management.
6 Stephen Skowronek, Building a New American State: The Expansion of National Administrative

Capacities, 1877–1920 (Cambridge: Cambridge University Press, 1982).

7 Brian Balogh, A Government Out of Sight: The Mystery of National Authority in Nineteenth-Century

America (Cambridge: Cambridge University Press, 2009).

8 Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American

Administrative Law (Nuovo paradiso, Conn.: Stampa dell'Università di Yale, 2012).

9 Julian Mortenson and Nicholas Bagley, “Delegation at the Founding,” Columbia Law Review
121 (2) (2021); and Nicholas Parrillo, “A Critical Assessment of the Originalist Case
Against Administrative Regulatory Power: New Evidence from the Federal Tax on Pri-
vate Real Estate in the 1790s,” Yale Law Journal 130 (2021).

10 This accounts in my view for the prominent place Woodrow Wilson has in contemporary
conservative narratives of the administrative state’s rise: during his career as a politi-
cal scientist, Wilson argued for constitutional revision (or adaptation) that would give
what he regarded as the emerging administrative state a firm constitutional footing.
11 Revisionists have not yet directed their attention to the intellectual origins of the Frank-
furter-Landis story. I suspect that when they do so they will offer a complex account.
One part might be U.S. scholars’ acceptance of A. V. Dicey’s view that French-style
droit administratif was completely foreign to the common law tradition (and for that
reason foreign to the traditions of U.S. constitutionalism). Another part might be the
effort by scholars in academic fields that were establishing themselves in the late nine-
teenth century to show that their approaches yielded new insights into then-contem-
porary developments–academic entrepreneurship, in short.

12 The standard account of developments between the early New Deal and the enactment
of the Administrative Procedure Act is George B. Shepherd, “Fierce Compromise: IL
Administrative Procedure Act Emerges from New Deal Politics,” Northwestern University
Law Review 90 (4) (1996): 1557–1683.

13 There have been some important supplements to the APA, such as the Freedom of Infor-
mation Act and the Government in the Sunshine Act. I think it significant, Anche se, Quello

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150 (3) Summer 2021Mark Tushnet

in law schools, the basic course in administrative law is about the APA, with advanced
courses dealing with later accretions.

14 Richard B. Stewart, “The Reformation of American Administrative Law,” Harvard Law

Review 88 (8) (1975): 1669–1813.

15 On the latter, see Elena Kagan, “Presidential Administration,” Harvard Law Review 114

(2001): 2245–2385.

16 Neomi Rao, “The Hedgehog & the Fox in Administrative Law,” Dædalus 150 (3) (Estate

2021).

17 Abram Chayes, “The Role of the Judge in Public Law Litigation,” Harvard Law Review 89

(7) (1976): 1281–1316.

18 Thomas O. McGarity, “Administrative Law as Blood Sport: Policy Erosion in a Highly

Partisan Age,” Duke Law Journal 61 (8) (2012): 1671–1762.

19 Cass R. Sunstein, “Some Costs & Benefits of Cost-Benefit Analysis,” Dædalus 150 (3)

(Estate 2021).

20 David E. Lewis, “Is the Failed Pandemic Response a Symptom of a Diseased Administra-

tive State?” Dædalus 150 (3) (Estate 2021).

21 Richard B. Stewart, “Madison’s Nightmare,” University of Chicago Law Review 57 (2) (1990):

325–356.

22 Aaron L. Nielson, “Deconstruction (Not Destruction),” Dædalus 150 (3) (Estate 2021);
Christopher J. Walker, “Constraining Bureaucracy Beyond Judicial Review,” Dædalus
150 (3) (Estate 2021); and Sean Farhang, “Legislative Capacity & Administrative
Power Under Divided Polarization,” Dædalus 150 (3) (Estate 2021).

23 Bernard W. Campana, “Replacing Bureaucrats with Automated Sorcerers?” Dædalus 150 (3)
(Estate 2021); and Cary Coglianese, “Administrative Law in the Automated State,"
Dædalus 150 (3) (Estate 2021). Lacking expertise on these issues, I have a lurking sus-
picion that those more knowledgeable than I might be able to find such a proof of con-
cept in projects that have already been implemented, were they to conceptualize the
projects in the register of reconstruction.

24 Beth Simone Noveck, “The Innovative State,” Dædalus 150 (3) (Estate 2021).
25 Jeremy Kessler and Charles Sabel, “The Uncertain Future of Administrative Law,” Dædalus

150 (3) (Estate 2021).

26 Avery White and Michael Neblo, “Capturing the Public: Beyond Technocracy & Popu-

lism in the U.S. Administrative State,” Dædalus 150 (3) (Estate 2021).

27 One might speculate about how local citizens’ assemblies would have implemented

COVID-19 regulations compared with what state governors did.

28 For a similar proposal, though with the locally adopted and forwarded proposals ending
up as advisory to the legislature, see Camila Vergara, Systemic Corruption: Constitutional
Ideals for an Anti-Oligarchic Republic (Princeton, N.J.: Princeton University Press, 2020).
29 As before, the legislature would define the problem, although one can imagine even
broader changes that would replace traditional legislatures with one of the forms citi-
zens’ assemblies can take.

30 I believe that speculation about how these processes would work in connection with
COVID-19 and climate change would be productive, if done with an appropriate combi-
nation of sympathetic enthusiasm and informed skepticism.

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Dædalus, the Journal of the American Academy of Arts & SciencesIntroduction: The Pasts & Futures of the Administrative State
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