Jill E. Fisch


In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance of agency regulation was premised on the belief that the expertise of administrative agencies coupled with their insulation from political influence afforded them distinctive regulatory advantages.

Today there are questions about the extent to which agencies continue to reflect these characteristics. Instead, as the Article explains, agency decisionmaking has become increasingly polarized and the product of political influence rather than scientific or technical expertise. The possibility that Congress and the President are using agencies as political tools to avoid the accountability associated with direct legislation is potentially troubling. One response is the reduction in agency power suggested by the Court. Alternatively, this Article suggests modest practical reforms to align agencies with the legitimating principles of the New Deal settlement.

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