Dealing with Indeterminacy in Administrative Law

Administrative law is a challenging subject to study. No doubt a big part of why it is challenging is because there are many unsettled issues. While this is considered a doctrinal course, and while there are, in fact, many hard rules and standards that you will learn over the course of the semester, there is much room for debate about what administrative law is or should be. In fact, you are coming to the study of administrative law at a particularly turbulent time when many are raising both little and big questions about administrative law. The titles of two recent pieces of scholarship tell you much of the story here. Compare Philip Hamburger, Is Administrative Law Unlawful? (2014) with Adrian Vermeule, No, 93 Tex. L. Rev. 1547 (2015) (reviewing Hamburger, supra). In recent years, the Supreme Court has chipped away at foundational doctrines in administrative law without explicitly overturning them, and it has hinted at its receptivity to critiques of the foundations of the administrative state.

With so much in flux, how are students (or even teachers!) supposed to make any sense of the subject? This section introduces two ways of anchoring administrative law: one focused on realizing and promoting the overall goals of administrative law, and one focused on ostensibly more objective foundations of text and original understanding. While these are likely familiar frameworks to you, they manifest differently in the context of administrative law. Throughout the semester, you will see these two approaches in the reasoning of judicial opinions and other materials. In some sense, practicing administrative law amounts to becoming adept at marshaling these approaches to make arguments about what the law should be when the answers are (as they often are) not clear on their face. Even where precedents seem clear, the flux in administrative law in our current age means that you need to think through these perspectives even when the law seems settled--often, the changes we eventually observe in court opinions got their start when advocates, scholars, and judges began to see weaknesses in that settlement and articulated arguments for change based on the approaches outlined in this subsection.