Document Type
Article
Publication Date
Spring 2024
ISSN
0042-0190
Publisher
University of Toledo College of Law
Language
en-US
Abstract
At the beginning of this semester I told my students at Boston University that this is the most interesting time to take administrative law since I started teaching it nearly forty years ago. Doctrines that seemed settled just a few years ago have been questioned and significant change seems to be on the horizon. Don't get me wrong, we've been here before. In the 1970s and 1980s there were a few Supreme Court decisions on separation of powers1 that indicated the possibility of big changes, but ultimately it fizzled out into the administrative law revolution that wasn't.
Things feel a bit different now, but it's still unclear if anything major will happen. Back then, there was a group of generally conservative Supreme Court Justices who were somewhat interested in reform, but, other than Justice Scalia, none were really focused on administrative law. Now we have a group of Justices, especially Justices Kavanaugh and Gorsuch, whose identity has been or is becoming bound up with administrative law reform. We also have rumblings from the Republicans in Congress and the Federalist Society, and we have a cadre of recently appointed lower court federal judges who seem anxious to feed the Supreme Court the cases necessary to accomplish fundamental reform.
To put this in perspective, in 2018, in an Article I called, The Never-Ending Assault on the Administrative State,2 written in what might be viewed as the early days of the current assault, I proclaimed "The administrative state was designed by Congress and has been resoundingly approved by the Supreme Court of the United States.... Substantive regulatory power has also been resoundingly approved by the Supreme Court, perhaps even more firmly than the structural aspects of the administrative state."
Recommended Citation
Jack M. Beermann,
Keynote Address: "Attacking and Defending the Administrative State"
,
in
55
University of Toledo Law Review
415
(2024).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3897
