Bernick on Movement Administrative Law

Evan D. Bernick, Northern Illinois University College of Law, has posted Movement Administrative Procedure, his contribution to that Notre Dame symposium.  It is forthcoming in the Notre Dame Law Review:

The Administrative Procedure Act of 1946 operates as a “sub-constitution” for the modern U.S. administrative state, both empowering and constraining federal regulatory agencies. This Article argues that the APA should be transformed. Addressing interrelated contemporary crises of economic precarity, systemic racial inequality, and environmental destruction requires moving beyond the APA we have known for nearly a century.

The conventional account of the APA holds that it was a carefully deliberated compromise with no particular ideological valence. This Article challenges that account by scrutinizing it through the lens of movement law—an approach to legal scholarship that is informed by and supportive of left social movements that seek to transform the political, economic, and social status quo. It contends that the APA was shaped by a pluralist conception of democracy as interest-group competition; fear of communism; a southern congressional veto on social and economic legislation from which people of color might have benefited; and the elite bar’s values and interests. These political-economic origins help us understand why a purportedly neutral compromise has operated to the advantage of business interests and hindered the sort of transformative change that contemporary left social movements seek.

In the service of building beyond the APA, the Article introduces guiding principles for movement administrative procedure—an approach to administrative governance that prioritizes robust contestatory democracy. Movement administrative procedure is committed to reckoning with structural inequalities that impede access to and effective participation in the regulatory process and shifting power over agency policy to race-class subjugated groups who would otherwise lack it. To acknowledge the APA's democratic deficits is not to cede ground to those who regard administrative governance as illegitimate. It is to appreciate that there are more important and pressing crises than abstract legitimacy debates, and that those crises must be met democratically if they are to be met at all. 
--Dan Ernst



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