The values of liberty and democracy repeatedly arise in recent Supreme Court opinions on administrative law. The conservative Justices have argued that the power vested in government agencies threatens individual freedom and collective self-government. This Article critiques these Justices’ use of political theory. It shows that the Justices do not faithfully and even-handedly apply the complex tradition of American political thought on which they rely. They invoke several different and competing aspects of liberty and democracy to criticize the administrative state. But because the Justices do not disentangle the various aspects of these two values from one another, they draw faulty inferences about how best to protect them. Furthermore, they do not acknowledge the ways in which properly structured administrative power promotes liberty and democracy. They thereby aggrandize judicial power at the expense of the elected branches without effectively promoting individual autonomy.
This Article argues for a more rigorous, tailored, and nuanced application of the values of liberty and democracy in public law. It demonstrates that the Court should not rely on these values to justify constitutional rules concerning the balance between legislative and executive power. Because liberty and democracy each have multiple and competing dimensions, it is difficult if not impossible in these contexts for the Court to draw firm, generalizable conclusions about how these values on the whole will best be advanced. Even where certain liberty or democracy interests may be put at risk by legislative delegation to the executive or by legislative insulation of agencies from presidential control, such arrangements at the same time promote other aspects of these same values. The Court would be justified in tailoring judicial deference so as to protect procedural fairness, which falls within the judiciary’s core institutional competence. Ultimately, however, the Court should not have exclusive or even primary custody over the meaning and application of liberal and democratic values. It should be a task for the people and the elected branches to safeguard these values in the structures and purposes of government.
Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory,
73 Hastings L.J. 371
Available at: https://repository.uchastings.edu/hastings_law_journal/vol73/iss2/5