The modern American administrative state exerts extraordinary regulatory power. Critics on the right have assailed it as unmoored from constitutional foundations. Recent Supreme Court decisions have thrown into question the judicial doctrines that undergird it—doctrines that permit sweeping delegations of Congressional authority and afford administrative decisions a deferential standard of judicial review.
In his new book, prolific scholar Richard A. Epstein explores this issue comprehensively for the fi rst time. His penetrating analysis covers modern conceptions of law’s morality as well as principles rooted in the Anglo-American and Roman legal traditions. But far from an exercise in high theory, Epstein’s treatment is replete with actual case examples, both historical and current; and his analysis is rooted in both the American Constitution and the Administrative Procedure Act.
Professor Epstein accepts the necessity of an administrative state but argues that the modern American variant is inconsistent with law’s moral foundations. He concludes that as a matter of legal practice and statutory command, the current judicial doctrines get it precisely backwards—overly deferential to administrative rulemaking on questions of law, while subjecting administrative fact-finding to improperly searching scrutiny.