With deceptive simplicity the Constitution divides governmental power among three branches. Article I confers the legislative power on the Congress, composed of the Senate and House of Representatives. Article II confers the executive power on the president. Article III confers the judicial power on the Supreme Court and such inferior federal courts as Congress chooses to establish (see Judicial Power and Jurisdiction). The Constitution leaves little doubt over which of these three branches has the primary policymaking role. The cursory descriptions of power conferred on the president and the judiciary stand in marked contrast to the grants of power to Congress. Article I, section 8 of the Constitution confers upon Congress no fewer than seventeen specific grants of power, ranging from the limited power to provide for the punishment of counterfeiting, to the generous authority to tax, spend money, regulate commerce, and raise and support armies. Additionally, Congress is given the power to make all laws necessary and proper for carrying out its other specific powers.
If this attention to the powers of Congress reflected the framers' vision of how power might be shared in the U.S. constitutional system, that vision bears little resemblance to the structure of modern American government. While the Constitution in the twentieth century was undergoing a radical transformation in the area of
The administrative agencies' uncertain fit in the U.S. constitutional system is apparent from the commingling of functions in them. Thus, while Article I empowers Congress to legislate, Article II empowers the president to execute the law, and Article III empowers the courts to adjudicate, administrative agencies exercise all three constitutional powers in one entity. For example, the National Labor Relations Board (NLRB)—the agency empowered by statute to regulate the relationship between unions and employers—is authorized to promulgate rules that are indistinguishable from legislative enactments. The NLRB also exercises executive power, in the broadest sense of carrying out legislative policies, as well as exercising particular functions long recognized as quintessentially executive, such as making prosecutorial decisions. Finally, the NLRB exercises judicial functions in adjudicating disputes between unions and employers.
It is not clear from the Constitution that this transference of governmental power to the agencies is constitutional. Indeed, the text may suggest just the opposite. The Constitution confers all legislative powers on the Congress and all judicial power on the judiciary. Agencies exercise functions seemingly reposed in the other branches of government. The most fundamental challenge to the administrative state focused on whether these delegations of power are permissible. The Court's affirmative answer to this question represents one of the most important developments in constitutional history.
Many statutes authorize agencies to adjudicate disputes between private parties—often referred to as private rights disputes. Constitutional challenges have often been raised to this exercise of adjudicative power by agency officials. Parties forced to try their claims before an employee of an agency argue that such a scheme violates the command of Article III vesting the judicial power of the United States in an independent federal judiciary. The Supreme Court rejected this objection to the structure of administrative government in Crowell v. Benson (1932), upholding the authority of the deputy commissioner of the U.S. Employee's Compensation Commission to adjudicate a dispute between an employer and its employee over an award of workmen's compensation. Fifty years later, however, the Court cast a shadow over the constitutionality of agency adjudication of such private rights disputes. In Northern Pipeline Construction Co. v. Marathon Pipeline Co. (1982), the Court held unconstitutional the system of bankruptcy courts Congress had attempted to establish outside the judicial branch. The justices divided three ways, but a plurality of three justices used reasoning that suggested that many agency adjudicatory systems were also unconstitutional. In Thomas v. Union Carbide (1985) and Commodity Futures Trading Commission v. Schor (1986), however, a majority of the justices reaffirmed the power of Congress to delegate power to adjudicate at least some private rights disputes to administrative agencies. The Court upheld the Environmental Protection Agency's authority to use binding arbitration to resolve disputes about the value of test data the agency required companies to share with their competitors, and the Commodity Future Trading Commission's authority to adjudicate contract disputes between securities brokers and their customers. The vigorous debates among the justices in each of these cases suggests, however, that the justices continue to differ about the circumstances in which Congress can authorize agencies to adjudicate private rights disputes.
Congress has delegated policymaking and rule making powers to agencies in hundreds of statutes. Many of these delegations have been challenged on the basis that policymaking and rule making constitute legislative powers that Congress cannot delegate. Prior to the New Deal, the Court upheld several delegations of policymaking power by the legislative branch to the executive branch. In Field v. Clark (1892), the justices sustained Congress's delegation of power to the president to impose a retaliatory tariff on foreign goods. The statute empowered the president to impose the tariff upon a determination that American goods were subject to “unequal and unreasonable” duties in the foreign country. The retaliatory tariff was to remain in effect for so long as the president deemed “just” (p. 680). While stating that Congress could not delegate legislative power to the president, the Court nonetheless upheld the statute. The Court reasoned that Congress had defined the statutory goal and statutory sanction, with the president responsible only for the finding of the required contingency—that is, that foreign countries subjected American goods to “unequal and unreasonable rates.”
Subsequently, the Court upheld more sweeping delegations of authority to the president and his subordinates. In United States v. Grimaud (1911), the justices sustained a statute authorizing the secretary of agriculture to adopt regulations to protect the public forests. Characterizing the secretary's power as merely filling up the details of the statute, the Court concluded that the statute did not transgress constitutional boundaries. In J. W. Hampton Jr. & Co. v. United States (1928) the Court sustained a tariff act that allowed the president to adopt a set of customs duties. The customs duties the president adopted had the same binding legal effects as if Congress had enacted them in a statute. Clearly, the Court had gone beyond Field v. Clark to authorize broad policymaking and rule making by the executive branch.
This judicial tolerance for transferring lawmaking power to the president and his delegates was challenged in the New Deal (see History of the Court: The Depression and the Rise of Legal Liberalism). Responding to the Great Depression, Congress adopted a number of measures that transferred substantial lawmaking power to the executive branch. The Court invalidated some of these measures on delegation grounds. In Schechter Poultry Corp. v. United States (1935) and Panama Refining Co. v. Ryan (1935), the Court struck down the provisions of the National Industrial Recovery Act authorizing the president to adopt “fair” codes of competition for virtually all aspects of the American economy.
Schechter and Panama Refining marked the last time the Court invalidated congressional measures on the basis that they improperly delegated legislative power. Indeed, the inhospitable judicial environment of the mid‐1930s did little to deter Congress from continuing to place governmental power in the hands of administrative agencies. Although other delegations did not attain the breadth of the New Deal measures invalidated in Schechter and Panama Refining, the Court soon adopted a more accepting position on the delegation question. In American Power & Light Co. v. SEC (1946) the Court sustained the power of the Securities and Exchange Commission to regulate the restructuring of public corporations. In Yakus v. United States (1944), the Court upheld the Emergency Price Control Act of 1942, which authorized the Office of Price Administration to fix the prices of commodities and rents.
Between 1989 and 2001, the Court upheld five broad delegations of policymaking and rule‐making power to the executive branch. The powers upheld included the power to make sentencing rules that bind federal judges—Mistretta v. United States (1989)—the power to decide how much of a tax to impose upon whom to pay for the costs of a regulatory program—Skinner v. Mid‐America Pipeline Co. (1989)—the power to determine the elements of a crime—Touby v. United States (1991)—the power to determine the circumstances in which a serviceman can be executed—Loving v. United States (1996)—and the power to issue environmental rules that cost scores of billions of dollars per year without considering the cost of the rules—Whitman v. American Trucking Assn. (2001). It appears that the Court has given up on any attempt to limit the circumstances in which Congress can delegate policymaking and rule making authority to the executive branch.
The Court's general acceptance of delegation of lawmaking power to administrative agencies has encouraged Congress to rely upon agencies to make policy. In every decade since the 1930s Congress has sought solutions to pressing problems either by creating new agencies or by expanding the regulatory responsibilities of existing agencies. This pattern of congressional behavior, however, should not be understood as a lack of legislative interest in the subject matter. Indeed, the opposite conclusion could be drawn. Congress often chooses to delegate in the most sensitive political areas—for example, the environment or labor‐management relations—precisely because interest group pressure is so intense that a workable legislative solution is politically impossible. Despite the transfer of power to agencies, Congress continues to try to influence the course of action agencies pursue under their broad mandates.
Congress searches for mechanisms that allow it to continue to exercise control over the agencies. By far the most controversial control mechanism was the legislative veto. Under a legislative veto, agency actions would be nullified if one house of Congress (the one‐house veto) or both houses (the two‐house veto) adopted a resolution of disapproval. Proponents of the legislative veto touted it as a useful device for allowing Congress to continue to play a role in supervising agency actions. By contrast, opponents feared that legislative vetoes placed greater power in the hands of a few influential members of Congress.
In Immigration and Naturalization Service v. Chadha (1983) the Court invalidated the legislative veto. The Court concluded that the legislative veto violated the requirements Article I of the Constitution sets forth for the exercise of legislative power. Specifically, the one‐house veto contravened the requirement that legislative power be exercised by a bicameral legislature and subject to potential veto by the president. Similarly, the two‐house veto violated the Article I requirement that all legislative measures be presented to the president for potential veto.
While the Court has shared Congress's concerns over policing administrative agencies, the decision in Chadha reflects the Court's determination that the abuses associated with the legislative veto outweighed its effectiveness as a control mechanism. Of particular concern was the role of special interest groups that, unsuccessful before the agency, could return to Congress and block the agency's initiative through a legislative veto.
The invalidation of the legislative veto did not leave Congress without other means of influencing agency action. Through oversight hearings, appropriations measures, statutory enactments, or informal “jaw‐boning” of regulators, Congress retains ample means of shaping the regulatory efforts of agencies. Congress may also seek to influence policy by controlling the personnel charged with running the agency. In this context the Court has had to referee disputes between Congress and the president, who historically has insisted on plenary power to control the appointment and removal of agency policymakers (see Appointment and Removal Power).
The Court's first major decision in this area was Myers v. United States (1926). In Myers, the president discharged a postmaster of the United States. The postmaster challenged the discharge, claiming that under the statute creating his position he could be removed only with the consent of the Senate. The Court held the statute unconstitutional. Chief Justice William Howard Taft's opinion reasoned that it is unconstitutional for Congress to interfere with the president's power to remove agency officials executing the law.
The breadth of Myers was uncertain. The Court's opinion suggested that any limits on the president's power to appoint or remove agency officials would be unconstitutional. But the case also seemed to turn on the Senate's reservation of a role for itself in removal. In Humphrey's Executor v. United States (1935), the Court gave Myers the latter, more narrow interpretation. Humphrey's Executor involved removal of a commissioner of the Federal Trade Commission by President Franklin D. Roosevelt. The commissioner's estate sued for back pay (he having died), claiming that Congress had limited the president's power to remove only for good cause. The Court upheld this limitation, rejecting the view that the president has unfettered power to remove agency officials. The Court distinguished Myers on the basis that Congress reserved no direct role for itself in removal of commissioners of the Federal Trade Commission.
Humphrey's Executor proved to be a particularly important precedent for the structure of the administrative state. The decision allowed Congress to delegate power not just to cabinet officers who serve at the will of the president, but to so‐called independent agencies as well. These independent agencies—multimember commissions with members who must be of both parties, who serve fixed terms, and who are not removable at will by the president—exercise significant lawmaking power in the administrative state. Humphrey's Executor permits Congress to insulate these agencies from direct presidential control to some uncertain extent. Scholars disagree over whether this political independence is either possible or desirable. After all, presidential control provides some means of ensuring that agencies do not operate outside the influence of popularly elected officials.
The Court has not retreated from the holding of Humphrey's Executor. In Bowsher v. Synar (1986), the Court struck down the Balanced Budget Emergency Deficit Control Act (1985), popularly known as the “Gramm‐Rudman‐Hollings Act.” The Court declared unconstitutional the placing of the budget‐cutting power in the comptroller general of the United States, a presidential appointee removable by a joint resolution of Congress. Adhering to Myers, the Court concluded that Congress could play no role in the removal of an executive officer. The Court, however, left undisturbed the holding of Humphrey's Executor.
Any doubts about the continued vitality of Humphrey's Executor were laid to rest in Morrison v. Olson (1988), which concerned the constitutionality of the independent counsel provisions of the Ethics in Government Act (1978). The act—passed in response to President Richard Nixon's summary termination of Watergate prosecutor Archibald Cox—authorized a special panel of federal judges to appoint an independent counsel who was to investigate alleged criminal activities of high‐level executive branch officials. The independent counsel could be removed by the attorney general but only for cause. High‐level Department of Justice officials subject to an inquiry by an independent counsel challenged the constitutionality of the act. The Court upheld the act. Finding Humphrey's Executor controlling, the Court concluded that Congress can limit the president's power to remove executive officials who—like the independent counsel—were concededly performing core executive branch functions. The Court emphasized, however, that independent counsel have no policymaking power and that the president retained some degree of control over independent counsel through the potential exercise of the attorney general's power to remove an independent counsel for cause. Even though the Court upheld the constitutionality of the independent counsel device, Congress ultimately decided that it was a bad idea to have independent counsels and allowed the statute that authorized appointment of independent counsels to lapse in 1999.
The Court's reaffirmance and expansion of Humphrey's Executor in Morrison left in place a large part of the constitutional edifice upon which the administrative state has been built. At the same time, both Morrison and the Court's decision in Mistretta v. United States (1989) reflect a judicial tolerance for innovations in congressional structuring of administrative agencies. Much of the Court's administrative law jurisprudence defines the reach of congressional and presidential power in the administrative agencies. In Morrison and Mistretta the Court approved of judicial involvement in the functioning of agencies. In Morrison the Court sustained the appointment of the independent counsel by a panel of federal judges, and in Mistretta the Court upheld the service of federal judges on the Sentencing Commission.
One of the major concerns in the administrative state has been to assure that agencies remain accountable and subject to controls. The Court's separation of powers cases reflect efforts by both Congress and the president to assume primacy in performing this checking function. Each branch seeks to justify its roles by claiming that it represents the will of the people through the electoral process. The Supreme Court has also assumed an important role in checking administrative agencies. By interpreting the Constitution, the statutory grant of power to the agency, or the basic statute governing all agencies—the Administrative Procedure Act (APA)—the Court enforces procedural and substantive limits on the agencies. The Court's supervisory role is at once understandable and paradoxical: understandable because Marbury v. Madison (1803) established the Court as the ultimate arbiter of constitutional disputes; paradoxical, however, because concerns about the political accountability and control of the agencies had now become the business of a life‐tenured unelected Court.
Because the Court is limited by Article III of the Constitution to deciding “cases” or “controversies” the Court performs this checking function in the context of judicial review of agency actions. Judicial review can be authorized by the APA or by a specific statute. The Court's review of agency decisions is broad, covering constitutional law, statutory law, and questions of fact. In the area of judicial review of agency action, debate over the Court's role has largely mirrored the larger controversy about the Court's other roles in a democratic government. How active a role should the Court play in reviewing agency decisions?
Many of the Court's early post–New Deal decisions reflected a willingness to defer to agency decisions. For example, in National Labor Relations Board v. Hearst Publications, Inc. (1944), the Court left undisturbed the NLRB's decision that newspaper vendors were “employees” entitled to the protection of the labor laws. The Court cautioned that these sorts of determinations should be left primarily to the expert agencies and only rarely should be set aside by a court. In Universal Camera Corp. v. NLRB (1951), the Court set forth a similar deferential standard for review of agency factual determinations.
The Court's deferential attitude reflected a particular view about the role of agencies in American government. During the New Deal, agencies were viewed as experts, above politics, bringing forth studied solutions to problems of social or economic policy. The Court naturally deferred to such expertise. Eventually, however, this perspective was challenged. Scholars and government officials realized that agency claims of being expert and apolitical were overstated. Focus returned to the reason for the initial delegation to an agency. Congress did so not only because of time constraints, lack of interest or expertise, but because the problems were often politically intractable. Thus, the political clashes avoided by Congress were played out again in the context of the agency's decision‐making process. Agency decisions were not simply the result of applied expertise, but were in reality political decisions.
The Court has responded to this recognition in two ways. First, it has explicitly acknowledged that Congress may delegate policymaking to an agency to avoid having to make a political choice, thus leaving the agency to resolve the clash among the competing interest groups. In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. (1984), the Court upheld the Environmental Protection Agency's interpretation of the Clean Air Act Amendments of 1977. The Court recognized that Congress had specifically avoided resolution of the issue and that the decision should be made by a politically accountable agency and not by a court. Thus, the Court largely replaced deference based on an agency's superior expertise with deference based on an agency's superior political accountability. The Court recognized that: “While agencies are not directly accountable to the people, the Chief Executive is and it is entirely appropriate for this political branch of government to make such policy choices …” (pp. 865–866).
The Court's second response to the explicitly political nature of agency decision making has been to attempt to ensure that agency decisions are the result of reasoned elaboration and fair process. These requirements are part of the Court's review under the “arbitrary and capricious” standard of the APA. The Court guarantees that interested parties have meaningful access to the process, that the agency considers the views of interested parties, and that the agency elaborates an explanation for its choice. By doing so the Court permits the agency the ultimate course of regulatory action but attempts to make that process a rational one. For example, in Motor Vehicle Manufacturers Association v. State Farm Automobile Insurance Co. (1983), the Court invalidated the Department of Transportation's rescission of a rule requiring passive restraints (e.g., automatic seatbelts or airbags) in automobiles. The Court held that, while the agency ultimately was allowed to choose the means for accomplishing automobile safety, any choice must be the result of full and adequate consideration of reasonable alternatives.
The doctrine the Court announced in State Farm—often called the duty to engage in reasoned decision making—serves a valuable function. By requiring the agency to explain how it reasoned from applicable law and available facts to the action it took, a court helps to ensure that an agency's actions are consistent with the criteria Congress instructed the agency to apply in the statute that authorized the agency action. The State Farm doctrine also is the source of serious problems, however. It should come as no great surprise that judges who agree with an agency's choice of policies are likely to conclude that the agency “adequately considered” the relevant factors in choosing that policy, while judges who disagree with the agency's choice of policies are likely to detect flaws, gaps, or inadequacies in the agency reasoning process that produced that policy decision. Empirical studies of judicial review of agency actions confirm this source of concern. Thus, for instance, Richard L. Revesz (1997) found that Republican judges find fatal inadequacies in the reasoning of the Environmental Protection Administration five times as often as Democrat judges. Like agencies, courts are political institutions populated by individuals with strong views about proper government policies.
As vital as the Court's role in supervising agencies has been, Congress on occasion seeks to eliminate judicial review of agency decisions. Congress, for example, may wish to avoid the delays associated with judicial review. The APA contemplates that Congress may choose to preclude judicial review. This option for eliminating judicial oversight has caused tension between competing goals. The Court seeks to honor Congress's decision to preserve agency autonomy. Yet the Court also wishes to preserve the judicial supervision many deem essential in the administrative state.
To accommodate these dual concerns the Court has narrowly read statutes precluding review to preserve the essential aspects of judicial review. In Traynor v. Turnage (1988), the Court reviewed a Veterans Administration (VA) regulation denying educational benefits to victims of alcoholism. The Court narrowly interpreted the statute precluding judicial review of the VA's benefits decisions. The Court read the statute as precluding judicial review only of cases involving individual benefits determinations applying established statutory standards to a particular set of facts. The Court preserved for itself the power to review the agency's decisions on questions of statutory interpretation, reflecting its concern about abdicating to the agency pure questions of law that mark the boundaries of agency authority.
The Court's preservation of its reviewing role is even more pronounced where constitutional issues are raised. In Webster v. Doe (1988), the Court held that a former agent of the Central Intelligence Agency could obtain judicial review of the constitutionality of his discharge. The Court conceded that the national security concerns implicated in the case argued for a narrow judicial role. Yet, the Court was unwilling to remove entirely from judicial scrutiny the question of agency compliance with the Constitution. The Court's decision in Webster v. Doe again reflects the influence of Marbury v. Madison in the administrative state. The Court's ultimate authority to interpret the Constitution, established in Marbury, strongly argues for a judicial role to guarantee agency conformity with the constitution. Congress has the authority to limit judicial review of agency action. But against the backdrop of Marbury v. Madison the Court in Webster v. Doe stressed that only if Congress speaks in the clearest of terms would the Court assume a congressional intent to preclude judicial review of constitutional claims. Even then, the Court stated that such a decision would raise serious constitutional questions.
The Court has largely left unexamined the constitutionality of precluding judicial review of claims that the agency has acted unconstitutionally primarily because the issue has never been squarely presented. The Court's constitutional concerns are not directly tied to any specific constitutional text but rather to more basic concerns about the structure of the Constitution. The Court views the Constitution as the supreme law of the land, enforced primarily by the Court. Administrative agencies, like other governmental entities, must act within the Constitution as interpreted by the Court. To eliminate judicial review of constitutional questions would be to abandon the idea of the Constitution as law. These rule‐of‐law concerns are particularly acute given the uncertain constitutional status of administrative agencies. Indeed, the judicial tolerance for the very idea of delegation of lawmaking power to agencies may depend on the ability of the Court to ensure agency conformity to the Constitution.
The Court has developed doctrines that prevent undue judicial interference with agency operations. Two such doctrines are exhaustion of administrative remedies and the need for final agency action. The rule of exhaustion requires an aggrieved person to pursue all avenues of relief within the agency before seeking judicial review. For example, in Myers v. Bethlehem Shipbuilding Corp. (1938) a corporation sought to enjoin a hearing scheduled by the NLRB. The corporation claimed that its business did not involve interstate commerce and thus could not be constitutionally regulated by the NLRB. The Court dismissed the action, emphasizing that all claims must first be pursued before the agency. The Court reached a similar result in Federal Trade Commission v. Standard Oil Co. (1980). There the Federal Trade Commission (FTC) initiated an administrative proceeding against the oil industry alleging unfair pricing practices during the oil shortage of the 1970s. The oil companies filed suit claiming that the FTC had not met the agency's internal standards for the initiation of agency action. The Court ordered dismissal of the oil companies' lawsuit. The Court stressed that judicial review could occur only after the agency issued its final decision in the case.
In the context of judicial review of agency action, the Court has frequently been called upon to define the appropriate procedure to be used by agencies in the exercise of their lawmaking powers. Most importantly, the Court must decide whether an agency's procedures conform to the requirements of procedural due process. Agencies often proceed by adopting rules or regulations, which like statutes are of general application and future effect. Typically the rules are promulgated after notice to the public and the opportunity to submit written comments. In United States v. Florida East Coast Ry. Co. (1973), the Court held that due process is satisfied if prior to the adoption of a rule the agency gives notice to the public and an opportunity for interested parties to file written comments. The agency need not conduct a trial‐type hearing—for example, discovery, oral testimony, cross‐examination, and a decision based on evidence presented.
When the agency enforces a law against a particular individual, the Court requires more elaborate procedures. Agencies wield tremendous power over individuals. They may terminate Social Security benefits, withhold a license for industrial development, or punish an individual or business. In such actions, the Court has held that due process requires individual notice and opportunity to be heard (see Due Process, Procedural). This notice and hearing must generally occur before the agency takes action. Thus, for example, in Brock v. Roadway Express (1987), the Department of Labor ordered a trucking company to reinstate a discharged truck driver who allegedly was fired for filing safety complaints against the company. The Court held that before the agency could order reinstatement the company must be given some opportunity to be heard to give its version of the incident and to refute the agency's evidence. In Cleveland Board of Education v. Loudermill (1985), the Court held that a public employer must give an employee notice and opportunity to be heard before the employee is discharged if the employee has a contractual or statutory right to keep his job unless there is cause to terminate the employee.
In measuring agency procedures against the requirements of due process the Court has recognized an agency's need to act summarily when faced with an emergency situation, postponing notice and hearing until after the agency acts. In Ewing v. Mytinger & Casselberry, Inc. (1950), the Court allowed the Food and Drug Administration to seize a misbranded drug without allowing the drug manufacturer prior notice and opportunity for hearing. Even when prior notice and opportunity to be heard must be afforded, the Court has rarely required that the proceeding be a trial‐type hearing with oral testimony and cross‐examination. In Mathews v. Eldridge (1976) the Court held that Social Security disability benefits could be terminated prior to a trial‐type hearing so long as the individual was given some opportunity to contest the agency's determination in writing.
The Court's role in the administrative state has been that of both facilitator and skeptic. The Court assumed leadership in the constitutional evolution that integrated the administrative agency into our constitutional structure. The Court's acceptance of the delegation of lawmaking powers to administrative agencies is now settled, yet it remains an important factor in the growth of the administrative state. Having allowed the establishment of the administrative state, the Court has assumed a role in supervising the agencies. In this role the Court tries to avoid unduly interfering with the operation of the president and Congress, which supervise, staff, and fund the administrative agencies. But the Court is unwilling to remove itself entirely from a supervisory role. As in virtually every other area of law, the Court tends to equate judicial review with the very idea of the rule of law. So long as the principle of judicial review announced in Marbury v. Madison continues to have vitality, the Court's role in the administrative state will remain firmly established.
See also Delegation of Powers; Labor; Separation of Powers.
Bibliography
- Richard J. Pierce,Jr.,
Administrative Law Treatise ,4th ed. (2003). - Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit,
Virginia Law Review 83 (1997): 1717–1763. - Richard B. Stewart, The Reformation of American Administrative Law,
Harvard Law Review 88 (1975): 1667–1813. - Peter L. Strauss,
An Introduction to Administrative Justice in the United States (1989). - Cass R. Sunstein, Constitutionalism After the New Deal,
Harvard Law Review 101 (1987): 421–510. - Cass R. Sunstein,
After the Rights Revolution (1990)
— Nicholas S. Zeppos
