Progressive Textualism in Administrative Law

Abstract

Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism. The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives should solve the “optimization problem: [w]hich set of procedures will best balance the competing goals of efficiency, the protection of legal rights, and public accountability.” Bagley does not, however, provide an answer to the ques-tion of where progressives should find currently binding administrative law. The answer is simple: the Administrative Procedure Act (APA). Progressive textualism provides the missing piece for Bagley’s analysis.