The Headless Fourth Branch: Rethinking the Assumptions of Administrative Jurisprudence

Abstract

A mismatch exists between the fundamental principles underlying modern administrative jurisprudence and the practical realities of administrative governance as illuminated by social science. This mismatch is most evident in the judicial conceptions of congressional intent, delegation, administrative procedures, and political accountability. As a result, federal agencies have the opportunity to shape the parameters under which courts analyze administrative authority and to capitalize on overlapping delegations of power. Agencies respond by shifting resources toward unorthodox policymaking and legalized personnel, raising questions about what it means legally for federal agencies to be accountable to the judicial and political branches of government. In sum, the mismatch between doctrine and practice presents many avenues for future research and has important consequences for the operation of our separation of powers system.