Administrative Competence: Reimagining Administrative Law

In this first chapter of a new book, Administrative Competence: Reimagining Administrative Law (Cambridge University Press 2020), we provide an overview of our argument that administrative law should be, but is not, the law of public administration. As the law of public administration, administrative law would ensure that public administration is “competent” in that it has both legitimate authority and the necessary capacity to accomplish its mission. Instead, administrative law since the 1960s has been understood only to limit public administration in the mistaken belief that the alternative is policymaking without constraints. Administrative law has arrived at this point by treating what happens inside the agency as a “black box” rather than understanding the complex and multifaceted role that expertise plays in rationalizing decision-making and contributing to agency accountability. By comparison, the history of administrative law dating back to the Founding shows how administrative law has always been shaped by an understanding of administrative competence. In arguing for the legal relevancy of what goes inside of an agency, we are recognizing that an agency’s legitimacy depends on its capacity to implement its mandate as well as its legal authority to do so.