Tennis with the net down: Administrative federalism without congress

This essay replies to contributions by Brian Galle and Mark Seidenfeld and by Gillian Metzger to the Duke Law Journal's 2008 Administrative Law Symposium. Professors Galle and Seidenfeld are willing to entertain arguments that modern administrative agencies are, in fact, better vessels of democratic values than Congress, and to acknowledge the claims of federalism only if and to the extent that decentralizing authority furthers some sort of public policy value. Similarly, Professor Metzger accepts the value of federalism but argues that it should be protected through the operation of ordinary principles of administrative law. Both articles seek to shift the focus of federalism doctrine from the structures established by the Constitution to the structures established by the administrative state. Our own view is that contemporary American lawyers must maintain continuity with - make some sense of - the constitutional vision of separation of powers and federalism notwithstanding the profound changes to that structure since 1789. By elevating administrative agencies to the primary role, our interlocutors shatter the fragile constitutional compromises that maintain that crucial continuity with the traditional Constitution. For us, the touchstone of any analysis must be what Congress intended, not what agencies can do to improve on Congress. This might not be as conducive to optimal policymaking as the alternative focus proposed by Galle, Seidenfeld, and Metzger. But a constitutional discourse that allows lawyers and judges simply to disregard the traditional constitutional constraints is too close, for our tastes, to Robert Frost's famous criticism of free verse - that is, such an approach amounts to "play[ing] tennis with the net down.".
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