EIGHT THINGS AMERICANS CAN'T FIGURE OUT ABOUT CONTROLLING ADMINISTRATIVE POWER

Administrative law is difficult because it reflects a tension between two fundamental impulses that pull in opposite directions. Effective government requires the allocation of discretionary power to agency officials. For agency governance to be legitimate, however, administrative law must find ways to mediate this power-but not too much, which would rob agencies of their effectiveness. In the US, administrative law serves this mediating function by making agencies accountable to elected officials, fostering public participation in agency decisionmaking, and subjecting a vast array of agency actions to judicial review for legality and rationality. Implementing these approaches has not been easy, and the results are not pretty. Important aspects of American administrative law are vague, ambiguous, and more or less permanently contestable. Here, Shapiro and Murphy highlight some of the problems that Americans have encountered in implementing their own administrative law.