Cass R. Sunstein, Administrative Law's Grand Narrative, 77 Administrative Law Review 291 (2025).
Abstract: For many decades, administrative law has been clouded, or perhaps haunted, by a Grand Narrative. According to that narrative, the Supreme Court has abdicated. It has allowed the modern administrative state to breach the safeguards established by Article I, Article II, and Article III. The Court permitted the breach of Article I by authorizing Congress to delegate broad discretionary authority to agencies (and thus to become legislators). The Court permitted the breach of Article II by authorizing Congress to create independent agencies immunized from presidential control. The Court permitted the breach of Article III in two ways: (1) by giving Congress broad authority to allow administrative agencies to engage in adjudication, unprotected by the Constitution's tenure and salary provisions and (2) by granting interpretive authority to such agencies. In recent years, the Court has acted as if the Grand Narrative is essentially right. It has sharply cabined Congress' power to create independent agencies; imposed new constraints on Congress' power to allow agencies to adjudicate; signaled the vitality of the nondelegation doctrine; insisted on independent judicial interpretation of law; and invoked the separation of powers, through the major questions doctrine, to limit the exercise of discretionary power by agencies. The Grand Narrative also affects other areas of administrative law, including "arbitrary or capricious" review. There are other grand narratives about administrative law (originalist, Burkean, Thayerian, and pragmatic), and they might well be more compelling. But in the current era, they are not nearly as grand, or as influential, as the Grand Narrative. A broader point is that law has multiple equilibria in which different narratives turn out to be grand. The current equilibrium, if it can be called that, is one in which the Grand Narrative is ascendent. "The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart. They also have begun to have important consequences on personal rights...They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking. "[T]he dissent who would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands." Who controls the past controls the future: who controls the present controls the past. -- George Orwell