Mark Tushnet, Trust the Science but Do Your Research: A Comment on the Unfortunate Revival of the Progressive Case for the Administrative State, 98 Ind. L.J. 335 (2023).
Abstract: This Article offers a critique of one Progressive argument for the administrative state, that it would base policies on what disinterested scientific interests showed would best advance the public good and flexibly respond to rapidly changing technological, economic, and social conditions. The critique draws on recent scholarship in the field of Science and Technology Studies, which argues that what counts as a scientific fact is the product of complex social, political, and other processes. The critique is deployed in an analysis of the responses of the U.S. Centers for Disease Control and Food and Drug Administration to some important aspects of the COVID crisis in 2020. The COVID virus had characteristics that made it difficult to develop policies to limit its spread until a vaccine was available, and some of those characteristics went directly to the claim that the administrative state could respond flexibly to rapidly changing conditions. The relevant administrative agencies were bureaucracies with scientific staff members, though, and what those bureaucracies regard as "the science" was shaped in part by bureaucratic and political considerations, and the parts that were so shaped were important components of the overall policy response. Part II describes policy-relevant characteristics of knowledge about the COVID virus and explains why those characteristics made it quite difficult for more than a handful of democratic nations to adopt policies that would effectively limit its penetration of their populations. Part III begins with a short presentation of the aspects of the science and technology studies (STS) critique of claims about disinterested science that have some bearing on policy responses to the pandemic. It then provides an examination shaped by that critique of the structures of the Food and Drug Administration and the Centers for Disease Control, showing how those structural features contributed to policy failures. Part IV concludes by sketching how the STS critique might inform efforts to reconstruct--rather than deconstruct--the administrative state, proposing the creation of Citizen Advisory Panels in science-based agencies.