David Fontana (George Washington University – Law School) has posted Administrative Decentralization on SSRN. Here is the abstract:
The legitimacy of the administrative state has been challenged since it was first created. The persistent war over the administrative state now features a newly significant and largely unexamined front. Political and legal leaders from across the ideological and jurisprudential spectrum have started to question whether many of the problems of the administrative state are due to the fact that the overwhelming majority of the most important administrative officials are concentrated by law in a single location: the Washington metropolitan area. The last few presidential administrations across both parties have even pursued reforms to this administrative centralization.
This Article considers for the first time how administrative law does and should treat the geographical centralization of the administrative state in Washington. It provides a descriptive account of the distinctive areas of administrative law dividing authority between officials inside and outside of Washington. Administrative officials outside of Washington play a vital and underappreciated role in the administrative state, but administrative law ensures that this role is a limited one. The administrative state outside of Washington is largely defined by—with important exceptions—being subservient to the administrative state inside of Washington.
This Article then considers whether and when to redistribute greater authority to administrative officials outside of Washington. Working across different parts of the administrative state, this Article considers examples of decentralizing reforms that further broadly supported administrative goals. Many administrative functions should be performed in Washington because they should be performed by those with a background in and/or a deeper connection to the federal government. The substantial decentralizing efforts pursued by the two terms of President Trump have failed sufficiently to appreciate this point.
In other situations, it can be more constructive to empower officials outside of Washington to a greater degree precisely because they are in a place that is distant and therefore different from Washington. The democratic nature of the administrative state would be furthered by ensuring that more people from more places can more easily work for or with those at the highest levels of the administrative state. The expert capacity of the administrative state would be enhanced by ensuring that expert knowledge from all places can influence the administrative state.
Recommended.