Amy J. Wildermuth (University of Minnesota Law School & University of Pittsburgh School of Law) has posted The Brave New World of Administrative Law (78 Administrative Law Review, forthcoming 2026) on SSRN. Here is the abstract:
Administrative law is in substantial flux. Over the last fifteen years, beginning with its decision in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court has transformed administrative law in profound ways. In the decade and a half since that case, we have witnessed core precedents fall or be substantially narrowed, with seemingly more on the horizon. Many have characterized the Court’s project as aggrandizing power to the President, as seeking to rein in runaway agencies, or even as undoing the administrative state. The reality is more complex. To grasp where the Court’s project might take us, we must begin by understanding what the Court has done and why. Many have struggled to identify exactly what is motivating the Court’s actions, particularly given their seemingly disparate impulses and outcomes. How can we make sense of cases in which the Court, for example, radically shifts power away from the executive, as in Loper Bright, but then embraces a return of robust powers to the executive, as in Trump v. Wilcox? This Article begins to offer that explanation. It seeks to show that the Court’s recent administrative law cases must be understood by dividing them into two categories: constitutional cases and APA cases. It argues that each category has a distinct underlying theoretical foundation, resulting in different modes of analysis. The constitutional cases tend to embrace formalism and a robust unitary executive theory. The APA cases, on the other hand, follow a more text-bound, APA originalist approach. Recognizing these different approaches is critical to understanding what will resonate with the Court in the future—and vital to those who seek to shape the future of the reimagined administrative state.
Highly recommended!
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