Elias Neibart (Harvard Law School) has posted Legislatures are Not Administrative Agencies on SSRN. Here is the abstract:
Administrative agencies cannot act willy-nilly. Administrative law imposes requirements upon them and, in some instances, completely prohibits them from acting in certain ways. For example, agencies must consider reasonable alternatives before they act. And when they do act, they can’t proceed sub silentio. That is, when they promulgate a rule or issue an order, they have to explain why they’re doing so. On top of that, they can’t offer post hoc rationalizations for their actions. If they give one reason at point A, they can’t give another reason when their actions are challenged in court at point B. If agencies break these rules—or others—their actions can be invalidated as “arbitrary and capricious.”
But when it comes to legislatures, those requirements and prohibitions don’t apply. Legislatures have no obligation to tell us why they’re acting or even to create some sort of record for courts to review later. They also don’t have to consider reasonable alternatives. Legislatures can just legislate. Hard stop. An argument that a legislature didn’t adequately explain itself or failed to consider important aspects of a problem is meritless from the jump. And after a legislature passes a law, government lawyers can defend the law on any ground they want. Government lawyers aren’t bound by the legislature’s rationales or the facts it relied on when it acted: The rules against post hoc rationalizations that bind administrative agencies don’t apply. Both history and more modern doctrine make this all clear.
That’s why it was surprising to see arguments to the contrary put forward in two recent (and high-profile) First Amendment cases. Some influential originalist scholars have also argued that legislatures might be required to justify their decisions when they make distinctions amongst certain groups or regulate certain rights.
This Article sets the record straight. It demonstrates that legislatures are under no such obligations. True, certain pieces of legislation, like those touching upon constitutional rights, are subject to heightened scrutiny in court. But that doesn’t mean that legislatures themselves, when they’re passing those types of laws, face any heightened or special obligations. The traditional rule—that legislatures can just legislate—is not any different in the fundamental-rights context. Indeed, a close and careful analysis of the historical record and more modern doctrine reveals a consistent throughline: No matter the context, legislatures are not administrative agencies. Never have been. And—if we hew closely to history and tradition—never will be.
Highly Recommended!
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