David Froomkin (University of Houston Law Center) has posted Beyond Neoliberal Administration (in Building Democratic Capacity, forthcoming) on SSRN. Here is the abstract:
Recent developments in administrative law limit Congress’s ability to confer regulatory discretion on its administrative agents. Commentators have tended to view these developments as undermining progressive social policy, which has operated throughout the twenty-first century primarily through the administrative state. But Congress can respond by avoiding reliance on regulatory discretion in the first place. The new judicial doctrine does not constrain the use or acquisition of public resources. Thus, Congress has incentives to rely on a different set of tools: Pigouvian instruments (taxes and subsidies), redistribution, public infrastructure, and social control of investment. Despite recent progressive coding of regulatory bureaucracy, this alternative toolkit might well result in more egalitarian consequences. In many ways, the regulatory state was the instrument of a neoliberal mode of governance that offloaded ownership and control of resources onto private parties. The ultimate victim of the Roberts Court’s war on the regulatory state might be neoliberalism.
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