Legitimacy, Flexibility and Administrative Law

This dissertation reassesses the importance of flexibility in ensuring the legitimacy of the administrative state and argues how administrative law should accommodate the ever-growing agency discretion without sacrificing the legitimacy of the agencies. Flexibility results from an agency’s exercise of its interpretative power with statutory ambiguities and is the most significant ingredient of the modern administrative state. However, flexibility does not mean anything goes. There should be limits. The proper latitude of judicial review is the essential device that makes the administrative state legitimate. From the perspective of a traditional approach of U.S. administrative law, giving agencies flexibility evokes the image of an executive unbounded. Per that principle, critics of the modern administrative state argue that congressional delegation should not be overused because agency authority in the face of statutory authority is very discretionary and too flexible. In the same vein, certain conservative Supreme Court Justices advocate overruling the Chevron doctrine and instituting a narrow approach to the nondelegation doctrine. This dissertation takes a contrary approach to agency discretion. Broad agency discretion is a positive development and one which courts should honor as long as an agency’s interpretation is within the statutory authority and not arbitrary or capricious. It examines both agency deregulation and regulation. Utilizing agency deregulatory regimes, it visualizes what aspect of agency policy judgment triggers the warning light that fuels legitimacy concern. It shows that the over-reliance on nondelegation defeats the purpose of flexibility that provides democratic accountability to our governance structures, giving courts redundant power to reverse congressional legislature. It suggests that the fundamental gauge to evaluate the legitimacy of agency decisions must be agency expertise anchored in the statutory ends