Expertise plays a starring role in administrative law. Congress establishes administrative agencies and often gives them substantial discretion because it lacks the expertise and political agreement to resolve the policy issues that are likely to arise under a statutory scheme. The Supreme Court’s acceptance of a weak nondelegation doctrine confirms these realities. The Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. required deference to agency constructions of ambiguous statutory language because agencies have greater expertise and political accountability concerning the policy issues involved in resolving an ambiguity. Similarly, the Administrative Procedure Act (“APA”) requires generalist federal judges to affirm agency policy making if it is not “arbitrary [and] capricious.”
For a concept that is so central to administrative law, there has been a surprisingly impoverished understanding of expertise and its role in the rulemaking process. The entire account of expertise in Chevron, for example, notes only that “those with great expertise and charged with responsibility for administering the [statute] would be in a better position to [choose an appropriate policy]” and that “[j]udges are not experts in the field.” For the most part, administrative law and scholarship regards what goes on inside of the agency as a “black box” that remains unexamined, while administrative law focuses on efforts to control expert discretion using judicial review and political oversight.
Expertise is complex and multifaceted, and it makes a more robust contribution to public administration than is acknowledged in administrative law. The failure to appreciate how expertise actually functions in public administration is problematic because administrative law is co-determined along with understandings of expert public administration. Authoritative legal norms reflect understandings about expertise and its use in the administrative process, and legal norms affect the use and practice of expertise in public administration. Due to a limited understanding of expertise, administrative law has developed in ways that have narrowed agency discretion and limited the opportunity of expert public administration to fashion appropriate rules. A more complete understanding of expertise indicates how it is possible to have a more workable, and yet accountable, administrative process.
This Article is part of an ongoing project of the author, separately and with others, that contends the coherence and effectiveness of the administrative process suffers from the failure to understand the nature and context of expert public administration. It also continues previous efforts by the author to use pragmatism to assess and test administrative law concepts. This Article contributes to this project by examining the ways in which administrative law misapprehends public administration expertise and the impact of that misunderstanding on the co-production of administrative law and public administration.
