Document Type

Article

Publication Date

2024

Publication Citation

61 Harvard Journal on Legislation 81 (2024)

Abstract

A storm is brewing in American administrative law. More and more federal judges, including a majority of the Justices of the Supreme Court, openly question longstanding doctrine. A throng of academics profess skepticism of the same. This formalist turn among judges, lawyers, and academics challenges the very legitimacy of the administrative state. But what does this tempest portend for the D.C. Circuit?

The D.C. Circuit is often described as the nation’s second highest court, but its precise role in the federal judiciary is only fifty years old. As a member of that appellate court, now-Chief Justice John Roberts once admitted that the D.C. Circuit has a “special responsibility to review legal challenges to the conduct of the national government.” But is that “special responsibility” contingent and perhaps evanescent? Is it formally and functionally in conflict with the nation’s highest court? Or is it an inevitable feature of judicial review of agency action? The current composition of the D.C. Circuit and the Supreme Court, the fractious state of national politics, and the formalist turn in administrative law provoke questions about the proper role of the D.C. Circuit in shaping administrative law. This Article offers some answers by comparing that court to the highest administrative tribunal in France, the Conseil d’État.

The Article makes three contributions. First, the Article traces a crucial strand of recent critiques of the administrative state—namely an Anglophone suspicion of French administrative law stretching back to Albert Venn Dicey—and explains why that thinking relies on an outdated understanding of the Conseil d’État. Second, the Article develops a comparative analysis to uncover how the D.C. Circuit’s docket, composition, and doctrinal development mark out its strange and special position in the federal judiciary. Third, the Article uses that institutional perspective on the D.C. Circuit to better understand the contours and consequences of three crucial controversies in administrative law, including agency independence, the major questions doctrine, and the shadow docket.

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