Looking With One Eye Closed: The Twilight of Administrative Law

His article has two themes. Judge Smith first stresses that administrative action inevitably takes place in a political milieu. Not all administrative decisions are designed to be acts of political will, freed from constraints other than political power. But many are, and all administrative decisions must be viewed in the context of larger issues soluble only by the fiat of subjective political judgment. To lose sight of the political sea that spawns, defines, and checks administrative activity, Judge Smith argues, is to mistake the fundamental nature of the administrative enterprise. Second, Judge Smith contends that legislators, judges, and commentators who have shaped administrative law in America have made just this mistake.2 The story of administrative law told by Judge Smith is the development of elaborate, court-like procedures for nearly all administrative decisions. The procedures build a record of facts and arguments upon which decision must be based, thus confining the decisionmaker's discretion and facilitating judicial supervision.3 Under this regime, the rectitude of administrative decisions is tested not by whether they respond to the current political majority, or whether they are intrinsically good. Rather, the decisions must be made as courts would make themthey must follow logically from factual predicates established in the decision process to a single, objectively correct result.4 Judge Smith finds that, for a broad range of administrative tasks, these court-like proce-