Breaking the Grip of the Administrative Triad: Agency Policy Making under a Necessity-Based Doctrine

The justification for the modern American administrative state is built on a belief that (1) limited congressional delegation, (2) cabined executive discretion, and (3) properly exercised judicial deference are akin to the system of checks and balances established by the nation's Founders. In this Article, I propose that the time has come to rid ourselves of this legal fiction, particularly as it has developed in two well-known (and highly criticized) lines of administrative cases: the United States Supreme Court's Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., jurisprudence and the United States Court of Appeals for the District of Columbia Circuit's cases wrestling with the use (or misuse) of nonlegislative rules by agencies. In its place, I propose the creation of a “Necessity Doctrine.” Unlike the constitutional branches of government, agencies are tasked with a much narrower objective within our system: to enable the enforcement of congressional directives through application of expertise, practicality, broad stakeholder input, and inclusion of political considerations. To restore the value of administrative process, we must limit the exercise of that process to those matters that necessitate the use of these bureaucratic tools and deny the urge to rely upon agencies as a surrogate for properly exercised judicial and legislative power.