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86 Tul. L. Rev. 273 (2011-2012)

handle is hein.journals/tulr86 and id is 277 raw text is: TULANE LAW REVIEW VOL. 86 DECEMBER 2011 No. 2 Breaking the Grip of the Administrative Triad: Agency Policy Making Under a Necessity-Based Doctrine Michael Ray Harris* The justification for the modem American admnistrative state is built on a belief that (1) lmited congressional delegation, (2) cabined executive discretion, and (3) properly exercised judicial deference am akin to the system of checks and balances established by the nationk Foundes. In thisArticle, Ipropose that the time has come tond ourselves of this legal fiction, particularly as it has developed in two well-known (and highly citicized) lines of admiistrative cases: the United States Suprme Courth Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,jusprudence and the United States Cout ofAppeals for the District of Columbia Chcuith cases wrestling with the use (or misuse) of nonlegislative rules by agencies. In its place, I propose the creation of a 'Necessity Doctrzne Unlike the constitutional branches of government, agencies are tasked with a much narrower objective withbn our system: to enable the enforcement of congressional drectives through application ofexpertise, practicality broad stakeholder input, and inclusion ofpolitical considerations. To restore the value of admnistrative process, we must limit the exercise of that process to those matters that necessitate the use of these bureaucratic tools and deny the uige to rely upon agencies as a surrogate for properly exerisedjudicial andlegislative power I. INTRODUCTION..................................... 274 II. TAKING A STEP BACK: THE MAKING OF THE MODERN ADMINIsTRATIvE STATE ........279 * 0 2011 Michael Ray Harris. Assistant Professor of Law, University of Denver (DU) Sturm College of Law. I would like to thank Professors J. Robert Brown, Jr., Alan Chen, Roberto Corrada, and Annecoos Wiersema for their insightful comments on earlier drafts of this Article, and DU law students Jeffery Toby Weiner, Kelly Miller, April Shepherd, and Tara Buchalter for their diligent research assistance. 273

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