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131 Harv. L. Rev. F. 1 (2017-2018)

handle is hein.journals/forharoc131 and id is 1 raw text is: VOLUME 131 NOVEMBER 2017 NUMBER 1 HARVARD LAW REVIEW FORUM ( 2017 by The Harvard Law Review Association RESPONSES CONFESSIONS OF AN ANTI-ADMINISTRATIVISTt Aaron L. Nielson* Y ou got me, I confess: I'm an anti-administrativist.I Of course, I am not entirely sure what that means, and I certainly do not em- brace all criticisms of the administrative state. But I do think adminis- trative law is a work in progress and has its share of problems. From this year's Foreword, I learn that makes me an anti-administrativist. But you know what? You probably are an anti-administrativist too! And if you aren't, well, you should be. The truth is that the adminis- trative state is not under siege because some sinister cabal has started singing from old hymnals. Instead, it is because administrative law can be better as a matter of procedural fairness, substantive outcomes, and compliance with statutory and constitutional law. Recognizing that the administrative state has value but that it also is fallible and sometimes loses its way is the essence of anti-administrativism - at least the anti- administrativism I confess to. In this spirit of confession, I am pleased to respond to the Foreword. And I will say upfront that Professor Gillian Metzger's analysis is timely and insightful. That should be no surprise - she knows her stuff. Her bottom-line conclusion, moreover, is provocative. One should not dis- miss out of hand her claim that in a world in which delegation is ubiq- uitous, sometimes the administrative state itself can serve an important cabining role on the exercise of delegated power.2 Nonetheless, despite its virtues, I fear the Foreword does not fully capture what is driving calls for additional restraints on agencies. The hard reality is that 1930s administrative law is not a good fit for today. In fact, it was not a good fit for the 1930s - which is why Congress reformed it in the 1940s. Unfortunately, the system created in the 1i940s does not always work as t Responding to Gillian E. Metzger, The Supreme Court, 20i6 Term - Foreword: z930s Redux: The Administrative State Under Siege, 131 HARV. L. REV. I (2017). *Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University. 1 Gillian E. Metzger, The Supreme Court, 20i6Term - Foreword: z930s Redux: The Adminis- trative State Under Siege, 131 HARV. L. REV. I, 7 (2017). 2 Id. at 87. I

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