Public administration and the rule of law

This article deals with the enduring problem of administrative discretion in the modern American democratic-constitutional state. In the American constitutional tradition, administrative action is legitimate when and only if it adheres to the rule of law. This implies that administrators must be able to link directly their actions to grants of authority in statutes or the Constitution. But the growth of the state apparatus and the increasing intensification of the public administration's role in society have necessitated rather broad legislative grants of discretion to the bureaucracy. The result has been a seemingly perennial tension between the rule of law ideal and the modern administrative reality.

Attempts to control discretion via evolving doctrines of administrative law have proved unsatisfactory for a variety of reasons explored in this essay. The most important shortfall has been that the continuing expansion of the administrative state threatens directly the rule of law itself. After a survey of the weaknesses of these doctrines, we conclude that the rule of law is fundamentally incompatible with the necessary work of administration in the modern American state. Administrative discretion is thus seen to pose an intractable problem for the liberal democratic society, which accounts for its problematic persistence.