Cuéllar on Landis on Administrative Government

Mariano-Florentino Cuéllar, Stanford Law School, has posted James Landis and the Dilemmas of Administrative Government, which appeared in the George Washington Law Review 83 (2015): 101-127:

In the late 1930s, the American administrative state was becoming an increasingly important component of American national government as the country recovered from the Depression and emerged as a preeminent geopolitical power. Amidst these changes, James Landis had a distinctive perspective borne from his experience as a public official, institutional architect, scholar, and Harvard Law School Dean. Often provocative, Landis blindsided his former Roosevelt administration colleagues with his espousal of independent agencies. Later, as a consultant to President-elect John F. Kennedy, Landis wrote the report that served as a major impetus for the creation of the Administrative Conference of the United States (“ACUS”).

This Article explains how the themes in Landis’s work and career foreshadowed persistent dilemmas in the modern administrative state — dilemmas that often tend to define as well as constrain the agenda of ACUS. Landis once sought to bolster the legitimacy of the administrative state by celebrating technocratic forms of decisionmaking that could take root in heavily-insulated independent agencies. Though he later embraced a more expansive conception of presidential power, Landis did not fully recognize the tensions that arise between technocratic forms of decisionmaking — whether assisted by agency scientists or modern, adaptive computer algorithms — and the political pressures that simultaneously help make democracy messy while enhancing its legitimacy. Nor did Landis fully explore the implications arising from growing awareness of a convergence, and the blurring divide, between foreign affairs and administrative government — even if some of his own work ironically anticipated this situation. Landis’s reformist ambition found a worthy expression in the idea that coalesced into ACUS. But the conference continues to face some indelible trade-offs that define the modern administrative state even more today than during the midtwentieth century.