Landis shrewdly both established and legitimized the regulatory state, including Roosevelt's creation of new federal administrative agencies, by offering the regulatory state as the solution to the problem of modern governance: the administrative state "Is, in essence, our generation's answer to the inadequacy of the judicial and legislative process." The Landis premise took concrete shape through Roosevelt's expansion of the regulatory state, and in doing so, it brought to fruition Woodrow Wilson's progressive intellectual project: rule by experts, insulated from the popular will.
There lies the problem for conservative reforms of the administrative state as they have been proposed for the last 40 years.
The solution to the administrative state depends on resisting the Landis premise and accepting instead that even modern problems can be solved without administrative agencies, or that the price of solving those problems is too high if administrative agencies are the only means of doing so.
The Administrative Procedure Act might be considered the first attempt at restraining the administrative state.
The APA attempted to assuage concerns about the administrative state's power by grafting onto the administrative state the same types of due process protections that applied to other branches of government.
The essential compromise of the APA was biased in favor of a large administrative state: the administrative state was a necessary governmental innovation demanded by the complexity of modern society, and the only restraints Congress could place on its activities were marginal procedural protections intended to mimic the due process protections that applied to the constitutional branches of government.
Conservatives have failed to restrain the administrative state because they have accepted the Landis premise-that the administrative state is a necessary governmental innovation required by the complexity of modern society.
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