1) Does the application of the “hard look” and “soft look” as described in the chapter seem arbitrary or sensible to you? Explain. Make sure to consider where “expertise” is best applied– by a court, with specialization in law, procedure, and fairness… and by an agency, with specialization in the subject matter, executing statutory obligations, and following transparent procedures, e.g., notice and comment rulemaking which integrates public participation and comments.
Please use textbook for references to question above. Administrative Law for Public Managers, 2nd Edition Pages 168-184 (Judicial and legislative review of administration) Chapter 7: Staying Current
2) Do you think posing a tension between constitutional contractarianism and public administrative instrumentalism correctly explains how administrative law fits into contemporary US constitutional government? Why or why not?
3) Part of what is at stake in Chevron and related rulings is court power (the judicial branch) versus the executive branch– and to what extent the courts or the administrative agencies get to fill in the ambiguous language inevitably left in Congressional legislation. Does it matter whether courts or the executive branch have this prerogative? Where do you think Chevron and other decisions get the balance right or wrong — and why? Assume the best case: administrative agencies are trying sincerely, and mostly effectively, to carry out and give effect to the statute authorizing their actions. If you want, assume the worst case: the agency is ineffective at carrying out the statute… what result? And does that put more of an onus on both Congress and the courts?
