UCLA School of Law

Formalist jurists are constructing a new kind of administrative law. In this emerging regime of private prerogative, rights of property and contract receive heightened protection against administrative interference. These rights get special treatment in the form of novel constitutional rules against the delegation of policymaking and adjudicatory authority to agencies, as well as restrictive principles of statutory interpretation. Private prerogative treats economic entitlements as sacrosanct, and therefore grants their holders discretionary control over other people. Administrative power is treated as a generally threatening and often arbitrary imposition that often risks and never protects constitutional rights.This Article diagnoses this nascent law of private prerogative and offers a better alternative. It argues for a law of public liberty that is at once firmly grounded in the legal materials and more responsive to the requirements of popular sovereignty. Understood as the law of public liberty, administrative law is not about the restraint of governmental power to protect vested economic interests. Rather, administrative law affirmatively protects public rights—entitlements held by the body politic that are requisite to republican self-government. These include the people’s rights to health, safety, and equal social standing. Such rights routinely and pervasively impinge upon property and contract. While historically anchored in monarchical sovereignty and made actionable in the common-law of nuisance, public rights today are anchored in popular sovereignty, recognized by federal statutory law, and implemented by federal regulatory agencies. Agencies are competent to protect these shared political interests where private initiative and ordinary litigation cannot. Public liberty fundamentally shifts our understanding of administrative law. Instead of treating agency action as a discretionary exercise of legislative and executive will, public liberty recognizes governmental obligations to protect the essential interests of the polity. This shift has implications for the constitutionally permissible powers of agencies, including their authority to adjudicate matters involving property and contract rights. American public law has traditionally recognized agencies’ power to adjudicate these matters where public rights to health, safety, and equality so require. Agency adjudication, on this account, is not justified merely by expertise, but by a right of collective self-defense in the face of grave social risks and overweening private power. In a context of deep jurisprudential hostility to the administrative state, the concept of public rights is essential to the construction of a legal grammar in which citizens and officials can articulate the state’s regulatory duties.