The End of Administrative Pragmatism?
Document Type
Article
Publication Date
2025
Abstract
For decades, the predominant theory in administrative law has been “administrative pragmatism”—i.e., a vision based on rules and doctrines that balance the interests in empowering agencies to fulfill their statutory mandates while constraining agencies from abusing the discretion Congress has delegated to them. In recent years, however, we have seen an “anti-administrativist” turn at the Supreme Court and, at least to some extent, in the rest of the federal judiciary. Although administrative pragmatism is no longer the predominant theory at the Court, that does not mean it has died. Administrative pragmatism remains the principal theory among administrative law scholars, agency officials, and many federal judges. But its continuing vitality will depend on how the theory evolves to respond to the anti-administrativist turn at the Supreme Court.
In our contribution to this symposium issue on administrative law, we argue that Justice Kagan’s articulation of administrative pragmatism in Kisor v. Wilkie captures a rich and nuanced theory of administrative pragmatism. Yet, based on our review of every judicial decision citing Kisor during its first five years of existence, lower courts have not appreciated, much less embraced, Justice Kagan’s vision. Scholars too could and should revisit what Justice Kagan crafted in Kisor. When properly understood, Justice Kagan’s vision addresses most of the concerns raised by administrative skeptics about administrative law and regulatory practice today. And yet it still preserves the administrative state’s critical role in delivering effective governance and ensuring the implementation of Congress’s commands.
Recommended Citation
Hammond, Andrew and Walker, Christopher J., "The End of Administrative Pragmatism?" (2025). Public Law & Legal Theory Working Papers. 21.
https://repository.law.umich.edu/pub_law_archive/21