Associate Justice Mariano-Florentino Cuéllar ·
83 Geo. Wash. L. Rev. 1330 ·
In the late 1930s, the 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 mid-twentieth century.
