Abstract
The Article examines competing approaches to delegation and the administrative state through the lens of governance costs. It argues that many longstanding debates concerning delegation, agency discretion, judicial review, and constitutional structure are best understood as disputes over the allocation of recurring governance risks, including accountability, agency drift, concentration of power, expertise, delay, coordination costs, and regulatory underproduction.
Rather than treating formalist, pragmatic, and institutional approaches as fundamentally incommensurable, the Article develops a governance‑cost taxonomy that provides a common analytical framework for comparing competing theories of administrative governance. The framework demonstrates how scholars, judges, and doctrines often address similar institutional concerns while assigning different weights to those concerns.
The Article applies this framework to leading administrative law theories and recent Supreme court decisions, including West Virginia v. EPA, SEC v. Jarkesy, and Loper Bright Enterprises v. Raimondo. It argues that contemporary administrative law disputes frequently reflect differing judgments regarding which institutions should bear particular governance risks and whether balancing should occur through ex ante constitutional allocations of authority or ex post institutional decision making.
By providing a common vocabulary for understanding doctrinal disagreement, the Article offers a new perspective on the evolving relationship among Congress, administrative agencies, and the judiciary in the modern administrative state.
Recommended Citation
John Meisel, Governance Costs and the Reallocation of Administrative Agency Authority, 84 Wash. & Lee L. Rev. Online 92 (2026), https://scholarlycommons.law.wlu.edu/wlulr-online/vol84/iss2/1
Included in
Administrative Law Commons, Law and Economics Commons, President/Executive Department Commons, Supreme Court of the United States Commons