Document Type

Article

Publication Date

2018

Abstract

Administrative law has long depended on soft power, with each of its major players – Congress, senior executive branch officials, career civil servants, and courts – exercising only a small fraction of the formal powers available to them and relying on nuanced systems of messaging. Each player defers based on the assumption that other players, while pursuing diverse substantive aims, are acting in good faith within a consensus on the structure of public regulation.

The current Administration has quite explicitly rejected that consensus and is seeking to maximize the advancement of its substantive goals using latitude resulting from other branches of government’s restraint. This aggressive approach threatens to upend the soft power regime of administrative law and, over the long term, could result in other branches constraining executive discretion that could be needed to meet governing emergencies.

A stark example of this aggressive overreaching is the set of waivers the Administration has granted to sharply constrain eligibility for Medicaid. Using statutory authority intended to test new policies, the Administration is implementing policies Congress has repeatedly rejected. These waivers ignore the statutory limitations on waivers.

Other branches could ignore the Administration’s bad faith and analyze these waivers under the previous, deferential administrative law regime. Alternatively, they could treat the soft-power consensus as dead and inaugurate a permanent new regime of heightened scrutiny. Best is to recognize current conditions as an aberration, scrutinize more aggressively actions springing from demonstrated bad faith but not preclude the resumption of the soft-power system under a future administration.

Publication Citation

David A. Super, A Hiatus in Soft-Power Administrative Law: The Case of Medicaid Eligibility Waivers, 65 UCLA L. Rev. (forthcoming)

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