"Muscular" is not an adjective that commentators typically associate with federal agencies. The Office of the President of the United States prides itself in its muscularity, and ever since the days of President Theodore Roosevelt, the President is frequently said to enjoy the rhetorical advantages presented by that Office's "bully pulpit."' Congress routinely is characterized as flexing its legislative muscle in the statutory commands and prohibitions included in its enactments, and in the harsh critiques it launches in highly publicized oversight hearings. And the courts are regularly accused by everyone, of every possible ideological stripe, of being excessively muscular every time they strike down an Act of Congress or hold a Presidential action unconstitutional. By contrast, federal agencies are comparably passive creatures. They are subjugated by the (unitary executive) President, denounced by (a polarized) Congress, and reversed by (activist) judges. And career federal agency employees? Consistent with this same view, they are at best depicted as invisible, faceless bureaucrats clocking in and clocking out. At worst, they are no different from any other recipient of government welfare. They are on the government dole doing little work and producing relatively little, if anything, of social value. In no event are they major policy players affecting important social policies. Professors Amanda Leiter and Brigham Daniels offer a welcome counter-narrative, inviting us to think about administrative law a bit differently. Daniels portrays federal agencies as powerful, independent political players.
Lazarus, Richard J.
"Flexing Agency Muscle?,"
Georgia Law Review: Vol. 48:
2, Article 2.
Available at: https://digitalcommons.law.uga.edu/glr/vol48/iss2/2