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Mark Tushnet, Introduction: The Pasts & Futures of the Administrative State, 150 Daedalus 5 (2021).

Abstract: To understand contemporary arguments about deconstructing and reconstructing the modern administrative state, we have to understand where that state came from, and what its futures might be. This introductory essay describes the traditional account of the modern administrative state’s origins in the Progressive era and more recent revisionist accounts that give it a longer history. The competing accounts have different implications for our thinking about the administrative state’s constitutional status, the former raising some questions about constitutionality, the latter alleviating such concerns. This introduction then draws upon the essays in this issue to describe three options for the future. Deconstructing the administrative state without adopting a program of across-the-board deregulation would entail more regulation by the legislature itself and would insist that Congress give clear instructions to administrative agencies. Tweaking would modify existing doctrine around the edges without making large changes. Reconstruction might involve adopting ever more flexible modes of regulation, including direct citizen participation in making and enforcing regulation.