Running head: [SHORTENED TITLE UP TO 50 CHARACTERS] 1

Deconstruction Not Destruction

Critical Review Paper by Paris Roby

July 14,2021

Upper Iowa University

Deconstruction Not Destruction

Critical Review Paper by Paris Roby

2
[SHORTENED TITLE UP TO 50 CHARACTERS] 2

[Heading 1]

Deconstruction Not Destruction is a journal by Aaron L. Nielson, I obtained this article

from https://www.jstor.org/.Makes some excellent points in this journal, he wants us to

realize that deconstruction does not mean in this instance that we destroy or demolish. He

states that we instead should speak of deconstruction in its more technical sense of examining the

administrative state to identify where theory and reality diverge and what can be done to fix it.

“Deconstruction,” Merriam-Webster.com, defining “deconstruction” as “the analytic

examination of something (such as a theory) often in order to reveal its inadequacy” and

5
noting that some people incorrectly define it as synonymous with “demolition.”

Deconstruction is overdue. In fact, if left unchecked, many agencies’ problems may get worse.

Neilson is addressing how congress can take the power out of the supreme court hands by regulating

it down to the federal agencies who then pass these powers down to other agencies state and local.

This Neilson explains is the administrative state being reformed Nielson shows us how before 1887

100 years before Congress was legislative much more than regulatory. In 1887, Congress enacted the

Interstate Commerce Act, generally regarded as “the first great federal regulatory statute.” 8 Rather

than constantly setting and resetting railroad rates, Congress tasked the Interstate Commerce

Commission (ICC) with that responsibility. This according to Nielson was fresh and opinions were

very narrow toward this change. Nielson writes “This narrow understanding of regulatory power did

not sync well with the Progressive Movement. Woodrow Wilson would make a good point about

creating a agency that was not controlled or implemented by legislation that has a private interest.

Under this view as described by later scholars, an agency should not be “an ‘agent’ of the legislature

but instead . . . an institution constituted by the legislature to use its [own] best judgment. Fast

forward to 1930 the Supreme Court allowed Congress to delegate vast amounts of authority to
3
[SHORTENED TITLE UP TO 50 CHARACTERS] 3

agencies with little statutory direction about how the authority should be used. One problem Nielson

shows us that was wrong with this decision from the supreme court was that there were no

regulations on the agencies on what they could or could not do. Nielson says, “critics argued “that

biased agency officials exercised a lawless discretion against business.” 18 This political conflict

culminated in the Administrative Procedure Act (APA) of 1946, one of the most important statutes

in U.S. history. It is looked at like the bill of rights for the supreme court. This was viewed as a

compromise. We see in 1984 a more balance between the administrative state and federal courts, at

the same time, however, courts’ interpretations of the APA have evolved to the point there is a

balance the APA had created. We see in Nielson article the counter to Marbury vs Madison in the

case of, Chevron the Supreme Court in 1984 created the deference, which requires courts to defer to

an agency’s reasonable interpretation of the ambiguous statutes it administers, even if a court would

interpret the statute differently.22 Chevron–the “counter-Marbury [v. Madison] for the administrative

state” in my opinion Nielson shows us that if we view deconstruction as reform and nor as

destruction which takes away from the possibility of reform taking place. Nielson shows us that even

today our goal has to be how we view deconstruction as improvement.

4
[SHORTENED TITLE UP TO 50 CHARACTERS] 4

References

Aaron L. Nielson, “Visualizing Change in Administrative Law,” Georgia Law Review 49

(3) (2015

Farhang, S. (2021). Legislative Capacity & Administrative Power Under Divided

Polarization. Daedalus, 150(3), 49-67. Retrieved July 13, 2021, from

https://www.jstor.org/stable/48616693

Merriam-Webster.com

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843
(1984).
5
[SHORTENED TITLE UP TO 50 CHARACTERS] 5