Publication Date

5-2026

Journal

The Yale Law Journal

Abstract

Modern administrative-law scholarship, theory, and doctrine generally conceptualize agencies as engaging in three primary functions: rulemaking, enforcement, and adjudication. This understanding of agencies has informed deep debates surrounding the power, independence, and constitutional legitimacy of the administrative state. But the prevailing account is incomplete. It overlooks a fourth core function of the administrative state: its fact-making, or epistemic, function. Across the administrative state, agencies create and disseminate information in ways that are uniquely comprehensive and uniquely powerful. Agencies’ epistemic outputs include the census generated by the Census Bureau, repositories of public-health information maintained by the Centers for Disease Control and Prevention, weather data generated by the National Oceanic and Atmospheric Administration, and economic data generated by the Bureau of Labor Statistics. This information—agency-made facts—wields official power within our democratic legal system. Political apportionment, monetary policy, climate policy, vaccine distribution, and the allocation of resources and social services all hinge on the administrative state’s epistemic work. Across the administrative state, agencies create and disseminate information in ways that are uniquely comprehensive and uniquely powerful. Agencies’ epistemic outputs include the census generated by the Census Bureau, repositories of public-health information maintained by the Centers for Disease Control and Prevention, weather data generated by the National Oceanic and Atmospheric Administration, and economic data generated by the Bureau of Labor Statistics. This information—agency-made facts—wields official power within our democratic legal system. Political apportionment, monetary policy, climate policy, vaccine distribution, and the allocation of resources and social services all hinge on the administrative state’s epistemic work.

Volume

135

Issue

7

First Page

2525

Last Page

2613

Publisher

Yale Law School

Disciplines

Administrative Law | Law

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