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A New Classic in Administrative Skepticism

Not long ago, Americans were entertaining the prospect of a 2020 presidential race between Donald Trump and Oprah Winfrey. Although the Oprah boomlet appears to have fizzled, one could not avoid thinking that a country contemplating a choice between two television celebrities takes its presidential elections literally, but not seriously. Were the President a mere figurehead, we might shake our head in wry bemusement, but in the past 100 years the importance of the federal executive has grown exponentially, aided by a Congress happy to delegate power while disclaiming responsibility. In response, an increasing number of scholars and jurists have criticized the rise and rise of the administrative state. Joseph Postell’s history, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, is an important new contribution to this discussion.

To put the point more strongly, Bureaucracy in America is essential reading for the new critics of the administrative state, and their critics as well. In fact, it may be even more important than the book that launched the revival in administrative skepticism, Philip Hamburger’s Is Administrative Law Unlawful? Hamburger’s insistence on analogizing between the contemporary administrative state and English monarchical power, while rhetorically powerful, skips over much of 200 years of American constitutional and administrative law. Consequently, one major line of criticism focuses on whether Hamburger gets his English history right. Another contends that English history is irrelevant, given that subsequent American history and doctrine shows the administrative state to be lawful. If the administrative state’s critics are litigating details of the Star Chamber while ceding the field on American legal history and practice from 1787 to 1987, its defenders have little to fear.

By contrast, Postell, an associate professor of political science at the University of Colorado, carefully traces the history of American administrative law from the colonies to today. In doing so, he challenges two defenses of the contemporary administrative state: 1) that it is not an innovation on our original constitutional order, and 2) that any departure from original order was good and necessary—even inevitable. Bureaucracy in America contests the first point robustly. The case he makes on the second is more indirect and ambiguous, yet nevertheless illuminates our current predicament and potential responses to it.

The first half of the book is an extended historical argument against the thesis that the current administrative state was baked into our constitutional order from the beginning. Against scholars like Jerry Mashaw, Postell contends that from the early Republic to the Progressive Era, federal governance largely conformed to a model in which Congress refused to delegate to executive agencies broad, discretionary legislative power. The President, he writes, had unitary authority over the (comparatively small) executive power, and the courts defended their power to say what the law is (with a notable exception being Justice Roger B. Taney). He challenges, for example, the received wisdom that federal regulation of steamships in the mid-19th century and the Interstate Commerce Commission Act of 1887 were important precursors of Progressive-style administrative governance. These legislative measures, Postell argues, did little to alter the traditional separation of powers.

The author thus contends that the administrative state as we know it did not arise until the time of President Wilson, indicating that its birth coincides with the more general collapse of originalist constitutional interpretation. In fact, justifying the modern administrative state appears to be a primary motivation for developing interpretive approaches that elude the Constitution’s original limitations. Perhaps incidents like the Embargo Act of 1807 contained the seeds of the administrative state, but Postell says they could not take root and grow without the sustenance of 20th century Progressive constitutional theory. Historians of that period are in a better position than I to evaluate the force of these claims, though Postell’s account of more recent eras (with which I am more familiar) gives me confidence in his interpretive skill and fairness.

Now for the defense of the current disposition as not only good, but necessary and inevitable. Against the inevitability thesis, Postell presents a number of historical alternatives. The reader learns about Founding Era state administrative law, where delegation was more substantial and powers were less separated, but direct political and judicial supervision was more vigorous. Against those who consider executive agencies necessary for granular policymaking, we see the detailed legislation Congress passed in the 19th century or the proposal (from administrative champion James Landis, of all people) that Congress ratify agency-authored regulations before they become law. We see  even Woodrow Wilson, the avatar of 20th century administrative Progressivism, campaigning against Theodore Roosevelt’s New Nationalism and arguing that government’s proper role is to break up large economic entities and diffuse power, rather than manage conglomerates through the kind of consolidated commissions that would come later in the New Deal. In this respect, Postell’s work resembles a conservative version of a critical legal history, one that unearths latent alternatives suppressed or excluded by a dominant, politicized story of bureaucratic necessity.

None of the alternatives he presents flourished after the election of Wilson, whose administrative policies began to resemble the New Nationalism he ran against in 1912. Rather, we see increasing, consolidated federal power in the presidential and independent agencies, and an ever-more-dysfunctional Congress that delegates its power with broad generalities when not crafting inscrutable specificities. Postell’s history of more recent legal doctrine governing judicial review of administrative procedures and decisionmaking  also demonstrates that the judiciary has done little to restore the original order or provide a workable facsimile thereof. Progressive efforts on the D.C. Circuit in the 1970s to increase interest-group participation and agency accountability resulted in substituting judicial regulatory preferences for those of agencies—hardly a hallmark of ordered liberty. Conservative judges in the 1980s, Postell argues, chose expediency over constitutional principle by allowing agencies to run free because they were heading in a deregulatory direction anyway.

Can we restore the original settlement jettisoned in the Progressive Era—and should we? Postell’s implicit answer to both questions is yes, but his work requires more argumentation on that front. This is not a damning criticism of the book, which is primarily a work of history. Its affirmative argument on this normative question is more a matter of showing, rather than telling: courts used to be willing to draw lines between (inevitable) executive discretion and (unlawful) legislative delegation; Congress used to make major, detailed policy decisions on its own; state practice shows that activist government does not require the post-New Deal dispensation. Like infant baptism, we can believe in the alternatives because we’ve seen them done before. None of these examples amounts to  a conclusive argument, but there is something to be said for drawing on the past to demonstrate the plausibility of an alternative future.

Yet questions persist. The detailed 19th century legislation on postal routes and steamship regulation may demonstrate Congress’ capacity to regulate without expert agencies, but such legislative examples may also induce despair when we contemplate the decisions Congress would have to make today on, say, the safety of nuclear power plants.

There is the even more troublesome question of whether advocates of the original constitutional order should count on the courts to steer us aright. The departure from the old order was a three-branch project, and one that many people today support. Withholding deference on questions of law would leave large swaths of delegated agency policymaking unchecked. Without limiting such administrative authority, judicial restoration of a unitary executive would further concentrate power in the presidency and diminish the role of Congress. And reining in such broad delegations of discretion (the core of the problem) is far more challenging and controversial. Relying on slim Supreme Court majorities to revive a non-delegation doctrine whose principles the courts have not applied for decades could very well lead to failure and backlash, not a constitutional restoration.

The deeper challenge, as Postell’s book demonstrates, is that Americans chose a larger, more centralized federal government, and the judiciary aided and abetted, or at least accommodated, that choice. Courts are not powerless on this front: Refraining from deference to executive branch agencies on questions of law is not only within judicial competence but emphasizes traditional understandings of separation of powers. Still, any thoroughgoing reform will likely have to come from politics and persuasion.

Bureaucracy in America is a history that offers possible ways forward. Its account of the activist, yet politically accountable, state administrative regimes suggests that more radical, federalist decentralization could offer the active government and the self-governance that many Americans desire—goods that a centralized government responsible for more than 320 million people struggles to deliver. Until recently, such a proposal may have appeared merely academic in the pejorative sense of the term. But if the past few years have taught us anything, it is that more is possible in American politics than we expect.

Reader Discussion

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on March 13, 2018 at 15:08:09 pm

From Claremont Review, Spring 2012, here is John Marini:

"Insofar as Congress is still tempted to make general laws on behalf of a perceived public good, it does so primarily on behalf of the expansion of the administrative state. For example, Congress passed what appeared to be a general law concerning health care reform, the Obama administration’s Patient Protection and Affordable Care Act. But it is clear that this is not a law in the constitutional sense. It makes sense only within the context of an administrative state. The health reform bill was more than 2,500 pages long. But it was not a general law; rather, it established the legal requirements necessary to provide the administrative apparatus with the legal authority to formulate the rules which would govern health care nationwide. Like the creation of the gigantic, bureaucratic, Department of Homeland Security, or the Dodd-Frank legislation that regulates the banking industry, this was a congressional action on behalf of the expansion of administrative power. This kind of extension of legislative power is compatible with the government as part of the administrative state, but it cannot be understood to be within the letter, let alone the spirit, of constitutional government. "

Notice the shift in *intent*, the Legislative is no longer desirous (or, perhaps, even capable) of LEGISLATING, rather, its current focus appears to be PROVIDING the Agency *experts* with sufficient authority and flexibility to regulate in all manner of circumstances.

Now consider those arguments which claim that the Federal Administrative State is simply a fulfillment of a previously accepted tendency within our constitutional regime, such as Inter State Commerce or Steamship Regulations. The most salient difference between those 19th century Congressional *authorizations* is this:
Earlier Congresses crafted the actual detailed provisions and retained power over those detailed laws; 20th / 21st century Congresses simply delegate authority (power?) to the Agency to write the laws in all their details, to include "dispensations / waivers with the Congress content to serve simply as an "ombudsman" over the true law/rule making body.

A tad bit different, I would suggest.

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gabe
on March 14, 2018 at 08:05:59 am

Good points, Mr. Gabe.

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Paul Binotto

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.