Competition Between Courts and Agencies

During the late 19th century, a major reason for the creation of bureaucratic administration as an alternative to judicial administration was Congress’s determination that courts and the legal process did not implement statutes the way legislators wanted them executed. The rise of bureaucratic administration gave rise to institutional competition between the executive and judicial branch. As with market competition, however, it is not the competitors who benefit from competition but the consumer.

In this case, Congress is the consumer. Today, Congress has a choice whether to implement a statute through the legal system (that is, through a system of prosecutors or private litigants overseen by judges), or bureaucratically through the executive branch, with judicial oversight at one or two removes.

The ability of Congress to choose between administrative systems weakens the separation-of-powers system. Congress can choose which system of implementation best suits its desire for control and well as for policy. From Congress’s view, the two administrative systems rival each other.

When, as it must, a Congress empowers another institution to implement rules it creates, it faces a necessary principal-agent problem. There is always the possibility that either judges or agency leaders will pursue policy goals divergent from the legislature that authorized their power in the first place.

The politics of choice existed from the start of the rise of the modern administrative state. For example, the debate over the creation of the Interstate Commerce Commission, the first major regulatory agency, in 1887 centered on influence over legal and administrative outcomes. Two competing bills, the Cullom and Reagan bills, called for different enforcement mechanisms. The Senate supported the Cullom bill, which proposed enforcement by a commission, because Senate confirmation of commissioners would presumably nudge administrative outcomes toward Senate policy preferences. The opposing coalition supported the Reagan bill and enforcement through the legal system because they feared the Senate, and thus the railroads, would have too much control over the commission.

This element of legislative choice over which system of administration to use for statutes is often overlooked. When we discuss “delegation” we tend to think only delegation to the executive bureaucracy. More subtle, but no less real, is congressional delegation to the judiciary. And this isn’t just implementation and administration, Congress can impel judicial policy-making by writing more rather than less ambiguous laws. This is delegation to the judiciary.

While Supreme Court decisions, particularly decisions related to constitutional law, obsess scholars (and I include myself here), the day-to-day work of the judicial system comes in the thousands of trial and appellate courts, as the legal system implements and administers legislative enactments. Considering all of the trials at the national, state, and municipal level, the role of the judiciary as an administrative system certainly rivals bureaucratic administration, and may still dwarf it depending on the measure and the policy area.

Normative considerations aside, the political dimension of congressional delegation also helps explain some puzzles. For example, a standard account of the rise of bureaucratic administration is that it resulted from the need for expertise in implementing policy, expertise a legal process staffed with generalist judges and generalist lawyers could no longer supply.

This cannot explain the development of the administrative state in the 20th century. Akin to the arguments for bicameralism in which one chamber is peopled with individuals with more knowledge and expertise than those in the other chamber, it begs the question, why not just legislate using the really smart chamber? So, too, if the cause of the rise of bureaucratic administration rests on its expertise, then why does Congress continue to choose to administer laws through the legal system? If the bureaucracy is staffed with experts and the legal system with generalists, why not always implement through a bureaucracy? Something else must be going on than mere technocratic concerns.

That the bureaucratic state arose due more to political calculation than technocratic expertise, that Congress delegates to agencies when they are more politically compliant with congressional preferences than the judiciary, and delegates to the judiciary when the opposite occurs, only magnifies the separation-of-power concerns associated with the rise of the administrative state.

Reader Discussion

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on August 28, 2018 at 14:26:13 pm

"During the late 19th century, a major reason for the creation of bureaucratic administration as an alternative to judicial administration was Congress’s determination that courts and the legal process did not implement statutes the way legislators wanted them executed."

Now that is an interesting formulation of a rather complex political problem. One forgets that absent a Fed Admin State, the Judiciary IS the de facto *implementer* of Legislative mandates. (Let's put aside whether the Judicial has arrogated far too much of this *implementing" power).

It is, however, not clear, and certainly rogers provides no evidence to support the contention that the Administrative Agency "model" arose from the specific intent Rogers alleges and with the aim of reducing Judicial "implementation rather than as a means for the Congress to provide a remedy / review process somewhat less time consuming and burdensome than that provided by recourse to the Judicial apparatus.

Roger's however is quite correct in asserting that the rather rapid (prodigious) growth of the FAS in the 20th century is attributable to "political" choice by the Legislative. As I have argued before, the Legislative has bartered away its "Lawmaking" powers in exchange for the apparently less glamorous, but potentially more influential (at least to its constituents / donors) role of ombudsman. It is always satisfying to hear / read of a learned fellow / writer provide a similar analysis to that offered by a simple knucklehead such as I. Here is Christopher Demuth at current issue of CRB:


*Oversight* of the FAS agencies is more apt to allow for the Legislative's tender ministrations on behalf of their favored constituents than is a rigorously worded Legislative Act and / or the Judiciary.
The FAS also provides for a convenient "out" when the public finds out what these "ministrations" are.

So several points for rogers on this one.

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on August 31, 2018 at 13:05:36 pm

If you step back before the 19th C. in the Anglo-sphere you will see that the impulse towards a unitary judiciary that Rogers is describing is very much an American invention. Towards the end of the 16th C., the English had evolved competing courts and specialized courts. They had the courts of Common Pleas, King's Bench, Chancery (ecclesiastical) courts, several prerogative courts (Exchequer, Star Chamber and few others) and specialty courts such the Court of Admiralty and the Court of Wards and Liveries. At times both Commons and Lords constituted themselves as a court and tried individuals and there were also local courts such as the manor courts.

Beginning in the 1590s, and led by Coke, there was a movement to first defend the common law courts against those, chiefly royalists, who wanted to replace the common law with a civil code and also establish that the law was not tradition, custom, statutes and charters but rather, in Bacon's words, the law is the king speaking; and then to abolish the prerogative and Chancery courts and merge Kings Bench and Common Pleas into something like a court of general jurisdiction. This did not happen in Great Britain until the 19th C. but it happened in New England in 1633 when the Deputies and Assistants constituted themselves into the Great and General Court of the Massachusetts Bay Colony. Even then, the Great and General Court was not a court of universal general and appellate jurisdiction because local matters and cases where the amount in question was 20 shillings (one pound) or less were in the exclusive jurisdiction of the towns. The judicial function of the General Court was not separated from the legislative function until a few years after 1692.

Personally, I do not favor a court of universal jurisdiction, which Rogers seems to favor, particularly where there is no external check on the judiciary and the judges purport to hold their tenures for life. Nor do I favor the practice of routinely making specialized courts subject to judicial review by courts of general jurisdiction. On the other hand, the number of competing courts with overlapping jurisdictions that existed in England in 1600 is also to be avoided.

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