Now that Justice Kavanaugh is confirmed we can expect a spate of articles saying that the new majority on the Supreme Court will cause the sky to fall.
Mashaw on the Administrative State
A recent book review by Joseph Postell discusses the new book by Jerry Mashaw entitled Creating the Administrative Constitution. Mashaw’s book is an attempt to rebut the common claim that the United States initially did not have an administrative state, but only developed one much later, especially during the 20th century. Postell does a good job of questioning Mashaw’s premise that if the United States employed some agencies early on that had some of the powers of latter day administrative agencies that means that the United States had an administrative state from the beginning.
Mashaw taught me Administrative Law in law school. As a teacher of Administrative Law, I am sorry to admit that I never really “got” Mashaw’s course. Some of the time I was not really sure what exactly he was claiming. At other times, I was not sure why he wanted to make a certain claim. And at other times, I just couldn’t understand why he thought that something he recommended was actually good.
Mashaw lives in a different world than me. He thinks that markets have very serious limitations and that elections are also very imperfect. Instead, he thinks bureaucracy provides a significant solution to problems of governance in modern society. I have very little sympathy for this arrangement, as I think that government bureaucracy has limited checks on it and does not really work terribly well.
Mashaw’s book should be understood against this background. My sense is that he is trying to eliminate one of the critiques of the modern administrative state – that it is inconsistent with the early history of the country and the genius of America.
I don’t know how well he succeeds in his task, as I have only reviewed some of the articles that the book is based on. But even if he shows that from “the earliest days of the Republic, Congress delegated broad authority to administrators, armed them with extrajudicial coercive powers, created systems of administrative adjudication, and specifically authorized administrative rulemaking,” that would not, in my view, make an administrative state. The government in the beginning was extremely limited — a very small percentage of GDP. Such a government cannot be an administrative state, even if it uses the modern methods of administrative agencies.
The methods that the administrative agencies exercised – whether, for example, they were delegated legislative power – are important questions. For an originalist like myself, they would be evidence of whether the Constitution’s original meaning would allow such delegation. (For my own attempt to address some early examples of delegation of legislative power, see here.)
But a small government that delegated discretion to administrative agencies, whatever it might suggest about the Constitution’s original meaning, would not constitute an administrative state.