Originalism sits uneasily with the concept of independent agencies, and textualism raises questions about the basis for some agencies' independence.
The excesses of the modern administrative state are becoming a central issue in contemporary American political debates. From the National Labor Relations Board’s intervention in Boeing’s decision to move some of its operations to South Carolina, to the Affordable Care Act’s delegation of massive power to the Independent Payment Advisory Board (IPAB) to reduce Medicare spending, Americans are increasingly at the mercy of institutions that have a tenuous connection to the Founders’ constitutional system.
The rise of these bureaucratic institutions has occurred over the last century, and controversies over the legitimacy of the administrative state have sprung up periodically throughout the last hundred years. During the New Deal, the issue of the administrative state’s legitimacy was raised primarily by the bar. The bench and the bar were the most dramatically affected by the delegation of power to administrative agencies, and they fought most vigorously against it.
One of the prominent lawyers who fought the New Deal’s expansion of administrative power was the progressive legal theorist Roscoe Pound. Many friends of Liberty Fund may not be aware that Pierre Goodrich, the founder of Liberty Fund, was a graduate of Harvard Law School, and he acknowledged his debt to Pound who was one of his teachers at Harvard. Goodrich identified Pound as one of the formative influences on his own legal and political philosophy. In a nod to Pound’s influence on Goodrich, Liberty Fund reprints one of Pound’s many books, The Ideal Element in Law.
Pound’s influence on the founder of Liberty Fund might seem startling at first to those who know Pound as one of the foremost progressive legal theorists, though it might seem rather unsurprising to those who know Pound as one of the staunchest critics of the New Deal. Pound himself has long been a mysterious figure to scholars because he was a prominent progressive yet virulently opposed to the New Deal. How can this be possible? Isn’t the New Deal a natural outgrowth of progressive political thought?
Pound’s departure from the New Deal was not prompted by a conversion to conservatism but a sense that the New Deal was a betrayal of progressivism itself. In particular, Pound objected to the dramatic expansion of unbridled administrative discretion under Roosevelt, and feared that the progressive ends of a more active federal government operating for a collective purpose would be thwarted by administrative absolutism.
Scholars have long been confused about Pound because they have failed to understand that many American progressives were rather hesitant about the possibility of centralized administration. Pound did not betray his progressive principles when he expressed this hesitation about the New Deal. Rather, he advanced an alternative understanding of the progressive state, one which embraces active government but which operates without the powerful administrative apparatus we’ve come to know in America. Revisiting Pound’s objections to the administrative state – objections from a progressive – is helpful today as we face one of the most dramatic periods of administrative expansion in our history. This is particularly true because Pound offered an alternative to the administrative state which is worth considering today.
The Problem of Administrative Absolutism
One of the most dominant elements in Roscoe Pound’s legal thought is his recognition of the tension between administrative power and constitutional government. Pound is most well-known as one of the founders of legal realism (what Pound called “sociological jurisprudence” in a series of path-breaking articles), which holds that law should proceed not from first principles but from evaluating its practical consequences. But just as prevalent as his defense of legal realism were his warnings about the rise of administrative justice, which was inherently antithetical to American constitutionalism in his view.
As early as 1907, just after the passage of the Hepburn Act which expanded the power of the Interstate Commerce Commission, Pound warned in a published speech that “the recrudescence of executive justice” was “gaining strength continually and is yet far from its end.” Unfortunately, in his view, even “the judiciary has begun to fall in line,” and “powers which fifty years ago would have been held purely judicial and jealously guarded from executive exercise are now decided to be administrative only and are cheerfully conceded to boards and commissions.”
What characterized the administrative state, in Pound’s estimation, was the expansion of the scope of issues that could be decided by administrative commissions. Powers that in the 19th century were within the scope of the courts were being transferred to agencies, and by the early 20th century the courts were conceding that “every sort of power that does not involve directly an adjudication between a citizen and a citizen” was “administrative in character and a legitimate matter for executive boards and commissions.”
Pound called this trend “executive justice,” which he defined as the “attempt to adjust the relations of individuals with each other and with the State summarily, according to notions of an executive officer for the time being as to what the public interest and a square deal demand, unencumbered by many rules.” In 1924 Pound called executive justice “perhaps the most conspicuous feature of our American law.” At an alarming rate, America was turning to executive boards and commissions rather than courts for adjudicating cases involving citizens and the government. But it was during the New Deal that Pound’s warnings turned into alarm bells.
In a 1938 report authored for the American Bar Association (which served at the time as a conservative counter-weight to the administration), Pound identified the New Deal with the rise of “administrative absolutism” and likened it to “the proposition recently maintained by the jurists of Soviet Russia that in the socialist state there is no law but only one rule of law, that there are no laws – only administrative ordinances and orders.” Despite his commitment to progressivism and sociological jurisprudence, he firmly believed that progressive aims could be pursued within the existing constitutional and legal system. Progressivism, in other words, did not require submitting citizens to the arbitrary decrees of government commissions, in Pound’s view. He urged his fellow lawyers and judges to be vigilant in their resistance to this administrative absolutism, and many of them became ardent critics of the New Deal.
Roosevelt was not amused by this backlash from the bench and bar, particularly when controversy arose over the Walter-Logan Act in 1939 and 1940. The Act was passed by Congress and would have created layers of review within each existing agency, and more importantly would have empowered courts with substantial authority to review agency rules and regulations. Roosevelt vetoed the Walter-Logan Act but a less radical reform bill called the Administrative Procedure Act was passed in 1946. That Act still governs most of American administrative law to this day, and Pound’s warnings about the New Deal must bear at least some of the credit for that monumental reform of the administrative state.
Is there an Alternative?
However, Pound’s vision cannot be equated to the Administrative Procedure Act (APA). The APA arguably gave courts greater authority to review decisions reached by administrative agencies, but Pound had something more radical in mind.
Pound likened the situation in America during the Progressive and New Deal eras to that of 16th and 17th century England. During that period, the common law as developed by courts was in friction with administrative tribunals being established by the crown. In the middle of the 16th century, Pound noted, “lawyers began to complain that the common law was being set aside” and that summary executive courts such as the King’s Council and the Star Chamber were assuming those traditional common-law powers. He explained that this was “a movement from judicial justice administered in courts to executive justice administered in administrative tribunals or by administrative officers. In other words, it was a reaction from justice according to law to justice without law, and in this respect again the present movement away from the common law courts is parallel.” In short, Pound argued that we have seen this trend toward administrative absolutism, centuries earlier in England.
Thus, Pound believed that America could be saved from administrative absolutism by following the same path that England followed during this period of crisis. The movement toward administrative absolutism would continue until the legal institutions of bench and bar were updated to serve a modern society with new conditions. The solution, in short, was for lawyers and judges to adopt sociological jurisprudence, which would allow for progressive policies to be implemented through the judicial system rather than boards and commissions. The powers being granted to agencies would be restored to their traditional place in the judicial branch. “The only way to check the onward march of executive justice,” Pound argued, “is to improve the output of judicial justice till the adjustment of human relations by our courts is brought into thorough accord with the moral sense of the public at large.” Once the courts became worthy of receiving these expanded governmental powers, they could be transferred out of agencies and back into the judicial system.
Thus Pound’s alternative to the New Deal administrative state is not what we have today: a confused system where courts use their powers of review to influence administrative decisions. Rather, it was to re-separate the powers that were deliberately combined in the hands of administrative agencies. In particular, Pound’s solution was to separate judicial and administrative power by requiring legal proceedings in courts of law (as opposed to administrative tribunals) for settling relationships between citizens and the state.
Such an alternative would not do away with administrative agencies or progressive policies. Agencies would still be necessary to investigate, prosecute, and enforce the law. But it would ensure that agencies’ decisions would be subject to constitutional checks and balances, by requiring the concurrence of independent judges. Furthermore, it would protect the rule of law by requiring judicial proceedings instead of administrative proceedings.
Pound was dismissed by his contemporaries and his ideas continue to be overlooked by today’s scholars. But Pierre Goodrich saw something profoundly important in Pound’s work, and perhaps there is no better time than now to recover what is praiseworthy in Pound’s alternative to the administrative state.
This post is based upon ideas further developed in “The Anti-New Deal Progressive: Roscoe Pound’s Alternative Administrative State,” The Review of Politics 74 (2012): 53-85.