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Saved By the Bar?

2014 has been a great year for reading about the tense relationship between the modern administrative state and American constitutionalism. F.H. Buckley’s The Once and Future King attempts to grapple with the accretion of power towards the executive in modern democracies, while Philip Hamburger’s Is Administrative Law Unlawful? explores the challenges that the administrative state poses for the rule of law.

A third contribution by Georgetown Law professor Daniel Ernst, titled Tocqueville’s Nightmare, argues that the tension between bureaucracy and freedom was actually resolved in American history by reformers between 1900-1940. Thus (like Jerry Mashaw’s 2012 book Creating the Administrative Constitution) it seeks to defend the administrative state against accusations that it cannot coexist peacefully without our constitutional system.

I am still working my way through the book, but the basic argument seems relatively straightforward: administrative power potentially constituted a threat to individual rights, limited government, and due process, but elite members of the American legal community reformed the administrative state so that due process and fair play existed within the administrative process. By “legalizing” the administrative process, these reformers ensured that “Tocqueville’s nightmare” was not actually realized, and we managed to avoid the tension between bureaucracy and freedom.

Ernst’s book promises to teach us a great deal about the development of the administrative state during the crucial Progressive and New Deal eras. What I find most fascinating about this period is the fact that the progressives were not of one mind regarding the administrative state. Some, like James Landis, were overwhelmingly optimistic about bureaucracy. Others, like Louis Brandeis and Roscoe Pound, saw it as a fundamental threat to American constitutionalism – even though they were progressives and therefore agreed with the ends that the administrative state would pursue. Most portrayals of progressives tend to lump them all together as architects of the administrative state, and I think that Tocqueville’s Nightmare will paint a more nuanced picture.

Ernst’s thesis also points to the fact that the American administrative state is much more judicialized, proceduralized, and litigated than those of other countries. Robert Kagan, Shep Melnick, and others have done compelling work on this aspect of the administrative state, and Ernst’s book will help us to understand the roots of our very different administrative regime.

However, I am somewhat skeptical of the view that administrative law has managed to square the circle and cure the constitutional problems prompted by the rise of the administrative state. Such a view strikes me as too optimistic, and suggests that we can replace fundamental constitutional principles with half-measures. We have replaced the separation of powers with the separation of functions within agencies. We have replaced electing our lawmakers with public participation in agency rulemaking. And so forth. In other words, we have used administrative law to stand in for the Constitution’s limits on power – which we have abandoned in the turn to extralegal administrative authority.

Thus we have sought to achieve the advantages of the administrative process while retaining some semblance of separation of powers and democratic consent. But some semblance of these principles is not the same as the real thing. As Hamburger argues in Is Administrative Law Unlawful, “The very emphasis on functional equivalents [of the Constitution’s limits on power], however, practically concedes that the government is exerting power outside its constitutionally authorized powers.” And so administrative law must meet a very high burden of proof before we accept it as an adequate substitute for American constitutionalism. In any event, Professor Ernst’s book promises to be important reading for those of us seeking to understand how the administrative state was born, how it developed, and how it relates to our Constitution.

Reader Discussion

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on June 24, 2014 at 12:03:09 pm

Administrative “Law”

E. Barrett Prettyman, in his delivery of the Barbour Lectures, at the University Of Virginia (1952[?])in each segment of the lectures asserted, “The job of the Administrator is to administer the law.” The “law” he referred to was of course legislation.

Those lectures are a sadly overlooked Memorial in the transition of “Administrative Law.” With his record of public service as legal counsel within one of the most critical administrative agencies of the federal government, Judge Prettyman would qualify as eminent amongst those Professor Ernst assigns the role of preserving constitutional protections in the administration of governmental functions.

However, in that transition of “Administrative Law,” a fundamental change occurred in the “job” of the Administrator. The legislative branch had begun to add to that job the tasks of completing legislation and giving it definitive form; particularly legislation that was more descriptive than definitive, and in many cases not definitive.

The efforts, perhaps even the capacities, of the persons comprising the membership of the legislative branches has brought about a shift in focus to electoral matters rather than on legislative responsibilities. In part, the effects were mediated by the growth and specialization of legislative staffs. The inclinations of such professional staffs have been to establish frameworks for the activities of other professionals. Much of the legislative processes have become similar to managers setting up systems of managements; essentially the nature of the administrative agencies.

“We have replaced electing our lawmakers with public participation in agency rulemaking. And so forth. In other words, we have used administrative law to stand in for the Constitution’s limits on power – which we have abandoned in the turn to extralegal administrative authority.” Postell, above

That is perhaps too kind a description of failures of the elected *and* the electorate. Professor Hamburger probably comes closer to the mark in his classification of the results of those failures.

While legislation may be concerned with the operations of the mechanisms of government, it is also comprised of Rules of Policy, which are attempts to describe, define and delineate a *desired* (conjectural?) social order and the relationships necessary for that desired social order. Constitutions, to the extent they are observed, may limit the legislative delineations of, and impacts upon, individual liberty in the formation and conduct of relationships. But, when the responsibilities for construction of legislation are delegated to professional staffs and responsibilities for completion of legislation are devolved to administrators (those charged with attaining the desired conditions), who then make the legislation definitive, constitutional restraints, and the reasons for them, become loosened or ignored in the popularity (however transient) of the desired ends.

It is probably the preference for the desirability of particular ends taking priority over consideration of the means of seeking them (let alone their actual attainment) that have led to acceptance of the abandonment and devolution of legislative responsibilities and their transfer to professional staffs and administrative managers.

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R Richard Schweitzer
on June 24, 2014 at 12:57:03 pm

" Such a view strikes me as too optimistic, and suggests that we can replace fundamental constitutional principles with half-measures."

You are being far too gentlemanly!!!!
Perhaps, willful blindness / ignorance would be a more apt descriptor.

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gabe
on June 25, 2014 at 21:10:11 pm

Joseph, "... Hamburger argues in Is Administrative Law Unlawful, “The very emphasis on functional equivalents [of the Constitution’s limits on power], however, practically concedes that the government is exerting power outside its constitutionally authorized powers.” And your, "... so administrative law must meet a very high burden of proof before we accept it as an adequate substitute for American constitutionalism" seems more appropriate then the for-going.
I thank you for the more reasonable ending.
Respectfully, John
(Facebook, author of The Tribute)

I

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John E. Jenkins
on April 17, 2015 at 10:39:36 am

Belatedly, I'd like to second the notion that Judge Prettyman is really deserving of close study. His insights as a tax practitioner (and briefly and unhappily, General Counsel to the Commissioner of Internal Revenue in the Roosevelt administration) gave him a very interesting perspective on subsequent developments, notably the procedures of the Office of Price Administration. He also straddles the adjudication and rulemaking eras of federal administrative decisionmaking. His papers at the Library of Congress revealingly supplement his opinions.

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Dan Ernst

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