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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.

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