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The Administrative State That Never Was

The forthcoming issue of the Claremont Review of Books (CRB) has, among many other fine contributions, my review of Jerry L. Mashaw’s book on Creating the Administrative Constitution: The Lost One-Hundred Years of American Administrative Law—meaning the law preceding the Progressive Era. My own verdict is that really, there wasn’t anything to lose. But it’s kind of complicated: Mashaw presents terrific arguments and evidence that many of the supposed heresies of the Progressive state had a long tradition. Contrary to the claims of textualists, formalists, and many Claremonsters, there never was a “unitary” executive, and delegation began to run riot in, oh, 1789.

If you want to know why—or entertain the contention that—Mashaw is wrong nonetheless, read the review. Better yet: subscribe to the CRB. It’s the most thoughtful, riveting, serious journal out there, bar none.

Reader Discussion

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on August 13, 2013 at 23:10:10 pm

This review is a great read. It reminds me of the sudden switch from the Commerce Clause protecting the freedom of interste trade from state intervention, to putting trade and everything resembling it, occurring anywhere, under the thumb of the larger state.

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John Ashman
on August 19, 2013 at 12:00:33 pm

Nice review. There was one sentence I would question, however:
"Reagan conservatives campaigned vehemently (and successfully) against legislative vetoes of administrative action, but their current agenda is to bestir a feckless Congress to control a run-away executive government."

It seems to me that the motivations of Conservatives to get rid of the leg veto which resulted in the Chadha ruling are quite different than current attempts by Conservatives in Congress to reign in the Obama administration. Sure, there is a flip-flop in emphasis on the executive branch instead of the legislative branch, but the Leg veto debate was about more than temporary loyalty to a branch of government. The leg veto was a fig leaf which Congress would cite as evidence of "oversight" of the administrative agencies which also clearly violated the "Presentment" clause of the Constitution, cutting the President out of the picture. My point is that Conservatives have been consistent in attempting to defend Constitutional principles in both the current day case and the case you cite from the Reagan years, and your jab at them seems unwarranted

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CJ Wolfe

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