Posted: February 9, 2018
s Administrative Law Unlawful? was the deliberately provocative title chosen by Columbia Law School’s Philip Hamburger for his 2014 book on the constitutional consequences of the bureaucratic model that has dominated American lawmaking in modern times. His answer was emphatic and clear: administrative law hardly deserves to be called law at all. By allowing agency rules to have binding effect with only tenuous legislative authorization, and by permitting agencies to interpret and adjudicate their own rules with little supervision by Article III courts, administrative law radically altered the Constitution’s understanding of republican government; it was, at best, little more than an effort to mask bureaucratic caprice in the forms of law. (Hamburger elaborated this theme at 500-plus pages in his original treatise. Happily for those who prefer the nutshell, Encounter Books has now given us a short distillation of his argument in The Administrative Threat—a perfect pamphlet for the lawyer or government major in your life.)
Hamburger’s critics seemed to be as annoyed with his question as they were with the bluntness of his answer, their silent assumption being that anyone who raised the question was, almost by definition, outside the pale of respectable opinion. In a word, he had questioned not just this or that policy, procedure, or program of the administrative state; he challenged the legitimacy of its very foundations. The characteristic legal procedures of the administrative state, Hamburger argued, stood in sharp contrast to those that had been articulated and institutionalized by thoughtful statesmen at great cost over many centuries, first in English efforts to restrain royal prerogative, and eventually in America, which formally established consent of the governed and limited government as the cornerstones of its constitutional order. By displacing legislative deliberation in favor of bureaucratic expertise, administrative law undermined consent and accountability. And by permitting regulatory agencies to combine powers the Constitution sought to keep separate, it undermined the chief institutional device through which government was to be limited.
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With rare exceptions, this kind of argument is seldom raised in the academy these days, least of all in the law schools, which act as a sort of Praetorian Guard for the institutions of the administrative state. Given contemporary legal education’s focus on process over principle, such neglect is more easily explained than justified. One would think that even lawyers might be curious about this question: how is it that a regime devoted to limited, representative government somehow morphed into one in which virtually all law is created by unelected administrators? The most commonly accepted explanation for this phenomenon is what might be called the Topsy Thesis. Readers will recall the character of that name in Uncle Tom’s Cabin who explained her development by saying “I s’pect I growed. Don’t think nobody never made me.”
This explanation contains a kernel of truth, but goes only so far. Among other things, it confuses the growth of government as such with the most distinctive feature of modern government: the effort to separate politics and administration. On the causes and consequences of that effort, one must turn to the thought of the early Progressive theorists and practitioners, who saw themselves not only as agents of bigger government but as prophets of a new constitutional order. They understood very clearly that the establishment of the administrative state would require the radical modification if not elimination of the principles and institutional devices of the founders’ Constitution. Their belief, and that of their disciples, was that the original Constitution—and especially the separation of powers—was fundamentally deficient to begin with or had certainly become so by the late 19th century. The nation had, as the saying now goes, moved on. History, they decreed, had displaced Nature as the nation’s lodestar, and that was that.
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With minor rhetorical adjustments here and there, that understanding of modern political and legal development has dominated most American history, political science, and law school curricula ever since. Even so, declaim as they might that History has rendered the original Constitution obsolete, progressives have begun to notice of late, somewhat nervously, that Nature has not gone gently into that good night after all. Hamburger’s book is but one recent and noteworthy example of a large and remarkably robust body of revisionist scholarship challenging many of the most important features of the Progressive Project. This revisionist literature cuts across many disciplines, including political philosophy, American history, economics, and law, and is now too large and too thoughtful for contemporary progressive enthusiasts to ignore. What they will eventually do about it remains to be seen, but issues critical to the maintenance and operations of the administrative state are being debated with a breadth and depth not seen for the better part of a century. These ideas have even begun to circulate among thoughtful federal office-holders in all three branches.
Into this mix comes Joseph Postell, who teaches at the University of Colorado at Colorado Springs and has been laboring productively in these revisionist vineyards for some years now. His efforts have borne fruit in Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, a highly informative, crisply written mini-treatise that provides a useful introduction to almost everything important one needs to know about its subject. The book can hold its own as a monograph in American political development, as an exercise in applied political theory, and as a legal commentary on the separation of powers in our time. Under all of these rubrics, it is at once a tightly condensed summary of leading scholarship to date and an original work of historical and political analysis.
Postell questions many of the arguments advanced in support of the administrative state, but he is scrupulously fair when discussing them. There are more refined (and more recondite) legal discussions; there are more detailed and nuanced historical analyses. But much of that scholarship, useful as it is, seldom sees the forest for the trees. Until now no one had tied together most of the major revisionist themes in one place in such an inviting and instructive manner. The book should be required reading for political science and even law students wishing to learn how modern American bureaucracy came to be, and whether it works (or doesn’t), and why.
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A number of Postell’s achievements in the book deserve particular notice. Unlike Progressive critics of the American Founding who believed the original Constitution was incapable of doing much of anything, and unlike those conservatives who project a golden era of laissez faire onto the early republic, Postell understands that government regulation was fairly extensive in the early decades of the 19th century. He also takes seriously the political philosophy of the founding, which sought to establish not weak government, but one that was simultaneously limited and energetic. In a free country, there were factional interests aplenty who were not shy about importuning government for special favors. James Madison foresaw the phenomenon more or less perfectly and offered his remedy, most memorably in The Federalist: forcing factional interests through a constitutional grid, dominated by the extended republic and the separation of powers, would lessen or eliminate their mischiefs.
In discussing early regulatory developments, Postell addresses the work of scholars like Yale Law School’s Jerry Mashaw, who tend to see early regulatory examples as precursors to the administrative state that arose in the next century. Not so, Postell argues, after carefully re-sifting the evidence gathered by neo-Progressive revisionists. To the contrary, true to Madison’s vision, Congress jealously held onto its legislative franchise and eyed regulatory bodies of all kinds with great suspicion. On the critical issue of delegation, Congress with rare exceptions was careful to set particular metes and bounds to authority exercised by executive and judicial bodies. Postell’s examination of the relevant political and legal evidence here is a nicely delineated piece of careful research that will repay close attention.
The administrative regime that emerged in the early 20th century, Postell argues, differed not only in degree but in kind from what had gone before. For most of American history, the growth of regulation was matched by Congress’s jealous protection of its own powers. When creating enforceable legal rules, Congress took care to delineate standards with reasonable specificity. There was nothing like the kind of delegated legislative authority routinely encountered today, when Congress is all too happy to transfer policymaking powers to regulatory agencies. In a word, the modern administrative state didn’t “evolve” from early American precedent; it didn’t even begin, as is commonly assumed, with the creation of the Interstate Commerce Commission (ICC) in 1887. It would be nearly another generation before the ICC became a kind of model for federal regulatory agencies which later dominated the federal landscape. What changed in the interim was the constitutional mindset that informed federal legislation, a mindset that had been decisively re-formed by the Progressive indictment of the founding. Postell’s discussion of the intellectual and political history of the administrative state’s evolution prior to the New Deal is comprehensive, eminently fair, and instructive. In a short space, there is nothing to match it, and for that alone he is to be congratulated.
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His treatment of subsequent developments is comparably sure-footed and revealing. He walks us through battles within the Progressive camp as well as conflicts between Progressives and their intellectual and political opponents. His analysis of the 1946 Administrative Procedure Act, how it came to be, and how it regularized what earlier generations would have seen as constitutional heresy is first-rate, and sets the stage for his final chapters, which highlight the explosion of federal regulatory activity in the 1970s, the more or less complete surrender of Congress to open-ended delegations of its legislative authority across a wide front, and the mischief of undue judicial deference to bureaucratic authority. On all of these subjects, Postell has something pointed and imaginative to say, and he says it exceeding well.
At the core of Bureaucracy in America is Postell’s concern with constitutional legitimacy. Despite the dominion of Progressive thought in modern political culture, there remains a continuing sense of unease among progressives and conservatives alike about the now nearly century-old effort to substitute the efficiency of bureaucratic expertise for the messiness of political deliberation. To the extent his book conveys a message, it is that the virtues of the former are greatly exaggerated, while those of the latter are frequently ignored. Can the administrative state be re-constitutionalized? On Postell’s showing, the contours of an argument along that line can be imagined, beginning with a Congress that minds the details when it delegates lawmaking authority and a judiciary that actively polices agency arbitrariness. These are difficult but not impossible tasks. One would be hard-pressed to identify a better starting point than immersing oneself in the lessons so adroitly presented in Joseph Postell’s new book.