The pugnacious subtitle of Jerry Mashaw's new book suggests a very bold proposition: the widely held view that a distinct body of administrative law came into existence through the labors of early 20th-century Progressives is wrong. In truth, its creation long predated that period, but we have simply forgotten it.
The Sterling Professor of Law at Yale Law School, Mashaw is an erudite, enormously productive, and consistently instructive scholar. In this fine volume, he delivers yet again—up to a point. Mashaw makes some feints in the direction of establishing his provocative thesis, but in the end is strangely uninterested in engaging the debate directly. His story ultimately does more to confirm than debunk the conventional view.
Creating the Administrative Constitution divides 19th-century administrative practice into familiar historical periods: the Federalist "Foundations"; the Jeffersonian and post-Jeffersonian era of "Reluctant Nationalis[m]"; the era of Jacksonian "Democracy," up to the Civil War; and the Gilded Age. There was, Mashaw writes, a "hole" in the Constitution. It provided the powers to establish a post office, a patent office, a census bureau, tax collection, and much else besides, and it contemplated "Departments" of some description; but left the organization of those tasks largely to political argument and contest. That dynamic shaped the establishment and operation of agencies to administer the necessary business of government and to enforce federal law: taxes and imposts; the post office; the (Second) Bank of the United States; the Embargo Acts under the Jefferson Administration; land grants; steamboat safety; pensions; and more.
The institutional solutions, Mashaw shows, were improvised, rarely conforming to an idealized picture of detailed, self-executing laws, put into effect by a unitary executive. Congress often delegated broad discretion, as in a 1789 statute providing that pensions should be paid to wounded war veterans "under such regulations as the President of the United States may direct." The president and principal executive officers, in turn, often had to sub-delegate a great deal of decision-making authority to the agents (such as tax collectors) who would enforce the laws. In short order, these functional necessities generated systems of internal administrative "law" and controls—to Mashaw's mind, a crucial means of regularizing administrative conduct.
Moreover, not all administering bodies were executive in any meaningful sense. The Bank of the United States was more independent than the Federal Reserve. The Patent Office and the Steamboat Inspection Service were parked within the State Department and the Treasury respectively, evidently because no one had any better idea where to house them. In all practical respects, however, the agencies were under, but not directed by, the executive.
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Mashaw is particularly insightful on judicial checks on government conduct. There was independent judicial "review" (more precisely, adjudication in the first instance) for purely ministerial acts but not for what we now call "abuse of discretion." That distinction, familiar from and central to Marbury v. Madison (1803), held throughout the 19th century. And so did the precept that citizens whose private rights were at stake had to have access to an independent court. They could and often did allege that an official's conduct—the seizure of a ship, the collection of a tax—was in excess of jurisdiction. These were common-law disputes, with the key difference that one of the parties had the defense of having acted under federal authority. That defense drew the federal statute into question.
Those statutes were the only defense against the common-law remedies, including damages. No "immunity" shielded officers who had acted without legal authority. The proceedings were usually instituted in state courts, where judges and juries did to federal officers what they now do to corporations: home-cook them. The stakes, then, were high. Federal officers (a rather ambiguous title then, because the government often used private actors to enforce federal law) worked on a commission basis, which provided a potent enforcement incentive. The threat of lawsuits for damages provided an equally potent deterrent against overreach. Typically, an official's only option upon losing such a suit was to seek redress through a private bill from Congress, which apparently scrutinized the requests with some care before affording reimbursement.
That regime had great conceptual clarity. The fiendish practical difficulty was to get the incentives right and operate the system without inordinate transaction and error costs. There's no way of telling whether it did work that way; the requisite records do not exist. Mashaw compensates with case studies of ships seized, taxes laid, and bonds forfeited.
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His account is riveting, and all the more admirable because it cuts against the author's predilection. In his copious writings, Mashaw has forcefully articulated a functionalist, anti-formalist vision of administrative law. Unlike many similarly inclined scholars and jurists, however, Mashaw does not dismiss legal forms as ideological claptrap. He wants to know what work they perform and how they do it, and he's a sure-footed guide through the swamp of long-forgotten common law actions. Against his grain, Mashaw cautiously concludes that the system may have been more effective in protecting private rights than some historians have suggested.
Now and then, though, Mashaw's sympathies for the administrative state shine through and render his account suspect. For example, Mashaw rates the Embargo Acts of the Jefferson Administration, while obviously a political disaster, an administrative "success." That seems true only in the sense that the government managed to build a machinery that no one had previously thought it could or should build. More instructively, one of the best chapters in the book describes the regulation of steamboat boilers under federal laws enacted in 1838 and 1852. By the 1850s, there was a Steamboat Inspection Service that "combined the multimember structure, single-industry focus, and licensing/adjudicatory features of Progressive and New Deal regulatory commissions with the rulemaking capacities of later health and safety regulators like OSHA [the Occupational Safety and Health Administration], NHTSA [the National Highway Traffic Safety Administration], and EPA [the Environmental Protection Agency]." A permanent cadre of inspectors, armed with licensing and rulemaking power, Mashaw writes, "almost certainly" had a salutary effect in reducing accident costs and lives lost.
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That story looks doubtful on multiple counts. Even modern safety agencies, vastly more powerful and sophisticated, rarely produce meaningful gains. The progress they take credit for mostly comes from technological improvements, hastened by capitalist greed. (As a rule, killing one's customers or workers is not a profit-maximizing strategy). Highway deaths per passenger-mile have declined since NHTSA's creation four decades ago, but also declined for three decades prior to NHTSA's creation, and at about the same rate. Similarly, 19th-century steamboat owners and operators had powerful incentives to prevent boiler explosions. By Mashaw's own account, they simply did not know how to minimize accidents. The steamboat agency's truly useful accomplishment was to generate research and information that the owners themselves could not have produced. That is value added by government, but has nothing to do with the administrative state or its law.
Leaving aside cause-and-effect questions about how goods and services became safer, Mashaw's account of the Steamboat Inspection Service as a forerunner of New Deal and modern safety agencies seems wildly overblown. The service regulated vessels of a single type, which operated in federal waters and, in the event of an accident, obstructed other traffic. And it regulated a single piece of equipment (boilers) on those vessels—not the performance of the equipment, but only its technical specifications; not the hundred pieces of steamboat machinery that might also cause safety problems; and not the operators' training or working conditions. Those limitations—quite peculiar, actually, when you think of the real-world problem—reflect a far more modest orientation than the New Deal ambition of regulating entire industries, not to mention the modern-day aspiration of improving "the workplace," "highway safety," or "the environment" on a global basis.
If the Steamboat Inspection Service was a precursor or foundation, Woodrow Wilson, Ernst Freund, Frank Goodnow, and other architects of administrative law and builders of the administrative state somehow took no notice of it. They, as well as their opponents, knew their project was a genuine innovation—a departure from the constitutional framework, not an elaboration of it. As Mashaw candidly acknowledges, the Progressives looked to German models, not to American historical precedent.
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The screamingly obvious question is why those adversaries, for whom 19th-century administrative experiments were a relatively recent memory, rather than the distant ones they are today, somehow managed to "lose" an entire century of American administrative law. Mashaw has not a word to say on the point. As a result, he fails to show there was anything to lose.
He does show that 19th-century administrative practice was shot through with delegation and discretion and that it rarely conformed to a stylized model of a "unitary" executive. That may be a problem for some grim-faced originalists who insist that America was a New Jerusalem until Hegel messed it up. Mashaw does not, however, identify any such adversaries beyond a general hint that they're out there, busily propagating a "myth" of a constitutional "fall from grace."
Maybe they are, and maybe they do. Their obsessions with the separation of powers, however, are mostly products of peculiar historical constellations. The New Dealers were for the unitary executive until Franklin Roosevelt's death, and then they were against it. 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. Under a Jeb Bush Administration, supposedly constitutional loyalties might well switch yet again.
The rock-bottom, beyond-maneuvering question is whether, and on what terms, private citizens will have access to independent courts. One institutional option is a "deep" common-law system that leaves politics in its domain but affords full-scale judicial protection for private rights. The alternative is a "broad" civil or administrative system permitting claimants to test the reasonableness of official action but also requiring judicial deference of some sort, lest courts wind up running the government.
Jerry Mashaw gets this. He tags A.V. Dicey, the British legal scholar who was a contemporary of the first American Progressives, as the chief protagonist of a rule-of-law conception. For Dicey, independent courts are the crucial safeguard against government abuse, and Creating the Administrative Constitution's narrative plainly shows that the abandonment of that precept marked the advent of administrative law. Lo, the conventional story is right after all: administrative law prior to Progressivism wasn't lost—it never existed. Dicey's "error," Mashaw writes, "was only to imagine that this access [to independent courts] provided citizens of common law countries with greater protection from illegitimate administrative action than Frenchmen subject to the droit administratif."
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That drive-by assertion, proffered without a shred of evidence by an otherwise conscientious scholar, is at odds with his account of 19th-century law. It is also strangely disengaged from contemporary problems and controversies.
Our administrative law goes well beyond boiler inspections. It says that your land is our land, which you may occupy only upon proof that it is not a wetland, an owl habitat, or otherwise connected to the planet. In a recent case, the Supreme Court insisted that such claims of government omnipotence, which EPA had asserted and lower courts had affirmed, are subject to a presumption of judicial reviewability. In a concurring opinion, Justice Samuel Alito fretted over the trappings of administrative law. If you have to bargain with EPA over the "reasonable" use of your half-acre, subject to deferential judicial review, of how much use are your property rights? Maybe we should ask whether the land was yours or the government's to begin with.
The 19th century insisted on asking that question. For precisely that reason, it had no administrative law that was ours to lose.