Federal Administration and Administrative Law in the Gilded Age
Mashaw, Jerry L., The Yale Law Journal
ARTICLE CONTENTS INTRODUCTION A. A Nation Transformed B. Locating Public Administration and Administrative Law C. The Plan of This Study I. POLITICAL CONTROL OF ADMINISTRATION A. Appointments and Removals, Again B. The Path to Pendleton C. The Efficacy of Political Control II. LEGAL CONTROL OF ADMINISTRATIVE ACTION A. The Limits of Mandamus B. Officers vs. Offices C. From Mandamus to Merits Review? D. The Rigors of Indirect Review III. ADMINISTRATIVE ADJUDICATION AND THE "INTERNAL LAW" OF ADMINISTRATION A. The General Contours of Agency Adjudication B. The Case of Military Pensions 1. The Rise and Rise of Military Pensions 2. Making Pension Policy 3. Processes of Pension Adjudication 4. Center and Periphery at the Pension Office 5. Examining Surgeons 6. Pension Administration's Internal Law C. Regulation and Adjudication at the Post Office 1. The Emergence of Post Office Regulation 2. Fraud Order Jurisdiction 3. Implementation 4. The Fraud Order Process IV. ADMINISTRATIVE LAW IN THE GILDED AGE A. Political Accountability B. Legal Accountability C. Managerial Control Through Internal Law CODA: THE JURISPRUDENTIAL STATUS OF INTERNAL ADMINISTRATIVE LAW
According to historical convention, (1) federal administrative law emerged with the late nineteenth-century passage of the Interstate Commerce Act of 1887 (ICA). (2) The ICA initiated federal regulation, housed it in a novel administrative body, and elicited the first important judicial attempts to integrate national administrative governance into contemporaneous conceptions of the rule of law. When combined with the reforms of the Pendleton Civil Service Act of 1883, (3) the 1890 Sherman Antitrust Act, (4) the 1906 Pure Food and Drug Act, (5) and the 1914 Federal Trade Commission Act, (6) the late nineteenth and early twentieth centuries witnessed the gradual construction of a modest national administrative state, and with it a national administrative law.
Other students of American political development view even these events as leaving the national government largely in the hands of Congress, the courts, and political parties. For them, and for most twenty-first-century administrative lawyers, administrative law remains virtually invisible until the New Deal. (7) According to that familiar narrative, the plethora of New Deal agencies that were created in the 1930s and early 1940s finally broke the national government free from laissez-faire constitutionalism. But muscular national administration generated a backlash resulting in the explicitly transsubstantive (and now quasi-constitutional) federal Administrative Procedure Act (APA). (8) Here finally was administrative law worthy of the name. On this account federal administrative law is a twentieth-century creation and, perhaps, a mid-twentieth-century creation at that.
This Article, and its three predecessors, (9) have a simple message. The standard history of the development of American administrative law is at best partial and in many respects incorrect. The national government of the United States was an administrative government from the very beginning of the Republic. Moreover, that administrative government then, as now, was both constituted and constrained by law. In short, America had a federal administrative law long before that field of law was either recognized or named.
In some sense this claim is trivially true. Neither Congress nor the Constitution's two executive officers could deliver the mail, collect taxes, distribute military pensions, manage the public debt, award invention patents, survey and sell public lands, or carry out the host of other functions that emerged from legislation passed in just the first few Federalist congresses. (10) And notwithstanding the early shift in political authority, from "big government" Federalists to "small government" Jeffersonian and Jacksonian Democrats, the ratio of national civilian administrative officials to national population increased steadily throughout the antebellum period. …