A Pragmatic Republic, If You Can Keep It
Sherman, William R., Michigan Law Review
A PRAGMATIC REPUBLIC, IF YOU CAN KEEP IT
Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law. By Jerry L. Mashaw. New Haven and London: Yale University Press. 2012. Pp. x, 316. Cloth, $75; paper, $45.
These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence.
We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre to the Founders, leaving these agencies with a deficit of constitutional legitimacy. This notion can be found in the Supreme Court's conclusion that the Affordable Care Act's Medicaid provision impermissibly commandeers state resources,1 in the adherence to congressional delegation in Chevron and its progeny,2 and in the academic debate over the role of political policy preferences in agency rulemaking.3
Supporters and adversaries of agency action alike perceive this lack of historical legitimacy as a weakness either to be shored up or attacked.4 Previous accounts of the development of the administrative state have posited that its key features-congressional delegation, internal and external rules, adjudication of individual rights, judicial review of agency action, specialized bureaucratic knowledge-arose as a result of legislation in the New Deal and World War II eras,5 through the Progressive movement,6 at the adoption of civil service reform and the Interstate Commerce Act in the 1880s,7 or as far back as the Civil War.8 Thus, modern critiques sketch a long fall from a state of constitutional grace, during which the nation's legal system has drifted far from the simple, self-executing laws of the early United States.9
Wait. Not so fast. Jerry L. Mashaw's10 new "exercise in historical institutionalism" (p. 17), Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law, painstakingly and conclusively shows that the conventional account of the provenance of and the problems posed by administrative law is just plain wrong. Mashaw demonstrates that administrative governance on a broad and complex scale has existed from the earliest days of the Republic (p. 5) and that the settled patterns of behavior surrounding it sketch the outlines of an unwritten "administrative constitution" (p. 16).
Instead of looking at the 1860s, 1880s, 1910s, or 1930s, Mashaw starts at the beginning-on the first pages of the U.S. Statutes at Large (p. viii). What he finds is the record of a nation neither hidebound by tripartite constitutional theory nor obsessed with the differences between rulemaking and rule implementing. Rather, the record shows an intensely pragmatic Congress and executive attempting to solve problems using whatever tools were available and inventing new tools as they went. Where the modern assumption has been that founding era Congresses specifically delegated only very discrete powers to administrative agencies, in fact the first Congress established the Departments of War and State, specifying little more than that these agencies should act as the president instructed, and authorized agencies to adopt whatever regulations the president chose with respect to military pensions and certain aspects of trade embargoes (pp. 290-91).
Thus, the history of the American administrative state is much more complex, and more interesting, than the fall-from-grace myth that underlies so many of our current debates. In setting the record straight, Mashaw has written an indispensable book for anyone seeking to understand the roots of, legitimacy of, and problems facing the American administrative state. …