It’s been great fun blogging at LibertyLaw this month, and I thank Richard Reinsch for the opportunity to opine. As I conclude my tenure as guest blogger, I want to respond to some of Greg Weiner’s very interesting and provocative suggestions about Congress and the administrative state. He is right to focus on Congress as the centerpiece of any successful reform movement, but I have a few tentative hesitations about his suggestions.
Though it’s been a few weeks since it appeared, I would be remiss if I didn’t mention Stephen Knott’s excellent piece on whether Woodrow Wilson destroyed the office of the presidency. The clamor about the imperial presidency is on the rise with many commentators (such as George Will) and Knott’s article gives us a better understanding of its rise, as well as its implications. Knott describes the “expectations gap” that has arisen due to modern conceptions of the presidency, where we expect the president to heal the planet, rather than work to enact reforms within the institutions of constitutional government.
In response to Professor Knott I would only mention that I think Woodrow Wilson may not even deserve top billing in terms of producing the rise of presidential power.
2014 has been a great year for reading about the tense relationship between the modern administrative state and American constitutionalism. F.H. Buckley’s The Once and Future King attempts to grapple with the accretion of power towards the executive in modern democracies, while Philip Hamburger’s Is Administrative Law Unlawful? explores the challenges that the administrative state poses for the rule of law.
A third contribution by Georgetown Law professor Daniel Ernst, titled Tocqueville’s Nightmare, argues that the tension between bureaucracy and freedom was actually resolved in American history by reformers between 1900-1940. Thus (like Jerry Mashaw’s 2012 book Creating the Administrative Constitution) it seeks to defend the administrative state against accusations that it cannot coexist peacefully without our constitutional system.
In a decision that has been criticized on both the right and left, the FDA announced a ban last week (via executive decree) on the use of wooden boards for aging cheese. It has since relented after receiving pushback from cheese interests, including the American Cheese Society. While hardly unprecedented, this example of bureaucratic rule helps illustrate a few basic, fundamental problems with the administrative process.
Like many others at the moment, I am making my way through Philip Hamburger’s Is Administrative Law Unlawful? One of the most shocking chapters is his chapter on America’s “Return to Extralegal Adjudication,” a problem that constitutional law had originally aimed to constrain, but which has re-emerged in the context of the modern administrative state.
I knew that there were problems with administrative adjudication – I just didn’t grasp how pervasive the problems were until Hamburger laid them out so systematically.
World Cup 2014 competition resumes this week, with 32 teams in eight groups competing for 16 spots. Each group features four teams in a round-robin format, so every team will play three matches. The two top point-earning teams in each group will advance to the round of 16. (The Americans’ prospects for advancement appear somewhat but not altogether bleak.)
European football has always puzzled me in comparison to American sports. Europeans often pride themselves in advancing a more egalitarian society in which opportunities for success are widespread rather than concentrated. By contrast, the Americans, they argue, allow for great disparities and inequalities of income and wealth. (Some argue that the facts do not support this fulmination against income inequality, but leave that aside for purposes of this argument.)
The basic impulse of this criticism is a desire to promote equality of outcome, rather than greatness. If some at the top have to be moved down a notch or two, we may sacrifice magnificence at the top, but we will provide greater and more widespread opportunity overall.
The reason I find this puzzling is that, when applied to sports, Americans tend to prefer egalitarianism – known in sports as parity – when compared to their European counterparts. All joking about the Yankees and Lakers aside, championships are more widespread in American sports than in European football.
I’ve just finished F.H. Buckley’s excellent new book The Once and Future King. I’m reviewing the book for another outlet so I won’t repeat myself here, but here’s the short version: Professor Buckley has identified a key weakness in the American system of government, but perhaps has misidentified its roots. Regardless, I think that his book is very important for thinking about a way out of our present gridlock and dysfunction.
Here I would like to take up and challenge one of the most controversial parts of Buckley’s argument.
I’m thrilled to be guest blogging this month, and looking forward to discussing the administrative state, political parties, and other topics. For my first post I want to bring up an interesting question that emerged in a review by Ted McAllister (and in the comments) from last week, regarding the origins of the modern regulatory/administrative state. Scholars often trace the birth of the administrative state to the 1880s, especially in two critical episodes: the passage of the Pendleton Act in 1883 which created the modern civil service, and (more importantly) the passage of the Interstate Commerce Act in 1887, which created the Interstate Commerce Commission. This history of the administrative state makes the late nineteenth century the critical turning point in American history.
This is a plausible, but ultimately I think a mistaken history. The regulatory initiatives of the late 19th Century were much more consistent with an earlier view of American constitutionalism that they appear at first glance. They were not necessarily harbingers of the modern administrative state. Tracing the birth of the administrative state to the 1880s is somewhat misleading.
Roscoe Pound and the Progressive Path Less Traveled
Given his significance in 20th century American legal thought, it is stunning that Roscoe Pound is not more widely recognized by contemporary legal scholars. He was the Dean of Harvard Law School, one of the foremost legal intellectuals of the 20th century, and his advocacy of “sociological jurisprudence” had a profound effect on the course of American jurisprudence. Yet he is not widely studied in law schools today. One important reason for his neglect is that Pound’s views are extraordinarily difficult to discern. He was not always a clear writer, and the subtleties of his thought are often difficult to decipher.
Scholars have long been perplexed about Pound’s legacy. Most have simply concluded that Pound’s political views changed over time – that he moved from his early progressivism to the right, a tendency which became especially pronounced after the New Deal.
The excesses of the modern administrative state are becoming a central issue in contemporary American political debates. From the National Labor Relations Board’s intervention in Boeing’s decision to move some of its operations to South Carolina, to the Affordable Care Act’s delegation of massive power to the Independent Payment Advisory Board (IPAB) to reduce Medicare spending, Americans are increasingly at the mercy of institutions that have a tenuous connection to the Founders’ constitutional system.
The rise of these bureaucratic institutions has occurred over the last century, and controversies over the legitimacy of the administrative state have sprung up periodically throughout the last hundred years. During the New Deal, the issue of the administrative state’s legitimacy was raised primarily by the bar. The bench and the bar were the most dramatically affected by the delegation of power to administrative agencies, and they fought most vigorously against it.
One of the prominent lawyers who fought the New Deal’s expansion of administrative power was the progressive legal theorist Roscoe Pound. Many friends of Liberty Fund may not be aware that Pierre Goodrich, the founder of Liberty Fund, was a graduate of Harvard Law School, and he acknowledged his debt to Pound who was one of his teachers at Harvard. Goodrich identified Pound as one of the formative influences on his own legal and political philosophy. In a nod to Pound’s influence on Goodrich, Liberty Fund reprints one of Pound’s many books, The Ideal Element in Law.
Pound’s influence on the founder of Liberty Fund might seem startling at first to those who know Pound as one of the foremost progressive legal theorists, though it might seem rather unsurprising to those who know Pound as one of the staunchest critics of the New Deal. Pound himself has long been a mysterious figure to scholars because he was a prominent progressive yet virulently opposed to the New Deal. How can this be possible? Isn’t the New Deal a natural outgrowth of progressive political thought?
Pound’s departure from the New Deal was not prompted by a conversion to conservatism but a sense that the New Deal was a betrayal of progressivism itself. In particular, Pound objected to the dramatic expansion of unbridled administrative discretion under Roosevelt, and feared that the progressive ends of a more active federal government operating for a collective purpose would be thwarted by administrative absolutism.