Creating the Administrative Constitution

Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law

JERRY L. MASHAW
Copyright Date: 2012
Published by: Yale University Press
Pages: 448
https://www.jstor.org/stable/j.ctt1nq3hr
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  • Book Info
    Creating the Administrative Constitution
    Book Description:

    This groundbreaking book is the first to look at administration and administrative law in the earliest days of the American republic. Contrary to conventional understandings, Mashaw demonstrates that from the very beginning Congress delegated vast discretion to administrative officials and armed them with extrajudicial adjudicatory, rulemaking, and enforcement authority. The legislative and administrative practices of the U.S. Constitution's first century created an administrative constitution hardly hinted at in its formal text. Beyond describing a history that has previously gone largely unexamined, this book, in the author's words, will "demonstrate that there has been no precipitous fall from a historical position of separation-of-powers grace to a position of compromise; there is not a new administrative constitution whose legitimacy should be understood as not only contestable but deeply problematic."

    eISBN: 978-0-300-18347-4
    Subjects: Law, History, Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. PREFACE AND ACKNOWLEDGMENTS
    (pp. vii-x)
  4. Introduction
    • 1 Recovering American Administrative Law
      (pp. 3-26)

      The conventional conception of administrative law in the United States has long suffered from several misperceptions. Indeed I am tempted to describe them as governing myths. The first is that the national government, from 1787 until the late nineteenth century, was a government of courts and parties.¹ In such a government, administration, and as a corollary administrative law, is a backwater—a place of little importance in the grand scheme of governance. The second is that administrative law is the law of “judicial review of administrative action.” On this view, to the extent that law holds administration accountable, it is...

  5. PART I Federalist Foundations, 1787–1801
    • 2 Pragmatic State-Building
      (pp. 29-52)

      The fragility of the American governmental experiment in the immediate aftermath of the Revolution can hardly be overstated. No society had ever attempted to form a republican government of America’s territorial scope or population. As John Adams put it in a letter to Benjamin Rush, “The lawgivers of antiquity … legislated for single cities. Who can legislate for 20 or 30 states, each of which is greater than Greece or Rome at those times?”¹ The problem that faced the drafters of the Constitution of 1787 was how to create a federal government powerful enough to produce allegiance to the national...

    • 3 “To see that the laws are faithfully executed”: Managerial and Hierarchical Control in the Early Republic
      (pp. 53-64)

      How can principals, whether they be the shareholders and bond holders of a corporation or the citizens or representatives in a democratic government, insure that the agents in charge of the actual execution of corporate or governmental policy will be faithful to their principals’ instructions and energetic and careful when acting upon them? While providing answers to this question is in some sense the obsession of contemporary students of business organizations and positive political theory, the principal-agent issue is surely as old as the first time one of our human ancestors sent another out to gather suitable firewood or find...

    • 4 Legal Accountability: The Common Law Model
      (pp. 65-78)

      Louis Jaffe, in his classic treatise on judicial review of administrative action, claimed that judicial review was limited and uncertain in the United States until the early twentieth century. In his view, “[t]he Supreme Court of the [1870s, 1880s, and 1890s] appears to have entertained considerable doubt, in the absence of statutory provision, as to the propriety of judicial control of ‘executive’ action.”¹ And, because Congress had enacted few specific statutory review provisions, “doubt” presumably pervaded the field.² Frederic P. Lee echoed Jaffe’s analysis and laid the problem at the doorstep of inadequate common law remedies. Lee wrote, “The right...

  6. PART II Reluctant Nationalists, 1801–1829
    • 5 Federalist State-Building Meets Republican Small-State Ideology
      (pp. 81-90)

      The government that the Federalists built and bound calls into question the notion that national administration and administrative law became of significant interest only in the late nineteenth century. From the very beginning national actions were not limited to subsidies and patronage, or more broadly to defense and development. Nor did Congress attempt to run the government, as Continental Congresses had, without the aid of administrators. Within the first few years of the founding, Congress had initiated programs that we would now characterize as welfare state activity: veterans’ disability pensions, establishment and operation of seamen’s hospitals, and provision of relief...

    • 6 Administering the Embargo: An Exercise in Regulatory Hubris
      (pp. 91-118)

      Eighty years before the Interstate Commerce Act of 1887¹ Thomas Jefferson and an overwhelmingly Jeffersonian-Republican Congress embarked on a much grander regulatory experiment—the embargo of 1807–1809. Indeed, the scope of the embargo and the powers that it gave the executive branch over American commerce make the Interstate Commerce Act’s attempts at regulating the railroad industry seem almost pathetic by comparison. And while the embargo is generally treated as a dramatic episode in the early political history of the nation,² the administrative significance of the embargo’s massive attempt at economic regulation has been only sketchily explored.³

      While the embargo’s...

    • 7 Bureaucratizing Land
      (pp. 119-144)

      Beyond commitments to limited government and noncoercive implementation—commitments mostly honored in the breach in the implementation of the embargo—Republicans prized two further principles that were highly salient to all administration: congressional control of policy, and governmental economy. Acting on the first yielded highly detailed legislation, constant legislative revision of ineffective policies that could not be modified by administrative action, and incessant congressional demands for reports on administrative costs and implementation. Honoring the second led to underfunding, understaffing, and enormously timeconsuming accounting requirements.¹ In combination, these legislative tendencies made administration tedious, tardy, and inflexible. When put in the early...

  7. PART III Administration and “The Democracy,” 1829–1861
    • 8 Democracy and Administration
      (pp. 147-155)

      Daniel Webster’s words,¹ written on the eve of Andrew Jackson’s inauguration, described not just a man or an administration, but an era. It was a breezy three decades of technological, territorial, social, economic, and, perhaps above all, political change.² Technologically, America went from the age of the sailing vessel, the stage coach, and the quill pen to the age of the steamboat,³ the railroad,⁴ and the telegraph.⁵ The technological revolutions in transportation and communications fueled economic growth and transformed the economy. Production of goods moved steadily from artisan or household fabrication toward industrial production organized on a factory model.⁶ Because...

    • 9 The Bank War and Sub-Treasury System
      (pp. 156-174)

      The so-called “Bank War,” generated by President Andrew Jackson’s determination to curb the power of the Second Bank of the United States, has been studied from multiple perspectives. Economic historians explore the effects of Jackson’s victory—the removal of the Bank from its position as the chief fiscal and monetary agent of the national government—on the boom-and-bust economic cycles of the mid-nineteenth century. Political historians see the Bank War through the lens of the partisan ideological competition of the Jacksonian era. Students of constitutional and administrative history take particular interest in the perennial separation-of-powers issues evident in the struggles...

    • 10 Democracy, Office, and the Reform of Administrative Organization
      (pp. 175-186)

      Andrew Jackson’s attack on the entrenched officials of the federal government was motivated by the same political considerations that supported his war with the Bank. He viewed the system that he had inherited as undemocratic. Both the Federalists and the Jeffersonian Republicans had selected officeholders largely on the basis of “character” or “standing in the community.” Although Jefferson had engaged in partisan removals to establish parity between Federalists and Republicans in the public service, the general practice from 1789 to 1829 was to retain appointees in office unless they were demonstrably incompetent or corrupt. In some sense this produced a...

    • 11 Regulating Steamboats
      (pp. 187-208)

      A half century into the American democratic experiment Congress was no stranger to regulatory legislation. From the earliest days of the Republic federal statutes regulated seaman’s contracts, trade with Indian tribes, and access to the Banks fisheries. The central government licensed commercial vessels, created patent monopolies, regulated bankruptcy, and enforced the substantive provisions of state quarantine and product quality statutes. And there was, of course, the central government’s draconian and unsustainable regulation of foreign commerce in the 1807–1809 embargo legislation. But none of these regulatory schemes was as innovative, indeed downright modern, as Congress’s regulation of the safety of...

    • 12 The Administrative Constitution of “The Democracy”
      (pp. 209-224)

      Administrators operate within three overlapping systems of accountability: political accountability to elected executives and legislatures, administrative accountability to hierarchical superiors in the administration, and legal accountability to courts. Each of these systems both builds administrative capacity and binds or controls administration. The legislature provides the legal and fiscal resources for administrative action while simultaneously limiting the scope of those resources and overseeing administrative implementation. Department heads and bureau chiefs seek to control subordinates, but also to provide leadership and managerial resources that energize administration. And while courts are largely called upon to constrain administrative excess, their insistence on a demonstration...

  8. PART IV Administrative Government in the Gilded Age
    • 13 Nation, State, and Administration in the Gilded Age
      (pp. 227-250)

      The so-called “Gilded Age” of Mark Twain’s invention, roughly from the end of the Civil War to the 1890s, was a sprawling, complex, and rambunctious period. Rapid change was its hallmark, as was governmental corruption and governmental reform. We can hardly do justice to this era in a few pages. My strategy in this chapter is to trace broad administrative developments that I organize in accordance with two of our now-familiar topics—the relationship between political and administrative institutions and developments in judicial review of administrative action. Chapter 14 then analyzes in more detail a significant development in the administrative...

    • 14 Mass Administrative Adjudication: Case Studies in the Development of Internal Administrative Law
      (pp. 251-282)

      A study of administrative adjudication in the second half of the nineteenth century reveals a legal world that is familiar in the structure of adjudicatory institutions and procedures, but strange in the sources of those structures and processes. Both were designed and built almost entirely by the administrative agencies themselves. Judicial requirements of administrative due process were virtually nonexistent, as we have seen, and statutes providing adjudicatory jurisdiction almost never specified internal agency structures or required adjudicatory processes.

      The Steamboat Safety Act of 1871 provides the one significant exception that I have located to Congress’s general practice during this period...

  9. PART V Rethinking the Administrative Constitution
    • 15 The Administrative Constitution: Then and Now
      (pp. 285-316)

      What i have called the hole in the text of the U.S. Constitution has been filled in over time by legislation, administrative practice, and judicial precedent. We have what the British might understand as a set of constitutional conventions concerning the place of administration in American government. Broadly considered, those conventions relate to three categories of questions: What is the appropriate relationship of administration to the electoral branches of government? What structures and processes for administrative action satisfy our demands for effective government and the legitimate exercise of governmental authority? And, what external legal checks on administration are necessary to...

  10. NOTES
    (pp. 317-414)
  11. INDEX
    (pp. 415-419)