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."
The dominant story of America's so-called "Gilded Age" describes an era of private excess and public corruption. In a rapidly industrializing society, private capital, in league with venal ...politicians, ran roughshod over a national state apparatus incapable of responding to the emerging social and economic needs of the day. Only toward the end of this era, with the passage of the Interstate Commerce Act of 1887, did the national government begin to break free from a laissez-faire ideology that was antithetical to state building in virtually all of its forms. Indeed, on this conventional account, the American administrative state, and with it administrative law, only began to emerge in the early twentieth century. And both remained underdeveloped until the New Deal constitutional revolution. There is much truth to this familiar narrative, but it is far from the whole truth. State capacities built steadily throughout the post-Reconstruction era. Congress created multiple new departments, bureaus, and programs, and federal civilian employment grew much more rapidly than population. Just as today, conflicts between political parties, the drama of electoral politics, and the vagaries of congressional lawmaking dominated the headlines. But the day-to-day activities of government were in the charge of administrative departments and bureaus. Operating under broad delegations of authority, administrators developed a rich internal law of administration that guided massive administrative adjudicatory activity and substantial regulatory action as well. Moreover, policy innovation at the legislative level depended heavily on the research and recommendations of existing administrative agencies. In short, if we look at legislative and administrative practice rather than at constitutional ideology or political rhetoric, we can see the emergence of a national administrative state and national administrative law before either had a name.
By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is ...perceived as a state of courts and parties in which federal administration was minimal and congressional statutes were either self-executing or so detailed as to preclude significant administrative discretion. Such administration as there was went on within executive departments under the exclusive control of the President, and judicial review of administrative action was virtually unknown. From this perspective the administrative state of the twenty-first century, with its independent commissions, combinations of legislative, executive, and judicial authority in administrative agencies, broad delegations of administrative discretion, limitations on presidential control of administration, and ubiquitous opportunities for judicial review of executive action, represents a radical transformation of original constitutional understandings. There is much truth in this conventional vision of nineteenth-century governance, but far from the whole truth. This Article begins a project of recovering the lost one hundred years of federal administrative law. For statutory sources, agency practice, and common law actions in the Federalist period reveal a quite different and more nuanced picture. From the very beginning some administrators were clothed with broad statutory authority, made general rules, adjudicated cases, were located outside of departments, and were tightly bound to congressional oversight and direction. And common law actions provided a judicial review that was often more intrusive and robust than we observe in contemporary practice. If there was an original understanding of the structure, function, and control of administration in early federal law, Federalist practices suggest that it was a much more complex and pragmatic understanding than our conventional account admits.
Social Security Marmor, Theodore R; Mashaw, Jerry L
2017, 2017., 20170314, 2017-03-14
eBook
What are the possibilities and prospects for Social Security over the decades ahead? The essays in this interdisciplinary study explore what social insurance has meant historically, socially, ...economically, politically, and legally in the years since the founding of the American social security system in 1935. Questions examined include: Does Social Security have a coherent and defendable ideology? If so, is that ideology adequate to the demands of a contemporary political environment that seems to emphasize the re-privatization of many roles adopted by the modern welfare state? What explains the peculiarly feverish quality of recent Social Security politics--which has been characterized by periodic high anxiety, claims of doom and crisis, and rigid resistance to any alteration, followed by eventual marginal adjustment and continuing uncertainty about the future? Although the authors do not offer answers for all these questions, they convey confidence about the basic structure of American social security and optimism about its future possibilities. Contributors to the work are Robert M. Ball, Robert M. Cover, Michael J. Graetz, Rudolf Klein, Theodore R. Marmor, Jerry L. Mashaw, Michael O'Higgins, Paul Starr, and James Tobin.
Originally published in .
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Among other matters, we seek to understand whether legal culture has continued to suppress informal rulemaking while elevating recalls at NHTSA, and whether NHTSA has developed other regulatory ...techniques as further bureaucratic adaptations to the tenacious legal culture enveloping it.\n If manufacturers want to avoid those sorts of inquiries, they would do well to respond carefully and comprehensively to NHTSA's requests for safety assessment letters and to adopt systems for production, testing, and quality assurance as the Agency recommends. The combination of highly specified voluntary safety assessments performed by industry itself, but backed up by the agency's fulsome recall power and product liability exposure, is a technique that seems exquisitely well suited to the legal, market, and technological circumstances in which NHTSA finds itself. The line between guidance-generally not subject to procedural requirements, cost-benefit analysis, or judicial review-and rulemakingsubject to all three-is murky, to say the least.416 Other agencies that have tried to exploit this legal uncertainty have not gone unchallenged. ...as was recounted earlier, the only serious legal challenge to NHTSA's recall authority was when it attempted, in effect, to substitute a recall for a standard.417 The boundary between guidance and standard setting may well be the next battleground where motor vehicle safety regulation encounters the demands of American legal culture.418
In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In ...this effort they were partially successful. But the tide of history and the demands of a growing nation confounded their ambitions. While reclaiming democracy they also built administrative capacity. This Article examines administrative structure and accountability in the Republican era in an attempt to understand the "administrative law" of the early nineteenth century. That inquiry proceeds through two extended case studies: the Jeffersonian embargo of 1807-1809 and the multi-decade federal effort to survey and sell the ever-expanding "public domain." The first was the most dramatic regulation of commerce attempted by an American national government either before or since. The second began a land office business that dominated the political and legal consciousness of the nation for nearly a century. The embargo tested the limits of administrative coercion and revealed an escalating conflict between the necessities of regulatory administration and judicial review in common law forms. The sale of the public domain required the creation of the first mass administrative adjudication system in the United States and revealed both the ambitions and the limits of congressional control of administration in a polity ideologically devoted to assembly government. Together these cases describe the early-nineteenth-century approach to a host of familiar topics in contemporary administrative law: presidential versus congressional control of administration, the propriety and forms of administrative adjudication, policy implementation via general rules, and the appropriate role of judicial review. Perhaps most significantly, both the embargo episode and the efforts to privatize the public domain demonstrate the singular importance of internal administrative control and accountability in maintaining neutrality and consistency in the application of federal law. This "internal law of administration" remains both a crucial and an understudied aspect of American administrative governance.
Jacksonian America was a country in rapid transition. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of ...economic boom and bust helped to fuel an anxious desire for political reform. For Jacksonian Democrats the answer to this popular yearning was the reconstruction of American democracy--including a broadened electorate, offices open to all, and the elimination of monopoly and other special privileges. Government at the national level was to be kept small and returned to the people. But as is often the case, the institutionalization of democracy demanded a corresponding increase in governmental capacities. Destroying the power of the "Monster Bank" gave new powers and capacities to the Treasury for the management of monetary policy and fiscal transfers. Offices open to all through the new system of "rotation in office" created the need for bureaucratic systems of control that replaced status-based restraints and personal loyalties. And the side effects of technological development, in particular the human carnage that accompanied the rapid expansion of steamboat travel, generated public demand for protection that prompted the creation of a recognizably modern system of health and safety regulation. "The Democracy" established by the Jacksonians both furthered the building of an American administrative state and solidified an emerging nineteenth-century model of American administration law. In that model administrative accountability was preeminently a matter of (1) political oversight and direction and (2) internal hierarchical control. Judicial control of administration featured a cramped vision of mandamus review combined with almost unlimited personal liability of officials for erroneous action. Although administrative law structured in this fashion seems peculiar, indeed almost invisible, to the twenty-first-century legal imagination, it fit comfortably within Jacksonian democratic ideology.
Public choice theory should be taken seriously—but not too seriously. In this thought-provoking book, Jerry Mashaw stakes out a middle ground between those who champion public choice theory (the ...application of the conventional methodology of economics to political science matters, also known as rational choice theory) and those who disparage it. He argues that in many cases public choice theory's reach has exceeded its grasp. In others, public choice insights have not been pursued far enough by those who are concerned with the operation and improvement of legal institutions. While Mashaw addresses perennial questions of constitutional law, legislative interpretation, administrative law, and the design of public institutions, he arrives at innovative conclusions. Countering the positions of key public choice theorists, Mashaw finds public choice approaches virtually useless as an aid to the interpretation of statutes, and he finds public choice arguments against delegating political decisions to administrators incoherent. But, using the tools of public choice analysts, he reverses the lawyers' conventional wisdom by arguing that substantive rationality review is not only legitimate but a lesser invasion of legislative prerogatives than much judicial interpretation of statutes. And, criticizing three decades of "law reform," Mashaw contends that pre-enforcement judicial review of agency rules has seriously undermined both governmental capacity and the rule of law.
Chief Justice John Roberts's opinion upholding the individual mandate in the Patient Protection and Affordable Care Act has been hailed as an act of judicial statesmanship that saved the Supreme ...Court from serious criticism as a partisan, political institution. This article argues that any such praise should be tempered by an understanding of just how far outside mainstream legal understandings the chief justice's opinion strayed when considering constitutional issues that were unnecessary to the decision of the case and, in one instance, not ripe for judicial review. Except in its narrow result upholding the mandate, the chief justice's opinion is heedless of long-standing precedent, aggressive in creating novel grounds for judicial second-guessing of legislative judgments, cavalier with factual assertions, and disrespectful of the position of other governmental institutions.
This article begins a discussion of administration interpretation as an autonomous enterprise. It approaches administrative interpretation as a legal practice in its own light, having its own customs ...and normative constraints. While it compares administrative interpretation with judicial practice, it does not focus on the relationship between courts and agencies. Instead, it aims to understand both the normative and positive dimensions of administrative agency interpretation of statutory language.
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