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

430 Pages·2012·2.95 MB·English

by  Jerry L. Mashaw

YALE LAW LIBRARY SERIES IN LEGAL HISTORY AND REFERENCE
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jerry l. mashaw
C reating the
Administrative
C onstitution
the lost one hundred years of
american administrative law
new haven and london
Published with support from the Lillian Goldman Law Library, Yale Law School.
Copyright © 2012 by Jerry L. Mashaw.
All rights reserved.
This book may not be reproduced, in w hole or in part, including illustrations,
in any form (beyond that copying permitted by Sections 107 and 108 of the U.S.
Copyright Law and except by reviewers for the public press), without written per-
mission from the publishers.
Yale University Press books may be purchased in quantity for educational, busi-
ness, or promotional use. For information, please e-mail [email protected]
(U.S. offi ce) or [email protected] (U.K. offi ce).
Set in Scala and Scala Sans by Westchester Book Group
Printed in the United States of America
Library of Congress Cataloging- in- Publication Data
Mashaw, Jerry L.
Creating the administrative constitution : the lost one hundred years of American
administrative law / Jerry L. Mashaw.
p. cm. — (Yale law library series in legal history and reference)
Includes bibliographical references and index.
ISBN 978- 0- 300- 17230- 0 (hardback) — ISBN 978- 0- 300- 18002- 2 (pbk.)
1. Administrative law— United States— History. 2. Administrative procedure—
United States—H istory. I. Title.
KF5402.M37 2012
342.73'06—dc23
2011042673
A cata logue record for this book is available from the British Library.
This paper meets the requirements of ANSI/NISO Z39.48- 1992 (Permanence
of Paper).
10 9 8 7 6 5 4 3 2 1
CONTENTS
Preface and Acknowledgments vii
Introduction
1 Recovering American Administrative Law 3
PART I Federalist Foundations, 1787– 1801
2 Pragmatic State- Building 29
3 “To see that the laws are faithfully executed”: Managerial
and Hierarchical Control in the Early Republic 53
4 Legal Accountability: The Common Law Model 65
PART II Reluctant Nationalists, 1801– 1829
5 Federalist State- Building Meets Republican Small- State
Ideology 81
6 Administering the Embargo: An Exercise in Regulatory
Hubris 91
7 Bureaucratizing Land 119
vi contents
PART III Administration and “The Democracy,” 1829– 1861
8 Democracy and Administration 147
9 The Bank War and Sub- Treasury System 156
10 Democracy, Offi ce, and the Reform of Administrative
Or ga ni za tion 175
11 Regulating Steamboats 187
12 The Administrative Constitution of “The Democracy” 209
PART IV Administrative Government in the Gilded Age
13 Nation, State, and Administration in the Gilded Age 227
14 Mass Administrative Adjudication: Case Studies in the
Development of Internal Administrative Law 251
PART V Rethinking the Administrative Constitution
15 The Administrative Constitution: Then and Now 285
Notes 317
Index 415
PREFACE AND ACKNOWLEDGMENTS
This book, like many such projects, began as something entirely diff erent.
During the winter and spring of 2003 my wife and I were in residence, fi rst
at Victoria University in Wellington, New Zealand, and then for a substan-
tially longer period at the Research School for Social Sciences at the Austra-
lian National University in Canberra. During our time in the Antipodes I
was invited to give lectures in Wellington, Auckland, Melbourne, Sydney,
and Canberra. In the usual fashion of traveling academics I presumed little
or no overlap in the attendees at these widely separated venues and off ered
up the same lecture for each audience.
The working title of the lecture was “Prometheus Bound: The Building
and Binding of the American Administrative State.” As one audience mem-
ber gently chided me, it was a “rough ride over uneven ground,” a sixty-
minute excursion over two hundred years of American public administration
and administrative law. Following conventional historiography, my lecture
gave nineteenth- century federal administration and administrative law de-
velopments about ten minutes and spent the remainder of the hour on the
twentieth and very early twenty- fi rst centuries. At the inevitable post- lecture
dinners more than one participant— whether from an excess of hospitality
or Australian or New Zealand wine I know not— suggested that this over-
view of American institutional and legal developments would make a use-
ful short book. Nothing of the kind existed, and the potential audience was
both foreigners interested in American legal and po litic al development and
American students of law, politics, and public administration.
While on leave Down Under I was working on other projects, but returned
to the short- book idea when we were resettled in New Haven. Because I felt
viii preface and acknowledgments
I knew the twentieth- century developments fairly well, I decided to begin at
the beginning, and, from some perverse instinct, pulled out the fi rst vol-
ume of the U.S. Statutes at Large. The experience was something like Alice
dropping down the rabbit hole, or perhaps the Narnia kids going through
the back of the wardrobe. According to the secondary literature that I knew,
the topography of American administrative institutions should have resem-
bled a largely open and unpopulated plain, dotted here and there with an
Executive Department that attended mostly to house keeping or infrastruc-
ture matters. Beyond customs collection and the delivery of the mail, my
existing mental map revealed little national administrative activity. I quickly
realized that my map was defective. Volume one of the Statutes at Large re-
vealed unexpected national initiatives, including multiple regulatory schemes,
and not a few benefi ts programs. Moreover, these initiatives were some-
times administered through extra- departmental boards and commissions
that issued rules and adjudicated cases pursuant to broad delegations of
statutory authority. This was not going to be a quick romp through a nine-
teenth century populated largely by self- executing laws enforced in court,
and therefore of modest interest to a student of administration and admin-
istrative law.
Eight years later a short book on two centuries of American administra-
tive institutions and administrative law had become a not- so- short book
devoted to the national government’s fi rst one hundred years. What I had
imagined as a concise exposition of a relatively conventional story of Ameri-
can institutional and legal development became a decidedly contrarian es-
say, for this book describes how much was built in those fi rst one hundred
years rather than how little national administrative institutions mattered in
the early Republic’s governance.
As with any contrarian case, I emphasize in these pages aspects of Amer-
ican institutional and legal development that others have largely ignored.
The congresses, presidents, and federal administrative offi cials who popu-
lated the fi rst century of American governance fi lled a yawning gap in the
Constitution of 1787. They created an administrative constitution, much of
it enduring. Understanding the contours of that constitution is important to
understanding American po liti cal development and, as the following pages
will suggest, to analyzing contemporary normative claims concerning the
structure and legitimacy of American administrative institutions.
I must hasten to add that my contrarian story hardly displaces much of
conventional historiography concerning the dramatic rise of the American
administrative state in the twentieth century. Nevertheless, I argue, indeed
I believe I demonstrate, that some of that conventional understanding is
preface and acknowledgments ix
wrong. And, because it is wrong, normative legal arguments built on these
conventional originalist foundations are unpersuasive. To return to the topo-
graphic meta phor, the national administrative space was much more densely
settled and complexly developed than we have heretofore been led to believe.
Staring at that map hardly permits us to fully anticipate the urban/suburban
sprawl of the national administrative institutions of the twentieth century.
Instead this revised cartography permits a better understanding of which of
those developments were truly novel and which simply built on the institu-
tions and legal understandings that emerged in what I now think of as the
“Lost One Hundred Years of American Administrative Law.”
An author engaged in a project of this length and scope incurs many
debts— debts that can only be acknowledged, not repaid. Indeed, I fear that
from myopia or simple forgetfulness I will fail even to acknowledge many
who have contributed to this project both directly and indirectly. But names
must be named.
I owe a major debt, of course, to my home institution. The Yale Law
School’s support for scholarship is the stuff of fables. I have often described
life as a Yale Law School faculty member as the modern equivalent of living
at the Court of the Medici, but without the obligations of a courtier. Many of
my colleagues have commented on earlier drafts and on articles that have
been integrated into the current text. I must give special thanks to Bruce
Ackerman and Akhil Amar who have read every page and commented on
most of them. That their comments seldom overlapped has simply made
them all the more useful.
I benefi ted enormously from a one-d ay conference at Albany Law School
or ga nized by Professor Timothy Lytton. Tim assembled a remarkable group
of interdisciplinary scholars from all over the country. That group included
Ray Brescia, Daniel Carpenter, Daniel Ernst, Lawrence Friedman, Robert
Gordon, Robert Kagan, Richard Merrill, William Novak, Nicholas Parrillo,
Robert Raban, Peter Schuck, Jed Shugerman, Peter Strauss, Stephen Sugar-
man, and Richard Stewart. Each of the attendees read the whole of an ear-
lier version of the manuscript and spent a day and an eve ning peppering
me with their questions and comments. It was an exhilarating and su-
premely useful extended seminar. My thanks to all who participated (some
of whom I fear I have omitted) and particularly to Tim, who or ga nized the
conference, and to the Albany and Yale Law Schools that supported it.
In addition I have had the benefi t of faculty seminars, not only at Yale,
but at Boston University, the University of Arizona, Harvard, Williamette,
Cardoza, Michigan State University, the University of Pennsylvania, and the
University of California at Berkeley. The participants in these workshops