- Law in Action: The Attorney General’s Committee on Administrative Procedure
The story of American political development in the twentieth century is in no small part the story of administration. Administrative agencies, bureaus, and departments tasked with handling the work of the federal government had been a feature of governance since the early republic. With the creation of the Interstate Commerce Commission in 1887, however, administrative agencies and independent regulatory commissions began to proliferate across the federal landscape. By the end of the massive expansion of federal power that characterized the New Deal, Americans very much experienced government through their interactions with bureaucrats and with administrative boards. Individuals and businesses claimed benefits from the Railroad Retirement Board and Veterans Administration, defended themselves against claims of unfair competition before the Federal Trade Commission, requested permits from the Federal Alcohol Administration and the Federal Communications Commission, and sought to resolve labor disputes before the National Labor Relations Board.
The work of these administrative agencies and independent commissions would have been impossible without massive delegations of power from Congress, the executive branch, and the courts. In many of these agencies and [End Page 379] commissions, officials were responsible for investigating industrial conditions in their areas of expertise, using this knowledge to promulgate rules and regulations for the future, and policing and punishing violators through quasi-judicial methods. Agencies and commissions thus exercised legislative, executive, and judicial authority within their office walls. Given the remarkable shift in lawmaking authority to these new administrative entities, many became increasingly concerned about how administrative officials wielded this power. Congress had made several of these bodies formally independent of the legislative, executive, and judicial branches of government, creating, as President Roosevelt’s Committee on Administrative Management noted without pleasure, “a new and headless ‘fourth branch’” of government.1 Even in the executive branch agencies, the president’s ability to supervise regulatory activity was necessarily limited.
By the late 1930s, efforts to control administrators’ discretion had resulted in a burst of reform proposals targeting the administrative state as a whole. Some of these efforts—in particular those of the President’s Committee on Administrative Management and the Byrd Committee in Congress—found the solution in political control of the administrative state by the President or Congress. Others, however, including the American Bar Association and the Attorney General’s Committee on Administrative Procedure, looked to the administrative process itself for a possible solution. These reforms have generally been seen as a political struggle wherein those who opposed the substance of Roosevelt’s New Deal programs attempted to constrain administration of these programs through procedure. The Attorney General’s Committee on Administrative Procedure, created by President Roosevelt in 1939, has thus been understood as one more sally in this fight.2
While the committee’s creation may be attributed at least in part to the Roosevelt administration’s desire to thwart the Bar Association’s more conservative proposals, such a narrative misses the significant contribution that the committee made to contemporary understandings of the administrative process and to its subsequent reform. The committee’s report, based on the most thorough and detailed survey of administration operations to date, demonstrated that the administrative state was not, in fact, rife with abuses of individual rights. The committee thus shifted attention away from the threat of overzealous administrators and instead directed readers’ attention to lesser-studied but equally important aspects of the administrative process. The agencies described in the committee’s materials handled a dazzling array of matters with an equally formidable number of procedures. For the most part, they did so fairly well. In some areas, however, the committee reported that administrators’ inefficiency and incompetence, rather than their untrammeled discretion, posed the largest challenge for administrative governance. [End Page 380]
These conclusions informed the committee’s specific recommendations for improving administrative procedures; they would also be reflected in the Administrative Procedure Act of 1946, which incorporated many of the committee’s specific suggestions and adopted its overall pro-administration ethos. The bulk of the committee’s recommendations offered suggestions for improving the administrative deficiencies the committee had observed. The committee’s reform efforts sought to bolster the capacities of the...