- Bureaucratic Power and the Rule of Law
Daniel Ernst’s book is about the emergence of the administrative state in America, and particularly the relationship between that state’s emergence and the law—law being defined in terms of the judiciary, the legal profession, and the notion that courts and their processes constitute the ideal for governmental decision making in a liberal society.
The relationship of the American administrative state to the law is a fraught one. In one prevalent view, courts are essentially distinct from, and in tension with, governmental bureaucratic agencies. Courts approach problems in an essentially passive and narrow way, for they act only in particularized suits between specific parties, in which their job is to vindicate the rights of those parties. By contrast, a governmental agency is charged with carrying out a program (such as keeping drugs safe, or keeping investors informed), which it must do across a whole industry or population, in a comprehensive and proactive way. Courts are staffed by judges who know legal procedure and legal reasoning but are generalists when it comes to any particular substantive field. By contrast, governmental bureaucrats are experts in their substantive fields (medical science, economics, etc.). The judge is meant to be independent, in order to decide impartially between the parties. By contrast, the bureaucrat is meant to be under managerial control, in order to implement the agency’s program. Given all these tensions, it is no surprise that a long line of historical scholarship on American government presents courts as essentially conservative actors who have resisted, obstructed, and distorted the development of America’s regulatory and welfare state.1
The tension between law and government administration is sharpest when an agency makes a decision adverse to an individual or business, prompting the individual or business to sue the agency, claiming that the decision violated some legal standard, such as the Constitution, a legislative act, or the common law. Courts have been open to such suits, in at least some circumstances, throughout U.S. history, but the nature and prevalence of the suits [End Page 544] have changed over time. From the founding through the nineteenth century, courts’ receptivity to such claims was, to use Jerry Mashaw’s term, bipolar, in the sense of swinging between two poles. For some claims, such as those involving a common-law property right, courts were willing to review the agency’s decision de novo; that is, the judge would conduct a complete “do-over” of the official’s decision himself, with no deference to the government. For all other claims, courts would not review the agency’s decision at all. Claims entitled to de novo treatment were the exception rather than the rule, especially as bureaucratic activity proliferated, and therefore most bureaucratic acts were not subject to judges’ interference.2 Then, circa 1900, as legislatures’ penchant for empowering bureaucrats reached new heights, courts opened themselves to lawsuits on a wider range of bureaucratic acts. But the courts realized that they could not feasibly re-do so many administrative decisions, so they simultaneously began experimenting with ways of offering less than a complete do-over in each individual suit.3
Today, these kinds of lawsuits have become widely available—it is now presumed that you can sue a federal agency for any wrong it does to you—but a court that hears such a suit will not re-do all of the agency’s work. Instead, it will defer to the agency on many of the issues in the dispute, much the way an appellate court would treat a trial court. The official basis for this settlement between courts and agencies—and between law and bureaucratic power—is the Administrative Procedure Act of 1946. Yet a long line of scholarship suggests that this Act did little more than ratify practices that had already become prevalent by the time it was passed.4 In other words, courts and agencies themselves reached an enduring modus vivendi sometime after 1900 but before 1946...