The Leviathan and Its Detractors
Former House Speaker John Boehner, one of the leading lights of the Ohio Republican delegation in the period between 1991 and 2015, has often spoken out against Obamacare. For him and for many other conservatives, the Affordable Care Act of 2010 represents an unwanted federal intrusion into the American health care system that threatens to undermine the high quality of American medical care. It is big government at its worst. What is striking about Representative Boehner’s critique is how misinformed it is about the content of the Act itself. One would not know, for example, that the Affordable Care Act favors Medicaid, a state program largely devoted to managed care handled by the private sector, over Medicare, a federal program preferred by liberals. Indeed, the states and America’s largely private health care financers and providers play the most important roles in Obamacare.
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For Brian Balogh, one of America’s leading political historians whose work has influenced a generation of graduate students at the University of Virginia, Boehner’s misconnect on Obamacare is business as usual. The Tea Party opponents of Obama, with whom John Boehner needed to contend in his Republican caucus, are the “latest in a long line of Americans who have erased the crucial role that the federal government has played in securing their well-being” (218). Despite all of the rhetoric about the nanny state and its discontents, Obamacare might best be understood as a manifestation of the “associational order” that was “shaped, in part, by the state and that parceled out public authority to the state and even the private sector” (139). Nor should we necessarily disparage the results. Rather we should accept the way in which “Americans have braided public and private actions, state and voluntary organizations, to achieve collective goals without undermining citizens’ essential belief in individual freedom” (3).
Balogh manages to weave this general theme through what is essentially a book of essays, many of which have been previously published. Some of the footnotes refer back to the original articles, despite the fact that those publications form the basis for subsequent chapters in the book at hand. The danger is that this sort of book can too easily be read as a series of casually picked up pieces or the author’s greatest hits. The book does contain several instances in which background facts tend to blot out the main line of argument in the foreground. An essay on Gifford Pinchot, the famous forester who figured in the politics of the Theodore Roosevelt-William Howard Taft era, makes some sharp observations about the nature of the associational state, but it also gets bogged down in the details of Pinchot’s life. A keenly observed piece on electoral politics in the twenties—which for believers in the associational order turns out to be a crucial decade, with Hoover as a major exemplar of someone who interwove the public and private sectors—leads to a longer than necessary discussion of the 1928 election.
For all of that, the book coheres well enough to sustain a cogent narrative about twentieth century political history. At base Balogh wants to push an updated version of the organizational synthesis that was created by a group of distinguished practitioners whom older readers may remember. Its members include Robert Wiebe (deceased but well remembered as the author of The Search for Order), Louis Galambos (Balogh’s thesis director at Johns Hopkins), Ellis Hawley (whose work on the New Deal and Herbert Hoover supplies an impetus for much of Balogh’s work), and Samuel Hays (who like Balogh writes on the conservation movement). Balogh extends the work of these pioneers both in a chronological sense, taking the story up to the present day, and in a methodological sense, paying far more attention to the permeable borders between the public and private sectors. [End Page 75]
Balogh is particularly perceptive on the influence of the state on politics. He understands, for example, that the 1935 Wagner Act (the National Labor Relations Act) reshaped the American political economy in a way that never could really be undone in subsequent conservative eras. The creation of large industrial unions, such as the United Auto Workers, owed a great deal to the passage of the Wagner Act. These unions became central to American life in the period between 1940 and 1970. Any good American newspaper, for example, would have had a reporter who covered the contract negotiations between the UAW and the big three automobile manufacturers. Strikes in the steel industry made the headlines and attracted the interest of the President. Trade unions also became important allies of liberals in the era of the Great Society. Without the work of Nelson Cruikshank in the Washington office of the AFL-CIO, for example, Medicare would have been much more difficult to enact in 1965. Cruikshank, working closely with government officials in a way that illustrates what Balogh would call the braiding of public and private actions, supplied the main lobbying muscle in the passage of America’s most important health insurance law.
Significantly, the Wagner Act, despite its vital importance, did not involve a major expansion of the public sector. Instead, it expanded the state’s influence without greatly enlarging the state’s size. Nor was it easy to remove the Wagner Act from the realm of American public policy. In 1947 Republicans found themselves with congressional majorities in both houses and immediately turned to what they called the “reform” of the Wagner Act. That meant taking some of the sting out of the unions’ major weapon, the right to strike, and making it more difficult for companies to have union shops in which workers were required to join a union. Senator Robert Taft, another key member of the Ohio Valley’s congressional delegation, and Representative Fred Hartley (R-NJ) took the lead on this legislation. This act remains the law of the land, despite the efforts of many liberal presidents to repeal it. At the same time, it has not diminished the importance of the 1935 Wagner Act.
As Balogh understands, there is plasticity to American institutions. In the mid-thirties, the Supreme Court performed judicial review on key New Deal legislation and found much of it wanting. In a liberal era, the court acted as a break on the expansion of the federal government. In the 1990s, by way of contrast, the court frequently acted in ways that made government larger. The contrast with the 1930s could not have been more striking: a more overtly conservative ideology seemed to prevail and Congress passed fewer “big bang initiatives.” In this more conservative era, the court turned its attention to procedural questions. In the process it greatly expanded federal programs such as the one that awarded cash benefits to children with disabilities. Although scholars give the Supreme Court of the New Deal era a prominent role in the narrative history of the [End Page 76] period, the more modern Supreme Court has not been effectively integrated into a narrative of American political history. More attention to Balogh’s associational order would help.
Balogh writes about the politics of government institutions and the private organizations to which they are linked. Anne Kornhauser’s work is much more in the tradition of intellectual history, trying to elucidate the key ideas of American thinkers by studying their writing. She goes over much of the same territory as Balogh but in a different way. For her the apotheosis of the administrative state comes in the 1930s (for Balogh it comes later). Her project is to resurrect some of the liberal criticisms of this state and to point out the “continuing absence of an enduring justification for administrative governance beyond the invocation of emergency” (230). She wants, in other words, to expose the shaky underpinnings of the administrative state.
Kornhauser is an accomplished intellectual historian who introduces her readers to a host of critics of the administrative state. Most readers will be unfamiliar with the individuals who fill Kornhauser’s pages, such as William Y. Elliott, James Hart, Marshall Dimock, Louis Jaffe, Ernest Fraenkel, and Wolfgang Friedmann. These critics were attentive to the way in which administrative agencies operated beyond many democratic norms. They felt uncomfortable with the New Deal mindset that privileged the role of expert and asserted that experts knew more than judges, congressmen, or other public officials. Expert advocates Thurman Arnold and James Landis, for example, objected to the very practice of judicial review, which, they believed, obstructed American progress. What mattered to people like Arnold and Landis was that the staff of the administrative agency “had the requisite knowledge and professional competence” (45). One might also note how much better known Arnold and Landis are than Kornhauser’s group of liberal critics.
As Kornhauser has discovered, many legal scholars, political scientists, and sociologists grappled with the question of how to constrain “the unfettered power of expert administration” (81). They insisted on legal reforms—one manifestation of which was the Administrative Procedure Act of 1946—to constrain what one called “irresponsible and arbitrary” action by administrative agencies (81). The Second World War proved a particularly trying period. As Kornhauser nicely puts it, the war raised the question: “to what extent should there or could there be a fealty to the rule of law when constitutional democracy itself was at stake” (90). For German émigrés, this was a particularly vexing question, since the rule of law had operated in tandem with the rise of the Nazi party. These émigrés, upon arriving in America, “tried to work out the balance between procedural guarantees, which helped democracy to function, and the need for flexibility in the rule of law, which helped democracy to survive” (96-97). [End Page 77]
After the war, new conundrums arose. The United States, now committed to the containment of communism, became involved in such projects as the military occupation of Japan and Germany. These endeavors, always conducted with an eye toward showcasing the appeal of America to the rest of the world, “seemed to sit uneasily between the unalloyed emergency of war and the ‘normal’ state of affairs of everyday politics” (130). We tend to forget that, just as refugees such as Billy Wilder helped to shape the postwar American cinema, so German émigrés advised the American government on how best to occupy their former country.
The line of thinkers whom Kornhauser chronicles culminates in the towering figure of philosopher John Rawls. She urges us to see Rawls as someone struggling with many of the same questions as other liberal critics of the administrative state. His main publication did not appear until 1971, but Kornhauser would have us view Rawls as “principally a thinker in and of the 1940s and 1950s” (176). She elucidates the tenets of his thinking in a masterful way, going beyond his texts to inquire into such things as his lecture notes and the influence of game theory, whose founders were at Princeton at the same time as Rawls, on his thought.
These two books do not blend seamlessly, but together they enable us to see deeper into the administrative and associational states and to delve into their discontents. Perhaps most important of all, they allow us to see how contemporary political figures, including John Boehner, misunderstand such key public policy endeavors as President Obama’s Affordable Care Act, in part because the creators of the administrative state have still not developed a convincing rationale for its existence. [End Page 78]