- Bureaucracy in America: The Administrative State's Challenge to Constitutional Governmentby Joseph Postell
Joseph Postell's provocatively titled Bureaucracy in America: The Administrative State's Challenge to Constitutional Government(a conscious play on the work of Alexis de Tocqueville) considers the American regulatory state from the colonial period to the present. It makes one constitutional argument and one historical argument. First, Postell posits that the modern regulatory state is unconstitutional because federal agencies combine the three powers the framers carefully separated as a guard against tyranny. "American bureaucracy," he argues, "poses a serious challenge to core principles of our constitutional order" (p. 317). Second, Postell demonstrates that the origins of the modern regulatory state date not from the 1880s with civil service reforms but [End Page 712]from Progressive-era reforms codified during the New Deal era. The historical argument is more compelling than the constitutional argument.
Reasonable scholars will disagree about the Constitution, and readers will find much here to disagree with. Postell claims that regulators have developed a legislative "process that takes place entirelywithin the confines of an unelected administrative agency," usurping congressional authority (p. 49). In fact, regulations are not laws; they are methods of enforcing laws and are subject to congressional oversight. Postell sees courts deferring to regulatory agencies on "findings of fact," rather than submitting them to de novo review, as an arrogation of judicial authority (p. 8). But, as the author himself points out, the courts determine their own degree of deference to administrative findings. Importantly, in calling the agencies independentbecause they are staffed by unelected civil servants hired through competitive examination, Postell believes the civil servants have usurped executive authority because they cannot be fired at will. But reasonable job security does not protect civil servants from termination for incompetence or insubordination. These are employees of the executive branch, not an unelected "'fourth branch'" (p. 3).
Postell makes an adequate case that the civil service exam, instituted in the 1880s, is a product of the less regulatory nineteenth century, while the Progressive era represented a significant break with the past. The book's problems are sloppy methodology and lack of context. It relies on straw man arguments and fails to adequately document the historiography it challenges. While Postell notes that "[m]any histories of the administrative state mark the 1880s as the decade when the administrative state was born," the footnote references only one such history (p. 127). He points to the opinions of Chief Justice Roger B. Taney, which strengthened the regulatory state during the nineteenth century, as an aberration. As the author of one of the most vilified decisions in Supreme Court history, Taney is an easy target, but as an almost three-decade chief justice, he is hardly an aberration from the era's jurisprudence. Meanwhile, Postell lauds James Madison's opposition to bureaucracy and promotion of Congress as the branch most connected to the American people, but he ignores the fact that Madison, like Taney, had a very different definition of the peoplethan did regulators of the twentieth century.
The context of the Progressive era is likewise minimized, even as its timing is the crux of the argument. In arguing that the "principles of republicanism, separation of powers, and the rule of law through an independent judiciary, were replaced with a new understanding of the relationship between administration and constitutionalism," Postell describes a second American revolution (p. 169). But the reasons for this revolution, as numerous as those for that of 1776, are not listed; and there is not any sufficient explanation as to why it is less legitimate. Readers are left to infer that Postell subscribes to the doctrine of original intent when he refers to the Constitution in the past tense.
These arguments aside, this book is a page-turner. The arguments are developed and thoughtful, and scholars of public policy and Constitutional law will find much to debate. [End Page 713]