Petitioning and the Making of the Administrative State.

• Author: McKinley, Maggie

ARTICLE CONTENTS

INTRODUCTION 1543 1. ORIGINS 1551 A. The Rediscovery of Early American Lawmaldng 1552 B. The Pedtion Process in Congress 1555 C. The Infrastructure of Petitioning 1560 D. The Rise and Fall of Congressional Petitioning 1568 1. Petitioning the Early Congress (1789-1795) 1568 2. The Congressional Petitions Database 1570 3. The Legislative Reorganization Act and the Administrative Procedure Act of 1946 1575 II. EVOLUTIONS 1579 A. Siphoning Off Adjudication: The Court of Claims 1581 B. Siphoning Off the Provision of Public Benefits: The Bureau of Pensions 1586 C. Siphoning Off Regulation: The Interstate Commerce Commission 1594 III.THE PARTICIPATORY STATE 1600 A. Naming the Participatory State 1601 B. Updating Our Lawmaking Models 1605 1. Legal Process Theory: Lawmaking Without Petitioning 1606 2. Amending Legal Process Theory 1609 IV. PETITIONING WITHIN THE ADMINISTRATIVE STATE 1611 A. The Administrative State Within Our Constitutional Framework 1612 1. The Critics and Their Models 1613 2. A Case Study in Correcting the Models: The Legislative Veto 1620 B. Participatory Administrative Law 1622 C. Objections 1626 CONCLUSION 1628 METHODS APPENDIX 1630 A. The Journals Dataset 1630 B. The Record Dataset 1633 C. Limitations 1635 D. First Congress Archival Materials 1636 INTRODUCTION

[The right to petition] would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature of its structure and institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared, and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen. --Joseph Story, Commentaries on the Constitution (1833) (1) Our government is suffering from a crisis of legitimacy. (2) As James O. Freedman has described, Americans have endured a "recurrent sense of crisis" over whether the procedures of administrative lawmaking accord with the Constitution. (3) Classic legal process theory reminds us that recurring crises in the public's faith in our lawmaking procedure undermines the legitimacy of our laws. (4) Recent scholarship by Gillian Metzger declares the administrative state to be "under siege" across a "range of public arenas--political, judicial, and academic in particular." (5) Metzger argues that these challenges--unlike earlier challenges to the administrative state--are frequently "surfacing in court and being framed in terms of constitutional doctrine." (6) Moreover, the constitutional issues raised by these challenges are not piecemeal. Rather, the challenges frame the entire administrative state as unconstitutional. (7) "While still a minority position," Metzger observes, "this view is gaining more judicial and academic traction than at any point since the 1930s." (8)

Cass Sunstein and Adrian Vermeule identified this nascent movement in charting the creation of "libertarian administrative law." (9) This strain of critique characterizes the administrative state as an abandonment of both classical American liberalism and the core values of our "Constitution in Exile"--namely, individual rights, limited national government, and due process. (10) Critics take issue with the abandonment of the strict, tripartite separation of powers embodied in constitutional text for the so-called "Fourth Branch"--a branch not recognized by the text of our original Constitution. (11) By Sunstein and Vermeule's account, the administrative state has become a lightning rod for the clash between libertarian and progressive philosophies (12) in our increasingly polarized political culture. (13)

Given the philosophical cast of much of the critique, it is unsurprising that it has been met with rebuttals based in intellectual history. Most recently, legal historian Daniel R. Ernst examined the intellectual origins of the New Deal and argued that an intellectual consensus of elites and their expressly liberal concerns over due process should put to rest any charge that the administrative state is out of step with liberal American values. (14) Even assuming Ernst's careful archival work could document an intellectual consensus, (15) however, it is doubtful that such a moment of agreement could overcome the core of the libertarian critique: that is, the lack of constitutional text establishing the lawmaking procedure of the administrative state by formal means. (16)

Other defenders of the administrative state have provided institutional histories undermining the libertarians' claim that the administrative state is an alien outgrowth of a twentieth century communitarian political philosophy foreign to our founding constitutional culture. Jerry Mashaw, (17) Theda Skocpol, (18) Nicholas Parrillo, (19) Michele Dauber, (20) and Daniel Carpenter, (21) among others, have begun the vital project of excavating legislative and executive practices during the eighteenth and nineteenth centuries. This work contradicts previous descriptions of that era as one encompassing only a weak "state of courts and parties." (22) It has generally interrogated the mismatch between particular values previously understood as originating with the New Deal--like that of social welfare (23)--and the reality of historical practice. But nothing has done more to undermine the characterization of the administrative state as an alien outgrowth of the late nineteenth and early twentieth century than the work of Jerry Mashaw.

Mashaw's impressive installments in the Yale Law Journal, later compiled into a book, trace the practices of American administrative governance to the founding. (24) Mashaw's administrative state, if such a term still applies, is an incrementalist project that was built statute by statute as Congress met new challenges with new forms of governance. (25) His rich historical narrative problematizes the libertarian critique that our Founding witnessed little national administrative governance and adhered to a strict separation of powers. (26) It remains unclear, however, whether Mashaw's account sufficiently addresses the critique that these new forms of lawmaking procedure were never formally established. To many, historical practice alone does not amend the Constitution.

This Article aims to build on Mashaw's incrementalist narrative and to intervene in the debate over the legitimacy of administrative lawmaking. But unlike these prior contributions, it grounds this intervention in the Constitution and in constitutional text--namely, the Petition Clause of the First Amendment. Drawing on an original database of over 500,000 petitions submitted to Congress, as well as archival materials from the First Congress, this Article excavates the petition process comprehensively for the first time and documents how petitioning shaped the modern administrative state. This excavation tracks petitioning in the House of Representatives from the First Congress through the Eightieth, at which point the volume of legislative petitioning dropped dramatically following implementation of the Legislative Reorganization Act and the Administrative Procedure Act of 1946. (27)

In doing so, this Article offers three primary contributions to the debate. First, it provides a revisionist history of the administrative state as an outgrowth of the petition process by detailing congressional petitioning from the Founding into the twentieth century. Second, it updates legal process theory to incorporate petitioning and its integral role in affording participation for individuals and minorities in the lawmaking process. Third, this Article argues that the Petition Clause could offer additional support for the constitutionality of the administrative state. But just as excavating the petitioning process reveals the historical and textual roots of the administrative state, it also demonstrates that our doctrine has migrated quite far from those origins. This history, then, also sheds lights on how this doctrine could better reflect the important constitutional and democratic function that the administrative state performs in supplementing the congressional petition process.

Although largely lost from our modern understanding of lawmaking, the institution of petitioning formed a core part of our Congress for much of this nation's history. The petition process performed an important lawmaking function within colonial legislatures in allowing the aggrieved to be heard. After the revolution, the petition process provided a mechanism of representation for individuals and minorities not represented by the majoritarian mechanism of the vote. Even the unenfranchised could petition: women, free African Americans, Native Americans, the foreign born, and children turned to the petition process to participate in lawmaking.

The petition process offered the politically powerless a means of participation that was formal, public, and not driven by political power. In this way, the petition process resembled litigation in a court more closely than the rough and tumble public engagement process described by political scientists today. Petitioners would submit formal documents, like complaints, to trigger petition actions in Congress. The House clerk tracked these actions in a petition docket book throughout formal proceedings--from submission to referral to reporting to disposition. Although the petition process was primarily located in the House, the consideration of petitions dominated congressional dockets into the twentieth century--often far surpassing the volume of congressional business on other matters.

The petition process formed an integral part of our congressional lawmaking process until after the Second World War. The year 1945 marked not only the end of the war, but also the beginning of a comprehensive effort to restructure a government that had rapidly expanded under a series of wartime administrations. As part of this effort, Congress passed two laws in...