Recovering American administrative law: federalist foundations, 1787-1801.

Author:Mashaw, Jerry L.

ARTICLE CONTENTS INTRODUCTION I. THE CONSTITUTION AND ADMINISTRATION II. CONGRESS AND THE POLITICAL CONTROL OF ADMINISTRATION A. Whose Agents Are These Anyway? The Struggle over the Removal Power 1282 B. Administration's Many Forms: Structuring the First Departments C. Mongrel Administrators: The Attorney General and Others D. The Problem of Delegation E. Congressional Administration F. Using the President's Political Authority G. Boards of Eminent Officers H. Patterns of Political Accountability III. MANAGERIAL OR BUREAUCRATIC ACCOUNTABILITY A. The Limits of Supervisory Control B. Promoting Loyalty C. Pecuniary Benefits D. Bonds, Forfeitures, and Criminal Penalties E. Assessing Managerial Control IV. COURTS, LEGAL ACCOUNTABILITY, AND JUDICIAL REVIEW A. Those "Unimportant" Common Law Actions B. The Courts as Administrative Tribunals C. Judicial Review in the Federalist Period V. REFLECTIONS ON FEDERALIST ADMINISTRATIVE LAW In hindsight, the development of administrative law seems mostly a contribution of the 20th century.... The creation of the Interstate Commerce Commission, in 1887, has been taken to be a kind of genesis. (1)

The past is a foreign country: they do things differently there. (2)


The conventional conception of administrative law in the United States has long suffered from two misperceptions-one is tempted to describe them as governing myths. The first is that the national government, from 1787 until the late nineteenth century, was a government of courts and parties (3) In such a government, administration, and as a corollary administrative law, is a backwater--a place of little importance in the grand scheme of governance. The second is that administrative law is the law of judicial review of administrative action. On this view, to the extent that law holds administration accountable, it is law in courts that counts.

These myths, or misperceptions, are connected. Until well into the twentieth century federal judicial remedies respecting administrative action took two dominant forms: either a common law action against the officer or a suit challenging the constitutionality of the administrator's authorizing statute. From this perspective administrative law disappears into common law subjects like torts, contracts, property, and civil procedure or into constitutional law. Administrative actions that do not provoke a lawsuit that can be fit within any of these preexisting legal categories become legally invisible. From this court centered perspective, administrative law becomes recognizable as a field only as courts beat back the boundaries of administrative discretion pursuant to grants of judicial jurisdiction that demand neither a claim of common law right nor an assertion of unconstitutionality.

Moreover, to the extent that administrative activity at the national level was limited, there should not have been much administrative action for courts to be concerned about, even were we to admit that these traditional forms of litigation should be reclassified as "administrative law." Relying on Lord Bryce (4) and his own review of congressional statutes, Theodore Lowi famously described the actions of the national government throughout the nineteenth century as ninety-nine percent subsidy or patronage policies. (5) Here Bryce and Lowi relied implicitly on the notion that administrative action becomes legally significant only to the extent that it creates specialized agencies to regulate private conduct. Hence the Interstate Commerce Commission (ICC) as the conventional starting point. (6) While there was extensive regulation of health, safety, commerce, and morals in the early Republic, (7) it was most prominent at the state and local level.

Indeed, Lowi explicitly connected regulation and the rise of administrative governance: "Delegation of power did not become a widespread practice or constitutional problem until government began to take on regulatory functions. The first century was one of government dominated by Congress and virtually self-executing laws." (8) On this view, Woodrow Wilson was quite correct to title his 1885 study of American national governmental organization Congressional Government. (9) And Bryce, writing three years later, claimed that even at the implementation stage, Congress chose to act itself, through "law" rather than through "officials." (10)

These conventional characterizations capture some essential truths about national administrative organization and administrative law in antebellum America. But, too heavy a reliance on them causes us to miss much of the action. Indeed, these generalizations are sometimes wrong. From the earliest days of the Republic, Congress delegated broad authority to administrators, armed them with extra judicial coercive powers, created systems of administrative adjudication, and provided for judicial review of administrative action. And the first independent agency at the national level was not the ICC, but the Patent Office, created ninety-seven years earlier.

If these assertions are true, as I hope to demonstrate, then administrative law has a century of history at the national level that has yet to be carefully explored. Recovering the largely untold story of the legal structure of administration in the early Republic, like most historical exploration, has its own interest and charm. But as Hartley's aphorism at the opening of this Article suggests, historical inquiry is also a species of comparative method. This inquiry into the early development of American administrative law seeks to exploit Hartley's insight to do something more than challenge conventional historiography. Just as we mine foreign systems to better see the peculiar features of our own, so the past is mined here to reveal something of the enduring structure of American administrative law. Exposing the scope and diversity of Federalist administration, and the way law both built administrative capacity and made administration politically and legally accountable, helps to reveal what is missing from contemporary understandings of the domain of American administrative law.

The first and most obvious thing missing is that administrative law is not to be found primarily in judicial opinions. American administrative officials are accountable to courts through lawsuits, but their accountability hardly ends there. Administrators are accountable as well to the political branches: Congress and the President. Indeed, administrators are awash in legal instructions from both quarters. And because administrators conform to most of their instructions most of the time, statutes, executive orders, and congressional and executive oversight are much more important sources of constraints on administration than judicial opinions. Administrative officials receive their subject matter jurisdictions, their powers of action, their fiscal and human resources, much of their internal structure, and the processes by which they must act, not from the courts that review their actions, but from the Congresses and Presidents who create, empower, appoint, fund, and monitor them. How administration works in any particular period of American history depends primarily upon the understandings, statutory precedents, and legal innovations of the executive and legislative branches, not the judiciary. While "constitutional" in some ultimate sense, these understandings are to be gleaned largely from legislative and executive practice, not, as Justice Jackson lamented, from the sparse and fragmented jurisprudence of the Supreme Court. (11)

Both judicial review of administrative action and political control of administration presume yet another form of administrative law. When a litigant sues the Secretary of Health and Human Services, or Congress summons the Commissioner of the Food and Drug Administration to a hearing, both assume that these high-level officials have effective control over the bureaucracies that they manage. They assume, in effect, that there is an internal law of administration (12) by which higher level officials instruct subordinates and through which they can call them to account for their actions. It is these internal forms of administrative accountability that are most powerful in shaping the conduct of subordinate officials. To call up one familiar modern example, disability adjudicators determine millions of Social Security disability claims each year while never looking at either a statute or a judicial decision. (13) The same could be said for the thousands of officials who enforce our immigration laws or who carry out Occupational Safety and Health Act (OSHA) inspections. They are bound, and take themselves to be bound, by the internal instructions promulgated by the Social Security Administration (SSA), OSHA, or the Department of Homeland Security, either in the form of regulations, or, more commonly, in less formal instruments-manuals, memoranda, opinion letters, and the like.

These bureaucratic forms of accountability extend beyond the individual agency to the supervisory institutions of the executive branch and to the audit agencies of Congress. In contemporary administration the managerial accountability exercised by the Office of Management and Budget is often a more crucial constraint on agency action than is the prospect of judicial review.

The extremely limited record of judicial review of administrative action, and the special forms that review took in the Federalist period, help to free us from the tyranny of our currently judicio-centric legal culture. To see federal administrative law in the early Republic, we are forced to concentrate first on the techniques of administrative empowerment and control that Congress devised, and the debates surrounding those choices. And to understand how those legal innovations worked, we must be attentive, second, to the administrative practices that grew up in the process of implementing the congressional...

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