Retrofitting the Administrative State to the Constitution: Congress and the Judiciary's Twentieth‐Century Progress

• Published date: 01 January 2000
• DOI: http://doi.org/10.1111/0033-3352.00060
• Author: David H. Rosenbloom
• Date: 01 January 2000

Retrofitting the Administrative State to the Constitution 39

David H. Rosenbloom

American University

Retrofitting the Administrative State to the

Constitution: Congress and the Judiciary’s

Twentieth-Century Progress

One of the twentieth century’s “big questions” for United States government has been how best to

retrofit, or integrate, the full-fledged federal administrative state into the constitutional scheme. The

public administration orthodoxy initially advocated placing the executive branch almost entirely

under presidential control; Congress and the federal judiciary responded otherwise. Congress

decided to treat the agencies as its extensions for legislative functions and to supervise them more

closely. The courts developed an elaborate framework for imposing constitutional rights, values,

and reasoning on public administration practice. As the challenge of retrofitting continues into the

twenty-first century, public administrators might profitably play a larger role in the constitutional

discourse regarding the administrative state’s place in constitutional government.

David H. Rosenbloom is Distinguished Professor of Public Administration in the

School of Public Affairs at American University in Washington, D.C. He re-

ceived ASPA’s Dwight Waldo Award for outstanding contributions to the litera-

ture and leadership of public administration through an extended career.

[U]nder our system of divided powers, the execu-

tive branch of the national government is not exclu-

sively controlled by the President, by the Congress,

or by the courts. All three have a hand in controlling

it, each from a different angle and each in a differ-

ent way (Meriam 1939, 131).

One of the “big questions” of American public admin-

istration has been how to retrofit, or integrate, the federal

administrative state into the nation’s constitutional scheme.

The parameters of the problem are well understood. The

Constitution’s framers could not have anticipated the size,

scope, or power of the modern administrative state. Ameri-

can public administration was not organized according to

democratic theory and values (Waldo 1948, 1984). The

separation of powers collapses into administration as agen-

cies combine legislative, executive, and judicial functions.

Administrative agencies threaten the separation of powers

because, in the words of former Supreme Court Justice

Robert Jackson, they are “a veritable fourth branch of the

Government, which has deranged our three-branch legal

theories much as the concept of a fourth dimension un-

settles our three-dimensional thinking” (Federal Trade

Commission v. Ruberoid, 343 U.S. 470 [1952]).

The overall problem of integrating federal administra-

tion into democratic-constitutional government may not

be fully solvable (Waldo 1984, xviii), but its scope should

not be allowed to obscure the progress that has been made.

One of the great administrative developments of the twen-

tieth century has been the extent to which Congress and

the federal judiciary have responded to the rise of the ad-

ministrative state by infusing it with constitutional values

and folding it into the separation of powers. Psychologi-

cally, the turn of the century is a time for taking stock.

That is the genre and purpose of this article.

The Orthodox Response:

Enhance Presidential Control

American public administrative thought was founded

from the 1870s through the 1920s on a variety of proposi-

tions that are now regarded as untenable, perhaps even

hazardous. In fairness to the nineteenth-century civil ser-

vice reformers and the progressives who followed them, it

should be noted that their public administrative doctrine

was developed primarily to serve fundamental political

objectives (Rosenbloom 1971, chap. 3; Rosenbloom and

O’Leary 1997, 2–6). Nevertheless, the orthodoxy’s poli-