The perilous position of the rule of law and the administrative state.

• Author: Epstein, Richard A.
• Position: Thirty-First Annual Federalist Society National Student Symposium: Bureaucracy Unbound: Can Limited Government and the Administrative State Co-Exist?

1. THE RULE OF LAW IN DISTRESS

   Recent scholarship in the academy has turned again to an intensive study of the rule of law in the modern administrative state, a topic which I have addressed in detail in my book Design for Liberty: Private Property, Public Administration, and the Rule of Law. (1) One way to view this question is to treat it as a definitional matter. That approach, however, is not a fruitful one, for the concept of a rule of law is today not essentially contested today. Professor Shane gave a perfectly accurate definition, (2) one to which I subscribe but for which I claim no originality. Many of the essential elements of the modern account are found in the Second Treatise of Government by John Locke. (3) That vision is then further elaborated in the same form, more or less, by Lon Fuller in his book The Morality of Law. (4) The elements of this definition of the rule of law speak of known, consistent, and certain rules that are applied prospectively by neutral judges to the cases before them. The key virtue of this definition is its generality; its application does not commit any defender of the rule of law to any particular substantive view of which laws are desirable, nor does it presuppose some distinctive relationship of individuals to the state or of individuals to one another. It therefore offers a minimum condition that is consistent with, and constituent of, any just and efficient legal regime.

   When the discussion turns to the modern social democratic state, however, there are deep tensions between the rule of law and the rise of the modern administrative state. In making this claim, I stress the term "modern" to direct attention to the new generation of administrative agencies that began in the United States with the adoption of the Interstate Commerce Act of 1887, (5) which was the major legislative achievement of its time. Woodrow Wilson's progressive administration continued the proliferation of administrative agencies, including the creation of the Federal Trade Commission in 1914. (6) Over the next twenty-five years, the establishment of such agencies as the Federal Radio Commission of 1926 (7) (which morphed into the Federal Communications Commission in 1934), (8) the Securities and Exchange Commission in 1934, (9) the National Labor Relations Board in 1935, (l0) and Acts such as the Fair Labor Standards Act of 1938 continued the modern trend. (11)

   These modern agencies must be contrasted with the types of administrative agencies in England (12) and in the early United States (13) that were responsible for administering prisons, schools, voting and tax rolls, motor vehicle licenses, and the large set of other ministerial duties that government agencies must discharge in any developed society. Against this backdrop, it is an imprudent exaggeration to say that all public administration must necessarily conflict with the rule of law. There has been in recent years much corruption in the distribution of vehicle licenses in Illinois; (14) however, it is not just conceivable, but also eminently possible, for that state to run an efficient vehicle licensing system. The same is true of the first aggressive application of the modern administrative state, which involved the evolution and maturation of the system of ratemaking in the period from around 1887 through the end of the Second World War. (15)

   Most forms of rate regulation did not generate any significant tension with the rule of law because the defined purpose of the system gave tolerably clear direction to its operation. To put the point in its simplest version, if a competitive market exists, regulators need not intervene to ensure its sound operation. In contrast, if a monopoly existed, as was common with such industries as telecommunications, electric power, and railroads, (16) regulators were forced to determine which techniques would best be able to limit the firm to a reasonable risk-adjusted rate of return without wrecking the industry in question. (17) Accordingly, regulators struggled to avoid two perils at once: They could not confiscate the invested capital in the industry by cutting rates too severely and they could not sanction the collection of monopoly profits by cutting rates too little. (18) In practice, it turns out, that standard is relatively operational. What was and still is striking about this endeavor is that judges in the 1910s and 1920s by and large made accurate decisions of fair rates of return, even though their grasp of modern economic theory was not as solid as that of today's judges. (19)

   At the other extreme lie cases in which the necessary operation of executive power precludes any major role for the rule of law. Nobody thinks that application of the rule of law allows Congress and the President to decide when to declare war on a foreign nation. Even the more humdrum problem of prosecutorial discretion, in which decisions on what charge to bring depends on the facts of a particular case, is very difficult to constrain through external sanctions. In addition, it is commonly understood that there is an important class of decisions that necessarily become deeply political, at which point consultation and similar virtues--all of which Professor Shane is correct to stress--play an irreducible role. Between these poles, though, lies a key middle class of situations involving the large administrative agencies of the Progressive Era that gave rise to the modern arena of administrative law. It is in this middle class of large administrative agencies where the level of discretion, while not that of an executive officer or a prosecutor, is great enough to generate some real uneasiness about compliance with the rule of law.

2. THE GROWTH OF THE FEDERAL GOVERNMENT

   Professor Shane is right when he says that Congress is every bit as prone to rent-seeking political corruption as any administrative agency, which is to some degree insulated from political pressures. (20) All sides of the political spectrum understand that taming Congress is an ongoing endemic problem that resists easy solution. (21) A large portion of the problem, however, stems from constitutional choices made regarding the scope of Congress's power in the first place. Once the scope of Congressional power was expanded by the Supreme Court's broad readings of the Commerce Clause, few, if any, constraints remained on the issues that Congress could confront. (22) Congress is no longer confined to worrying about such distinct problems as regulating interstate commerce; it now has a blanket license to do almost anything it wants by way of regulation.23 As the space Congress occupies grows, the door opens to the risk of faction and intrigue.

   As the power of Congress continued to grow, most discernible protections of private property and economic liberty found in the Constitution were also overrun by the same progressive impulse. It is important to understand how this change came about. One explanation of this phenomenon, to which Professor Barron referred, (24) is contained in Professor Richard Stewart's important paper about the reformation of administrative law. (25) Professor Stewart pointed out correctly that the older system of administrative law worked against a regime of strong property rights, where discretion was relatively limited. (26) In contrast, as he added in a later paper, the great New Deal compromise or settlement was: property rights are out and participation rights are in. (27) The role of the administrative state now is to determine exactly how those participation rights can be used and effectuated through deliberation. (28) Unfortunately, once property rights are removed, or even diluted, the rights and duties of the government and private parties become an open question.

   Start with local governments. Suppose that a small group of nine people arrayed like a tic-tac-toe board will deliberate about...