The Regulatory Agency: Detached Tribunal or Positive Administrator?

• Published date: 01 May 1942
• DOI: 10.1177/000271624222100104
• Date: 01 May 1942
• Subject Matter: Articles

17

The

Regulatory

Agency:

Detached

Tribunal

or

Positive

Administrator?

By

JAMES

C.

CHARLESWORTH

I T

WAS

unfortunate

that

the

Inter-

state

Commerce

Commission

was

conceived

in

a

spirit

that

made

it

ap-

propriate

to

name

Judge

Thomas

M.

Cooley

as

its

first

chairman.

A

man

preoccupied

with

constitutional

limita-

tions

would

inevitably

shape

a

regu-

lating

body

into

a

judicial

tribunal

rather

than

into

a

positive,

directive

administrative

agency.

The

work

of

this

unit

and

of

the

independent

com-

missions

subsequently

created

in

its

image

has

never

quite

recovered

from

the

judicialized

procedure

that

he

and

his

colleagues

instituted.

THE

IMPLICIT

ASSUMPTION

OF

A

TRUNCATED

SOVEREIGNTY

It

was

regrettable

that

the

Interstate

Commerce

Commission

should

be

con-

stituted

as

a

referee

rather

than

as

a

manager-regulator,

but

it

was

the

natu-

ral

expression

of

the

political

philosophy

of

the

period.

At

that

time

the

doctrine

of

the

limited

state

and

the

legal

sphere

of

anarchy

for

the

citizen

and

especially

for

the

enterprising

business

corporation

was

in

almost

undisputed

ascendancy,

both

in

England

and

in

America.

The

government

was

a

truncated

sovereign.

It

faced

the

double

disadvantage

of

its

own

lack

of

strength

and

pervasiveness,

and

the

energy,

single-purposed

leader-

ship,

and

ruthlessness

of

the

typical

rail-

road

management.

This

referee

concept,

as

long

as

it

lasted,

prevented

the

development

of

positive

railroad

administration

by

the

government.

It

was

not

a

separate

managing

bureau,

but

the

public

itself

that

was

to

plead

the

customers’

case,

and

it

was

not

pleaded

before

the

gov-

ernment,

but

before

a

detached,

state-

less,

sovereignty-ignoring

tribunal.

The

public

and

the

utility

hammered

out

their

argument

in

an

arena

of

equal

combat,

and,

on

the

theory

that

justice

can

be

obtained

only

in

the

courts,

Cooley

and

his

imitators

pretended

to

build

up

a

case

law

after

the

manner

of

Henry

Il’s

trouping

judges.

This

phase

has

now

happily

passed.

The

new

contrition

of

the

courts,

the

financial

plight

of

the

railroads

and

other

utilities,

the

new

sense

of

dig-

nity

and

responsibility

in

the

kinetic

branches

of

the

government,

not

to

men-

tion

the

growing

importance

of

military

preparedness,

have

collectively

contrived

to

change

the

regulator

from

judge

to

manager.

&dquo;Regulation

o

operation&dquo;

no

longer

describes

the

real

state

of

affairs.

At

this

time,

regulation

is

operation.

This

new

state

of

command

unfor-

tunately

is

not

reflected,

however,

in

the

typical

documentary

treatment

of

the

regulatory

commissions.

In

the

usual

treatise,

the

emphasis

on

litiga-

tion

would

persuade

one

that

the

princi-

pal

business

of

commissions

is

still

that

of

defining

their

jurisdictions,

whereas

the

truth

is

more

likely

to

be

that

98

per

cent

of

their

energy

is

being

thrown

into

the

application

of

known

law

to

known

conditions.

TYPICAL

WRITTEN

TREATMENT

OF

THE

SUBJECT

The

typical

treatment

of

regulatory

commissions

in

books

and

journals

of

political

science

consists

of

a

historical

record

of

their

statutory

creation

and

amendment,

an

examination

of

their

constitutional

relationship

to

the

three

sovereign

branches

of

government,

a

commentary

on

the

independence

of

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