By the administrative state, I mean the network of agencies created by Congress to carry out the work of the federal government. These agencies differ in the structure of their supervision, their sources of funding, and their ability to write and enforce rules, but collectively they have similar mandates: to carry out laws that Congress and the judiciary lack the time and expertise to implement on their own.
To some observers, this situation is fundamentally at loggerheads with the Constitution. The problem isn’t this or that agency; it is the administrative state itself, an alien import from European collectivism, which destroyed the laissez-faire liberty Americans supposedly enjoyed in the nineteenth century. Today, opposition to the administrative state unites everyone from George Will, who says the Affordable Care Act “serves principally to expand the administrative state’s unfettered discretion,” to Supreme Court Justice Clarence Thomas, who sees the administrative state as evidence of a “belief that bureaucrats might more effectively govern the country than the American people,” to Senator Mike Lee, Glenn Beck, and the Tea Party broadly.
But a new wave of legal history is overturning the narrative of paradise lost. In Jerry Mashaw’s Creating The Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012), we see that the early U.S. government was both far more bureaucratic and expansive than partisans of deregulation assert. And Daniel Ernst, in Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940 (2014), attacks the alien-import thesis, arguing that modern American regulatory agencies were justified by domestic legal norms.
Indeed, this scholarship does more than just show how far back the administrative state goes in American history. It shows that the practices and institutions of bureaucrats have not assaulted our Constitutional liberties but rather have helped define and expand our very notion of liberty. This emergent school of thought, known as “administrative constitutionalism,” documents how our institutions, in their everyday dealings with the public, provide the basis for the liberties courts end up adopting and ratifying.
Most academic discussion of the U.S. administrative state starts with the creation of the Interstate Commerce Commission of 1887, followed by a major ramp-up in the early twentieth century. This leaves a hundred years in which to fill in the blanks.
But, Mashaw argues, “We should rid ourselves of the nostalgic idea that the emergence of administrative governance in the twentieth century upset the grand design of a non-administrative state.” There “simply never was a time” in which federal law was “self-executing, fully specified by Congress, and enforced through judicial decree.” Mashaw digs up a deep and fascinating world of administrative practices that, from the beginning, were intended to solve the urgent problems Congress and the courts could not by themselves.