At Liberty Law Blog, Jeffrey Pojanowski: A New Classic in Administrative Skepticism (reviewing Bureaucracy in America by Joseph Postell [Univ. of Missouri Press 2017]). Here is the introduction:
Not long ago, Americans were entertaining the prospect of a 2020 presidential race between Donald Trump and Oprah Winfrey. Although the Oprah boomlet appears to have fizzled, one could not avoid thinking that a country contemplating a choice between two television celebrities takes its presidential elections literally, but not seriously. Were the President a mere figurehead, we might shake our head in wry bemusement, but in the past 100 years the importance of the federal executive has grown exponentially, aided by a Congress happy to delegate power while disclaiming responsibility. In response, an increasing number of scholars and jurists have criticized the rise and rise of the administrative state. Joseph Postell’s history, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, is an important new contribution to this discussion.
To put the point more strongly, Bureaucracy in America is essential reading for the new critics of the administrative state, and their critics as well. In fact, it may be even more important than the book that launched the revival in administrative skepticism, Philip Hamburger’s Is Administrative Law Unlawful?Hamburger’s insistence on analogizing between the contemporary administrative state and English monarchical power, while rhetorically powerful, skips over much of 200 years of American constitutional and administrative law. Consequently, one major line of criticism focuses on whether Hamburger gets his English history right. Another contends that English history is irrelevant, given that subsequent American history and doctrine shows the administrative state to be lawful. If the administrative state’s critics are litigating details of the Star Chamber while ceding the field on American legal history and practice from 1787 to 1987, its defenders have little to fear.
By contrast, Postell, an associate professor of political science at the University of Colorado, carefully traces the history of American administrative law from the colonies to today. In doing so, he challenges two defenses of the contemporary administrative state: 1) that it is not an innovation on our original constitutional order, and 2) that any departure from original order was good and necessary—even inevitable. Bureaucracy in America contests the first point robustly. The case he makes on the second is more indirect and ambiguous, yet nevertheless illuminates our current predicament and potential responses to it.
And here is the book description from Amazon:
The rise of the administrative state is the most significant political development in American politics over the past century. While our Constitution separates powers into three branches, and requires that the laws are made by elected representatives in the Congress, today most policies are made by unelected officials in agencies where legislative, executive, and judicial powers are combined. This threatens constitutionalism and the rule of law. This book examines the history of administrative power in America and argues that modern administrative law has failed to protect the principles of American constitutionalism as effectively as earlier approaches to regulation and administration.
Posted at 6:25 AM