A recent book review by Joseph Postell discusses the new book by Jerry Mashaw entitled Creating the Administrative Constitution.
Mashaw’s book is an attempt to rebut the common claim that the United
States initially did not have an administrative state, but only
developed one much later, especially during the 20th century.
Postell does a good job of questioning Mashaw’s premise that if the
United States employed some agencies early on that had some of the
powers of latter day administrative agencies that means that the United
States had an administrative state from the beginning.
Mashaw
taught me Administrative Law in law school. As a teacher of
Administrative Law, I am sorry to admit that I never really “got”
Mashaw’s course. Some of the time I was not really sure what exactly he
was claiming. At other times, I was not sure why he wanted to make a
certain claim. And at other times, I just couldn’t understand why he
thought that something he recommended was actually good.
Mashaw
lives in a different world than I do. He thinks that markets have very
serious limitations and that elections are also very imperfect.
Instead, he thinks bureaucracy provides a significant solution to
problems of governance in modern society. I have very little sympathy
for this arrangement, as I think that government bureaucracy has limited
checks on it and does not really work terribly well.
Mashaw’s
book should be understood against this background. My sense is that he
is trying to eliminate one of the critiques of the modern
administrative state – that it is inconsistent with the early history of
the country and the genius of America.
I don’t know how well he
succeeds in his task, as I have only reviewed some of the articles that
the book is based on. But even if he shows that from “the earliest days
of the Republic, Congress delegated broad authority to administrators,
armed them with extrajudicial coercive powers, created systems of
administrative adjudication, and specifically authorized administrative
rulemaking,” that would not, in my view, make an administrative state.
The government in the beginning was extremely limited — a very small
percentage of GDP. Such a government cannot be an administrative state,
even if it uses the modern methods of administrative agencies.
The
methods that the administrative agencies exercised – whether, for
example, they were delegated legislative power – are important
questions. For an originalist like myself, they would be evidence of
whether the Constitution’s original meaning would allow such
delegation. (For my own attempt to address some early examples of
delegation of legislative power, see here.)
But
a small government that delegated discretion to administrative
agencies, whatever it might suggest about the Constitution’s original
meaning, would not constitute an administrative state.
(Cross Posted on the Liberty Law Blog)
Posted at 7:30 AM