[BOOKS] Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940, by Daniel R. Ernst

Review of TOCQUEVILLE’S NIGHTMARE: The Administrative State Emerges in America, 1900-1940, by Daniel R. Ernst Oxford University Press, 2014

ADRIAN VERMEULE is the John H. Watson Professor of Law at Harvard Law School. He is the author or co-author of eight books on public law and legal theory, most recently The Constitution of Risk (2014).

Adrian Vermeile writes: Although Dan Ernst ends his account of the emergence of the American administrative state in 1940, the true climax, at least from the lawyer’s point of view, occurs in 1932. In that year the great Chief Justice Charles Evans Hughes undertook his titanic effort to forge a charter of compromise, a treaty of peace, between the administrative state and the rule of law. The case was Crowell v. Benson, involving an agency charged with deciding workman’s compensation cases involving injured maritime workers.

“The mid-century attempt to domesticate the American administrative state, described so skillfully by Ernst, ultimately came undone, and it is a live question whether anything else has taken its place.”

Hughes’s opinion in many ways laid down lines of demarcation that were written into the Administrative Procedure Act of 1946, the great framework statute or quasi-constitution of the administrative state. It is a tribute to Hughes that his effort created an equilibrium that outlasted the turbulent years of his Chief Justiceship — despite the intervening constitutional revolution of 1937, after which the courts stopped trying to enforce narrow readings of the national government’s power over interstate commerce, and stopped trying to police statutory grants of authority from Congress to the executive (the so-called “nondelegation doctrine”).

[Order Daniel R. Ernst’s book “Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940” from Amazon.com]

Having paid due tribute, however, it must be said that the equilibrium Hughes brought into being is a thing of the past. The line of demarcation between administration and law, the frontier of the administrative state, has shifted markedly, with law giving way to administration across almost every margin identified in Crowell — in large part because law has abnegated its authority to administration. Ernst is not wholly clear about whether the equilibrium he identifies persists all the way into the present, doubtless because the story from 1940 to the present is not the story he is trying to tell. But to understand the significance of his book, it is important to understand that what it offers is a portrait of a particular equilibrium, one that has since vanished. The mid-century attempt to domesticate the American administrative state, described so skillfully by Ernst, ultimately came undone, and it is a live question whether anything else has taken its place.

“Ernst’s narrative is highly readable and strikes just the right balance among the historian’s love of detail, the lawyer’s need for conceptual organization, and the political theorist’s addiction to high-level principles.”

Ernst’s narrative is highly readable and strikes just the right balance among the historian’s love of detail, the lawyer’s need for conceptual organization, and the political theorist’s addiction to high-level principles. Let me begin with the level of political and constitutional theory. The high-level frame of the book is a choice or contest among possible visions of the relationship between law and administration. Traditional lawyers were afflicted by “Tocqueville’s nightmare,” a vision of a centralized administration abusing its powers and trampling on legal rights. (The nightmare persists, of course, as Philip Hamburger’s recent book shows). The main alternatives or competitors may be understood as different conceptions of “the rule of law.”

[Read the full text of Adrian Vermeile‘s book review here, at New Rambler Review]

One alternative, championed by Ernst Freund, was the German idea of the Rechtsstaat — the rule-of-law state founded on clear positive enactments that would fix the metes and bounds “where the sovereign’s will prevailed and where it yielded to the will of the individual” (p. 2). The Rechtsstaat ideal, however, lost out to a different conception of the rule of law, championed by Hughes among others — a modified and updated version of Albert Venn Dicey’s ideal that subjected all official action to review by ordinary common-law courts.

“…perhaps the major expansion of the administrative state since Crowellhas come not in the areas it addressed, but in an area it said almost nothing about: agency rulemaking. Agencies may act like little courts, as in Crowell, or like little legislatures, making general rules with the force and effect of law.”

After the emergence of the administrative state, the original version of the Diceyan ideal was a non-starter. Ernst shows convincingly that even some traditional lawyers came to understand and appreciate the expertise and efficiency of relatively nonpolitical agencies, who were more professional and less liable to be overrun by patronage politics than other potential suppliers of lawmaking, such as legislative committees, and more knowledgeable and less expensive than the common-law judges and the elaborate processes of litigation. Such lawyers reinvented themselves as transactional engineers, shepherding clients through the administrative process — not “officers of the court” but “officers of the state” (6). Yet lawyers like Hughes also worked to translate or adapt Dicey’s commitments in the new environment, developing an approach that retained a crucial role for judicial review of administrative action. As Richard Fallon has observed in a different but related context, the translated Diceyan approach attempted not so much to get every given case right, but instead to provide an overall scheme of review that would suffice to keep the administrative state within the bounds of law. Read the rest of this entry »