Federal administrative law has developed over a series of periods or eras.
For roughly the first 100 years of the country, into the end of the 19th Century, there really
wasn't anything that was called administrative law.
It wasn't a distinct field of study.
There were administrative agencies, the Department of War, the Department of State, the Department
of the Treasury.
It's really since the end of the 19th Century that we've seen an expansion in the role of
administrative agencies, and that has led to the rise of administrative law.
Those expansions have happened in fits and starts.
They've all been driven by particular historical forces, and they've each been accompanied
by changes in the thinking not just about what government should do, but how government
should do it.
Let me start with what's sometimes called the Progressive Era, let's say, from 1880
into the 1920s.
During that period you absolutely saw an expansion in the conception of what the national government
should be doing.
The national government began entering, in a big way, regulation of economic entities,
regulation of transportation, regulation of the banking industry, the creation of the
Federal Reserve, centralizing control over the money supply, regulation of food and drugs,
regulations of broadcasting as broadcasting starts to enter.
All of this is done through the vehicle of administrative agencies.
As the conception of the national government gets more activist during this period, you
also had shifts in what institutions of government were seen as the best vehicles for this regulation.
The progressive era saw the celebration of expertise, people with advanced degrees, people
with experience, people who are really smart.
They're the ones who you want in charge of this.
That's really the birth of administrative law because now you have enough agencies out
there doing enough important things to worry about, and because they're now performing
important functions, people started to think carefully about which functions should they
be performing, and which the legislature be performing?
The conclusion was the legislature should set the general goals, should fix the ends,
decide we're going to build bridges, for example, and then you turn it over to the experts to
figure out how the bridges get built, with a minimum of both legislative and judicial
interference.
After all, if the legislature doesn't know what's going on, courts don't know any better.
Leave it to the experts to figure out how to build the bridges.
Your next big shift comes with the New Deal in the 1930s.
There you have yet another quantum leap in involvement of the national government and
economic affairs, now regulating labor markets, agriculture, pretty much every aspect of industry.
Large jump from the more segmented transportation, broadcast license, banking, food and drug,
regulation of the progressive era.
You also had a shift in how to go about that.
The New Deal model said, "Well, if the agencies are the smart ones who can figure out how
to build the bridges, maybe they're also the smart ones who should figure out whether we
should be building bridges in the first place instead of building, let us say, bomb shelters.”
The shift was to agencies, not just as expert implementers of legislative policies, but
as the ones who actually formulate the policies.
The ideal statute on that model is a statute that creates an agency, gives it a lot of
power, hands it a budget, and then gets out of the way, keeps the legislature out of the
way, keeps the courts out of the way, let the experts figure out what to do and how
to do it.
We still have, as part of our legacy, much of that New Deal structure as part of our
law today.
The next major move comes several decades later in the 1960s.
Yet another quantum leap in the scope of federal governmental power, through the massive expansion
of the welfare state in the Great Society, and the environmental movement, which gets
the national government involved in cross industry, economy-wide regulation of air and
water pollution, product safety, workplace safety, a whole new group of agencies coming
in, plus expansion of the authority of the existing agencies.
By this time however, when we get to the 1960s, there's a very different conception about
what functions it makes sense to give to these agencies.
The celebration of agency expertise to the point of viewing them as the right bodies
to figure out what to do, as well as how to do it, by the 1960s had fallen into disfavor.
Everyone from free market economists to Ralph Nader and his organization was suspicious
of agencies.
They all thought that the agencies were essentially going to be taken over by powerful economic
interests, who would then use the agencies to serve their own ends at the expense of
consumers, the broader public, and the like.
What do you do?
Well, they wanted to continue to give power to the agencies.
They thought they had to.
They needed an expanded role for the national government, and agencies seemed like the only
institutions that could do it.
Unlike the 1930s, when the point was to separate agencies from both political and judicial
control, let them do their thing, 1960s you were going to grant power to the agencies,
but only subject to controls, both political controls and judicial controls.
A lot of our modern administrative law comes out of that time period.
A lot of our institutions of administrative review, how courts look at the work product
of agencies, come from that time period.
Since then, for roughly the last 40 to 45 years, administrative law has been fairly
stable.