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A Brief History of Administrative Law

Professor Gary Lawson outlines the last hundred years of administrative law and how it has changed over time. The birth of administrative law happened during the Progressive era, a time when there was a new demand for specialized expertise. Agencies and regulations grew exponentially in the New Deal era when Congress and the courts relinquished most oversight powers. In the 1960s, administrative regulations extended to even broader areas of society, such as environmental regulations, but the legislature and the courts reasserted some control over the agencies. https://youtube.com/watch?v=QplOQxW9ja0


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.

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