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The rise of modern American bureaucracy.

Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940

By Daniel R. Ernst

226 pp.; Oxford University Press, 2014

In Tocqueville's Nightmare, Georgetown law professor Daniel Ernst tells the story of the growth of the administrative state between 1910 and 1940. The book is less a recounting of the major signposts on the road to the modern administrative state than it is a fascinating discussion of the jurisprudential and practical considerations around delegating power to commissions, agencies, and other specialists. Although dealing with agency discretion is an omnipresent fact of modern life, Ernst shows how we only arrived at this modern world slowly and with considerable philosophical and jurisprudential debate.

During his 1830s trip around the United States, Alexis de Tocqueville observed that the young country lacked the kind of "centralized administration" that bedeviled the monarchical states of Europe. To him, centralized administration was synonymous with meddlesome bureaucracies that had the power to impose their will upon the people. If a centralized administration ever developed in the United States, he worried, it would mean that "a more insufferable despotism would prevail than any which now exists in the monarchical states of Europe; or indeed than any which could be found on this side of the confines of Asia." This was "Tocqueville's nightmare," a sprawling and out-of-control administrative state.

Ernst argues that, despite the United States' development of a vast administrative state, this nightmare has not come to pass. For Ernst, America "faced down" that nightmare and conquered the fears of overweening bureaucracy. Tocqueville's Nightmare tells Ernst's version of how this happened in order to "answer the complaint that has gained in popularity since the eruption of the Tea Party movement in 2009: the statebuilders of the early twentieth century abandoned an American tradition of individualism in what amounted to 'the decisive wrong turn in the nation's history.'" For Ernst, that claim is overblown. In fact, "the reformers who supposedly sent the Constitution into exile actually designed the principles of individual rights, limited government, and due process into the administrative state."

Whatever the accuracy of Ernst's claim that we have avoided the worst tendencies of meddlesome bureaucracy (about which more later), it should not undercut the virtues of his historical narrative. Tocqueville's Nightmare is a scholarly and interesting examination of the debates over the administrative state during its formative period. He skillfully weaves together a story that features law professors, Supreme Court justices, politicians, and presidents all playing crucial roles.

Reliance on judges / In the Anglo-American legal tradition, administrative agencies exist in a sort of legal limbo. The Anglo-American tradition has always stressed the importance of judicial review. Ancient English rights such as the right to habeas corpus, trial by jury, and confronting your witnesses all share a common thread: the view that properly constituted judicial procedures are the hallmark of a just legal system. There seem to be few problems that we think a bit of good judging cannot solve, from signing off on search warrants to deciding whether to assassinate people with drones.

English law professor Albert Venn Dicey perhaps best articulated the principle behind the Anglo-American reliance on judges. He considered the actions of common-law judges deciding "the rights of private persons in particular cases brought before the Courts" as a crucial component of the rule of law. Submitting disputes to "ordinary tribunals" rather than special administrative courts was crucial to maintaining a society founded on bottom-up, common-law liberty. Ordinary judges are devoted to the principles of individual liberty embodied in the common law. Administrative tribunals, however, tend to view disputes "from a government point of view." Dicey believed that "the whole scheme of administrative law was opposed to those habits of equality before the law which had long been essential characteristics of English institutions."

In America in the late 19th and early 20th centuries, Dicey's view was quite popular. Yet that view would collide with the burgeoning support for an administrative state. If the rule of law, under his view, required judges to "take the whole case" when they reviewed agency determination of private rights, then the usefulness of "rule by experts" would be severely limited. Allowing non-expert judges to overrule factual and legal determinations of experts would essentially nullify the experts. Ernst's book is largely about how a middle course developed between unreviewable agency discretion and pure rule by judges.

If there is a main character in Ernst's story, it is Charles Evans Hughes Sr., attorney, governor of New York, associate justice of the Supreme Court, Republican presidential candidate, secretary of state, and chief justice of the United States (in that order). As a governor, associate justice, and chief justice, Hughes pushed for a middle course that would allow regulators large areas of discretion while providing an avenue for judicial review when errors were pronounced. Although he often used language similar to Dicey's when describing the "insidious encroachments upon liberty which take the form of an uncontrolled administrative authority," Hughes also was a committed advocate for the expert regulatory commission.

In 1905, he was chief counsel of a committee investigating alleged abuses by New York City gaslight franchises. According to Ernst, Hughes's "methodical cross-examination revealed that the Consolidated Gas Company had grossly exaggerated the value of its assets in calculating rates for its service." Hughes drafted legislation to create a regulatory commission charged with limiting gas and utility companies to receiving a fair return upon their capital investments. That and other public successes helped sweep him into the governor's office, defeating newspaperman William Randolph Hearst in the election of 1906. Hughes immediately pushed for a public service commission law to extend regulation of public utilities to the railroads.

In 1910, he became Justice Hughes and soon had the chance to decide crucial rate regulation cases. In 1912, a series of challenges to state railroad commissions made their way to the Court. They were consolidated into the Minnesota Rate Cases. Hughes was assigned the majority opinion and he stayed true to his commitment to broad agency discretion: "We do not sit as a board of revision to substitute our judgment for that of the legislature, or of the commission lawfully constituted by it, as to matters within the province of either."

He would leave the Court in 1916 to run as the Republican nominee for president, losing a close election to Woodrow Wilson. He was reappointed to the Court by Herbert Hoover in 1930, this time as chief justice. Throughout the New Deal, Hughes's Court was the center of controversy as it struck down many significant pieces of New Deal legislation. Hughes himself often split his vote between the "Four Horsemen" (Justices George Sutherland, Pierce Butler, Willis Van Devanter, and James McReynolds), who generally voted to strike down New Deal legislation, and the "Three Musketeers" (Justices Louis Brandeis, Benjamin Cardozo, and Harlan Stone), who generally voted to uphold it.

Controlling agencies / By the New Deal era, the administrative state had fully arrived. Franklin Roosevelt's administration created scores of new three-letter agencies. Questions remained, however, about how courts would deal with challenges to administrative decisions. Anti-New Dealers were calling for increased judicial oversight of administrative agencies. Those questions came to a head in New York in 1938, first in the form of a fight over a proposed "anti-bureaucracy" amendment to New York's Constitution, and second in that year's Senate campaign fight between hardened New Dealer Robert F. Wagner (namesake of the Wagner Act, or the National Labor Relations Act) and anti-bureaucracy Republican John Lord O'Brian. In both instances, the "anti-bureaucracy" cause lost.

Yet the push for controlling agencies did not die out. With a brief interlude for World War II, the Administrative Procedure Act of 1946 can be seen as a direct consequence of those early philosophical and jurisprudential fights.

Living the nightmare? / Have we avoided "Tocqueville's nightmare," as Ernst argues? Perhaps we should ask Mike and Chantell Sackett, who in 2007 were told by the Environmental Protection Agency that their property was a wetland and given no opportunity to challenge that order before incurring noncompliance fees of $75,000 per day. Or perhaps we should ask Marvin Horne, a raisin farmer who lives under the arbitrary jurisdiction of the Raisin Administrative Committee and is obliged to turn over up to 47 percent of his crop every year to the government without compensation. Or perhaps we should ask Hein Hettinga, a dairy farmer who labors under Byzantine dairy regulations that, because of pressure from his competitors, were specifically altered to shut down his business model.

The Sacketts and Horne had their days in the Supreme Court, and they won unanimously. Yet those victories merely helped them resolve a threshold matter--namely, whether they were even permitted to challenge administrative agencies' actions. At the end of costly, years-long fights, the Sacketts and Horne were both told that, yes, they can challenge the government, but both parties face more years of costly litigation and, in Horne's case, perhaps a second trip to the Supreme Court.

True, this is a form of judicial review, and perhaps the kind of meaningful judicial review of grievous agency errors endorsed by Chief Justice Hughes. But it is extremely costly and drawn-out. Most people who endure the iniquities of rogue government agencies have neither the funds nor the time to challenge the government in court. The Sacketts had to rely on the largesse of the Pacific Legal Foundation, a public interest law firm funded by donations.

Would it be better if courts were charged with giving a full and meaningful review to agency determinations, as Dicey would have wanted? On one hand, we would be asking more of our scarce judicial resources than we do now and challenging an agency action could take even longer. On the other hand, perhaps insulating agency decisions from judicial review has essentially subsidized the growth of the administrative state. When there are fewer challenges available to their actions, agencies can do more.

Dicey was right: meaningful judicial review is a cornerstone for any well-organized judicial system. Even cursory judicial review is better than nothing. Unfortunately, the modern administrative state is so big, its rules so numerous, its power so great, litigation so expensive, and judges so deferential that most people do not even receive cursory judicial review. In other words, despite the best efforts of Hughes and others, and contrary to Ernst's claim, it is still Tocqueville's nightmare.

Yet, my problems with Ernst's thesis are quibbles about an otherwise fine and interesting book. He has penned a welcome addition to the libraries of those interested in the legal history of the administrative state and in the still-relevant jurisprudential questions surrounding judicial deference to administrative decisions.

TREVOR BURRUS is a research fellow in the Cato Institute's Center for Constitutional Studies.
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Title Annotation:Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940
Author:Burrus, Trevor
Article Type:Book review
Date:Dec 22, 2014
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