April 2014 Vol. 112 No. 6 THE REVIEW

A Pragmatic Republic, If You Can Keep It

William R. Sherman

Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law. By Jerry L. Mashaw. New Haven and London: Yale University Press. 2012. Pp. x, 316. Cloth, $75; paper, $45. 

These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence.

We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre to the Founders, leaving these agencies with a deficit of constitutional legitimacy. This notion can be found in the Supreme Court's conclusion that the Affordable Care Act's Medicaid provision impermissibly commandeers state resources, in the adherence to congressional delegation in Chevron and its progeny, and in the academic debate over the role of political policy preferences in agency rulemaking. 

Supporters and adversaries of agency action alike perceive this lack of historical legitimacy as a weakness either to be shored up or attacked. Previous accounts of the development of the administrative state have posited that its key features-congressional delegation, internal and external rules, adjudication of individual rights, judicial review of agency action, specialized bureaucratic knowledge-arose as a result of legislation in the New Deal and World War II eras, through the Progressive movement, at the adoption of civil service reform and the Interstate Commerce Act in the 1880s, or as far back as the Civil War. Thus, modern critiques sketch a long fall from a state of constitutional grace, during which the nation's legal system has drifted far from the simple, self-executing laws of the early United States. 

Wait. Not so fast. Jerry L. Mashaw's new "exercise in historical institutionalism" (p. 17), Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law, painstakingly and conclusively shows that the conventional account of the provenance of and the problems posed by administrative law is just plain wrong. Mashaw demonstrates that administrative governance on a broad and complex scale has existed from the earliest days of the Republic (p. 5) and that the settled patterns of behavior surrounding it sketch the outlines of an unwritten "administrative constitution" (p. 16).

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