Jerry Louis Mashaw (Yale Law School) has posted "Federal Administration and Administrative Law in the Gilded Age" (Yale Law School, Public Law Working Paper No. 201). Here's the abstract:
This article has a simple message. The standard history of the development of American Administrative Law is at best partial and in many respects incorrect. The national government of the United States was an administrative government from the very beginning of the Republic. Moreover, that administrative government then, as now, was both constituted and constrained by law. In short, America had a federal administrative law long before that field of law was either recognized or named.
In order to see administrative law in an era that mostly denies its existence, my inquiry is structured around three very general issues of governmental organization. Following the lead of Frank Goodnow, I see administrative officers as operating within three overlapping accountability regimes: political accountability to elected officials; hierarchical or managerial accountability to administrative superiors; and legal accountability to individuals and firms through judicial review. The distinctive characteristics of administration and administrative law in particular periods depend upon the relative importance of these regimes in structuring and checking administrative discretion and the particular mechanisms that political, administrative and legal actors deploy. Both the forms of and the balance among regimes shift over time. Indeed, it is the distinctive form and balance among these accountability regimes in the organization of 19th century national administration that has made administrative law invisible. But in every era there is a law of administration. To ignore that “administrative law” prior to the Interstate Commerce Act, in what I now tend to think of as “the lost 100 years of American administrative law,” is to ignore much of how American administrative institutions have been built, maintained and constrained. And, in my view, it is to ignore the incremental and pragmatic processes by which American public law usually develops.
This article treats the Gilded Age incarnation of each of these three accountability regimes in turn. It first describes developments in the political control of administration in Post-Bellum America and the emergence of the “apolitical” civil service ideal, partially embodied in the Pendleton Act of 1883. As in all periods of American history, political control of administration in this period features both organizational changes in the political branches and the continuing struggle between presidents and congresses for dominance. The defining feature of this era might be said to be the migration of the provision of secure tenure in office from a congressional strategy to weaken presidential control over high-level administrators to an institutionalized protection for lower level officials that, in practical effect, constrained congressional power.
The article next looks at developments in judicial review. Prior to 1860 judicial review of administrative action by federal courts had, to modern eyes, a peculiar structure. Review by mandamus or injunction was extremely limited and statutes providing for appeals to federal courts from administrative decisions were virtually non-existent. On the other hand, officers sued as individuals for damages were in effect subjected to de novo review for any error of law or fact. In the post-Bellum world this structure began to weaken, but it would take many years to morph into the almost directly contradictory structure that we know today.
Finally, the article depicts the processes and structures of managerial or bureaucratic accountability. This is where 19th century administrative law mostly developed. In many ways the second half of the nineteenth century might be called an age of administrative adjudication. While we now think of mass administrative adjudication as an artifact of the mid-twentieth century welfare state, these practices in fact have a much longer history. Tens of thousands of claims were adjudicated, not just by the Court of Claims in suits against the United States, but also by the United States Patent Office, the Revenue and Accounting Officers in the Treasury’s Division of the Controller, the district and general land offices of the Department of the Interior and the Bureau of Pensions. Notwithstanding the relatively casual attention to administrative procedure in both Congress and the courts, those charged with adjudicating these claims developed highly structured and often quite formal processes of decisionmaking. As we shall see, these processes were not entirely free from congressional or judicial oversight, but important substantive, and virtually all procedural, norms for administrative adjudication were constructed by the agencies themselves.Moreover, the normative structure of that law, unlike the late 19th century external law of judicial review, is deeply familiar to contemporary administrative lawyers. With scant direction from Congress, and none from the courts, agencies built systems of adjudication that featured transparent procedures and precedents, internal separation of functions, professionalization of adjudicatory personnel, safeguards against personal and political bias and robust opportunities for documentary or oral hearings. From this perspective we might understand the so-called “rights revolution” of the 1960s and 1970s, in part, as a consolidation in constitutional doctrine of administrative practices that represent a continuous, but seldom acknowledged, administrative law tradition.
