One of the most controversial books to come out of the legal academy in many years was Columbia law professor Philip Hamburger’s Is Administrative Law Unlawful? (See “The Rise of Prerogative Power,” Summer 2015.) In it, he argues that the vast administrative state—that maze of regulatory agencies that now exerts so much power over our lives—is simply incompatible with key elements of our constitutional order. Those agencies combine law-making, executive, and judicial functions that the Founders were adamant must be kept separate. The separation of powers was essential to their plan of limiting government and thereby protecting citizens’ liberty and property.

Hamburger’s case rested largely on his account of British history, particularly the battles against royal prerogative. Some scholars have argued that he isn’t always right in his interpretation of those events, leading them to suggest that his whole thesis on the legitimacy of the modern administrative state is mistaken. They purport to find that early Americans were fairly content with administrative authority and therefore conclude that the fuss over the power of today’s agencies is unwarranted.

In Bureaucracy in America, political scientist Joseph Postell of the University of Colorado at Colorado Springs pushes back strongly against the idea that our forebears were not concerned about administrative power. In his broad historical overview, he shows that early Americans were in fact deeply concerned about keeping administration within constitutional bounds through electoral accountability, decentralization, nondelegation, separation of powers, and the rule of law. Moreover, as the administrative state began to develop late in the 19th century, arguments were constantly made that agencies such as the Interstate Commerce Commission had to accomplish their legitimate objectives within our constitutional framework.

While the progressives eventually won out and, especially under Franklin D. Roosevelt, were able to create administrative agencies that combine legislative, executive, and judicial functions under one politically unaccountable roof, many Americans, including some prominent liberals, remained opposed. Today, constitutional arguments over the proper scope of administrative power still ring out in Congress and the courts, and rightly so.

Constraining the fourth branch / Postell makes it clear that colonial Americans did not generally hold a laissez faire view regarding the enforcement of laws and norms, but they insisted that such enforcement be done through officials who were accountable for their actions. In the system they adopted, judicial officers enforced laws enacted by their representatives in the legislature. Crucially, those judicial officers were subject to common law damage suits if they committed wrongs against individuals. Those early Americans would have been aghast at today’s concept of law enforcement by appointed minions who are above the law. As Postell puts it, “Colonial Americans refused to subject themselves to potentially arbitrary authorities that could make, execute, and adjudicate law against individual citizens.”

After securing independence from Britain, Americans proceeded to write their views on the proper creation and administration of law into the Constitution. The men who drafted it took pains to ensure that governmental power would only be used for the public good and their belief was that the best way to achieve that would be to maintain an immediate connection between the lawmakers and the people they represent. For that reason, delegation of power to make and enforce the law was forbidden. Defenders of today’s administrative state cannot plausibly claim, Postell argues, that there is “a hole in the Constitution” regarding the “fourth branch” of government. The Founders foresaw the troubles that would arise if government authority was not constrained by that immediate connection to the people and crafted the Constitution to prevent them.

As the United States moved into the 19th century, problems not dissimilar to modern ones began to surface, including relief for the poor, the building of infrastructure, public health concerns, regulation of common carriers, and the supposed need to help business and agriculture with subsidies. All of that called for efficient administration, but Americans insisted on the separation of powers and official accountability in doing it. States established, for example, boards of health and sanitation. The administrators who ran them had to follow legislated or common law rules; unlike today’s administrators, they were not autonomous.

Pennsylvania’s Canal Board is illustrative. Once established, the board was authorized to set tolls on canals, but within a few years the legislature decided to strip that power from it and set tolls by statute. And, Postell writes, “Other regulations regarding how canals were to be built and repaired were enacted not by the Board itself but by the legislature.”

In Democracy in America, Alexis de Tocqueville noticed how Americans insisted on dividing government power. Postell quotes him: Americans diminish government power “by dividing the use of [society’s] forces among several hands…. In partitioning authority in this way, one renders its action less irresistible and less dangerous, but one does not destroy it.” In this manner, “authority is great and the official small, so that society would continue to be well regulated and remain free.”

That commitment to constraining administrative authority did not abate during the nation’s rapid growth following the Civil War. In the 1880s, two significant bills were enacted that, some claim, sowed the seeds of the modern administrative state: the Pendleton Act of 1883 (creating a civil service system based on competitive examination rather than political favor, as had previously been the case) and the Interstate Commerce Act of 1887 (intended to control perceived abuses by railroads). Postell rejects that claim, writing, “The Pendleton Act and the ICC Act did not reflect a commitment to the idea of an administrative state, nor were they intended to eventuate in the modern administrative state we have today.” The former simply represented widespread disgust at the corrupt political patronage system and the latter “was a cautious reform aimed at providing for expertise in investigating abuses, without doing damage to established constitutional principles.”

Progressive breakthrough / It was not until the early decades of the 20th century that advocates of the administrative state began to break down those constitutional principles and create the kinds of agencies that progressives wanted—agencies staffed with experts who were empowered to scientifically direct society to its optimum. They argued that the Constitution was outmoded and should be scrapped in favor of centralized power necessary to cope with contemporary problems. Their breakthrough, Postell shows, came with the Hepburn Act of 1906, which gave the Interstate Commerce Commission the power to set railroad rates and adjudicate any controversies. Not long afterward did courts begin to retreat from adherence to the Constitution, adopting a posture of deference toward the actions of administrative agencies.

Despite that breakthrough, many Americans, including some famous legal scholars who were sympathetic to progressive aims, worried that the new system was undermining the rule of law. Most notably, Ernst Freund and Roscoe Pound raised concerns about the danger of centralized, unaccountable power. Their arguments, however, fell mostly on deaf ears and by the time FDR assumed the presidency, the table was set for rapid growth of the modern administrative state. During the New Deal, he established a host of agencies combining lawmaking, executive, and judicial power.

Constitutional pushback / Nevertheless, the old notions about separation of power and nondelegation persisted. In the 1935 Schechter Poultry case, which struck down the National Industrial Recovery Act on those grounds, liberal Justice Benjamin Cardozo decried “delegation run riot.” Justice Louis Brandeis told a group of FDR’s insiders, “I want you to go back and tell the President that we’re not going to let this government centralize everything.”

The constitutional ideas couldn’t be killed.

Dissatisfaction with the administrative state led to bipartisan action in Congress: the 1946 Administrative Procedure Act (APA), meant to rein in the agencies and compel them to abide by fair processes subject to judicial oversight. Rep. Samuel Hobbs of Alabama spoke for many when he said, “It seems to me that the Constitution has divided the powers of Government into three coordinate branches, the legislative, executive, and judicial. These have been swallowed up by some administrators and their staffs who apparently believe that they were omnipotent.” Although the APA has had less effect on the bureaucracy than many of its supporters hoped, it did show the widespread dissatisfaction with the despotism of “fourth branch” bureaucrats.

The 1960s and early 1970s saw a profusion of new federal agencies devoted not to economic but rather social regulation, such as the Environmental Protection Agency, Occupational Safety and Health Administration, and Equal Employment Opportunity Commission. When Richard Nixon tried to assert more control over those (and the older) agencies, he was annoyed to discover that key personnel had been drawn into the orbit of their agendas and resisted presidential influence.

About the same time, however, the left took notice of the tendency for administrative agencies to become captured by the interests they were expected to control. That gave them a serious case of, as Postell writes, “buyer’s remorse.” Realizing that the administrative state didn’t necessarily produce the results they had expected, leftists began to demand that courts stop deferring to agency procedures and decisions, but instead vigorously oversee them. According to Postell,

Their remedy was not to return to the earlier, nineteenth-century approach to regulation and administration but, rather, to use procedural requirements and new standing doctrines to democratize the administrative agencies, preventing them from being captured and turning from the public interest.

Conservatives, on the other hand, did an about-face of their own, calling for the courts to show more deference to the agencies. That’s the origin of the much-debated “Chevron deference” doctrine.

Conclusion / Postell has written a deeply researched, provocative book on the history of administrative power in America. After it, the argument that the administrative state was somehow implicit in our governmental arrangements all along simply won’t hold water. The administrative state emphatically does run contrary to our constitutional principles. Just as important, the book suggests that modern Americans shouldn’t accept our administrative state as inevitable and permanent.

Why couldn’t Congress stop delegating, and itself take responsibility for writing whatever laws might be necessary? It used to. Why can’t administrative officials be held responsible for wrongful conduct? They used to be. The progressive sea change in our political structure could be reversed and Bureaucracy in America is a good foundation for such a project.