administrative procedure act and 1946 and elihu root and rise of administrative law

"There is one special field of law development which has manifestly become inevitable. We are entering upon the creation of a body of administrative law quite different in its machinery, its remedies, and its necessary safeguards from the old methods of regulation by specific statutes enforced by the courts...The necessities of our situation have already led to an extensive employment of that method..Before these agencies the old doctrine prohibiting the delegation of legislative power has virtually retired form the field and given up the fight. There will be no withdrawal from these experiments. We shall go on; we shall expand them, whether we approve theoretically of not, because such agencies furnish protection to rights and obstacles to wrongdoing which under our new social and industrial conditions cannot be practically accomplished by the old and simple procedure of legislatures and courts as in the last generation" (quoted in Pierce, Administrative Law Treatise (2002), 1.4, at 10).

Already in 1916 there were several administrative agencies or programs in the federal government which had the authority to generate rules of their own. For example, all military and naval operations had been doing this for over a century; the Department of State began in 1789, the Patent Office opened in 1836, the Comptroller of the Currency began operations in 1863, the Department of Justice in 1870, the Civil Service Commission in 1883, the Interstate Commerce Commission in 1887 and the Federal Trade Commission in 1914. These are only a sample of agencies which had power to issue rules and make adjudicatory decisions. Yet Root perceived that this trickle would soon turn into a flood, and he was right. The 1920s saw the creation of the Trademark Office in 1925, the National Railroad Adjustment Board in 1926, the National Mediation Board in 1926, the General Accounting Office in 1921, the Longshoremen's and Harbor Workers' laws in 1927 and the Bureau of Customs in 1927, among others. When Roosevelt took office in 1933, his administration created an "alphabet soup" of additional agencies whose tentacles could reach fairly deeply not only into the free market but into the lives of all Americans. The issue, therefore, of the role of these agencies, was joined.

The Debate During Roosevelt's First Term, 1933-37

Roosevelt enjoyed a wave of popularity nearly unprecedented in American history during his first term, and so the opponents of an expansive role for these agencies took their battles to the courts at first. As Shepherd argues, "When the cases finally began to percolate up to the Supreme Court, the Court at first appeared willing to spare the New Deal programs. With one minor exception (Panama Refining Co. v. Ryan, 293 US 388 (1935)), early decisions upheld state and federal emergency legislation" (p. 1562). However, in 1935, Justice Owen Roberts switched sides and the Court began to strike down, mostly by 5-4 margins, a range of New Deal programs. On "Black Monday" (May 27, 1935), for example, the Court struck down, this time by unanimous vote, the National Industrial Recovery Act, a major legislative achievement of Roosevelt's first term. Subsequent Roosevelt programs were also invalidated over the next two years, a result that led to a confrontation with Roosevelt in February 1937. Though these decisions didn't answer the broader question of how much authority the administrative agencies should have, they created the context for initial political jockeying around the issue.

The Role of the ABA

While Roosevelt was enjoying considerable legislative success in his first 100 days (1933), the ABA was deciding to set up their first-ever "Special Committee on Administrative Law," which was established in May 1933. Though recognizing the immense popularity of Roosevelt, this committee decided to "float" a proposal which would reappear throughout his first term. The proposal stated a three philosophical objections to agencies' authority. First, the ABA opposed the accumulation in the executive branch of additional powers that were immune to checks and balances of other branches. As part of this objection was ABA opposition to an apparent fourth branch of government that combined executive, legislative and judicial functions in its operation. Agencies established rules (legislative), enforced them (executive) and adjudicated violations of them (judicial). How could this be constitutional? Second, the ABA feared that agency enforcement powers threatened the clients of some of the large-firm lawyers who controlled the ABA. Finally, the proliferation of agencies, with powers seemingly reserved to the agencies without opposition from without, would diminish the importance of lawyers and traditional lawyering. Instead of lawyer input for clients would be rule by bureaucracies.

Conclusion--the Proposal for an Administrative Court

One of the ABA proposals that kept reappearing in the first Roosevelt Adminstration was the erection of an "Administrative Court" which would take over the administrative jurisdiction of several other courts (e.g., Tax Appeals, Customs Appeals, etc.) to provide a judicial review of the multitudinous federal administrative tribunals. This would bring order out of potential chaos and lead to independent court control over the workings of administrative agencies. Though the proposal remained in a rather inchoate form, the idea of some kind of a "super court" outside of the jurisdiction of the agencies was seemingly the most attractive proposal put forth by the ABA.

The next essay describes a few other attempts to deal with the issue in the waning days of FDR's first term and then the new realities of his 2nd term.

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