D.C. Circuit Review – Reviewed: “The Administrative State”

by Aaron Nielson — Friday, Aug. 10, 2018@Aaron_L_Nielson

Is “administrative state” an ideological term? According to the Associated Press, maybe so! Here is an interesting paragraph from the story flagged today at SCOTUSBlog and a couple of days ago on Twitter (ugh) by Chris Walker:

Reading that, I was taken aback. My sense is that folks of all stripes use the term. Indeed, as Jeff Pojanowski notes, the formidable Gillian Metzger — not a conservative — seem pretty comfortable with the term:

As an “Anti-Administrativist,” I disagree with much of Metzger’s take on the “administrative state,” but I thought that at least the term was common ground.

So I decided to investigate.

To be clear, I just used Westlaw, which doesn’t cover everything. But for our purposes, it should do the trick. Note, I don’t claim to have read every article that uses says “administrative state” — there are almost 10,000 of them. But I do feel comfortable saying that “administrative state” is not a conservative term, even if conservatives use it too.

Using this search, adv: “the administrative state,” in the Westlaw Secondary Sources – Law Reviews & Journals database, the first use of “administrative state” comes from 1943. In a book review published in the Harvard Law Review of Democracy, Efficiency, Stability, Thomas I. Cook wrote:

The second section of his book, roughly equal in length to the first, (about 200 pages) is an analysis of the New Deal in action. Here, while the picture is no longer confused by the same degree of overloading, Professor Millspaugh’s lack of a clear viewpoint is even more obvious. Indeed, the substance, though not the form of his commentary, is reminiscent of the academic “on the one hand, on the other” technique at its worst, while his frequent employment of the impersonal “it is said” tactics, both here and in the concluding section, are thoroughly exasperating. He does trace with considerable clarity the history of the New Deal and the problems with which the government was trying to deal, and he does make, though hesitantly, the usual criticisms of the dangers of bureaucracy and the growth of public power, of the decline of Congress, and of the rise of presidential power. He has considerable doubt as to the efficacy of the party system, sees dangers in government propaganda, is not sure of the possibilities of effective freedom of opinion, notes with slight alarm the possible decline in constitutionalism, and sees the difficulties of government by judiciary, whether that judiciary opposes the current stream or goes with it. He sees some hope in the growth of scientific knowledge, but is aware of the danger of the expert; recognizes that the old techniques of achieving responsible government are not adequate to the modern administrative state, but is uncertain as to whether moral equivalents have been, or can be, found; and more generally, while accepting the inescapability of the modern positive, social welfare state, is very uncertain whether it can be harnessed by and in the service of democracy. He is fairly certain that democracy, while it has on the whole functioned genuinely in our foreign policy, is incapable of dealing effectively with foreign affairs. Admitting that war has not in the past destroyed American democracy or brought dictatorship, he is nevertheless apprehensive, fearing especially a thoroughgoing movement for efficiency and economy under strong government. For the rest, he sees the connection between democracy and an international order, but regretfully leaves that problem as beyond his scope. Though the analysis is impartial, and granted the wisdom of stressing factors on both sides, the residual impression is one of timidity, fear, and a mild pessimism.

Skipping ahead to 1948, the Yale Law Journal published a book review of Freedom And The Administrative State by Joseph Rosenfarb. This is what Lawrence H. Chamberlain, the author of the review, had to say:

For more than a decade the literature on public affairs has been heavily sprinkled with works of varying dimensions devoted to the issue of governmental intervention in the economic sphere. Most of the writers align themselves on one side or the other of this controversial question because it is not a subject which readily lends itself to dispassionate analysis. Mr. Rosenfarb has not broken precedent in this book. To him the case for the administrative state—his name for the government which exercises full control over the national economy—is beyond the realm of controversy. Not only is it good, it is inevitable, unavoidable. By drawing heavily upon the writings of a wide range of historians, anthropologists, philosophers, sociologists, psychologists—the enumeration is not complete—the author develops his argument.

Another review of the same book — this one in the Texas Law Review, by Emmette S. Redford — includes this paragraph:

The planning state will be an “administrative state.” What other effects will economic planning have on our institutions and ideals? It need not mean socialization of property for “A democratically planned and managed economy is the only means to save the system of private ownership.” It need not mean the end of freedom, for the use of state power may help man fulfill his purposes, and economic planning can be combined with cultural freedom. It can be combined with democratic methods because the competition among power units in our complex society would prevent any “monopoly of power.” Moreover, state control of wages and prices in key industries can be combined with freedom for labor.

I can see why conservatives would object to the extreme ideas that Rosenfarb apparently associated with the “administrative state”; indeed, after watching what happened in the Soviet Union, everyone should! But it doesn’t appear that conservatives came up with the term.

Let’s fast forward to 1963 to another book review — this one by Louis Jaffe (hardly a conservative) in the Stanford Law Review. Favorably quoting H. W. R. Wade’s Towards Administrative Justice, Jaffe observed:

The mission of lawyers is not to act as an official opposition against the administrative state, but to try to help it to administer justly. It cannot be said too often that these are not incompatible ends. Administrative justice is the friend, not the enemy, of good administration.

In that passage, perhaps “administrative state” is a term of derision used by conservatives. But it is also a term that those on the left appeared happy enough to use.

In 1971, Arthur Selwyn Miller — not often lumped in with the conservatives — wrote a book review too, this one in the Columbia Law Review. This is what he said to say:

The power, then, of the Supreme Court is greatly overrated. At the very most, it is unknown in any comprehensive sense. As lawyers, we like to pretend that it does have a lot of power. And indeed one would be foolish to suggest that it has no power. But in American government, as elsewhere throughout the world, it is the Executive that really counts, even more than the legislature and the judiciary. Living as we do in an administrative state made up of both public and private bureaucracies, to study power, one must look to 1600 Pennsylvania Avenue in Washington, D.C. and to the connections that the presidency has with the elites within the polity. These elites may hold government office or they may man the top echelons of corporations, unions, and other social groups. But it is there where power is centered—even if it does go down into the “techno-structure,” as Galbraith maintains. The courts and the legislatures are essentially nineteenth-century institutions striving mightily to keep abreast of twentieth-century developments over which they have little control.

Again, I can see why conservatives (and not just conservatives!) may be concerned about the ideas in that passage, but it doesn’t appear that it is a conservative term.

Ahh, but perhaps all of those sources are too old to count; maybe we should just focus on how the term is used today. But even now, it looks like folks across the ideological spectrum discuss the “administrative state.” Even leaving aside Metzger (quoted above), here are some titles from recent articles:

The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State by Eric Biber & J.B. Ruhl

DNA Copyright in the Administrative State by Dan L. Burk

Can the Administrative State Be Tamed? by Christopher Demuth

Congress in the Administrative State by Brian D. Feinstein

Plenary Power in the Modern Administrative State by Catherine Y. Kim

Petitioning and the Making of the Administrative State by Maggie McKinley

Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation by Richard L. Revesz

Legislative Delegation, The Unitary Executive, And The Legitimacy Of The Administrative State by Peter M. Shane

Restoring Congress’s Role in the Modern Administrative State by Christopher J. Walker

Scanning those names, no one would say only conservatives use the term “administrative state.” Sure, conservatives use it too, but so does everyone else.

The same is true for judicial usage. The Supreme Court — again, per Westlaw — has used “administrative state” in 18 opinions. The first two (separate writings by Justices Rehnquist and Blackmun) simply cited a law review article — Cracks in “The New Property”: Adjudicative Due Process in the Administrative State by William Van Alstyne.

Justice White first affirmatively used the term in his INS v. Chadha dissent: “I regret that I am in disagreement with my colleagues on the fundamental questions that this case presents. But even more I regret the destructive scope of the Court’s holding. It reflects a profoundly different conception of the Constitution than that held by the Courts which sanctioned the modern administrative state.” Justice Marshall next used the term in his Heckler v. Cheney concurrence: “The problem of agency refusal to act is one of the pressing problems of the modern administrative state, given the enormous powers, for both good and ill, that agency inaction, like agency action, holds over citizens.” And then Justice Brennan used it in dissent in Atkins v. Parker: “If well-meaning mistakes that might be prevented inexpensively lie entirely outside the compass of the Due Process Clause, then the convenience of the administrative state comes at the expense of those least able to confront the bureaucracy.” I think it is safe to say that Justice Brennan was not a conservative. Moving forward, Justice Stevens used the term in Massachusetts v. EPA: “Well before the creation of the modern administrative state, we recognized that States are not normal litigants for the purposes of invoking federal jurisdiction.”

To be sure, since 2008, the conservative justices have used the term and the liberal justices have not — but we are only talking about four cases.

Moving to the culture more generally, in recent years, maybe conservatives use the term more often. Conservatives, after all, are more concerned about the administrative state. But usage frequency shouldn’t matter here, right?

My conclusion: I don’t think administrative state is a conservative term.*

Why go through all of this trouble? Curiosity. The statement in the AP story seemed odd, and I think the facts bear that out. More than that, it is important to preserve our vocabulary. If the term “administrative state” becomes ideologically charged, it becomes harder to talk to each other.

And with that, on to this week’s cases.

Perhaps the most noteworthy case of the week — well, at least in terms of likely citation counts — is Capital Medical Center v. NLRB. Here is how Judge Srinivasan (joined by Chief Judge Garland and Judge Rogers) explained the issue:

I assume — though I don’t claim to be an expert — that this case will be cited in future cases involving labor protests.

In terms of popular attention, Al Alwi v. Trump may be most significant. Here is how Judge Henderson (joined by Chief Judge Garland and Judge Griffith) opened her opinion:

Here is what strikes me as the most important paragraph:

In Billings Clinic v. Azar, Judge Millett (joined by Chief Judge Garland and Judge Srinivasan) addressed — and upheld — “Medicare reimbursements for 2008, 2009, 2010, and 2011.” Here is a sample of what the Court had before it:

.

And here is the conclusion:

My personal favorite this week is probably Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A, authored by Judge Pillard (joined by Judges Griffith and Edwards). Why do I like it? Because this trademark case begins with this sentence — “Paletas are frozen, fruit-based Mexican-style desserts akin to popsicles” — and has pictures:

If you follow trademark law, give this one a read. Otherwise, skip it — unless you want to know more about paletas.

In United States v. Williamson, Judge Srinivasan (joined by Chief Judge Garland and Judge Rogers) largely upheld a conviction for threatening to kill an FBI agent; the Court remanded because “the district court incorrectly denied [the defendant] access to jury-commission records.” In Steele v. Mattis, Judge Millett (joined by Judges Griffith and Pillard) allowed an age discrimination case to move forward. And in Helmerich & Payne Intl v. Bolivarian Rep. of Venezuela, Judge Tatel (joined by Chief Judge Garland and Judge Sentelle) addressed sovereign immunity following the Supreme Court’s decision in Bolivarian Republic of Venezuela v. Helmerich & Payne International Drilling Co. (which reversed the D.C. Circuit). The Supreme Court held that “[a] case falls within the scope of the Foreign Sovereign Immunities Act’s expropriation exception only if the property in which a party claims to hold rights was indeed ‘property taken in violation of international law’; simply making a nonfrivolous argument to that effect is not sufficient.” Applying that standard, the panel concluded that the American parent — but not the foreign subsidiary — “has alleged facts that are sufficient, if true, to establish that it has in fact suffered a taking in violation of international law.” Sentelle wrote separately to reiterate his concern about jurisdiction.

Finally, in Waked Fares v. Smith, Judge Pillard (joined by Judges Wilkins and Sentelle) ended her opinion this way:

And what was that “single, artificially extreme argument”?

That’s the week. Now I have to get back to writing scholarship — about the administrative state!

 

* For what it is worth, if we want to be technical about it, there are grounds to object to the term “administrative state.” Here is how Merriam Webster defines administration: “1: performance of executive duties …; 2: the act or process of administering something • the administration of justice • the administration of medication; 3: the execution of public affairs as distinguished from policy-making.” That definition suggests that agencies do not make policy. Not so.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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