Retrofitting the Administrative State to the Constitution: Congress and the Judiciary's Twentieth-Century Progress

[U]nder our system of divided powers, the executive branch of the national government is not exclusively controlled by the President, by the Congress, or by the courts. All three have a hand in controlling it, each from a different angle and each in a different way (Meriam 1939, 131). One of the "big questions" of American public administration has been how to retrofit, or integrate, the federal administrative state into the nation's constitutional scheme. The parameters of the problem are well understood. The Constitution's framers could not have anticipated the size, scope, or power of the modern administrative state. American public administration was not organized according to democratic theory and values (Waldo 1948, 1984). The separation of powers collapses into administration as agencies combine legislative, executive, and judicial functions. Administrative agencies threaten the separation of powers because, in the words of former Supreme Court Justice Robert Jackson, they are "a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking" (Federal Trade Commission v. Ruberoid, 343 U.S. 470 [1952]). The overall problem of integrating federal administration into democratic-constitutional government may not be fully solvable (Waldo 1984, xviii), but its scope should not be allowed to obscure the progress that has been made. One of the great administrative developments of the twentieth century has been the extent to which Congress and the federal judiciary have responded to the rise of the administrative state by infusing it with constitutional values and folding it into the separation of powers. Psychologically, the turn of the century is a time for taking stock. That is the genre and purpose of this article. The Orthodox Response: Enhance Presidential Control American public administrative thought was founded from the 1870s through the 1920s on a variety of propositions that are now regarded as untenable, perhaps even hazardous. In fairness to the nineteenth-century civil service reformers and the progressives who followed them, it should be noted that their public administrative doctrine was developed primarily to serve fundamental political objectives (Rosenbloom 1971, chap. 3; Rosenbloom and O'Leary 1997, 2-6). Nevertheless, the orthodoxy's politics-administration dichotomy has been "confounding" (Golembiewski 1984). Its belief that administrative systems and techniques are freely transferable among political systems has promoted frequent, and sometimes catastrophic, failure (Caiden 1991; Farazmand 1998). Less well-appreciated, the orthodoxy denied that the development of the large-scale federal administrative state in the 1930s posed significant problems for the constitutional separation of powers. In its view, administration was almost exclusively an executive function that could be managed by the president and an institutionalized presidency. However, "executive-centered" public administrative theory has also proven to be inadequate. Congress and the courts cannot be relegated to minor roles in determining the course of federal administration. The Constitution clearly provides Congress with considerable authority over federal administration. Funding, staffing, and empowering agencies require legislation. As W.E Willoughby put it in 1927, Congress is the source of federal administration (115). The role of the courts is less specifically charted by the Constitution. However, in the framers' day judicial power was extensive and could reasonably be assumed to bear broadly on administration (Woll 1963, 91-92). Nevertheless, in the mid-1930s, the orthodoxy argued that the best way to integrate federal administration into the separation of powers was to place it almost entirely under the president's control. The orthodoxy's most significant call for presidential domination of administration came from the U. …