Nearly forty years ago, Professor James O. Freedman described the American administrative state as haunted by a “recurrent sense of crisis.” “Each generation has tended to define the crisis in its own terms,” and “each generation has fashioned solutions responsive to the problems it has perceived.” Yet “a strong and persisting challenge to the basic legitimacy of the administrative process” always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is “appropriate, proper, and just,” entitled to respect and obedience “by virtue of who made the decision” (executive officials) and “how it was made” (the administrative process).
Freedman also argued that this legitimacy deficit was unwarranted: he characterized the American administrative state as a product of gradual evolution, with roots in the earliest days of the republic and a long track record of substantial political accountability, relatively effective implementation of statutory mandates, and more or less fair procedures. Such a gradualist account of American administrative history was eccentric in the late 1970s, when Freedman wrote his prescient study, Crisis and Legitimacy. In the past two decades, however, legal scholars and social scientists have significantly bolstered the gradualist narrative, redescribing the formation of the American administrative state as a centuries-long process of doctrinal development, intellectual adjustment, and political bargaining rather than a constitutional rupture caused by sudden political realignment, emergency rule, or the wholesale adoption of foreign practices and ideologies. Professor Daniel Ernst’s intellectual inventiveness, exquisite archival work, and lucid prose have long inspired and guided this project. In Tocqueville’s Nightmare, Ernst delivers a pathbreaking account of how politically moderate, early twentieth-century lawyers first confronted, then transformed, and finally secured the legitimacy of the administrative state. The book is a canonical contribution to the scholarly effort to normalize American administrative government.
Yet the felt need for such normalizing history recalls the overarching thesis of Crisis and Legitimacy: however “normal” the administrative state may (in truth) be, the American people’s “uneasiness” about its legitimacy persists. The recent proliferation of scholarly defenses of the historical pedigree of the administrative state is a testament to the distinctively historical cast of our present generation’s “uneasiness.” Tocqueville’s Nightmare seeks both to diagnose and to alleviate this contemporary historical discomfort.
The book, Ernst explains, “answers a complaint that has gained in popularity since the eruption of the Tea Party movement in 2009,” the complaint that “the statebuilders of the early twentieth century abandoned an American tradition of individualism in what amounted to ‘the decisive wrong turn in the nation’s history’” (p. 7). Ernst responds that the early twentieth-century “reformers who supposedly sent the Constitution into exile[] actually designed the principles of individual rights, limited government, and due process” — principles that had guided the nation since its founding — “into the administrative state” itself (pp. 7–8). These reformers did so in large part by ensuring that lawyers would remain an integral part of the administrative process. Whenever the classical, court-centered “rule of law” proved simply unworkable, the “rule of lawyers” would fill the gap: “an adverse but not implacably hostile bar” working both inside and outside the state apparatus to ensure that administrative decisionmaking was fair in application and limited in scope (p. 7).
Ernst is not alone in perceiving an uptick in historically grounded “complaint” against administrative government — and in responding with historically grounded counterarguments. In a recent article, Professors Cass Sunstein and Adrian Vermeule warn that “[i]n the past several years” a form of “libertarian administrative law” has arisen in the federal judiciary, the goal of which is “to compensate for perceived departures during the New Deal from the baseline of the original constitutional order” by applying “a kind of strict scrutiny to agency decisions.” Sunstein and Vermeule’s focus is on the D.C. Circuit Court of Appeals, and they note that, even there, a mitigation of the libertarian tendency may be underway. Yet Sunstein and Vermeule worry that historically inflected libertarian attacks on the administrative state will continue unless the Supreme Court “excise[s] libertarian administrative law root and branch” from our constitutional culture.
Ernst’s book and Sunstein and Vermeule’s article, Libertarian Administrative Law, both trace contemporary doubts about administrative legitimacy to the ideology of the “Constitution in Exile.” The term was coined in 1995 by D.C. Circuit Judge Douglas Ginsburg, a Reagan appointee, and for the past twenty years it has loomed in the background of conservative critiques of constitutional and administrative law doctrines associated with the New Deal and civil rights revolutions. As described by Sunstein and Vermeule, the ideology of the “Constitution in Exile” is a mélange of libertarianism and originalism, one that seeks to restore a putatively lost legal regime defined by “sharp limits on national power” and “unenumerated rights of liberty, property, and contract that go beyond existing judicial understandings.”
What any particular exile finds illegitimate about administrative government will depend on which form of argument, libertarian or originalist, she emphasizes. According to Justice Clarence Thomas and Professor Philip Hamburger, for instance, the very existence of the modern administrative state is illegitimate because it departs from Founding-era conceptions of good government, which include a highly formalistic separation of powers and rigorous procedural protections for regulated parties. This view, grounded in historical argument and inflected with an originalist account of legitimation, is distinct in theory if not always in practice from a more directly libertarian approach. The latter faults the administrative state more for the present-day burdens it places on economic liberty and the smooth functioning of markets than its lack of antique authorization. Yet even primarily libertarian critics tend to fall back on originalist or quasi-originalist arguments when it comes to explaining why their economic views should have legally binding force.
Given the originalist spirit of these contemporary critiques of the administrative process, it is perhaps unsurprising that its defenders have responded with history, not economic theory. Yet while this choice is natural for a legal historian like Ernst, it is notable how many administrative law theorists have also turned to history. Sunstein and Vermeule are prime examples, taking a strongly historicist tack in their effort to dispel the shadow cast by the “Constitution in Exile.” Today’s libertarian administrative law, Sunstein and Vermeule contend, represents a repudiation of the Administrative Procedure Act (APA), which was not just any statute. Relying heavily on the historical gloss offered by then-Justice Rehnquist in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., Sunstein and Vermeule argue that the APA’s passage marked a constitutionally momentous settlement of the legitimacy crisis that shook the American administrative state in the first four decades of the twentieth century, a crisis that culminated in the New Deal. After years of struggle, Sunstein and Vermeule explain, pro– and anti–New Deal forces were able to reach a political compromise by agreeing on the depoliticization of administrative law: “the APA should be treated as an organizing charter for the administrative state — a super-statute, if you will — not because it is a grand statement of principles with a specific ideological valence, but precisely because it is a compromise document,” one that signifies that “the master metaprinciple of administrative law is that it has no single theoretical master principle, at least not with any kind of ideological valence.” The APA, in other words, is a constitutionally authoritative declaration that “administrative law lacks any kind of ideological valence.” And on this absence of ideology, its legitimacy depends. Otherwise, we may assume, the administrative process will remain wracked by Freedman’s “recurrent sense of crisis,” as one political bloc — progressive or libertarian, left or right — repudiates that process as a vehicle for the other bloc’s ideological goals.
While their responses to the “Constitution in Exile” movement diverge in several important respects, Tocqueville’s Nightmare and Libertarian Administrative Law pursue strikingly similar argumentative strategies. First, both works present the history of administrative law as an effective normative response to the challenge posed by the “Constitution in Exile” movement. Second, they both argue that this history reveals that the administrative process won its legitimacy by the end of the New Deal. Third, they both contend that this legitimacy stemmed from a consensus — whether in the form of a lawyerly “entente” between courts and agencies (Ernst) or a politically brokered “super-statute” (Sunstein and Vermeule) — that the administrative process should be governed by a set of politically impartial legal principles.
In regard to this last point of agreement, it is telling that the winners of Ernst’s history are not the hardened legal realists whom we generally think of as building, and justifying, the New Deal state. Rather, Ernst turns the spotlight on reform-minded corporate lawyers, such as Charles Evans Hughes and John Lord O’Brian, who stepped back from the edge of realism. While accepting the necessity of the administrative state for managing a modern economy, they fought to imbue that state with a legalistic conception of “fair play” and a distinctively lawyerly form of expertise. These political and intellectual moderates would have agreed with Sunstein and Vermeule when they write that “[a] dose of legal realism . . . has its place, but . . . respect for the governing rules is not optional.” Just as for Sunstein and Vermeule, the APA evacuated administrative law of “any kind of ideological valence,” for Ernst, the “rule of lawyers” insulated the administrative state from becoming a weapon in the hands of any particular social or economic group.
It apparently goes without saying — neither Ernst nor his protagonists say it — that the impartiality of the “rule of lawyers” admits one important exception. Under a “rule of lawyers,” the administrative state will persistently favor one socioeconomic bloc: lawyers and the interests they serve. From this perspective, Tocqueville’s Nightmare can be read as a narrative of regulatory capture: the capture of the administrative state by lawyers themselves. But while regulatory capture is generally understood as a threat to administrative legitimacy, Ernst suggests that lawyerly capture is its condition precedent. If he is right, important new questions come to the fore: how did lawyers win the struggle to equate administrative legitimacy with their control of the administrative state, and what exactly did they win by defining administrative legitimacy in this way? Ernst’s ingenious history not only forces us to ask these questions, but also helps us answer them.
The remainder of this Review is organized as follows. Part I discusses the book’s substantive and methodological contributions to the legal history of the American administrative state. Part II gives a fuller description of its narrative structure, cast of characters, and argumentative turns. Part III addresses two sets of objections to Ernst’s account. One set of objections relates to the relevance of Tocqueville’s Nightmare to contemporary critiques of administrative legitimacy. First, to the extent that these critiques object to the administrative state on originalist or quasi-originalist grounds, an account of the way in which old constitutional principles were adopted and adapted by a new administrative bar may well be a non sequitur. Second, to the extent that these critiques construe the contemporary administrative state as a primarily political body characterized by presidential control and partisan, quasi-legislative rulemaking, Ernst’s history of the “rule of lawyers” may read like ancient history — the record of an era of administrative governance that has long since passed.
Another set of objections assumes the relevance of Tocqueville’s Nightmare but questions its persuasiveness as an account of the administrative state’s legitimacy. First, to the extent that Ernst’s argument for administrative legitimacy depends on his historical claim that, by 1940, there was a “consensus” on lawyerly administration (p. 125), one might question who exactly consented to this particularly legalistic mode of administrative governance. In order to highlight the deft maneuvers of reformist Wall Street lawyers like Hughes and O’Brian, Ernst’s narrative downplays other contenders — most significantly, antilegalistic and prolabor New Dealers, for whom the ostensibly moderate “rule of lawyers” resembled the rule of antilabor conservatives. The victory of Ernst’s moderate protagonists may be attributable less to the popularity, or soundness, of their vision, than to a stalemate between more full-throated prolabor and antilabor forces. Second, assuming that there was, in some sense, a consensus on the rule of lawyers around 1940, one might question the extent to which this consensus actually helped to legitimize the administrative state thereafter. Ernst does not consider the possibility that the moderate vision of lawyerly administration has been a source of — rather than a guard against — the “recurrent sense of crisis” that has harried the administrative state since 1940. Yet his protagonists’ belief that the administrative state required legal guardianship may well be the precursor — rather than the antidote — to today’s libertarian and originalist challenges to administrative legitimacy.
* Associate Professor of Law, Columbia Law School. For their forceful readings of earlier versions of the manuscript, I owe a great debt to Willy Forbath, Dave Pozen, and Rob Cobbs. For conversation and inspiration along the way, I thank Grey Anderson, Kate Andrias, Jessica Bulman-Pozen, Stefan Eich, Ted Fertik, Kat Forrester, Risa Goluboff, Jamal Greene, Joanna Grisinger, Bernard Harcourt, Olati Johnson, Laura Kalman, Ira Katznelson, Sophia Lee, Gillian Metzger, Henry Monaghan, Bill Novak, Sophie Pinkham, Noah Rosenblum, Reuel Schiller, Mira Siegelberg, Karen Tani, and Adam Tooze. Mickey DiBattista provided essential research assistance and reality testing, while the Harvard Law Review staff thoughtfully and faithfully shepherded this errant piece to publication. I do not know what Bo Burt would have thought about the whole, but every part is stamped with his insistence that law is conflict, and conflict is inescapable. This Review is dedicated to Bo, whose memory is indeed a blessing.