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A History of Law and Administration

Why Study History?

There are at least two reasons for devoting attention to the historical foundations of public law and public administration.

First, if one ignores the historical underpinnings of their field are at the risk of “Santayana’s dictum” that those who ignore history are doomed to repeat it.

Secondly the fact that administrative law has evolved in an ad hoc fashion over the years without a clear understanding of its theoretical underpinnings.

The developing concepts and approaches to administrative law have not been

synthesized and integrated with the larger legal and governmental literature.

The ad hoc development of the field is a function of important historical events that have changed both theories and practices in administration.

History of Law

Legal history or the history of law is the study of how law has evolved and why it changed.

Legal history is closely connected to the development of civilizations and is set in the wider context of social history.

Among certain jurists and historians of legal process, it has been seen as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better

understanding the origins of various legal concepts;

some consider it a branch of intellectual history.

Twentieth century historians have viewed legal history in a more contextualized manner more in line with

the thinking of social historians.

They have looked at legal institutions as complex systems of rules, players and symbols and have seen

these elements interact with society to change, adapt, resist or promote certain aspects of civil society.

Such legal historians have tended to analyze case histories from

the parameters of social science inquiry, using statistical methods, analyzing class distinctions among litigants, petitioners and other players in various legal processes.

By analyzing case outcomes, transaction costs, number of settled cases they have begun an analysis of legal institutions, practices, procedures and briefs that give us

a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.

https://en.wikipedia.org/wiki/Legal_history#United_States

Administrative History

Administrative history is a historiographic field which looks at the history of state administrations and bureaucracies.

Originally considered a sub-field of Administrative Sciences that was intended to improve contemporary governance,

administrative history has become an increasingly separate field.

Administrative historians study the changes in administrative ideologies and administrative law while

also looking at civil servants and the relationship between government and society.

https://en.wikipedia.org/wiki/Administrative_history

A Start

The history of administrative law can be divided into five periods during which practical and theoretical problems influence the growth and development of this field of law.

From the founding of the republic to 1928.

From the golden age of administrative tribunals: 1928-1950

From the new deal to the new federalism: law and administration, 1950 - 1969

Administrative justice in the modern context: 1969 – 1976

Carter and after: the counter bureaucracy challenge and the attact on administrative law

Law and Administration in America to 1928

History points to the need for more effective process with which to govern and as well as the need to address issues of the legitimacy of public administration.

Original administrative officials were individuals that migrated from England and settle in the colonies.

They adjudicated both public and private matters.

Many of the original complaints against British rule began with the administrative methods of assigned British governors' and administrators.

The argument advanced by Hamilton, Madison, and John Jay, in the Federalist Papers, is that people needed a strong, effective government with sufficient safeguards by the Constitution in order to

ensure against abuses of power by those in positions of power.

In 1789 the first Congress established a complete administrative machinery for the collections of customs and duties, necessitating administrative of disputes; provide for the payment of pensions to disables soldiers; ect.

Events that Shaped Administrative Policy

The Administrative Procedure Act (APA), enacted June 11, 1946, is the United States federal statute that governs the way in which

administrative agencies of the federal government of the United States may propose and establish regulations.

It appears that eleven of the 51 federal agencies discussed in the APA were created by statute prior to the close of the Civil War.

From 1865 to 1900, six new agencies were created, notably the Interstate Commerce Commission in 1887 in response to widespread criticism of the railroad industry.

From 1900 to 1930, seventeen agencies were created by statute, and eighteen more had been created since.

To protect citizens, the APA also grants the judiciary oversight over all agency actions.

It is one of the most important pieces of United States administrative law.

The Act became law in 1946.

https://en.wikipedia.org/wiki/Administrative_Procedure_Act_(United_States)

Interstate Commerce Commission

The Interstate Commerce Commission (ICC) was a regulatory agency in the United States created by the Interstate Commerce Act of 1887.

The agency's original purpose was to regulate railroads (and later trucking) to ensure fair rates, to eliminate rate discrimination, and to regulate other aspects of common carriers, including interstate bus lines and telephone companies.

Congress expanded ICC authority to regulate other modes of commerce beginning in 1906.

The agency was abolished in 1995, and its remaining functions were transferred to the Surface Transportation Board.

The Commission's five members were appointed by the President with the consent of the United States Senate.

This was the first independent agency (or so-called Fourth Branch).

The ICC served as a model for later regulatory efforts. Unlike, for example, state medical boards (historically administered by the doctors themselves), the seven Interstate Commerce Commissioners and their staffs were full-time regulators

who could have no economic ties to the industries they regulated.

Since 1887, some state and other federal agencies adopted this structure.

And, like the ICC, later agencies tended to be organized as multi-headed independent commissions with staggered terms for the commissioners.

At the federal level, agencies patterned after the ICC included

the Federal Trade Commission (1914), the Federal Communications Commission (1934), the U.S. Securities and Exchange Commission (1934), the National Labor Relations Board (1935), the Civil Aeronautics Board (1940), Postal Regulatory Commission (1970) and the Consumer Product Safety Commission (1975).

https://en.wikipedia.org/wiki/Interstate_Commerce_Commission

Gilded Age - 1877 to 1900

The Gilded Age in United States history is the late 19th century, from the 1870s to about 1900.

The term for this period came into use in the 1920s and 1930s and was derived from writer Mark Twain's and Charles Dudley Warner's 1873 novel The Gilded Age: A Tale of Today, which satirized an era of serious social problems masked by a thin gold gilding.

Its beginning in the years after the American Civil War overlaps the Reconstruction Era (which ended in 1877). It was followed in the 1890s by the Progressive Era.

The Gilded Age was an era of rapid economic growth, especially in the North and West.

As American wages were much higher than those in Europe, especially for skilled workers, the period saw an influx of millions of European immigrants.

The rapid expansion of industrialization led to real wage growth of 60% between 1860 and 1890, spread across the ever-increasing labor force.

The average annual wage per industrial worker (including men, women, and children) rose from $380 in 1880 to $564 in 1890, a gain of 48%.

However, the Gilded Age was also an era of abject poverty and inequality as millions of immigrants—many from impoverished regions—poured into the United States,

and the high concentration of wealth became more visible and contentious.

https://en.wikipedia.org/wiki/Gilded_Age

Immigration, Railroads, and the Growth of Industry

Immigration from Europe and the eastern states led to the rapid growth of the West, based on farming, ranching, and mining. Labor unions became important in the very rapidly growing industrial cities.

Two major nationwide depressions—the Panic of 1873 and the Panic of 1893—interrupted growth and caused social and political upheavals.

The South after the Civil War remained economically devastated;

its economy became increasingly tied to commodities, cotton and tobacco production, which suffered from low prices.

With the end of the Reconstruction era in 1877, African-American people in the South were

stripped of political power and voting rights and were left economically disadvantaged.

The political landscape was notable in that despite some corruption, turnout was very high and national elections saw two evenly matched parties.

The dominant issues were cultural (especially regarding prohibition, education, and ethnic or racial groups) and economic (tariffs and money supply).

With the rapid growth of cities, political machines increasingly took control of urban politics.

Unions crusaded for the 8-hour working day and the abolition of child labor; middle class reformers demanded civil service reform, prohibition of liquor and beer, and women's suffrage.

Many of the problems faced by society, especially the poor, during the Gilded Age gave rise to attempted reforms in the subsequent Progressive Era

https://en.wikipedia.org/wiki/Gilded_Age

Progressive Era: 1897 - 1920

The Progressive Era is a period of widespread social activism and political reform across the United States that spanned from the 1890s to the 1920s. The main objectives of the Progressive movement were eliminating problems caused by industrialization, urbanization, immigration, and political corruption.

The movement primarily targeted political machines and their bosses. By taking down these corrupt representatives in office, a further means of direct democracy would be established.

They also sought regulation of monopolies (trust busting) and corporations through antitrust laws, which were seen as a way to promote equal competition for the advantage of legitimate competitors.

Many progressives supported prohibition of alcoholic beverages, ostensibly to destroy the political power of local bosses based in saloons, but others out of a religious motivation. At the same time, women's suffrage was promoted to bring a "purer" female vote into the arena.

A third theme was building an Efficiency Movement in every sector that could identify old ways that needed modernizing, and bring to bear scientific, medical and engineering solutions; a key part of the efficiency movement was scientific management, or "Taylorism".

Many activists joined efforts to reform local government, public education, medicine, finance, insurance, industry, railroads, churches, and many other areas. Progressives transformed, professionalized and made "scientific" the social sciences, especially history, economics, and political science.

Progressives drew support from the middle class, and supporters included many lawyers, teachers, physicians, ministers, and business people.

Some Progressives strongly supported scientific methods as applied to economics, government, industry, finance, medicine, schooling, theology, education, and even the family.

They closely followed advances underway at the time in Western Europe and adopted numerous policies, such as a major transformation of the banking system by creating the Federal Reserve System in 1913

https://en.wikipedia.org/wiki/Progressive_Era

Frank Goodnow, the Father of American Administrative Law

Under conditional statutes, administrators are called on to interpret “will of the state.” “In the case of conditional statues, the administration has not merely to execute the states will, but has as well to participate in its expression as to the details which have not been regulated by the legislature.”

He points out that government involves the balancing of the following priorities:

Efficient operation of the peoples business;

The protection of individual’s rights and interests;

Efforts to achieve the general goals of social welfare.

https://en.wikiquote.org/wiki/Frank_Johnson_Goodnow

Roaring Twenties 1920-1929

The Roaring Twenties refers to the decade of the 1920s in Western society and Western culture.

It was a period of economic prosperity with a distinctive cultural edge in the United States and Western Europe.

Not everything roared: in the wake of the hyper-emotional patriotism of World War I, Warren G. Harding "brought back normalcy" to the politics of the United States.

This period saw the large-scale development and use of automobiles, telephones, motion pictures, radio, and electrical appliances.

Aviation became a business. Nations saw rapid industrial and economic growth, accelerated consumer demand, and significant changes in lifestyle and culture.

The media focused on celebrities, especially sports heroes and movie stars, as cities rooted for their home teams and filled the new palatial cinemas and gigantic sports stadiums. In most major democratic states, women won the right to vote.

The United States gained dominance in world finance. Thus, when Germany could no longer afford to pay World War I reparations to the United Kingdom, France and the other Allied powers,

the United States came up with the Dawes Plan, named after banker, and later 30th Vice President, Charles G. Dawes.

Wall Street invested heavily in Germany, which paid its reparations to countries that, in turn, used the dollars to pay off their war debts to Washington.

By the middle of the decade, prosperity was widespread, with the second half of the decade known, especially in Germany, as the "Golden Twenties".

The spirit of the Roaring Twenties was marked by a general feeling of novelty associated with modernity and a break with tradition.

Everything seemed to be feasible through modern technology.

New technologies, especially automobiles, moving pictures, and radio, brought "modernity" to a large part of the population. Formal decorative frills were shed in favor of practicality in both daily life and architecture.

At the same time, jazz and dancing rose in popularity, in opposition to the mood of World War I. As such, the period is also often referred to as the Jazz Age.

The Wall Street Crash of 1929 ended the era, as the Great Depression brought years of hardship worldwide

https://en.wikipedia.org/wiki/Roaring_Twenties

The Golden Age of Administrative Tribunals: 1928-1950

From the onset of the Great Depression through the early post – World War II period were marked by

a veritable explosion of administrative activity.

Stock Market Crash (1929) Hard working, conscientious men and women lost everything just as quickly, and painfully as did

the market manipulators and others who had engaged in what has been termed “predatory finance.”

The crash showed that the market system did many things very well,

but it required some policing to ensure that competition was fair and open.

Because the belief that that the crash was a temporary downturn in the economy , a time of market correction, was unacceptable,

the country expected the government to do something about the state of the economy and the social consequences of the depression.

The Roosevelt administration moved on two fronts: to stabilize the marketplace through legislative programs, i.e. the National Industry Recovery Act (NIRA) and to create social welfare and jobs programs. The New Deal

https://en.wikipedia.org/wiki/National_Industrial_Recovery_Act_of_1933 .

Wall Street Crash and the Great Depression

The Wall Street Crash of 1929, is the stock market crash that occurred in late October, 1929. It started on October 24 ("Black Thursday") and continued until October 29, 1929 ("Black Tuesday"), when share prices on the New York Stock Exchange collapsed.

It was the most devastating stock market crash in the history of the United States, when taking into consideration the full extent and duration of its after effects. The crash, which followed the London Stock Exchange's crash of September, signaled the beginning of the 12-year Great Depression that affected all Western industrialized countries

Note: While the American cities prospered, the overproduction of agricultural produce created widespread financial despair among American farmers throughout the decade.

This would later be blamed as one of the key factors that led to the 1929 stock market crash.

The causes of the Great Depression in the early 20th century have been extensively discussed by economists and remain a matter of active debate.

They are part of the larger debate about economic crises.

The specific economic events that took place during the Great Depression are well established.

There was an initial stock market crash that triggered a "panic sell-off" of assets.

This was followed by a deflation in asset and commodity prices, dramatic drops in demand and credit, and disruption of trade, ultimately resulting in widespread unemployment (over 13 million people were unemployed by 1932) and impoverishment. https://en.wikipedia.org/wiki/Franklin_D._Roosevelt#Lead-up_to_the_war

However, economists and historians have not reached a consensus on the causal relationships between various events and government economic policies in causing or ameliorating the Depression.

Administrative Procedure Act

The Administrative Procedure Act (APA, enacted June 11, 1946, is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations.

To protect citizens, the APA also grants the judiciary oversight over all agency actions. It is one of the most important pieces of United States administrative law.

The APA applies to both the federal executive departments and the independent agencies. U.S. Senator Pat McCarran called the APA

"a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated" by federal government agencies.

https://en.wikipedia.org/wiki/Administrative_Procedure_Act_(United_States)

Basic Purposes of the APA

Although each US government agency is constituted within one branch of the government (judicial, legislative, or executive), an agency's authority often extends into the functions of other branches.

Without careful regulation, that can lead to unchecked authority in a particular area of government, violating the separation of powers, a concern that Roosevelt himself acknowledged.

To provide constitutional safeguards, the APA creates a framework for regulating agencies and their roles.

The basic purposes of the APA are the following:

to require agencies to keep the public informed of their organization, procedures and rules;

to provide for public participation in the rulemaking process, for instance through public commenting;

to establish uniform standards for the conduct of formal rulemaking and adjudication;

to define the scope of judicial review.

The APA defines an "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency," with the exception of several enumerated authorities, including

Congress, federal courts, and governments of territories or possessions of the United States.

Courts have also held that the U.S. President is not an agency under the APA.

From the New Deal to the New Federalism: Law and Administration, 1950 - 1969

The Hoover Commission, officially named the Commission on Organization of the Executive Branch of the Government, was a body appointed by President Harry S. Truman in 1947 to

recommend administrative changes in the Federal Government of the United States.

With the impetus of the Hoover Commission, the Reorganization Act of 1949 was approved by Congress on June 20, 1949.

President Truman made eight reorganization plans submitted in 1949, 27 in 1950, and one each in 1951 and 1952.

The commission was officially terminated on June 12, 1949

A Second Hoover Commission was created by Congress in 1953 during the administration of President Dwight D. Eisenhower.

Under the Eisenhower Administration, ten reorganization plans were implemented in 1953, two in 1954, and one each in 1957 and 1958. It was concluded in 1955 that 116 of the recommendations were fully implemented and that another 80 were mostly or partly implemented.

The 1950’s were marked by a plethora of important political, economic, social developments,

i.e. desegregation rulings; “House on Un-American Activities; problems of administering a burgeoning military-industrial complex.

https://en.wikipedia.org/wiki/Hoover_Commission

War on Poverty

The War on Poverty is the unofficial name for legislation first introduced by United States President Lyndon B. Johnson during his State of the Union address on Wednesday, January 8, 1964.

This legislation was proposed by Johnson in response to a national poverty rate of around nineteen percent.

The speech led the United States Congress to pass the Economic Opportunity Act, which established the Office of Economic Opportunity (OEO) to administer the local application of federal funds targeted against poverty.

As a part of the Great Society, Johnson believed in expanding the federal government's roles in education and health care as poverty reduction strategies.

These policies can also be seen as a continuation of Franklin D. Roosevelt's New Deal, which ran from 1933 to 1937, and the Four Freedoms of 1941.

However groups such as The Heritage Foundation and the Cato Institute assert that welfare creates dependence and a disincentive to work and reduce the opportunity of individuals to manage their own lives.

This dependence is called a "culture of poverty", which is said to undermine people from finding meaningful work. Many of these groups also point to the large budget used to maintain these programs and assert that it is wasteful.

The legacy of the War on Poverty policy initiative remains in the continued existence of such federal programs as Head Start, Volunteers in Service to America (VISTA), TRiO, and Job Corps.

Deregulation, growing criticism of the welfare state, and an ideological shift to reducing federal aid to impoverished people in the 1980s and 1990s culminated in

the Personal Responsibility and Work Opportunity Act of 1996, which President Bill Clinton claimed, "ended welfare as we know it."

https://en.wikipedia.org/wiki/Welfare_state#See_also

Administrative Justice in the modern context: 1969 – 1976

The 1970’s was a period of rapid change in law and administration. Like most changes in law and politics they effected

“who gets what, where, when, and how.”

Under the Nixon administration the fear of crime brought cries for tougher law enforcement to wit created:

Omnibus Crime Control and Safe Streets Act;

Law Enforcement Assistance Administration;

Environmental Protection Agency;

The nation was stuck with an unpopular war in Vietnam and was badly shaken by events that led to downfall of the Nixon Administration.

The problem: How to carry out difficult administrative tasks in a hostile environment when the hostility is exploited for political gain by elected officials.

(i.e. Oklahoma City Federal Building bombing)

https://en.wikipedia.org/wiki/Presidency_of_Richard_Nixon

Richard Nixon's Resignation Speech

Around the world, in Asia, in Africa, in Latin America, in the Middle East, there are millions of people who live in terrible poverty, even starvation. We must keep as our goal turning away from production for war and expanding production for peace so that people everywhere on this earth can at last look forward in their children's time, if not in our own time, to having the necessities for a decent life.

Here in America, we are fortunate that most of our people have not only the blessings of liberty but also the means to live full and good and, by the world's standards, even abundant lives. We must press on, however, toward a goal of not only more and better jobs but of full opportunity for every American and of what we are striving so hard right now to achieve, prosperity without inflation.

For more than a quarter of a century in public life I have shared in the turbulent history of this era. I have fought for what I believed in. I have tried to the best of my ability to discharge those duties and meet those responsibilities that were entrusted to me.

Sometimes I have succeeded and sometimes I have failed, but always I have taken heart from what Theodore Roosevelt once said about the man in the arena, "whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again because there is not effort without error and shortcoming, but who does actually strive to do the deed, who knows the great enthusiasms, the great devotions, who spends himself in a worthy cause, who at the best knows in the end the triumphs of high achievements and who at the worst, if he fails, at least fails while daring greatly.

https://en.wikisource.org/wiki/Richard_Nixon%27s_resignation_speech

Carter and after: the Counter Bureaucracy Challenge and the Attack on Administrative Law

It appears that folks running for an elected office, beginning with the Carter Administration and related members of Congress, have programed, through propaganda techniques, their supporters that

it’s the “government” that wrong with our country!

This strategy intensified under the Reagan Administration when they declared that the bureaucracy was too big and administratively too complicated. At the core of the debate that pushed for change was the politicization of public services resulted in:

Promotion of a mythology of bureaucracy,

The use of reform to cloak ideological challenges to reform public services;

A dramatic deregulation movement;

A problematic reshaping of intergovernmental relations;

A shift in response by courts to administrative responsibility;

The effects of fiscal stress a result of the elimination revenue sharing and reduction of block grants.

A growing impact of globalization on domestic public administration;

An increasing reliance on governance models to meet contemporary challenges.

The Carter administration used executive orders to enhance the role of the Office of Management and Budget (OMB) by authorizing them to monitor proposed rulemaking in order to discourage unnecessary regulation and encouraging cost/benefit of rules that were to be promulgated.

The Reagan administration continued the attack on public administration by informing the American Society for Public Administration that the administration intended to put public administrators in their place.

The Clinton campaign criticized the Reagan and Bush administrations on grounds that their attacks on public services and interference with regulatory and social service agency processes in such

areas of the blocking of rulemaking had jeopardized the environment and public safety.

Office of Management and Budget

The Office of Management and Budget (OMB) is the largest office within the Executive Office of the President of the United States (EOP).

OMB's most prominent function is to produce the President's Budget, but OMB also measures the quality of agency programs, policies, and procedures to see if they comply with the president's policies and coordinates inter-agency policy initiatives.

OMB prepares the President's budget proposal to Congress and supervises the administration of the executive branch agencies.

OMB evaluates the effectiveness of agency programs, policies, and procedures, assesses competing funding demands among agencies, and sets funding priorities.

OMB ensures that agency reports, rules, testimony, and proposed legislation are consistent with the president's budget and with administration policies.

OMB also oversees and coordinates the administration's procurement, financial management, information, and regulatory policies. In each of these areas, OMB's role is

to help improve administrative management, to develop better performance measures and coordinating mechanisms, and to reduce any unnecessary burdens on the public.

OMB's critical missions are:

Budget development and execution is a prominent government-wide process managed from the Executive Office of the President (EOP) and a device by which a president implements his policies, priorities, and actions in everything from the Department of Defense to NASA.

OMB manages other agencies' financials, paperwork, and IT

https://en.wikipedia.org/wiki/Office_of_Management_and_Budget#See_also

United States Office of Personnel Management

The United States Office of Personnel Management (OPM) is an independent agency of the United States Federal Government that manages the government's civilian workforce.

The agency provides federal human resources policy, oversight and support, and tends to healthcare, insurance and retirement benefits and services for federal government employees.

According to their website, the mission of the OPM is "recruiting, retaining and honoring a world-class force to serve the American people.“

The OPM is partially responsible for maintaining the appearance of independence and neutrality in the Administrative Law System.

While technically employees of the agencies they work for, Administrative Law Judges (or ALJs) are hired exclusively by the OPM, effectively removing any discretional employment procedures from the other agencies.

The OPM uses a rigorous selection process which ranks the top three candidates for each ALJ vacancy, and then makes a selection from those candidates, generally giving preference to veterans.

The OPM is also responsible for a large part of the management of security clearances (National Background Investigations Bureau conducts these investigations) for the United States Government.

The OPM is responsible for investigating individuals to give them Secret and Top Secret clearances.

OPM makes decisions on federal employee regular and disability retirement cases

The United States Civil Service Commission was created by the Pendleton Civil Service Reform Act of 1883. The commission was abolished and replaced by OPM on January 1, 1979, following the passage of the Civil Service Reform Act of 1978 .

The Civil Service Reform Act of 1978, (CSRA), reformed the civil service of the United States federal government, partly in response to the Watergate scandal.

The Act abolished the U.S. Civil Service Commission and distributed its functions primarily among three new agencies: the Office of Personnel Management (OPM), the Merit Systems Protection Board (MSPB), and the Federal Labor Relations Authority (FLRA)

https://en.wikipedia.org/wiki/United_States_Office_of_Personnel_Management

https://en.wikipedia.org/wiki/Civil_Service_Reform_Act_of_1978