Administrative Law Agency

The late- nineteenth-century response to economic consolidation was the administrative law agency, a hybrid governmental institution that combined executive, legislative, and judicial functions. These bodies were separate from both the legislature and courts. Yet they legislated, in that they adopted regulations that had the force of law; they also adjudicated, in that they held hearings and rendered quasi-judicial opinions. This "fourth branch" of government, nowhere mentioned in the Constitution, exercised delegated powers from the legislature, fulfilling on a day-to-day basis the oversight functions of regulation that a legislative body was incapable of doing.

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The impetus for this new administrative approach to regulation came from several sources. The experience of the Civil War, for instance, had shown the value of agencies and bureaucratic organization as a means of solving large-scale problems. The Union Army moved increasingly toward a bureaucratic form of organization during the war. The Sanitary Commission, which was an unofficial auxiliary of the army, invested its major efforts in achieving sound public-health practices in army installations located in the North as well as evacuating the dead and wounded from battlefields. The commission became a prototype of how an agency staffed with competent people could efficiently perform important functions free from direct political manipulation. The Freedmen's Bureau during Reconstruction provided another example.

The abolitionists also abetted the impulse toward administrative regulation by affirming the principle that government should be bound by moral authority, and that its decisions about public policy should be free from partisan taint and strict majority control. Although abolitionists never dominated either Congress or the Republican party (let alone state legislatures), their emphasis on morality and impartiality in government countered the distributive political principles of majoritarian democracy. ²⁶ With political scandals of unprecedented proportions rocking the nation in the late nineteenth century, intellectuals connected the abolitionists' stress on morality to the idea that emerging principles of science would provide an apolitical foundation for independent regulation. The writer and reformer E. L. Godkin, for example, predicted in 1868 that the nation would be rescued from its "moral anarchy" by "mental culture" and that "the next great political revolution in the Western world" would give "scientific expression to the popular will, or, in other words place men's relations in society where they never yet have been placed, under the control of trained human reason." ²⁷ The independent regulatory agency became the instrument of human reason over politics.

The national scope of economic change, the clamor of reformers, and the pressures of third parties eventually produced significant action. It came in two phases. The first, during the party period, was tentative and uneven; the second, during the Progressive era, was more extensive. The two most important early federal regulatory measures were aimed at the new economy's most vital elements: railroads and manufacturing. The Interstate Commerce Commission (ICC) of 1887 and the Sherman Antitrust Act of 1890 reveal the mix of political and administrative solutions to the problems created by economic growth. Congress kept one foot in the old world of distributive politics, while stepping haltingly into a future of administrative regulation. The result was an "incoherent, unworkable policy from which no one stood to benefit." ²⁸

Date: 2015-01-29; view: 677