Administrative Law and the Regulatory State since World War II

LEAA was only one example of the postwar response of federal agencies in solving the era's complex problems. By the late 1940s, administrative bodies became an accepted feature of the legal system. Many of the New Deal lawyers, once considered radicals for supporting the regulatory state, entered private practice, taking their expertise with them. Over the next four decades, "Washington lawyers" (experts in regulatory matters) rivaled "Wall Street lawyers" for influence.

The ABA leadership, after initial hostility, decided to tame rather than fight the regulatory state. It sponsored the Administrative Procedures Act (APA) of 1946, a federal law that imposed procedural order on often unruly administrative agencies and facilitated the expanded role of lawyers in the regulatory state. The APA, which

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applied to all federal agencies, rationalized and harmonized the role of administrative bodies. It outlined the way in which agencies should act rather than what the agencies should act upon, dividing the administrative process into two broad categories: rulemaking and adjudication. In the former, the act required agencies to provide preliminary notice, a period for comment, and a statement of basis and purpose. The act also formulated guidelines for the adjudication of disputes about rules. On this count, the act was much more stringent. It created a fairly elaborate scheme for evidentiary requirements and hearing examiners, forcing agencies to proceed about the way courts did in determining the merits of an individual claim.

APA ushered in two decades of consensus about the value of administrative oversight. Matters of regulatory reform and the impulse to redefine the relationship between the public and private sectors were temporarily in abeyance. The federal judiciary, for example, granted broad discretion to regulatory bodies based on their supposed expertise and experience in dealing with the areas they regulated. The growing influence of the agencies further weakened the traditional dichotomy between public and private spheres of responsibility.

Although the Republican party sometimes railed against the newly powerful regulatory state during the 1950s, in practice the administration of Dwight D. Eisenhower supported it. Government by regulation expanded, not contracted, often because business perceived its value. The most notable example was the Atomic Energy Act of 1946, which established the Atomic Energy Commission (AEC). The AEC played a. vital role in expanding the nuclear power industry, adapting advances in atomic weaponry to peaceful purposes by encouraging the development of technologies, granting licenses to operators, and overseeing the construction of facilities. Congress complemented this new body with the Price-Anderson Act of 1957, which was "designed, in part, to insulate the nuclear industry from liability suits for damages from serious accidents" by giving "companies the courage to risk massive amounts of money in a complex and potentially very dangerous technology." ⁴⁸

The prevailing consensus about the value of regulation did not mean an end to fighting over what the agencies should do. One of the most notable features of the United States after World War II was the way in which contending social and economic groups competed to influence these bodies. In the case of nuclear power, for example, coal operators, fearful that they would lose their virtual monopoly over supplying fuel for electrical generation, lobbied against Price-Anderson in Congress and testified before the AEC about the inadequacies of nuclear power plant safety programs. In another area, labor and business also sharply differed over what powers the NLRB should exercise. Business in 1947 won a major victory in the Taft-Hartley Act, which limited NLRB discretion and made it significantly more sensitive to business interests. The act, for example, banned the closed shop (in which all persons working in the place of employment had to belong to the union) and required certain unions to abide by a sixty-day cooling-off period before striking.

Date: 2015-01-29; view: 674