Why the Modern Administrative State is Inconsistent with the Rule of Law
The subject of this conference is one of immense importance to us all. What constraints, if any, does the elusive but vital conception of the rule of law place on the interpretation of the Constitution, particularly in its relationship to the rise of the administrative state? The usual way to ask this question today presupposes that the rise of the administrative state, which took place inexorably between the founding of the Interstate Commerce Commission in 1887 and the final triumph of the New Deal vision of the Constitution exactly fifty years later, was a legitimate endeavor in response to the changed conditions brought on by the rapid industrialization in the post Civil War period. The creation of what has been optimistically called “the Fourth Branch” of government necessarily poses challenges on the integration of this fourth branch of government with the other three branches, for which there is explicit textual authority. That task must, as Peter Strauss reminds us on more than one occasion, provide for the separation of functions (which is nowhere stated in the Constitution) in order to achieve the protections against the arbitrary application of power which the separation of powers (which is in the Constitution) was designed to preserve. In effect, the new vision rests on a quid pro quo of constitutional dimensions: we can take away those particular limitations that the Constitution provides so long as we substitute in alternative protections against the concentration of power that work as well as the ones they supplant. The weakness of this argument should, I think, be evident on its face, at least to anyone who does not share the Progressive vision of good government. That vision rests on the key assumption that government officials armed with technical expertise and acting in good faith to advance the public interest can systematically outperform any system of limited government whose major function was to support and protect market institutions.
