Ronald J Pestritto

Following the Roosevelt administration's implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the "administrative state," and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state-the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from political control-might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts' heavy use of "hard look" review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles.

The American Progressive Movement argued for both a democratization of the political process and deference to expert administrators. Relying on the work of Theodore Roosevelt and Woodrow Wilson, the article endeavors to explore this tension and make some preliminary suggestions as to how it might be reconciled—at least in the eyes of its adherents—into a single democratic theory. Both Roosevelt and Wilson criticize the principles of the original Constitution for being insufficiently democratic and overly suspicious of the popular will, and they want to make public opinion a more direct force in national politics. Yet both are also suspicious of politics and its potential for corruption by “special interests,” and thus look for ways of empowering expert administrative agencies and insulating them from political influence. Wilson seems to understand the potential conflict between these two aims more than Roosevelt does, although both look to a popularized presidency as a means of reconciling consent and expertise.

This article contends that liberalism in America underwent a fundamental transformation during the Progressive Era. This transformation took place, partly, through the Progressives' reinterpretation of the doctrine of property rights that had served as a foundation for founding-era liberalism. Progressives rejected the eighteenth-century, natural-rights principles which had privileged individual rights to life, liberty, and property as the fundamental aims of any just government, and argued instead that America at the turn of the twentieth century was beset by a tyranny of the minority which was employing property rights to inhibit genuine freedom for the bulk of the population. This article examines the character of founding-era liberalism and points to the connection between the political theory of the Declaration of Independence and John Locke's Second Treatise of Government. It then provides an account of the Progressive critique of this original version of American liberalism. The Progressive critique is shown to take two forms: a rejection of property rights in principle, followed by a rejection of them in practice.

The American administrative state is a feature of the new liberalism that is largely irreconcilable with the old, founding-era liberalism. At its core, the administrative state, with its delegation of legislative power to the bureaucracy, combination of functions within bureaucratic agencies, and weakening of presidential control over administration undercuts the separation-of-powers principle that is the base of the founders' Constitution. The animating idea behind the features of the administrative state is the separation of politics and administration, which was championed by James Landis, the New-Deal architect of the administrative state for President Franklin Roosevelt. The idea of separating politics and administration, and the faith such a separation requires in the objectivity of administrators, did not originate with Landis or the New Deal but, instead, with the Progressives who had come a generation earlier. Both Woodrow Wilson and Frank Goodnow were pioneers in advocating the separation of politics and administration, and made it the centerpiece of their broad arguments for constitutional reform.