Recovering American Administrative Law

Federalist Foundations, 1787-1801

Bibliographic Data

ID8044563
AuthorsJerry L Mashaw (corresponding author)
Year2006
Volume115
Issue6
Pages1256-1256
Publication date2006-04-01
Peer ReviewedYes
Open AccessNo
TypeARTICLE
VenueThe Yale Law Journal (JOURNAL)
Journal identifiersISSN: 0044-0094 • E-ISSN: 1939-8611
PublisherThe Yale Law Journal Company (PUBLISHER)
DOI10.2307/20455655
OpenAlexW3126076112
LanguageEN
Citations received13

By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission.Before that time the national government is perceived as a state of courts and parties in which federal administration was minimal and congressional statutes were either self-executing or so detailed as to preclude significant administrative discretion.Such administration as there was went on within executive departments under the exclusive control of the President, and judicial review of administrative action was virtually unknown.From this perspective the administrative state of the twenty-first century, with its independent commissions, combinations of legislative, executive, and judicial authority in administrative agencies, broad delegations of administrative discretion, limitations on presidential control of administration, and ubiquitous opportunities for judicial review of executive action, represents a radical transformation of original constitutional understandings.There is much truth in this conventional vision of nineteenth-century governance, but far from the whole truth.This Article begins a project of recovering the lost one hundred years of federal administrative law.For statutory sources, agency practice, and common law actions in the Federalist period reveal a quite different and more nuanced picture.From the very beginning some administrators were clothed with broad statutory authority, made general rules, adjudicated cases, were located outside of departments, and were tightly bound to congressional oversight and direction.And common law actions provided a judicial review that was often more intrusive and robust than we observe in contemporary practice.If there was an original understanding of the structure, function, and control of administration in early federal law, Federalist practices suggest that it was a much more complex and pragmatic understanding than our conventional account admits

Federalist · American Constitutional Law and Politics · Legal and Constitutional Studies · Legal Systems and Judicial Processes

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