Use of the term administrative state

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“ The 'administrative state' is not a new or recent phrase; it has been around for several decades, but its nature and depth was only recently more fully appreciated. Once confined chiefly to scholars and policy wonks, the term is now in widespread popular use.[1] ”
—Steven Hayward, The Threat to Liberty, February 1, 2017


The administrative state is a term that has been used by academics across the political spectrum in scholarly works dating back to the 1940s, though the concept's historical roots can be traced to the Age of Enlightenment. The administrative state has come into more widespread use among politicians and journalists in recent years. In particular, President Donald Trump's (R) former chief strategist Steve Bannon brought the administrative state to the forefront of political discourse when he characterized the president's regulatory agenda as the "deconstruction of the administrative state" in February 2017.

Below, Ballotpedia traces the origin and evolution of the administrative state as a technical term among scholars, politicians, and the media. For more information about the historical development of the administrative state, click here.

Origin of the term

As administrative law scholar Steven Hayward observed in his 2017 article "The Threat to Liberty," the administrative state is not a new or recent phrase. Its origins can be traced to American political scientist Dwight Waldo's 1948 book The Administrative State: A Study of the Political Theory of American Public Administration. Waldo's text examined contemporary developments in the field of public administration in the context of historical developments in political theory. Though Waldo's text did not offer a definition of administrative state, the book broadly positioned the term in the context of public administration. That same year, attorney Joseph Rosenfarb published Freedom and the Administrative State, in which he argued that democratic protections for individuals could exist within a planned economy.[2][3][4]

Timeline of term use

1950s

During the 1950s and 1960s, administrative state was infrequently used by scholars in the fields of administrative law and public administration. In 1951, administrative law scholar Marshall Dimock published Free Enterprise and the Administrative State, which argued for the decentralization of both business and government as a means to preserve the free enterprise system. Law professor Herbert Kuvin reviewed Dimcock's book and defined the administrative state to mean "the control of economy by government or public administration." German-American administrative law scholar Fritz Morstein Marx's 1957 book The Administrative State: An Introduction to Bureaucracy later characterized the administrative state as "bureaucracy as an institution of the sophisticated state, both modern and ancient," according to reviewer Bruce B. Mason.[5][6]

1960s

Scholars during the 1960s, such as Donald Rothchild, Randy Hamilton, Judy Kelsey, Ralph F. Fuchs, and Emmette Redford, published works that incorporated the administrative state. References to the term during this decade generally refer to the administrative state as a collection of administrative agencies or a bureaucratic apparatus. During this decade, administrative law was centered on interpreting and applying organic agency statutes and the adjudication provisions of the Administrative Procedure Act (APA), according to attorney and scholar Christopher DeMuth. Scholars Marta Pisetska Farley and Andrew N. Farley incorporated the term in their 1964 article "An American Ombudsman: Due Process in the Administrative State," which aimed to draw attention to the proliferation of administrative agencies and the quasi-judicial adjudication process. Similarly, Fuchs introduced the phrase in his 1969 article "The New Administrative State: Judicial Sanction for Agency Self-Determination in the Regulation of Industry."[7][8][9][10]

1970s

The regulatory environment of the1970s combined deregulatory efforts championed by Presidents Gerald Ford (R) and Jimmy Carter (D) with a rise in socially-focused regulation and informal rulemaking. New agencies were created that centered on social welfare, such as the Environmental Protection Agency and the Equal Employment Opportunity Commission, and contrasted with the New Deal-era agencies geared toward economic regulation, such as the Federal Communications Commission. The overall increase in regulatory activity during this period shifted the scholarly discourse related to the administrative state to focus on its growth and scope. Administrative law scholar James O. Freedman noted this shift when defining the administrative state in his 1978 book Crisis and Legitimacy: The Administrative Process and American Government: "This shift in the center of gravity of governmental powers has become so pronounced that contemporary political scientists, with increasing regularity, describe America as an administrative state." Other scholars from a variety of backgrounds also incorporated the term in their scholarly works over the course of the decade, including Richard O. Brooks, Charles E. Gilbert, and William W. Van Alstyne.[11][12][13][14][15][16][17][18]

1980s

President Ronald Reagan's (R) push for what he considered to be regulatory reform in the 1980s contributed to an increase in scholarly work examining the overall legitimacy of the administrative state. John A. Rohr, Cynthia R. Farina, Henry Monaghan, and Peter Strauss, among other scholars, employed the administrative state in works during this period. In a 1983 article for the Columbia Law Review, Monaghan observed, "Moreover, a conception of public administration free from judicial oversight would have damaged the fundamental political axiom of limited government and thus undermine in advance a principal buttress for the legitimacy of the modern 'administrative state.'" A few years later, Rohr incorporated administrative state in the title of his 1986 book To Run a Constitution: The Legitimacy of the Administrative State.[19][20][11]

1990s

The administrative state continued to be used by scholars during the 1990s as arguments debating the constitutionality of the administrative state gained prominence. Gary Lawson, Cass Sunstein, and Marshal Breger are just a few of the academics who produced works over the decade pursuant to this theme. In his 1994 article "The Rise and Rise of the Administrative State," Lawson argued that, "The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution." The term also began to move beyond strictly academic circles and into the judiciary during this period. United States Supreme Court Justice David Souter coopted the term in his 1999 dissent for Alden v. Maine, stating, "The proliferation of Government, State and Federal, would amaze the Framers, and the administrative state with its reams of regulations would leave them rubbing their eyes."[21][22]

2000-2016

During the early 21st century, frequent collaborators and defenders of the administrative state Eric Posner, Cass Sunstein, and Adrian Vermeule referenced to the term in a number of writings. Critics of the administrative state, including Philip Hamburger, Lawson, and Ronald Pestritto also continued to use the administrative state in their work. President Barack Obama's executive actions in light of the Great Recession contributed to a growth in opposition to the administrative state, according to the Harvard Law Review, and served to heighten the visibility of the term. Notably, the administrative state was used by United States Supreme Court Justices John Roberts and Clarence Thomas—further expanding its visibility beyond academic circles. In his 2013 dissent in "City of Arlington v. FCC," Chief Justice John Roberts declared that "[t]he administrative state ‘wields vast power and touches almost every aspect of daily life.' The Framers could hardly have envisioned today’s 'vast and varied federal bureaucracy' and the authority administrative agencies now hold over our economic, social, and political activities."[23][24]

2016-Present

In 2016, then-presidential candidate Donald Trump (R) campaigned on a platform that included a pledge to rein in what he considered to be burdensome federal regulations that slowed down economic growth—an agenda that his former chief strategist Steve Bannon characterized as the "deconstruction of the administrative state." The Trump administration's reference to the term contributed to an increase in its use by politicians and journalists. In his 2017 book Bureacracy in America, administrative law scholar Joseph Postell observed that dissatisfaction with the administrative state by both progressives and conservatives alike "has reached a fever pitch over the last two years, and both on the Supreme Court and in the popular media the administrative state has become a lightning rod for criticism."[25][26]

See also

External links

Footnotes

  1. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  2. ↑ Maxwell School, "From Maxwell Perspective...Putting the Purpose in P.A.," accessed May 22, 2018
  3. ↑ American Political Science Review, "Freedom and the Administrative State. By Joseph Rosenfarb. (New York: Harper and Brothers. 1948. Pp. xiii, 274. $4.00.)" accessed May 22, 2018
  4. ↑ Claremont Review of Books, "The Threat to Liberty," February 1, 2017
  5. ↑ The Journal of Politics, "Book Reviews—The Administrative State: An Introduction to Bureaucracy. Fritz Morstein Marx," accessed May 22, 2018
  6. ↑ University of Miami Law Review, "FREE ENTERPRISE AND THE ADMINISTRATIVE STATE. By Marshall E. Dimock. University, Alabama: University of Alabama Press, 1951." accessed May 22, 2018
  7. ↑ Indiana University Press, "Progress and the One-Party State, September 1963
  8. ↑ American Society of Public Administration, "The Administrative Conference of the U. S.," May 1969
  9. ↑ Administrative Law Review, "An American Ombudsman: Due Process and the administrative state," Summer 1964
  10. ↑ Columbia Law Review, "The New Administrative State: Judicial Sanction for Agency Self-Determination in the Regulation of Industry," February 1969
  11. ↑ 11.0 11.1 Columbia Law Review, "Marbury and the Administrative State", 1983
  12. ↑ The Journal of Politics, "Book Reviews Democracy in the Administrative State. Emmette S. Redford," accessed May 22, 2018
  13. ↑ Duke Law Review, "PRESIDENTIAL MANAGEMENT OF THE ADMINISTRATIVE STATE: THE NOT-SO-UNITARY EXECUTIVE," accessed May 24, 2018
  14. ↑ Ford Presidential Library, "Regulatory Reform," accessed May 24, 2018
  15. ↑ Administrative Law Review, "THE LEGALIZATION OF PLANNING WITHIN THE GROWTH OF THE ADMINISTRATIVE STATE," Winter 1979
  16. ↑ The Annals of the American Academy of Political and Social Science, "The Shaping of Public Policy," July 1976
  17. ↑ Cornell Law Review, "Cracks in "The New Property": Adjudicative Due Process in the Administrative State," 1977
  18. ↑ Freedman, James O. Crisis and legitimacy: The administrative process and American government. New York: Cambridge University Press, 1978
  19. ↑ University Press of Kansas, "To Run a Constitution: The Legitimacy of the Administrative State," accessed May 25, 2018
  20. ↑ Columbia Law Review, "Statutory Interpretation and the Balance of Power in the Administrative State," 1989
  21. ↑ Harvard Law Review, "The Rise and Rise of the Administrative State," 1994
  22. ↑ JUSTIA, "Alden v. Maine, 527 U.S. 706 (1999)," accessed May 25, 2018
  23. ↑ Harvard Law Review, "1930s Redux: The Administrative State Under Siege," November 10, 2017
  24. ↑ Supreme Court of the United States, "CITY OF ARLINGTON, TEXAS, ET AL. v. FEDERAL COMMUNICATIONS COMMISSION ET AL.," accessed May 25, 2018
  25. ↑ The Washington Post, "Bannon vows a daily fight for ‘deconstruction of the administrative state,'" February 23, 2017
  26. ↑ Postell, Joseph. Bureaucracy in America, Columbia, MO: University of Missouri Press, 2017
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