"Constitutionalism after the New Deal" (1987) is an article by American legal scholar Cass R. Sunstein arguing that public dissatisfaction with the modern administrative state can be attributed to the failure of New Deal reformers to successfully incorporate the system of checks and balances among the three branches of government into the administrative agencies developed during the era. Sunstein's article examines the relationships between administrative agencies and the three branches of government and proposes solutions to improve government oversight of administrative agencies and strike a balance between national and local-level regulatory control.[1]
HIGHLIGHTS
Source: Harvard Law Review, Volume 101, 1987-1988
Abstract: In the introduction to the article, Sunstein provides the following summary of his argument:
"In recent years, the failure of administrative agencies to implement congressional programs faithfully and effectively has called into question the wisdom of the central institutional innovations of the New Deal: the expansion of the regulatory state and the shift in power from the states to the federal government. In this Article, Professor Sunstein challenges the New Deal more fundamentally, examining not only the institutional changes themselves, but also the shift in constitutional commitments that underlay those reforms." (p. 421)[1]
Author
Cass R. Sunstein is an American legal scholar and professor. As of May 2024, he was the Robert Walmsley University Professor at Harvard Law School. He is also the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. Sunstein served as the administrator of the White House Office of Information and Regulatory Affairs under former President Barack Obama (D) from 2009 to 2012. According to his faculty profile page on the Harvard website, Sunstein's areas of interest include administrative law, constitutional law, environmental law and policy, employment law, labor law, and behavioral law and economics.[2]
Career
Below is a summary of Sunstein's education and career:[2]
Academic degrees:
- A.B. (1975), Harvard University
- J.D. (1978), Harvard Law School
Professional positions and honors:
- Law clerk, Benjamin Kaplan, Massachusetts Supreme Judicial Court, 1978-1979
- Law clerk, Thurgood Marshall, Supreme Court of the United States, 1979-1980
- Attorney-advisor, U.S. Department of Justice, Office of Legal Counsel, 1980-1981
- Faculty, University of Chicago Law School, 1981-2008[3]
- Faculty, Harvard Law School, 2008-2013 - Present[4]
- Administrator, White House Office of Information and Regulatory Affairs, 2009-2012
- Professor, Harvard University, 2013 - Present
"The New Deal Reformation"
The central argument of Sunstein's article is that the inefficiencies of modern regulatory agencies and public dissatisfaction with the administrative state can be attributed to the failure of New Deal reformers to integrate the constitutional system of checks and balances into administrative functions. The article is sectioned into three parts, summarized below.
Sunstein's article contends that the regulatory agencies developed as part of the New Deal failed to incorporate key elements of the constitutional framework, including a system of checks and balances as well as principles of limited government and common law:
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The more significant difficulty with the argument for a return to the original goal of limited government is conceptual. That goal, as
traditionally understood, is harder to justify in the wake of the decline of the Lochner-era understanding of the relationship between the citizen and the state. It is now clear that the common law is itself a regulatory system, embodying a series of controversial social choices. The system of common law ordering appears "limited"
only because the regulatory regime seems natural and indeed invisible to those accustomed to it. More generally, traditional conceptions of governmental action and inaction rest on controversial premises; they depend on baselines about the ordinary and desirable functions of government that should themselves be subject to critical scrutiny. Moreover, governmental inaction, even if it is understood as such, may itself be a product of factional power. The claims of agency capture by regulated industries reflect the point; statutes may be undone by inaction and deregulation as well as by overzealous enforcement. In short, although modern administration is sometimes dysfunctional, it should not be understood as the imposition of government onto a system of purely private ordering. "Limited government" as reflected in the common law was itself a system of regulation and control.
In any event, many of the concerns that underlay the original distribution of national powers have played a prominent role in modern evaluations of administrative performance. These concerns have led to a sharply declining faith in the New Deal agency, insulated from legislative, executive, and judicial supervision.
This decline in faith in the institutional program of the New Deal is entirely justified. The New Deal attack on checks and balances was not a necessary part of its institutional framework and was largely a mistake. An aggressive role for each of the constitutionally specified branches - even a form of checks and balances - can promote those substantive goals of the New Deal that have a claim to contemporary support. The current task is to devise institutional structures and
arrangements that will accomplish some of the original constitutional purposes in an administrative era; this is no small ambition in light of the continuing rejection of the traditional notion of "limited government" with which the original distribution of powers was closely allied. (pp. 451-452)[5]
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"Checks and Balances after the New Deal"
- See also: Deference and Independent federal agency
In this section, Sunstein examines the various constraints implemented by the executive, judicial, and legislative branches of government in order to exercise control over administrative agencies. He explores the structural mechanisms for presidential supervision, judicial review, and legislative control as well as the relationships between the three branches of government through agency oversight. Sunstein reviews the New Deal's administrative framework, the impact of various government interventions on agency autonomy, and the function of independent agencies:
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Whatever the ultimate meaning of agency independence, and whether or not it is found constitutional, it should not be surprising if the recent attacks on independence and the related decline in the New Deal conception of administration eventually lead to increased presidential control of all regulatory agencies. Such a development would be highly desirable. Understood functionally, total independence threatens central principles of electoral accountability. There is evidence that the lack of accountability of independent regulatory agencies has led to abuses. The constitutional commitments to the avoidance of factionalism and to limitations on the disjunction between rulers and ruled tend to support presidential supervision. The various policies underlying the notion of a unitary presidency are also relevant.
In any event, there is no reason to believe that the independent agency form - if independence is understood literally - is needed to carry out the principal substantive purposes of New Deal administration. Moreover, such control increases the likelihood of achieving an important institutional goal of the New Deal - to provide for
agency officials who serve public law. At the same time, presidential supervision of independent agencies would be an additional step in the reintroduction of checks and balances into the current administrative process, supplementing the various measures described and advocated above. (p. 500)[5]
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"Regulation, Rights, and Local Self-Determination"
The final section of Sunstein's article discusses the changing attitudes during the New Deal era toward legal rights and common law and their impact on the development of administrative agencies. Sunstein also proposes approaches to regulatory reform aimed at striking a balance between national and local control:
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The basic goal of deregulation, devolution, and reconstitutive strategies is to promote economic productivity, diversity, and flexibility, while recognizing the need, on both economic and noneconomic grounds, for substantial national intervention into private markets. By relaxing national controls, these strategies would also promote self-determination at the local level. Such strategies should be seen above all as an effort to integrate the New Deal reformation of rights with the existence, in the original constitutional regime, of opportunities for local self-determination. Movements toward local control are thus the analogue, at the vertical level, to the revival of the system of checks and balances at the horizontal level. In concert, such reforms will promote the purposes of the original constitutional plan without relying on common law or status quo baselines or retreating to anachronistic understandings of private rights. (p. 508)[5]
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See also
Full text
- ↑ 1.0 1.1 Harvard Law Review, "Constitutionalism after the New Deal," 1987
- ↑ 2.0 2.1 Harvard Law School, "CASS R. SUNSTEIN," accessed August 16, 2019
- ↑ University of Chicago, "Professor Cass R. Sunstein," accessed January 31, 2018
- ↑ Chicago Tribune, "Harvard hires U. of C. law professor Cass Sunstein," February 20, 2008
- ↑ 5.0 5.1 5.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
