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"Petitioning and the Making of the Administrative State" by Maggie McKinley (2018)

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Petitioning and the Making of the Administrative State (2018) is an article by American legal scholar Maggie McKinley that examines the development of the modern administrative state through the lens of the Petition Clause. Notably, the paper opens with an observation that the "administrative state is suffering from a crisis of legitimacy." McKinley argues that the petition process constituted a significant component of congressional activity from the nation's founding through the 1940s. As the population of the United States grew over time, Congress siphoned off petition management to either the courts or specialized boards and committees—culminating in the formal transfer of petition jurisdiction to courts and administrative agencies through the Legislative Reorganization Act (LRA) and the Administrative Procedure Act (APA) in 1946. McKinley claims that the historical petition process, which often combined legislative, executive, and judicial functions, offers a constitutional basis for the modern administrative state.[1]

HIGHLIGHTS
  • Source: Yale Law Journal
  • Abstract: McKinley provides the following summary of her argument in the paper's conclusion:


    "Even for those who do not subscribe to the vision of a 'Constitution in Exile,' a sense of discomfort with the 'amorphous' constitutional status of the administrative state can still be cause for concern—especially when that discomfort, as it often does, operates in the background of our doctrine. Naming the petition process and understanding its integral role within the architecture of the administrative state could alleviate some of the discomfort with administrative lawmaking. Unlike institutional histories and arguments from intellectual and statutory consensus, petitioning offers the loudest critics the exact salve they seek—constitutional text. At the very least, the Petition Clause could focus and clarify a debate that has raged for decades, often unmoored from the history of the practices that have constituted our government from the Founding."

    • Author

    Maggie McKinley

    Maggie McKinley is an American legal scholar. She joined the University of Pennsylvania School of Law faculty as an assistant professor in July 2017. She previously worked as a Climenko Fellow and law lecturer at Harvard University. McKinley's scholarship "combines empirical, theoretical, and historical methods to examine the structural representation and empowerment of minorities," according to her faculty profile at Penn Law.[2][3]

    Below is a summary of McKinley's education and career:[3]

    Origins

    McKinley opens the paper by providing a historical overview of the petition process in the United States. She notes that the nation's petition process can trace its roots to British Parliament, which some scholars have described as "simply an institutionalization of the petition process." Colonial governments developed their own form of the petition process in order to ensure that the colonists, who perceived themselves as an underrepresented minority, could impact the lawmaking process during the period:[1]

    “ As I have discussed in prior work, the American colonists conceived of themselves as an unrepresented and unenfranchised minority, and they based their claimed right to a distinct American sovereignty in the Declaration of Independence on the failure of the petitioning process. The founding generation then codified protection of the petition right into their constitutions, both state and federal. The right protected by the Petition Clause was strictly procedural. It protected a right not to a particular legislative outcome, but a right to equal, formal, and public access to the lawmaking process akin to the right of procedural due process.[1] [4] ”

    McKinley also observes that the petition process, governed by the Constitution's Petition Clause, provided an avenue for public participation in government aside from the right to vote. Through the petition process, unenfranchised individuals and minorities, such as women and Native Americans, could present grievances for redress from the government.[1]

    McKinely continues the overview by examining the petition process itself through a database of over 500,000 petitions submitted to Congress from the nation's founding until 1950. She notes that the historical petition process blended legislative and adjudicative functions and "resembled proceedings in a court more closely than the purely political forces we imagine animate the lawmaking process." Over time, as population growth contributed to a growth in petitions, Congress directed petitions to specially created boards and committees:[1]

    “ The petition process underwent repeated changes as Congress redirected petitions on particular topics toward specialized commissions and boards. The story of the petition process that follows focuses on changes in volume. A preliminary analysis of the House, the chamber that handled the lion’s share of petitions, reveals a petition process that grew in volume and scope steadily over 150 years, and then essentially disappeared from Congress in the late 1940s. Amidst a growing population, an increase in federal power, and a reduction in communication costs, the petition volume in Congress grew. However, rather than growing in leaps and bounds after the Civil War, volume adjusted for population stabilized. Then, in the late 1940s, the petition volume in Congress dropped to near-zero levels, where it has remained until modern day.[1] [4] ”

    Congressional petitions began declining after 1914 and nearly disappeared by the late 1940s, which McKinley attributes to the establishment of administrative agencies during the period and the ensuing passage of the Legislative Reorganization Act (LRA) and the Administrative Procedure Act (APA) in 1946. The LRA reduced the number of standing committees in Congress, which had processed the bulk of petitions, and redirected the management of the petition process to the executive and judicial branches. McKinley argues that the APA redirected the congressional petition process and "extended the right of petition to the agencies." She further claims that the APA's rulemaking process was not an original development, but rather reflected petition-management practices that had been developed by the early administrative agencies:[1]

    “ Notice and comment rulemaking itself embodies the petition right indirectly. The Final Report of the Attorney General found that much of the administrative state, rather than responding to individual petitions on rules, had begun to announce proposed regulations in advance and to hold public hearings before issuance. The APA did not invent new practices for administrative procedures out of whole cloth; rather, the Act aimed to reaffirm the best procedures already at work in some corners of the administrative state. At the recommendation of the Attorney General’s Report, the APA required that agencies provide notice to the public of a proposed rule and 'give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments,' either in a public hearing or otherwise. Thus, the Act codified procedures that had originated in the petition process.[1] [4] ”

    Evolution

    McKinley presents the following three case studies to illustrate the transfer of petition management from Congress to courts, boards, and commissions:[1]

    • Claims: McKinley examines the history of the federal claims petition system to illustrate the congressional transfer of petitions to the courts. The federal claims petition system originated in Congress through private bills that later evolved to general legislation for classes of claimants. The United States House of Representatives later established a hybrid executive-legislative claims petition system managed by the Committee on Claims and the Treasury Department. The process ultimately moved under the jurisdiction of the judicial branch through the Court of Claims.[1]
    • Pensions: McKinley examines the history of federal pensions to illustrate the congressional transfer of petitions to courts, committees, and executive agencies, as well as to illustrate how pension petitions afforded individuals the opportunity to engage with government outside of the voting or initiative processes. The pensions system originated in Congress through petitions following the Revolutionary War. Due to the high volume of petitions and concerns about expertise, Congress redirected pension petitions to the Bureau of Pensions and the Committee on Pensions. After the passage of the LRA, the Veterans Administration gained jurisdiction over pensions, which slowed the volume of congressional petitions.[1]
    • Commerce: Commerce petitions also originated through petitions to Congress. However, unlike claims and pensions, Congress redirected commerce petitions over time to committees, boards, and commissions that could develop economic expertise, such as the Commerce and Manufactures Committees and the Interstate Commerce Commission. In this case, McKinley argues that the petition process allowed individuals to shape the development of economic regulation outside of the voting or initiative processes.[1]

    The participatory state

    McKinley coins the term "participatory state" in a effort to reframe the administrative state in light of the public petitioning process that, according to McKinely, evolved into the system of executive agencies that make up the modern administrative state. She claims that the administrative state represents the formal institutionalization of the individual right to petition the government:[1]

    “ [U]nderstanding the myriad federal commissions, agencies, and boards as loci for public participation in the lawmaking process challenges the libertarian narrative. Congress constructed these new forms of governance not as a Weberian bureaucracy but rather as a means to protect individual rights—particularly the right to petition—and individual liberty. Liberty in this sense is Kelsenian. It encompasses more than simply freedom from regulation; it also encompasses freedom to participate equally in making the laws by which one is governed. The mechanism of the vote ensures the participation of the majority through a majoritarian decision rule. In fostering participation for individuals and minorities, the participatory state functions as supplement to the majoritarian vote and ensures equal liberty. In this way, these innovative forms of governance actually further the libertarian project by ensuring equal liberty and democratic legitimacy through their facilitation of participation.[1][4] ”

    McKinley pivots to a critique of legal process theory, which argues that legal institutions and procedures, with an emphasis on the separation of powers, grant legitimacy to laws. McKinley claims that legal process theory overlooks public participation in lawmaking through the petition right because the theory was developed in the mid-20th century after the petition process had largely disappeared from Congress. She argues that incorporating public participation through the petition right into legal process theory would broaden the theory to accommodate additional procedures beyond the vote that allow for the equitable interaction of individuals with the government:[1]

    “ Incorporating petitioning and the petition right into our models of lawmaking could remedy this fundamental flaw in legal process theory. An understanding of petitioning could reinvigorate the proceduralist vision of democracy at the heart of legal process theory, but in such a way that recognizes the importance of minority participation and protection. ... Proper procedures should accommodate various and often competing visions of the good, and allow for fair and equitable resolution of those disputes through formal process. But in order for proceduralism to protect equal liberty, lawmaking procedures must protect equal participation, including minority participation through mechanisms other than the majoritarian vote. Petitioning provides one such mechanism.[1][4] ”

    Petitioning and contemporary critiques of the administrative state

    McKinley proceeds beyond her critique of legal process theory to address contemporary critiques of the administrative state, including the separation of powers, the legislative veto, and concerns over due process rights. She argues that the historically hybrid executive, legislative, and judicial processes that governed petition management contradict the strict separation of powers arguments against the joint functions of administrative agencies:[1]

    “ [E]xcavating the institution of petitioning problematizes a different aspect of the strict separation of powers described by the tripartite model: that each branch operates in isolation. From its earliest days, Congress drew on the assistance of the other branches to process petitions, both to support Congress in providing due process to petitioners and to run the petition process independently. Also from the beginning, Congress expressed concerns over its own internal capacity to provide petitioners due process. In order to facilitate and protect the right to petition, Congress constructed through statute innovative forms of governance that could afford petitioners due process and could scale to meet the demands of a growing population.[1][4] ”

    McKinley continues by drawing from the petition process to re-examine the United States Supreme Court's decision in INS v. Chadha, which held that the legislative veto is unconstitutional. McKinley argues that the Supreme Court's decision did not consider the petition process, which historically allowed for a single chamber of Congress to deny a petition. She claims that if the Supreme Court re-examined INS v. Chadha through the lens of the petition process, the justices would reach a different conclusion:[1]

    “ Examining INS v. Chadha through the lens of the petition process would direct a different outcome. Like many other statutes before it, the Immigration and Naturalization Act provided a mechanism to process petitions on a particular subject: here, petitions for the suspension of deportation. This process was quite consistent with historical practice. From the Founding, Congress often established rules of general applicability, like that of the general deportation rule, and then allowed for exceptions to that general rule through the petition process. Significantly, a petition denial never required Congress to pass a bill—a so-called legislative act. It was only the grant of petitions that often, but not always, required the passage of a bill, either public or private. Committees at the Founding often declined petitions without passing any bill or even a resolution, and they often declined to act on favorable reports from the executive.[1][4] ”

    Lastly, McKinley puts forth what she describes as "a textual basis for the doctrine of administrative due process." She argues that the courts have required increasing utilitarian procedures over the last 50 years, such as judicial review of agency determinations, in order to strengthen administrative due process. Instead, she claims that judicial review of administrative decisions has resulted in the courts "second-guessing transsubstantive administrative procedure and determining proper procedures piecemeal on a case-by-case cost-benefit analysis." McKinley advocates for the reframing of administrative due process to reflect the Petition Clause's foundation in equality and individual dignity:[1]

    “ An administrative due process right rooted in the Petition Clause would require courts to review administrative procedure for equality, formality, and transparency only, without consideration of whether the case involved a property interest of a sufficient value. In this way, administrative due process would more closely resemble Mashaw’s theory of dignitary due process than the utilitarian balancing of Eldridge. Mashaw’s theory of dignitary due process envisions administrative due process as distinct from any substantive interest, focusing instead on the protection of participants’ dignity through proper procedures. Although he does not make the connection wholly explicit, Mashaw frames dignity in terms of the ability to participate equally in lawmaking. Like Mashaw’s dignitary due process, the petition right does not promise or protect a particular utilitarian balance, but rather safeguards equality, formality, and transparency in participating in the lawmaking process.[1][4] ”

    See also

    Full text

    Footnotes

    1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 Yale Law Journal, "Petitioning and the Making of the Administrative State," 2018
    2. ↑ Penn Law, "Maggie McKinley," accessed August 8, 2018
    3. ↑ 3.0 3.1 Penn Law, "Maggie McKinley, scholar of lobbying, legislative process, joins Law School faculty," May 15, 2017
    4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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