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"The Rise and Rise of the Administrative State" by Gary Lawson (1994)

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"The Rise and Rise of the Administrative State" (1994) is an article by American lawyer and professor Gary Lawson arguing that the administrative state violates the Constitution by concentrating a wide array of legislative, executive, and judicial powers within administrative agencies.[1][2]

HIGHLIGHTS
  • Author: Gary Lawson
  • Source: Harvard Law Review, Volume 107, Number 6, April 1994
  • Abstract: In this article, Lawson explains his understanding of the origins and development of the administrative state. He argues that it violates the constitutional principles of limited government and separation of powers, and further that many of the New Deal-era reformers responsible for the administrative state were aware of these contradictions at the time. Lawson explains his belief that the administrative processes of rulemaking, investigation, enforcement, and adjudication violate the Constitution and the rights it guarantees by concentrating legislative, executive, and judicial powers within a single entity, the administrative agency.

    • Author

    Gary Lawson is an American lawyer and professor. As of December 2017, Lawson was the Philip S. Beck Professor of Law at Boston University School of Law in Boston, Massachusetts. According to his faculty profile page, Lawson's areas of interest include administrative law, constitutional law, and jurisprudence. Below is a summary of Lawson's education and career:[3][1]

    • Academic degrees:
      • B.A. (1980), Claremont Men's College, Claremont, California
      • J.D. (1983), Yale Law School, New Haven, Connecticut
    • Law professor and legal scholar
    • Founding member of the Federalist Society
    • Former law clerk for Justice Antonin Scalia

    "The Rise and Rise of the Administrative State"

    In his article, Lawson argues that the administrative state is unconstitutional because it violates the principles of limited and separated governmental power. Furthermore, he claims that some of the New Deal-era reformers who supported and built the administrative state were aware of the incompatibility of administrative power and constitutional principles:[1]

    “
    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 original New Dealers were aware, at least to some degree, that their vision of the national government's proper role and structure could not be squared with the written Constitution: The Administrative Process, James Landis's classic exposition of the New Deal model of administration, fairly drips with contempt for the idea of a limited national government subject to a formal, tripartite separation of powers. Faced with a choice between the administrative state and the Constitution, the architects of our modern government chose the administrative state, and their choice has stuck.[4]     		”


    In a footnote attached to the preceding quote, Lawson explains his use of the term unconstitutional:[1]

    “
    I use the word 'unconstitutional' to mean 'at variance with the Constitution's original public meaning.' That is not the only way in which the word is used in contemporary legal discourse. ... The usage I employ, however, is the only usage that fully ties the words 'constitutional' and 'unconstitutional' to the actual meaning of the written Constitution.[4]     		”


    Using the Federal Trade Commission as an example, Lawson illustrates the ways in which he believes the administrative processes of rulemaking, investigation, enforcement, and adjudication violate the Constitution and the rights it guarantees by concentrating legislative, executive, and judicial powers within a single entity:[2]

    “
    The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. This Commission adjudication can either take place before the full Commission or before a semi-autonomous Commission administrative law judge. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission. If the Commission ultimately finds a violation, then, and only then, the affected private party can appeal to an Article III court. But the agency decision, even before the bona fide Article III tribunal, possesses a very strong presumption of correctness on matters both of fact and of law.[4]     		”

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 Harvard Law Review, "The Rise and Rise of the Administrative State," April 1994
    2. ↑ 2.0 2.1 Power Line, "The Problem of the Administrative State, In One Paragraph," May 6, 2014
    3. ↑ Boston University School of Law, "Gary S. Lawson," accessed December 12, 2017
    4. ↑ 4.0 4.1 4.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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