The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law

The first two terms of Franklin Roosevelt\u27s presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt\u27s appointees to the federal bench changed administrative law so as to dramatically diminish the role of the judiciary in the administrative process. The New Dealers espoused what I will call a prescriptive vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model of judicial deference that would be both emulated and reacted against as administrative law developed during the rest of the twentieth century

The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law

The first two terms of Franklin Roosevelt\u27s presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt\u27s appointees to the federal bench changed administrative law so as to dramatically diminish the role of the judiciary in the administrative process. The New Dealers espoused what I will call a prescriptive vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model of judicial deference that would be both emulated and reacted against as administrative law developed during the rest of the twentieth century

The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law

The first two terms of Franklin Roosevelt\u27s presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt\u27s appointees to the federal bench changed administrative law so as to dramatically diminish the role of the judiciary in the administrative process. The New Dealers espoused what I will call a prescriptive vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model of judicial deference that would be both emulated and reacted against as administrative law developed during the rest of the twentieth century

Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945-1970

The availability of judicial review, wrote Louis Jaffe in 1965, is the necessary condition, psychologically, if not logically, of a system of administrative power which purports to be legitimate, or legally valid. In so writing, Jaffe suggested that the abstract beliefs that Americans have about the way government is supposed to work define the relationship between courts and the administrative state. It does not follow, logically, from the existence of administrative agencies that their actions must be policed by courts. In- stead, our beliefs about how public policy ought to be made and about which institutions are best at protecting our liberties, help dictate the relationship between the judiciary and the administrative state. Between the end of World War II and the beginning of the 1970s, these beliefs shifted dramatically. In the immediate postwar period, academics, political pundits, and other public intellectuals subscribed to a vision of policy making that I will call interest group pluralism. The state responded to battling interest groups that were capable of representing the interests of all Americans. By the early 1960s, interest group pluralism had fallen into disrepute. Interest groups, it was argued, were unrepresentative institutions that corrupted the political process. Instead, government had to be made participatory, genuinely inclusive of and responsive to the people. This Article suggests that this change altered administrative law. The contours of administrative law shifted to accommodate this new understanding of how government worked. Our psychological requirements changed and administrative law followed suit