Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law 9780300183474

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YALE LAW LIBRARY SERIES IN LEGAL HISTORY AND REFERENCE

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jerry l. mashaw

Creating the Administrative Constitution the lost one hundred years of american administrative law

new haven and london

Published with support from the Lillian Goldman Law Library, Yale Law School. Copyright © 2012 by Jerry L. Mashaw. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Yale University Press books may be purchased in quantity for educational, business, or promotional use. For information, please e-mail [email protected] (U.S. office) or [email protected] (U.K. office). Set in Scala and Scala Sans by Westchester Book Group Printed in the United States of America Library of Congress Cataloging-in-Publication Data Mashaw, Jerry L. Creating the administrative constitution : the lost one hundred years of American administrative law / Jerry L. Mashaw. p. cm. — (Yale law library series in legal history and reference) Includes bibliographical references and index. ISBN 978-0-300-17230-0 (hardback) — ISBN 978-0-300-18002-2 (pbk.) 1. Administrative law—United States—History. United States—History.

2. Administrative procedure—

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KF5402.M37 2012 342.73'06—dc23 2011042673 A catalogue record for this book is available from the British Library. This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper). 10

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CONTENTS

Preface and Acknowledgments vii Introduction 1 Recovering American Administrative Law 3

PART I Federalist Foundations, 1787–1801 2 Pragmatic State-Building 29 3 “To see that the laws are faithfully executed”: Managerial and Hierarchical Control in the Early Republic 53 4 Legal Accountability: The Common Law Model 65

PART II Reluctant Nationalists, 1801–1829 5 Federalist State-Building Meets Republican Small-State Ideology 81 6 Administering the Embargo: An Exercise in Regulatory Hubris 91 7 Bureaucratizing Land 119

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PART III Administration and “The Democracy,” 1829–1861 8 Democracy and Administration 147 9 The Bank War and Sub-Treasury System 156 10 Democracy, Office, and the Reform of Administrative Organization 175 11 Regulating Steamboats 187 12 The Administrative Constitution of “The Democracy” 209

PART IV Administrative Government in the Gilded Age 13 Nation, State, and Administration in the Gilded Age 227 14 Mass Administrative Adjudication: Case Studies in the Development of Internal Administrative Law 251

PART V Rethinking the Administrative Constitution 15 The Administrative Constitution: Then and Now 285

Notes 317 Index 415

PREFACE AND ACKNOWLEDGMENTS

This book, like many such projects, began as something entirely different. During the winter and spring of 2003 my wife and I were in residence, first at Victoria University in Wellington, New Zealand, and then for a substantially longer period at the Research School for Social Sciences at the Australian National University in Canberra. During our time in the Antipodes I was invited to give lectures in Wellington, Auckland, Melbourne, Sydney, and Canberra. In the usual fashion of traveling academics I presumed little or no overlap in the attendees at these widely separated venues and offered up the same lecture for each audience. The working title of the lecture was “Prometheus Bound: The Building and Binding of the American Administrative State.” As one audience member gently chided me, it was a “rough ride over uneven ground,” a sixtyminute excursion over two hundred years of American public administration and administrative law. Following conventional historiography, my lecture gave nineteenth-century federal administration and administrative law developments about ten minutes and spent the remainder of the hour on the twentieth and very early twenty-first centuries. At the inevitable post-lecture dinners more than one participant—whether from an excess of hospitality or Australian or New Zealand wine I know not— suggested that this overview of American institutional and legal developments would make a useful short book. Nothing of the kind existed, and the potential audience was both foreigners interested in American legal and political development and American students of law, politics, and public administration. While on leave Down Under I was working on other projects, but returned to the short-book idea when we were resettled in New Haven. Because I felt

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I knew the twentieth-century developments fairly well, I decided to begin at the beginning, and, from some perverse instinct, pulled out the first volume of the U.S. Statutes at Large. The experience was something like Alice dropping down the rabbit hole, or perhaps the Narnia kids going through the back of the wardrobe. According to the secondary literature that I knew, the topography of American administrative institutions should have resembled a largely open and unpopulated plain, dotted here and there with an Executive Department that attended mostly to housekeeping or infrastructure matters. Beyond customs collection and the delivery of the mail, my existing mental map revealed little national administrative activity. I quickly realized that my map was defective. Volume one of the Statutes at Large revealed unexpected national initiatives, including multiple regulatory schemes, and not a few benefits programs. Moreover, these initiatives were sometimes administered through extra-departmental boards and commissions that issued rules and adjudicated cases pursuant to broad delegations of statutory authority. This was not going to be a quick romp through a nineteenth century populated largely by self-executing laws enforced in court, and therefore of modest interest to a student of administration and administrative law. Eight years later a short book on two centuries of American administrative institutions and administrative law had become a not-so-short book devoted to the national government’s first one hundred years. What I had imagined as a concise exposition of a relatively conventional story of American institutional and legal development became a decidedly contrarian essay, for this book describes how much was built in those first one hundred years rather than how little national administrative institutions mattered in the early Republic’s governance. As with any contrarian case, I emphasize in these pages aspects of American institutional and legal development that others have largely ignored. The congresses, presidents, and federal administrative officials who populated the first century of American governance filled a yawning gap in the Constitution of 1787. They created an administrative constitution, much of it enduring. Understanding the contours of that constitution is important to understanding American political development and, as the following pages will suggest, to analyzing contemporary normative claims concerning the structure and legitimacy of American administrative institutions. I must hasten to add that my contrarian story hardly displaces much of conventional historiography concerning the dramatic rise of the American administrative state in the twentieth century. Nevertheless, I argue, indeed I believe I demonstrate, that some of that conventional understanding is

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wrong. And, because it is wrong, normative legal arguments built on these conventional originalist foundations are unpersuasive. To return to the topographic metaphor, the national administrative space was much more densely settled and complexly developed than we have heretofore been led to believe. Staring at that map hardly permits us to fully anticipate the urban/suburban sprawl of the national administrative institutions of the twentieth century. Instead this revised cartography permits a better understanding of which of those developments were truly novel and which simply built on the institutions and legal understandings that emerged in what I now think of as the “Lost One Hundred Years of American Administrative Law.” An author engaged in a project of this length and scope incurs many debts— debts that can only be acknowledged, not repaid. Indeed, I fear that from myopia or simple forgetfulness I will fail even to acknowledge many who have contributed to this project both directly and indirectly. But names must be named. I owe a major debt, of course, to my home institution. The Yale Law School’s support for scholarship is the stuff of fables. I have often described life as a Yale Law School faculty member as the modern equivalent of living at the Court of the Medici, but without the obligations of a courtier. Many of my colleagues have commented on earlier drafts and on articles that have been integrated into the current text. I must give special thanks to Bruce Ackerman and Akhil Amar who have read every page and commented on most of them. That their comments seldom overlapped has simply made them all the more useful. I benefited enormously from a one-day conference at Albany Law School organized by Professor Timothy Lytton. Tim assembled a remarkable group of interdisciplinary scholars from all over the country. That group included Ray Brescia, Daniel Carpenter, Daniel Ernst, Lawrence Friedman, Robert Gordon, Robert Kagan, Richard Merrill, William Novak, Nicholas Parrillo, Robert Raban, Peter Schuck, Jed Shugerman, Peter Strauss, Stephen Sugarman, and Richard Stewart. Each of the attendees read the whole of an earlier version of the manuscript and spent a day and an evening peppering me with their questions and comments. It was an exhilarating and supremely useful extended seminar. My thanks to all who participated (some of whom I fear I have omitted) and particularly to Tim, who organized the conference, and to the Albany and Yale Law Schools that supported it. In addition I have had the benefit of faculty seminars, not only at Yale, but at Boston University, the University of Arizona, Harvard, Williamette, Cardoza, Michigan State University, the University of Pennsylvania, and the University of California at Berkeley. The participants in these workshops

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saw only bits and pieces of the overall project, but their questions and comments, and subsequent e-mails, stimulated more thought and revision than they probably imagine. During the course of this project I have also benefited from the questions, comments, and critiques of my students in various courses and seminars. Perhaps even more important I profited from the research skills and critical intelligence of a long list of Yale Law students who served in a research assistant capacity over the course of this project. Those students include Josh Berman, Ethan Davis, Michael Ellis, Michael Gadarian, Daniel Habib, Scott Hartmann, Derek Kaufman, Henry Liu, Laura Moranchek, Ana Munoz, Eugene Nardelli, Avi Perry, Andrew Schalkwyk, Alexander Schwab, Rebecca Smullin, Nicholas Stephanopolous, and Andrew Wolf. Finally, a special thank you to two special people: Patricia Page has been my assistant for more years than either of us would like to admit. Patti’s capacity to turn halting and garbled dictation into linear prose is stunning. Her patience in revising a draft for the thirty-fourth time is almost inexplicable. Finally, there is Anne MacClintock, my wife of thirty-one years and the best editor a writer could hope to have. She is generous, perceptive, and relentless. This volume owes much to her subtle intelligence and sharp pen. I, of course, owe her much, much more.

introduction

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Recovering American Administrative Law

In hindsight, the development of administrative law seems mostly a contribution of the 20th century. . . . The creation of the Interstate Commerce Commission of 1887 has been taken as a kind of genesis. Lawrence M. Friedman, A History of American Law 439 (2d ed. 1985)

The past is a foreign country, they do things differently there. Leslie P. Hartley, The Go-Between 9 (1953)

In Search of the Administrative Constitution The conventional conception of administrative law in the United States has long suffered from several misperceptions. Indeed I am tempted to describe them as governing myths. The first is that the national government, from 1787 until the late nineteenth century, was a government of courts and parties.1 In such a government, administration, and as a corollary administrative law, is a backwater— a place of little importance in the grand scheme of governance. The second is that administrative law is the law of “judicial review of administrative action.” On this view, to the extent that law holds administration accountable, it is law in courts that counts. These myths, or misperceptions, are connected. Until well into the twentieth century federal judicial remedies respecting administrative action took two dominant forms: either a common law action against the officer or a suit for a writ of mandamus. The first treated the officer as a private party, and the second was an “extraordinary writ” whose availability was so restricted that relief was rarely available. From this perspective administrative law disappears into common law subjects like torts, contracts, property, and civil procedure. Administrative actions that do not provoke a lawsuit that can be fit within any of these preexisting legal categories are legally invisible. From a court-centered perspective, administrative law becomes recognizable as a field only as courts beat back the boundaries of administrative discretion pursuant to grants of judicial jurisdiction that demand neither a

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claim of common law right nor an assertion that the officer has no legal discretion. Second, to the extent that administrative activity at the national level was limited, there should not have been much administrative action for courts to be concerned about, even were we to agree that these traditional forms of litigation should be reclassified as “administrative law.” Relying on Lord Bryce2 and his own review of congressional statutes, Theodore Lowi3 famously described the actions of the national government throughout the nineteenth century as 99 percent subsidy or patronage policies. Here Bryce and Lowi seem to be relying implicitly on the notion that administrative action becomes legally significant only to the extent that it creates specialized agencies to regulate private conduct. Hence the ICC as the conventional starting point.4 While there was extensive regulation of health, safety, commerce, and morals in the early Republic, it was most prominent at the state and local levels.5 Indeed, Lowi explicitly connects regulation to the rise of administrative governance. “Delegation of power did not become a widespread practice or constitutional problem until government began to take on regulatory functions. The first century was one of government dominated by Congress and virtually self-executing laws.”6 On this view, Woodrow Wilson was quite correct to title his 1888 study of American national governmental organization Congressional Government.7 And Bryce, writing three years later, claimed that even at the implementation stage, Congress chose to act itself, through “law” rather than through “officials.”8 A corollary of this self-executing-laws thesis is that administration in modern forms, that is, administrative officers adjudicating cases and making rules, appeared only in the late-nineteenth and early-twentieth centuries with the creation of so- called “independent” agencies like the ICC and the Federal Trade Commission. Administration, the execution of the laws, is in this imagined world of sharply delineated governmental powers largely limited to prosecutorial functions. And prosecution—which we now view as a quintessentially executive function—is further imagined to have been under the direct control of the President through the Attorney General. It is but a short step from these images of our administrative constitution in the first century of the Republic to deep concerns about the legitimacy of the modern administrative state. If these images of our constitutional practices and commitments are true, then our current arrangements represent a radical departure from original understandings. On this account broad discretion in administrative officers, the transfer of massive adjudicatory

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and rulemaking authority to administrative officers, and the creation of offices that operate with various degrees of independence from presidential control, betray our constitutional heritage—a heritage bequeathed to us by both the founding generation and their nineteenth-century successors who designed and operated our governing institutions for the Republic’s first century. These conventional characterizations capture some essential truths about national administrative organization and administrative law in nineteenthcentury America. But too heavy a reliance on them causes us to miss much of the action. Indeed, these generalizations are quite often simply wrong. Self-executing laws requiring only prosecutorial administration did not exhaust Congress’s repertoire of legislative forms. From the earliest days of the Republic, Congress delegated broad authority to administrators, armed them with extrajudicial coercive powers, created systems of administrative adjudication, and specifically authorized administrative rulemaking. Nor was execution of the law lodged fi rmly and exclusively in the officer we now often refer to as the “Chief Executive.” Lack of legal authority to control prosecution was a constant lament of early presidents and attorneys general. The latter also routinely advised presidents that “the executive power” conferred by the Constitution did not empower presidents to make or reverse decisions authorized by statute to be made by other administrative officials. And the first regulatory agency established outside of any executive department at the national level was not the ICC; it was the Patent Office, created ninety-seven years earlier. If these assertions are true, as I will demonstrate, then administrative law has a century of history at the national level that has yet to be carefully explored. Recovery of the largely untold story of the legal structure of administration in the early Republic, like most historical exploration, has its own interest and charm. But as Hartley’s aphorism at the opening of this chapter suggests, historical inquiry is also a species of comparative method. This exploration of the early development of American administrative law seeks to exploit Hartley’s insight in order to do something more than challenge conventional historiography. Just as we mine foreign systems to better see the peculiar features of our own, so we mine the past here to reveal something of the enduring structure of American administrative law. Exposing the scope and diversity of early national administration, and the way law both built administrative capacity and made administration politically and legally accountable, helps to reveal a perspective that our contemporary understanding of the domain of American administrative law largely ignores.

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At the most general level this excavation of early practices should give us a more balanced view of the constitutional status of administration in our system of governance. While there have, indeed, been massive changes in the size and scope of the general government over the course of the twentieth century, these pages will demonstrate that there has been no precipitous fall from a historical position of separation-of-powers grace to a position of compromise; there is not a new administrative constitution whose legitimacy should be understood as not only contestable but deeply problematic. The administrative organization of American government has always featured experimental and pragmatic designs that combined as well as separated governmental functions. Indeed, somewhat paradoxically, if there has been a major shift in our understanding of the place of administration in American governance, it is a shift that we tend to celebrate as legitimating our otherwise “unaccountable” administrative state—the ubiquity of judicial review of administrative action. We now presume that virtually any administrative action is reviewable for “reasonableness” or “non-arbitrariness.” The absence of that presumption, indeed its denial, in nineteenth-century jurisprudence points to another gap in our contemporary discourse, for from a nineteenth-century perspective we can see that administrative law is not to be found primarily in judicial opinions. Our administrative constitution contains much richer sources than the pages of the U.S. Reports. American administrative officials are accountable to courts through lawsuits, but their accountability never begins, and hardly ends there. Administrators are accountable as well to the political branches: Congress and the President. Indeed, administrators are awash in legal instructions from both quarters. And because administrators conform to most of their instructions most of the time, statutes, executive orders, and congressional and executive oversight are much more important sources of both power and constraint for lawful administration than judicial opinions. Administrative officials receive their subject matter jurisdictions, their powers of action, their fiscal and human resources, much of their internal structure, and the processes by which they must act, not from the courts that review their actions, but from the Congresses and presidents who create, empower, appoint, fund, and monitor them. How administration works in any particular period of American history will be dependent primarily upon the understandings, statutory precedents, and legal innovations of the executive and legislative branches, not the judiciary. These understandings embody much of America’s administrative constitution, and they are to be gleaned largely from legislative and executive practice, not, as Justice Jackson lamented, from the sparse and fragmented jurisprudence of the Supreme Court.9

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Both judicial review of administrative action and political control of administration presume yet another form of administrative law. When a litigant sues the Secretary of Health and Human Ser vices, or Congress summons the Commissioner of the Food and Drug Administration to a hearing, both the litigant and Congress assume that these high-level officials have effective control over the bureaucracies they manage. The litigant and Congress assume, in effect, that there is an internal law of administration by which higher-level officials instruct subordinates and through which they can call them to account for their actions. It is these internal forms of administrative accountability that are most powerful in shaping the conduct of subordinate officials.10 To call up one familiar modern example, disability adjudicators determine millions of Social Security disability claims each year while never looking at either a statute or a judicial decision.11 The same could be said for the thousands of officials who enforce our immigration laws or who carry out Occupational Safety and Health Act inspections. They are bound, and take themselves to be bound, by the internal instructions promulgated by the Social Security Administration (SSA), OSHA, or the Department of Homeland Security, either in the form of regulations, or, more commonly, in less formal instruments—manuals, memoranda, opinion letters, and the like. Recognizing the extremely limited record of judicial review of administrative action and the special forms that this review took in the early Republic helps to free us from the tyranny of our current judicio-centric legal culture.12 To see federal administrative law in the late-eighteenth and most of the nineteenth centuries, we are forced to concentrate, first, on the techniques of administrative empowerment and control that Congress devised and the debates surrounding those choices. And second, to understand how those legal innovations worked, we must be attentive to the executive and administrative practices that grew up in the process of implementing the congressional will. In the early years of the Republic the structure of governmental departments, their legal techniques for action, and the relationship of administrators to Congress, the President, their departmental superiors, and the courts were all up for grabs. Investigation of how those questions were approached, resolved, or managed forces us to recover a broader vision of administrative law— one that is submerged by a focus on judicial opinions. The court-centeredness of American administrative law has hardly gone unnoticed, and Professor Dicey provided this myopia with a normative defense. He proclaimed famously, “In England, and in countries which, like the United States, derive their civilisation from English sources, the system of administrative law and the very principles on which it rests are in truth

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unknown.”13 In Dicey’s view, suppressing the idea of “administrative law” while subjecting officials to the strictures of the common law in ordinary courts was the very essence of preserving the idea of the rule of law that lay at the heart of Anglo-American constitutionalism. However, even as a functional matter, Dicey was mistaken. As Professor Carr put it: He wasted pity on the French for being at the mercy of officials that they could not bring into the ordinary courts, when in truth the special courts that were deciding disputes between citizens and officials in France were working most acceptably in giving a practical remedy where English citizens got none.14

More importantly, this negative liberty view of the project of administrative law ignores the positive functions of the state and the role of law in shaping effective administration. We want administration that is respectful of individual rights. But we also want administrative institutions that are effective and competent in their assigned tasks and that are responsive to the democratic will as expressed through constitutionally legitimate forms of political action. Law must constitute a government as well as constrain it. In short, the accountability system for administrative officials, and their administrative law, spans three domains: political accountability to elected officials, legal accountability to affected interests via judicial remedies, and administrative or managerial accountability to administrative superiors.15 The general structure of these accountability regimes as they are developed and revised over time makes up our administrative constitution. While much of the domain of legal accountability through judicial remedies (certainly not all) focuses on curbing the exercise of administrative authority, political and administrative accountability often, perhaps even predominantly, feature action to ensure that the democratic will is effectively implemented. Administration projects state power, and much of the law of administration is concerned with promoting effective governance. The task of the administrative constitution is to legitimate institutional designs that appropriately balance the simultaneous demands of political responsiveness, efficient administration, and respect for legal rights. These ideas are hardly new, but they often seem mostly to have been forgotten. Frank Goodnow, Dicey’s contemporary, outlined them in much this way in his 1905 treatise, The Principles of the Administrative Law of the United States. Goodnow’s formulation of the task or project of administrative law is worth quoting at some length, for he was writing near the time

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that administrative law emerged as a recognized field, and he formulated its domain from the perspective of nineteenth-century experience. In the formation of the control over the administration, regard must be had, then, for the interests to be furthered by the administrative law. The first of these interests is that of governmental efficiency. Some method of control must be devised by which harmony and uniformity of administrative action and administrative efficiency may be secured, as many cases may arise where the neglect of officials will not cause a serious violation of private rights, but will simply tend to impair governmental efficiency. This method of control should be so framed that it may be exercised by the organs of the government of their own motion and not simply at the instance of private persons. The second interest to be regarded is the preservation of individual rights, the maintenance in its entirety of the sphere of freedom of individual action guaranteed by the law of the land. Some method of control must be devised by which the officers of the government may be prevented from encroaching upon this sphere. As this method of control is framed in the interest of the individual, it should be possible for the individual to set it in motion by appealing to impartial tribunals from those administrative acts which he believes violate the rights assured to him by the law. Such impartial tribunals are found in the courts which in various ways may be entrusted with the power to prevent encroachment by the administration on the domain of private rights. The third interest to be regarded by the administrative law is the social well-being. There must be some method of control devised which will force the administration in its action to keep before it always the fact that it is not a law unto itself; that one of the great reasons of its existence is the promotion of the social well-being as expressed in the law. Such a method of control should be so organized as to allow that body which is most thoroughly representative of public opinion—that is, the legislature—to step in and compel the administration to obey the law.16

Goodnow, in my view, got it almost right. But his formulation fails to recognize that political or “democratic” control includes presidential as well as congressional oversight and direction. Goodnow also fails to attend to the ways in which any one of his three “interests” can be served by techniques that he assigns to an alternative form of control.17 Internal managerial controls can protect private rights and promote fidelity to legislative purposes. Congressional oversight also often concentrates on administrative (in)efficiency or violations of private interests. Judicial review is widely understood as democracy-reinforcing and can be structured to energize flabby administration.18

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As the historical analysis that follows will demonstrate, recovering something like Goodnow’s broad vision of administrative law is critically important to understanding what administrative government, and government according to law has been (and still is) about in the United States,19 for there is a hole in the text of the U.S. Constitution. The Constitution provides for a legislature, a Supreme Court, and two executive officers. Administration is missing. Presidents, Congresses, administrators, and occasionally courts have been required to build a system of political, managerial, and legal controls over administration while simultaneously building the administrative institutions necessary to run a government. During the first one hundred years of the Republic the project was preeminently state-building, a focus that contemporary administrative law’s concentration on judicial control all but obscures.20 To be sure, concerns about the impairment of administrative efficiency or effectiveness, and the recognition that agencies are also monitored and instructed by political principals, run like a leitmotif through contemporary judicial opinions reviewing, or declining to review, administrative action. But once a bow has been made to politics or administrative necessity, what goes on in those domains is generally left unexplored. And while recent scholarship has taken an intense interest in presidential direction and control of administration, administrators’ managerial efforts and Congress’s institutional design decisions21 tend to be noticed only to the extent that they are implicated in some separation of powers struggle or due process claim that makes its way into court. By contrast, when we look at the late-eighteenth and nineteenth centuries, we find that matters of administrative structure and technique, and how they were shaped by legislation and administrative action, were necessarily at the heart of the legal enterprise. Energy and effectiveness in administration were critical to the very survival of a union that could easily have disintegrated before it became operational. And America’s stunning growth in territory, population, industry, transportation, and communications over the course of its first hundred years under the Constitution presented continuous challenges to the preservation of its governmental arrangements. Within a century the institutions put in place by the constitution of 1787, a document drafted in contemplation of a country of less than a million square miles and a population of 4 million persons, governed a continental empire with nearly 63 million inhabitants. The design and operation of the federal government’s administrative institutions would determine in substantial part whether Americans were to be bound together in a common project of government under law.

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The law described in these pages is both strange and familiar— often strange in its techniques, but generally familiar in its purposes. In relation to its most general purposes, how could it not be? There may be a hole in the Constitution where “The Administrative Branch” might have gone, but there is little doubt about that document’s broad commitments. It sought to construct a national government that was effective, republican, and limited by respect for state prerogatives and individual rights. Whatever administrative tasks were necessary to carry out national purposes had to be constructed through legal forms that honored those constitutional imperatives. Finally, a review of state-building and state-binding in the fi rst hundred years of the Republic will make clear the limitations of both textbased and historical claims that the relationship of administrations to the political and legal branches of government was well- established early in the nation’s history. The emptiness and ambiguity of the text of the Constitution concerning administration is almost too obvious to be denied. The “executive power” is vested in the President, but what is that? The President is charged with the responsibility of seeing that the “laws are faithfully executed.” But what does that imply concerning the necessary techniques of presidential oversight and control or the concurrent powers of Congress and the courts in relation to administration? W. F. Willoughby, for example, claimed in his influential treatise on comparative government that the authors of the U.S. Constitution “failed utterly to recognize or to make any direct provision for the exercise of administrative powers.”22 And he went on to say, “In consequence of this failure our entire constitutional history has been marked by a struggle between the legislative and the executive branches as to the relative parts that they should play in the exercise of this power.”23 His brother, W. W. Willoughby, was similarly unimpressed with the notion that Article II dealt with administration. In his treatise on constitutional law, he argued: [I]t was undoubtedly intended that the President should be little more than a political chief; that is to say, one whose function should, in the main, consist in the per for mance of those political duties which are not subject to judicial control. It is quite clear that it was intended that he should not, except as to these political matters, be the administrative head of the government, with general power of directing and controlling the acts of subordinate federal administrative agents.24

In this latter sentiment, practice has proved W. W. Willoughby to have overstated his case. Perhaps the sounder judgment was offered twelve years

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later by Charles Thach when he said, “Again, nothing is more vital than the relations of the executive head to the chief officers of the administrative departments, and the relations of the latter to the legislature. And yet the Constitution furnishes no fi nal and authoritative decision of the question.”25 The place of administration in our constitutional arrangements is part of our ever-growing, unwritten constitution—the body of statutes, practices, and precedents that supplement the Constitution’s text. Yet like the text that these sources supplement, the pages that follow yield little comfort for those who would deploy administrative law’s early history to derive fixed principles concerning the necessary constitutional structure of the federal administrative state. To be sure, there emerged relatively stable patterns of institutional interaction that defined the role of Congress and the President in administration, that established the basic or default structure for administrative institutions, that constructed acceptable processes for administrative determination of individual claims of right, that confirmed the authority of senior officials to regularize administration by rule, and that generated the means by which officers of the national government could be called to account in courts. These patterns of institutional relationships, accepted authority structures, and means for protecting individual rights are what I mean by “the administrative constitution.” But a part of that understanding was that American constitutional government did not presuppose that these arrangements would constrain pragmatic problem solving in a new and untried Republic. Administrative law in the American Republic’s first hundred years is also a body of law that is wonderfully various, experimental, and innovative. The story that unfolds in these pages is one of both continuity and change.

Administrative Law and American Political Development Scholars who focus on American political development rather than administrative law or legal history have generally reinforced what I have described as the conventional view of administrative law. Perceptions of the power and authority of American national government have long been associated with perceptions of the significance and professionalization of the nation’s administrative institutions. The modest scope, limited powers, and partisan functioning of those institutions in the nineteenth century have long been common ground among historically oriented political scientists and institutionally oriented historians.26 This view was to some degree cemented by Stephen Skowronek’s seminal contribution to the field of American politi-

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cal development, Building a New American State, published in 1982. Although Skowronek tells a much more complex and subtle story, his analysis has long been captured, and to some degree caricatured, by the repetition of his catchy description of the late nineteenth- and early twentieth-century American state as a state of “courts and parties.” However oversimplified this description of Skowronek’s contribution may be, there is no denying the conventional view, particularly in the legal academy, that the American national administrative state, and with it federal administrative law, emerged with the late nineteenth-century passage of the Interstate Commerce Act of 1887 (ICA).27 According to this account the ICA initiated federal regulation, housed it in a novel administrative body, and elicited the first important judicial attempts to integrate national administrative governance into contemporaneous conceptions of the rule of law. When combined with the reforms of the Pendleton Civil Ser vice Act of 1883,28 the 1890 Sherman Antitrust Act,29 the 1906 Pure Food and Drug Act,30 and the 1914 Federal Trade Commission Act,31 the late-nineteenth and early-twentieth centuries witnessed the gradual construction of a visible, though modest national administrative state, and with it a national administrative law. Other students of American political development view even these events as leaving the national government largely in the hands of Congress, the courts, and political parties. For them, and for many twenty-first-century administrative lawyers, administrative law remains virtually invisible until the New Deal.32 According to that familiar narrative, the plethora of New Deal agencies that were created in the 1930s and early 1940s finally broke the national government free from laissez-faire constitutionalism. But muscular national administration generated a backlash resulting in the explicitly transsubstantive Federal Administrative Procedure Act (APA).33 Here finally was administrative law worthy of the name. From this perspective federal administrative law is a twentieth-century creation and, perhaps, a mid-twentieth-century creation at that. Intellectual history tells a similar tale. The field of public administration was in some sense invented by Woodrow Wilson in an article published in the same year as the passage of the Interstate Commerce Act.34 And there seems to have been nothing published on American administrative law, as such, until 1893. Moreover, the works of the pioneers in American administrative law, Ernst Freund and Frank Goodnow, often drew as much on European as American sources and, when treating American law, did not distinguish among state, local, and national developments.35 When we view public administration or American administrative law from the perspective

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of intellectual history, these fields do not exist until they are theorized as such by academics or practitioners in the late-nineteenth or early-twentieth centuries. There are many other reasons observers might believe that federal public administration and administrative law in the nineteenth century are unlikely subjects for sustained interest. One is the enduring myth of laissez faire. Laissez faire was, indeed, the defining creed of many postbellum intellectuals and reformers. However, they constantly lamented the government’s failure to follow that creed’s ideological dictates.36 And, as William Novak points out in a recent article,37 that myth was already under attack in 1887. Novak quotes Albert Shaw’s complaint that The average American has an unequaled capacity for the entertainment of legal fictions and kindred delusions. He lives in one world of theory and another world of practice. . . . Never for a moment relinquishing their theory [of laissez faire], the people of the United States have assiduously pursued and cherished a practical policy utterly inconsistent with that theory, and have not perceived the discrepancy.38

Novak goes on to argue that the history of the American state has been hobbled by a concentration on the way in which American government checks and balances coercive power, while ignoring the ways in which both policies and institutional arrangements create an infrastructure through which the state guides and shapes the economy and the society. Brian Balogh’s recent book agrees that American political ideology has long favored a modest national government and has feared centralized administrative controls.39 So long as the government remained “out of sight” it could engage in major activities that shaped the economic and social life of the nation. Like Novak, Balogh argues that differences in governance technique have been mistaken for differences in governmental power and significance. Governments may conventionally project state power by building central governmental capacities and deploying those capacities directly throughout their territories. American government, both now and from the earliest days of the Republic, has honored its historic and continuing smallstate ideology by harnessing state, local, and private administration to the implementation of national policy. A source of strength can thus be misunderstood as weakness. But myths endure precisely because of their stereotypical quality, their ability to tap into some psychological truth that cements their hold on the imagination, not because they necessarily fit all the facts. In a similar vein, “event-centered” histories of American political and institutional development tend to focus on major changes in the direction of

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government policy. From that perspective the creation of a new form of regulatory institution, the independent commission, invites the interpretation that law and legal control have been established on a new footing— one that emphasizes political independence and technical expertise—the conventional hallmarks that distinguish administration from politics. This argument, of course, gives credence to the story that connects the origins of American administrative law to the creation of the Civil Ser vice Commission and the ICC. And, as previously noted, event- centered or “big bang” analysts may disagree about the size of the bang necessary to make a difference. For some the independent commission movement failed to mark a significant new direction in state development. Theodore Lowi and Morton Keller, for example, argue that the bang that created the American administrative state did not occur until the New Deal.40 How much bang is enough depends upon what sorts of effects the event chronicler is seeking. Lowi and Keller are primarily interested in changes in the shape of the politics that surround national policy. From their perspective the New Deal may be the appropriate turning point. On the other hand, as Dan Carpenter has shown, if one is interested in the degree to which administrative institutions gained autonomous policy-making authority, both the New Deal and the Progressive Era big bang approaches miss much of the action—both before and after their respective bangs occurred.41 Focusing on the U.S. postal system, Richard John makes similar claims about state-building in the nineteenth century.42 Finally, students of political development might insist that there is no fully developed administrative state until there is a fully developed bureaucratic apparatus. By “fully developed” I mean a bureaucracy built upon a career civil service that is trained specifically for public administration and that makes policy through the application of scientific knowledge, relatively free from political interference or control. From this perspective, “common law” countries like the United States and the United Kingdom are still underdeveloped administrative states, at least by comparison with countries like France or Japan. In those latter countries training for the public ser vice is state-sponsored and specifically linked to government employment. These state-trained bureaucrats are expected to spend their careers in the public ser vice, to move across subject matter domains, and to eventually occupy high policy-making positions. The “expertise” of the public servant in these systems is a function of the way in which the state itself trains and organizes the bureaucracy for public ser vice. By contrast, in the United States and the United Kingdom, the substantive expertise of bureaucrats tends to be certified by independent universities

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and professional associations, not by state-sponsored institutions. And, of course, in the United States, policy making is formally, and in recent years, increasingly, located in offices occupied by political appointees who are not careerists.43 On this account, however much Americans rail against “bureaucrats,” conventional talk about the “American administrative state” misdescribes a polity that remains devoted to electoral politics, citizen and interest group participation in government, and decentralized exercise of political authority. This book takes a rather different approach from any of those just rehearsed. My focus is on administration—not bureaucracy, major policy shifts, or the organization of politics. By administration I mean simply the development and implementation of law and policy by officials specifically charged with that responsibility, whether or not bureaucratized in a Weberian (or even more demanding) sense. Moreover, I am searching not for big bangs, but for the accretion and development of administrative jurisdiction and capacity, sometimes in legislation, but often in the initiatives and routines of administrators themselves. I focus, therefore, on practice, structure, and policy, not on social movements, political rhetoric, or legal justification, although these and other dimensions of institutional development can hardly be completely ignored. As such, my inquiry tends to find transsubstantive ideas in the patterns of legislative and administrative action, not in the language of political debate, academic analysis, or legal doctrines generated by judicial review. This book is, therefore, in the tradition of the revisionist analysis provided by Balogh, Carpenter, John, and Novak. But, unlike their contributions, it is preeminently a book about law. Law both builds and binds the administrative state, and while my emphasis is on the practical details of building both administration and administrative law, these pages will attend to the binding as well, for both together constitute the foundational legal structure of administrative governance— our administrative constitution. At the most general level I imagine the development of our administrative constitution as a waltz, a three-step pattern often repeated. First, something happens in the world. Second, public policy makers identify that happening as a problem, or an opportunity, and initiate new forms of governmental action to take advantage of or to remedy the new situation. Third, these new forms of action generate anxieties about the direction and control of public power. Means are thus sought to make the new initiative fit within existing understandings of what it means to be accountable to law. I do not mean by this simple schema to suggest that I take American institutional history or the development of administrative law as some

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process of “liberal,” “progressive,” or “whiggish” design in which social forces demand change and law responds effectively to meet these new demands.44 The three-step dance can be, and has been, embellished in different periods in many ways, and it can be perceived and described from a multitude of perspectives. As I have argued elsewhere,45 I believe these developments to be always multicausal. They feature shifting combinations of ideology, pecuniary interest, institutional structures, social demands, technological imperatives, and political strategies, to name but a few of the available causal stories. The pages that follow represent an exercise in historical institutionalism,46 an inquiry focused predominantly on legal practices rather than on causal explanation for the legal institutions that emerge. Yet, whatever the underlying forces driving institutional development, this three-step process of building and binding administrative capacity can be seen throughout U.S. history. It provides the structure of our conventional understandings, for example, of “Old Court” reaction to Progressive Era state regulation and of the emergence of the Administrative Procedure Act in response to New Deal initiatives. And it is particularly obvious in the Federalist period to which we will soon turn. The new thing in the world was the United States of America itself and the problem at hand was to create a government. To borrow the title of John Rohr’s well-known book, the Federalist period was a period in which policy makers at all levels had to learn how to “run a constitution.”47

The Plan of the Book This book’s recovery effort proceeds in five parts. Part One explores Federalist Foundations 1787– 1801. Chapter 2, Pragmatic State-Building, describes the actions of the first several congresses as they attempted to get the government up and running. The first Congresses, in a sense an extension of the Constitutional Convention, developed the basic operational details of federal governance. They also struggled with the relationships among the various parts, particularly the roles of Congress and the President in relation to the new administrative institutions. The chapter details how early departments were structured, the position of administrators in the government, the manner in which Congress delegated authority to administrators, and the use of both congressional administration and boards of eminent officers outside of the normal departmental arrangements to carry out various administrative functions. This analysis reveals a Congress that is both productive, creating new programs and entities across a remarkable range of subject matters, and eclectic and experimental when developing techniques of administration.

18

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Chapter 3, “To See That the Laws Are Faithfully Executed”: Managerial and Hierarchical Controls in the Early Republic, looks at systems of bureaucratic accountability within administration. Unlike contemporary presumptions of strong hierarchical control within bureaucratic institutions, arrangements in the early days of the Republic featured a high degree of ambiguity about the nature of federal office. The government included many part-time employees, and many who were paid piece rate in fees, commissions, and bounties. These part-time and quasi-entrepreneurial “officers” tended to resist supervisory control. Congress experimented with a number of techniques to promote loyalty among officers and to provide sanctions as well as incentives for proper official conduct. The heads of departments and bureaus struggled to maintain unity in administration through instructions, structural arrangements, required reports, and audits. Legislative and managerial provisions for administrative appeals helped harness private interests to the desire of supervisors to maintain internal control. But, notwithstanding the best efforts of administrators, the government’s ability to command allegiance and obedience was in many ways suspect. The analysis of internal or managerial controls sets the stage for Chapter 4, Legal Accountability: The Common Law Model, a parallel inquiry into the capacity of judicial review to provide effective legal controls on administrative action. Unlike today’s ubiquitous statutory provisions for judicial review of administrative action, there were very few such provisions in the early Republic. Direct review through mandamus, injunction, or appeal was extremely limited. Judicial review proceeded largely in collateral forms, forms described by one leading commentator as “relatively unimportant common law remedies.” This chapter questions whether those remedies were in fact “unimportant,” given the way in which early governmental action was structured. It argues that those common law remedies actually provided a substantial array of means, both direct and collateral, for review of the official actions of the federal government’s most numerous classes of officers, tax collectors, and postal officials. Moreover, in certain cases, such as the awarding of veterans’ disability pensions, the courts themselves became the administrative commissions who made the record upon which final decisions were based. Judicial review remained limited, but it was somewhat more important than prior scholarship has suggested. Part Two, Reluctant Nationalists 1801– 1829, explores the development of administration during a period characterized by an ideological commitment to reducing the government to near invisibility. As Chapter 5, Federalist StateBuilding Meets Republican Small-State Ideology, explains, the Jeffersonian Republicans viewed their ascendancy over the Federalist administrations of

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Washington and Adams as a revolution in the government of the country. Their promise was to return the government to the states and to the people. But, as the next two chapters in this part demonstrate, events on the ground, in par ticular war and territorial expansion, were not kind to the Jeffersonian Republicans’ reductionist ambitions. Chapter 6, Administering the Embargo: An Exercise in Regulatory Hubris, recounts the history of perhaps the most ambitious attempt to regulate commerce that the country has ever seen. To remedy the constant British and French interference with American shipping while avoiding simultaneous wars with both Britain and France, Congress, at President Jefferson’s urging, enacted a general embargo on all foreign trade. In the end the embargo was a political disaster. It was also an administrative nightmare. The story here is of the massive effort, largely through the Office of the Secretary of the Treasury, to impose order, consistency, and energy on the local implementation of a regulatory system that engendered dogged resistance and evasion in much of the country. Implementing the embargo generated a massive outpouring of “internal administrative law.” It also demonstrated the significant power of common law remedies and local juries to stop administration in its tracks. The other great national effort during the Republican Era involved the survey and sale of the enormous national domain resulting from the Louisiana Purchase. Chapter 7, Bureaucratizing Land, analyzes the public lands policy of the United States and its administration in the Jeffersonian Republican Era. Almost from whole cloth the government was required to establish uniform policy for, and develop a system for administrative adjudication of, thousands of private land claims— a caseload that could not be processed through federal territorial courts. Because land was the chief repository of wealth in the antebellum Republic, interest in the public lands was intense, almost a public mania. Attempts to coerce and corrupt land officers were a daily occurrence in the hinterlands. Scale, distance, and a fractious population of settlers all challenged administrators in Washington to develop systems of audit, inspection, and settlement of accounts that were equal to the task of maintaining lawful administration. Here judicial review and political oversight were of little moment. If the rule of law was to be maintained in the surveying and selling of the public lands, the Bureau of Lands in the Treasury Department would do the maintenance through the administrative law and process that it developed. Part Three, Administration and “The Democracy,” 1829– 1861, covers the period often referred to as the Jacksonian Era. As Chapter 8, Democracy and Administration, explains, this was, to put it mildly, a period of rapid change.

20

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Commerce and manufacturing challenged agriculture as the dominant feature of economic life. Meanwhile, radical democratization in politics broadened suffrage to virtually all adult white males. Politics became the province of the common man, not just the elites who had largely ruled both in the Federalist and the Republican Eras. Technological innovation revolutionized transportation and manufacturing through the use of steam power, and communications through the rapid dissemination of Morse’s telegraph. And, while Jacksonian Democrats were ideologically as resistant to building the federal administrative state as were Jeffersonian Republicans, they too were overwhelmed by the new demands of a rapidly changing society and economy. Chapter 9, The Bank War and Sub-Treasury System, investigates the struggle to put the government’s fiscal house in order as an aid to both the financial stability of the government itself and the needs of emerging commercial activity. It is in many ways an ironic story of the way in which Jacksonian small government political ideology was defeated by its own success. The narrative features both a contest between Congress and the President over control of administration (a struggle that sounds in high constitutional politics) and an examination of the nuts and bolts of administering fiscal and monetary policy in the absence of a central banking institution. In short form, the abolition of the Second Bank of the United States resulted over time in a vast increase in the administrative capacities of the national government. Thus, a political action designed to cabin the power of the national government’s most important economic institution had the effect, not of returning power to state banking systems in accordance with Jacksonian Democratic ideology, but in vastly increasing the administrative capacities of the Treasury to manage fiscal and monetary affairs. Moreover, much of this development was carried out through structural reorganization and regulatory policy within the Treasury Department. After several disastrous congressional efforts to regulate monetary policy by statute, the national legislature was forced to delegate discretion to the Secretary of the Treasury to create a workable system. Chapter 10, Democracy, Office, and the Reform of Administrative Organization, tells the oft-told tale of the Jacksonian “spoils system,” Jackson’s attempt to bring democracy to every nook and cranny of the federal establishment. The emphasis in this chapter is not, however, on the incompetence and corruption that were surely a part of partisan control of administration, but instead on the administrative developments that this change made necessary. As elite office holders of high social standing were replaced with party loyalists, other parts of the government’s administrative machinery were

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being revised as well. Offices that had once been the quasi-property of high status individuals, who held them for extended periods, became the temporary homes of rotating political cadres. In that process the idea of office itself was transformed. A federal office became an impersonal freestanding institution, not a function identified with a par ticular person. And because the government’s work still had to be done, both Congress and high-level administrators struggled to create departmental checks and balances and reinforce capacities for monitoring and oversight. The democratization of office led to the bureaucratization of office. From an administrative perspective the story of Jackson’s initiative to democratize government becomes a poster child for James Morone’s48 well-known claim that throughout American history virtually every attempt at democratization has brought bureaucratization in its wake. Chapter 11, Regulating Steamboats, recounts the long-overlooked story of the development of a surprisingly modern, science-based system for coping with a dramatic safety hazard—the tendency of steamboat boilers to burst while in use. As with the sub-treasury system, steamboat regulation entailed an explicit recognition of the information advantages of administrators over legislatures and the growing necessity for Congress to delegate administrative regulatory authority to those who knew (or could find out) how to address a major social problem. Moreover, the regulatory system that was in place by the mid-1850s featured a relatively independent board with far-reaching regulatory and adjudicatory authority. Health and safety regulatory agencies of this type would not be seen again until the creation of the Occupational Safety and Health Administration, the National Highway Traffic Safety Administration, the Consumer Product Safety Commission, and the Environmental Protection Agency in the 1960s and early 1970s. Chapter 12, The Administrative Constitution of “The Democracy,” provides an overview of the state of the administrative constitution as the antebellum period came to a close. Even before the Civil War revised perceptions of the respective powers of the central and state governments, the central government had been massively reorganized to take on the tasks of governing a country of continental scale. Functionally differentiated administrative departments had gained greater capacity to act effectively and had emerged as the initiators and drafters of major legislation. Following Jackson’s presidency, Congress regained ascendency over the political control of administration, and new forms of central government action began to reveal the limitations of legal accountability limited to common law forms. Part Four, Administrative Government in the Gilded Age, skips over the Civil War and Reconstruction, a decidedly uncharacteristic period of

22

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military administration on the domestic front, to investigate administrative developments in the dynamic period between Reconstruction and the close of the nineteenth century. Omitting the Civil War and Reconstruction periods is a controversial and contestable choice. War is a great state builder, and in par ticular a builder of both administrative capacity and executive power. And in the case of the U.S. Civil War the outcome substantially altered conventional understandings of central government authority. There is surely much to be learned from a study of administration in the Civil War and Reconstruction periods. But military occupation and administration of domestic territory are hardly standard practices in our constitutional history, nor is the wielding of emergency powers in wartime— at least not yet. I have, therefore, viewed war time and territorial administration of defeated states as sufficiently peculiar— a sufficient break with standard constitutional arrangements—to justify their omission from a study focused on the development of administrative governance in the Republic’s first century. As Chapter 13, Nation, State, and Administration in the Gilded Age, recounts, the United States experienced explosive growth in population, economic activity, and technological innovation in the immediate post-war years. These developments were accompanied by dramatic changes in urbanization, the ethnic composition of the population, and the understanding of social mores. Rapid change posed enormous challenges for governments in Washington that seem to be remembered primarily for weakness, incompetence, and corruption. Yet, when looked at from the perspective of the development of administrative institutions and administrative law, the governance picture is rather different. The passage of the Pendleton Civil Ser vice Act and the development of the Civil Ser vice System is a major case in point. The corruption and incompetence of partisan appointments and removals in the federal ser vice had been partially remedied by departmentally specific measures prior to the Civil War. But serious problems remained. Reformers, backed by progressive business interests, demanded an end to the spoils system. Selection and promotion to government office on the basis of merit, and protection from removal or coercion by partisan interests, carried forward the bureaucratization program that had begun in the age of Jackson. But from a legal and political perspective generalized reform had much broader significance. From a legal perspective, the merit-based approach to office reinforced the impersonality of administration, a basic rule of law value long associated with court-based adjudication. And whereas in the Federalist and Jeffersonian periods officers had largely been accountable to local elites for their performance, and in the Jacksonian Era had been seen as politically accountable to partisan organizations, the new civil

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ser vice would be legitimated by political neutrality and effective performance. Henceforth, at least in the reformers’ imaginations, government administration would fulfill the promise later characterized by Max Weber as legitimating authority by exercising power on the basis of knowledge. This period also saw massive changes in the structure of the central government. Beyond the Civil Ser vice Commission and the ICC, Congress created four additional departments and constantly established or reorganized subdepartmental bureaus. The House and Senate simultaneously reorganized themselves to reflect these new governmental realities and to attempt to maintain some semblance of control over the new administrative authorities they were empowering. But without adequate staff, congressional monitoring remained spotty and, as usual, statutes conferred broad discretion on the officers who were charged with their implementation. And while judicial review broadened somewhat in a subset of public lands cases, the limited approach of the common law model remained dominant. Hence, once again, important developments in administrative law and practice were left to the relevant administrative officials. Chapter 14, Mass Administrative Adjudication: Case Studies in the Development of Internal Administrative Law, provides two rather different case studies to illustrate the development of this “internal administrative law” in the Gilded Age. The first study examines the spectacular growth and administrative demands of military pensions in the postbellum world. By the end of the period in question, roughly one in six families in Union states received part or all of its support in the form of a military pension. This was a rapidly evolving system, with constant broadening of the categories of persons eligible for support by a Congress increasingly politically indebted to the Grand Army of the Republic. Our interest, however, is in the administrative challenges of creating a massive administrative justice system to satisfy the millions of claimants who showed up at the doors of the Pension Office. Once again, this is a story of the creation of internal law and procedure in the face of statutes that were silent on all procedural matters, and often vacuous with respect to substance as well. The “justice” in this administrative justice system was a creature of administrative instruction, for courts almost never found occasion to inquire into the legality of Pension Office decisions. The second case study returns to the theme of regulation, this time, surprisingly enough, in the Post Office. We normally associate the regulation of commercial fraud with the Federal Trade Commission created in 1914 or the Securities and Exchange Commission established in 1933, health regulation with the Pure Food and Drug Act of 1906, and morals regulation either with state law or with the nation’s grand experiment with Prohibition. But

24

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before any of these developments at the national level, regulation of fraud, health, and morals was an ongoing activity in the Post Office. In the late nineteenth century, most commercial contracting across state lines, and most payment and clearance operations in interstate commerce, went on through the mails. Solicitation for lotteries, stock-and-bond Ponzi schemes, contraceptives and “sex education” literature, not to mention countless “snake oil preparations” and medical devices, flooded American mailboxes. The Post Office had long viewed itself as having inherent authority to declare items unmailable and to exclude them from the mails. But, it was largely in the latter part of the nineteenth century that this regulation took on systematic organizational form and was ratified by congressional legislation. This case study explores the administrative side of what was also a fascinating political and social story of national regulation. It focuses on how items were determined to be “unmailable,” the administrative process for contesting such determinations, and the legal and political controls on a regulatory regime built largely on the foundation of autonomous Post Office initiatives. Part Five, Rethinking the Administrative Constitution, compares the nineteenth-century model of administrative law developed in the preceding chapters with the model that emerged in administrative law’s second century. Chapter 15: The Administrative Constitution: Then and Now, argues that the stories we tell ourselves about the development of administrative governance in the twentieth century are based, in part, on contrasts with nineteenth-century administration that are vastly overdrawn. There is, of course, a true and highly significant contrast to be drawn between what I have called the common law model of judicial review and the presuppositions of judicial review in the twenty-first century. Throughout the nineteenth century, judicial review remained in two categories that were hermetically sealed off from each other. The first was direct review via mandamus and injunction, which provided extremely limited jurisdiction to question the actions of federal administrators. The second was damage actions against officers, which involved a court’s de novo determination of whether an officer had acted legally and reasonably under the circumstances. While this latter form of legal proceeding provided significant remedial scope in the face of very early actions of the federal government, as those actions broadened to include benefits provision, regulation, and licensing, judicial remedies failed to keep pace. Attempts were made to broaden judicial oversight of administration, but nineteenth-century limitations on judicial review reflected a strong separation of powers mentality that eschewed judicial involvement in administrative or legislative policy

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making. Hence, only when the judiciary perceived officials as private parties involved in a common law damage action did it think the reasonableness of administrative action a fit topic for judicial investigation. This bipolar model contrasts sharply with contemporary visions of judicial review in which administrative action is presumptively reviewable and the adequacy of administrative reasons for action is perhaps the most prominent feature of judicial oversight of administrative legality. Twenty-first-century administrative law also focuses intently on initiatives by both Congress and the Executive Branch to tie administration more firmly to the political preferences of elected officials. This is a constant theme in American political life, evidenced by almost daily complaints in the press and elsewhere concerning the power of “unelected bureaucrats.” And, while that ubiquitous complaint is often understood as consequent upon a drastic shift in our form of government from the New Deal forward, this book’s description of administrative law’s “lost 100 years” reveals that political control has always been limited. The notion that we have fallen in the modern era from some prior state of separation- of-powers grace, and that reform of democracy involves going back to our nineteenth- century roots, is simply a mistake. Government has grown larger, along with the country, but the general relationship of the political to the administrative— the degree to which elected officials make and control national policy and its implementation—has changed much less than we conventionally imagine. The implication of looking at both contemporary legal and political control of administration through nineteenth-century eyes is that if we would reform and improve administrative law we would be wise to look beyond improvements in judicial review or a closer bonding of political and administrative institutions. Chapter 15 also emphasizes the degree to which the utilization of state and local personnel and private actors in implementing federal law was a hallmark of democratic or popular control of administration in nineteenthcentury America. These micropolitical devices persist. And from a comparative perspective our multiple and complex approaches to what Europeans style “subsidiarity” are perhaps the most distinctive feature of American administrative arrangements. The nineteenth century was simply a particularly fertile period for reimagining both American democracy and the place of administration within those often competing visions. Both then and now the tensions and synergies between administration and democracy animate much of the ongoing dialogue that constitutes our constitutional culture and defines our administrative constitution.

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PART I

federalist foundations 1787–18o1

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2

Pragmatic State-Building

The Hole in the Constitution The fragility of the American governmental experiment in the immediate aftermath of the Revolution can hardly be overstated. No society had ever attempted to form a republican government of America’s territorial scope or population. As John Adams put it in a letter to Benjamin Rush, “The lawgivers of antiquity . . . legislated for single cities. Who can legislate for 20 or 30 states, each of which is greater than Greece or Rome at those times?”1 The problem that faced the drafters of the Constitution of 1787 was how to create a federal government powerful enough to produce allegiance to the national government and obedience to national law while remaining faithful to the political principles of the Revolution. In some sense the task was impossible. The weaknesses of the confederation government stretching back to 1776 were obvious. Yet the “Spirit of 76” lived on, a spirit that combined aversion to political coercion of all sorts with a deep suspicion of centralized authority distant from local populations. For most “Americans” the only truly legitimate governments were the colonial, now state, assemblies. The very word American was ambiguous, originating as an epithet in British writings referring to marginal or peripheral populations.2 The Federalist or Hamiltonian wing of the founding generation was keenly aware of the need to create a government with broad authority that could command the respect and the loyalty of the populace. As Hamilton put it in Federalist 27, “A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people.”3 But, if the problem of governance could be solved, the prospects for America

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seemed bright. As George Washington famously put the matter, Americans were “from this period, to be considered as actors on a most conspicuous theater, which seems to be peculiarly designed by Providence for the display of human greatness and felicity.”4 The fledgling United States was, after all, possessed of what seemed almost limitless undeveloped land, and its population of roughly 4 million had a median age of only about sixteen. By procreation and immigration it was almost certain to grow rapidly. “Federalist” principles and aspirations, however, confronted the “AntiFederalist” or “Virginia Republican” tradition. Thomas Jefferson captured those sentiments and the local loyalties they represented in his lament while drafting the Declaration of Independence in Philadelphia that he found it disconcerting to be away at those critical moments from Virginia, which he described as “my country.”5 For Jeffersonians central government involvement in internal affairs was a formula for recreating the oppression and corruption of English rule. The Constitution would have to compromise between or paper over these radically divergent positions. The vacuousness of Article II of the Constitution was a part of that compromise. Strong states, at least in the European sense, were characterized by strong administrations. The American Constitution of 1787 left a hole where administration might have been. Administration is missing?6 To be sure, the Constitution establishes an executive branch. But it has only two constitutionally prescribed offices, President and Vice President. And the latter officer’s only constitutionally prescribed function is legislative—to preside in the Senate and cast the deciding vote in the case of ties. As John Adams complained to John Trumbull, the Vice Presidency could hardly have been designed to be less significant to the administrative functioning of the government.7 Earlier versions of Article II submitted to the Constitutional Convention contained extensive specification of the major departments of the government, delineating their respective jurisdictions and requiring that they form a Council of State “to assist the President in conducting the public affairs.”8 But those provisions were all abandoned. The Constitution presumes that there will be heads of departments and other officers of the United States and provides that the President should appoint them. And the President is charged with seeing “that the Laws be faithfully executed.”9 But the only explicit power given to the President by the Constitution with respect to executing the laws is the power to require reports in writing from the heads of departments10 —whatever “departments” might be.

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These provisions, plus Article II’s Vesting Clause,11 have been sufficient for some to construct a “textual” or “structural” case for the so-called “unitary executive,” that is a President with directive authority over all administrative functions and inherent authority to act in the national interest without legislative authorization.12 But the Constitution’s silence on most matters administrative provides extremely modest textual support for the notion that all administration was to be firmly and exclusively in the control of the President. Not only are the President’s stated constitutional powers feeble, but Congress’s powers are broad. Those enigmatic departments would be whatever authorities Congress decided to create with whatever powers and jurisdiction Congress thought “necessary and proper.”13 The Senate must agree to the President’s appointment of the government’s principal officers. And Congress may assign the President’s appointment power over all “inferior Officers” (whoever they might be) to the judiciary or to the heads of departments. So far as the Constitution provides—that is, nothing— the terms of office of officers of the United States, and their method of removal (other than impeachment) and by whom, is left to congressional discretion. And, text aside, the practice of early Congresses when creating this basic machinery of government belied the notion that the founding generation imagined the President as an all-powerful administrator-in-chief.14 Among the writers of The Federalist Papers, Hamilton seems to have given public administration the most thought, and in those writings he carried virtually the full burden of persuasion with respect to Article II. Hamilton famously asserted in Federalist No. 68 that the goodness of the overall constitutional structure should be judged by the degree to which it was conducive to good administration. But why he thought the scheme devised in 1787 would have that quality remains somewhat obscure. His assertion concerning good “administration” is in the context of a defense of the Electoral College. And much of Hamilton’s Federalist defense of Article II seeks merely to reassure critics and doubters that the President will have only modest power and authority by comparison with the King of England, or with some of the governors of the several states.15 The “energy” in the executive that Hamilton so often emphasized seems to be located in the chief magistrate himself.16 And that energy, as well as responsibility, is guaranteed mostly through the provision for a single chief executive, whose decisions would not be thwarted or submerged in a Council of State, such as those that were common in the state constitutions of the period. On Hamilton’s account, energy and responsibility are further buttressed by a reasonable duration of office, the opportunity for reelection, the

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veto power, and the elimination of the threats or blandishments that could be expected from a Congress that controlled the incumbent’s salary.17 Perhaps the answer to Hamilton’s and other Federalists’ apparent satisfaction with the administrative prospects generated by Article II of the Constitution lies in what might have been. The President might have had no independent electoral base, but taken office instead as the appointee of Congress. “He” might have been “they.” Major decisions might have been subject to approval by a Council of State. Escaping the constitutional convention with an executive branch clothed with some independence of operation may have seemed a sufficient base upon which to build.18 The ineffectiveness of the administrative arrangements under the Articles of Confederation clearly shaped Federalist perspectives.19 Operating first merely as ambassadors from the various states— and after 1781, under Articles of Confederation that provided for no executive—the Continental Congress attempted to administer military affairs, finance, and foreign affairs by either ad hoc committees or the Committee of the Whole. Time and again this system proved incompetent as these part-time representatives of the states struggled to conduct the mounting business of the government while serving on standing committees, ad hoc committees, and as final decision makers in the Committee of the Whole. By one count the Continental Congress created 3249 different committees between 1774 and 1788.20 It created 498 in its 1783 session alone, giving the average representative something like twenty committee assignments (although many of these assignments were pretty trivial). Under increasing pressure to develop a government that worked, the Continental Congress responded by delegating authority to multimember “boards” for important activities such as war and finance. But these boards, like the standing committees, were made up entirely of members of Congress and they quickly found themselves overwhelmed as well. Where the effects of inefficient administration were most obvious—that is, prosecuting the war and financing it— Congress strengthened the board system by adding full-time employees who were not members of Congress. This change brought some order into the chaotic administration of the national government, but the composition of the boards was constantly shifting, and Congress could not resist micromanaging through detailed and tedious reporting requirements and scores of ad hoc committees established to investigate par ticular matters or advise the boards on par ticular policies. Delay was endemic to this process. Washington’s frustrations with the inefficiencies of congressional control of the military are well-known.21 And, in

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rare agreement, both Hamilton22 and Jefferson23 called for stronger executive authority. Congress finally capitulated by resolving to appoint a Financier (or Superintendent of Finance), a Secretary of War, and a Secretary of Marine in February 1781.24 Alas, like everything else, the appointment of these officials was left to election by Congress. We might appreciate the effects of that system of appointment by noting that General Benjamin Lincoln was appointed the first Secretary of War on October 30, 1781— eleven days after General Cornwallis had surrendered to General Washington at Yorktown.25 Hence, that the President would appoint the heads of departments, that Congress itself had no appointing power for administrative officials, and that “heads of Departments” seemed to presume single-headed administrative entities, all suggested to proponents of the new Constitution’s executive arrangements a colossal improvement over the years of the Confederation. There would indeed be a “unitary executive,” but what that meant for the organization of “administration” remained to be determined.26 Administration, and with it, administrative law, would have to be constructed on some model hardly hinted at by the constitutional text. That job fell to the Federalist administrations and the first Congresses of the new Republic. As they carried out that task, the administration they constructed was neither the neat, unitary system envisioned by some late-twentieth-century legal commentators nor the almost equally neat separation of politics and administration claimed by W. W. Willoughby and his late-nineteenth-century colleagues.27 Presidential and congressional control over administration was to be a much more complicated, various, and practical set of arrangements.28 To some degree institutional innovation may have resulted from the unavailability of acceptable models from practice under the Confederation, or from usage in the states, or in England. Given their perception of both British and Confederation experience, our early institutional architects rejected executive councils on the state or Privy Council model and were skeptical of multimember boards at the head of departments.29 Moreover, federal administration had to be built from positive law in a government of enumerated and separated powers. Organic, general purpose offices like justices of the peace and county courts that combined legislative, judicial, and administrative functions (and whose jurisdictions were defined importantly by historic practice, simply did not fit the constitutional circumstance in which the new Republic found itself. To be sure, Hamilton famously modeled the charter for the first Bank of the United States on the Bank of England, but such direct borrowing seems to have been very limited.

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Creating Effective and Legitimate Administration Had Federalist Congresses done little, or done virtually everything via self-executing laws as Lowi, following Lord Bryce, claimed, issues of administrative efficacy and of political control of administration need not have loomed large in the early Republic. But this was not the pattern. The sheer range of activities attended to in the congressional sessions that make up the first volume of the United States Statutes at Large is astonishing. The First Congress established the great Departments of War, Foreign Affairs, and Treasury, soon to be followed by a Naval Department and the Post Office. Legislation was adopted on patents and copyrights. A host of legislative initiatives dealt with navigation, ranging from providing lighthouses to registering U.S. vessels and establishing a system of seamen’s hospitals. Congress established the Customs Ser vice along with the first Bank of the United States. Statutes establishing rules and regulations for the sale of public lands initiated the great project of settling the West. The legal affairs of the Republic were put in the hands of an Attorney General and of U.S. Attorneys in each district (or state). The Judiciary Act of 1789 created the lower federal courts and specified their jurisdiction. A mint was established and the first bankruptcy act passed. Legislation addressed the issues of naturalization and the regulation of aliens, and steps were taken to attempt to protect American citizens from impressment into the navies of foreign powers. Congress established procedures for regulating trade with Indian tribes as well as with foreign nations. The early statutes evidence as well an overriding concern with money—with appropriations and taxes to finance a government that began its life already deeply in debt. Within a decade of the effective date of the Constitution, Congress had created a substantial government. To be sure, the national government’s primary attentions were directed to defense and development. Land grants, protection of intellectual property, creation of post offices and post roads, and promotion of the carriage of goods by sea were all crucial to the creation of the new national market. And, although the government’s efforts were relatively feeble given its lack of funds, Congresses and presidents were often preoccupied with the precarious position of a new nation surrounded both on land and at sea by Britain, France, and Spain—the great European powers of the age—and by potentially hostile Indian tribes on the frontier. Yet around the edges of these dominant themes of development and defense familiar modern concerns and administrative techniques began to emerge. Pension benefits, tax collection, and land patents gave rise to thousands of individual adjudications that were distant harbingers of the modern

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age of mass administrative justice. Licenses were required for ships engaged in coastal trade and in the whale or Banks fisheries, and for trading with Indian tribes. The terms and conditions of seamen’s contracts were regulated along with the provisions, medicines, and seaworthiness of vessels employing them.30 And, in perhaps the first use of the spending power for regulatory purposes, Congress conditioned bounties paid to participants in the cod fishery on the execution of satisfactory contracts for the division of the catch with their seamen.31 Forays were made into health regulation32 and regulation of the quality of exports33 by the simple expedient of requiring compliance with state quarantine and inspection laws as a condition for clearance into and out of U.S. ports. In aid of tax collection, administrative inspections were authorized without the necessity of a warrant to enter premises.34 The questions confronting the first Congresses were not only multiple and complex, they were urgent. If a new government were not put in place rapidly the whole experiment might fall apart. If its structure and powers violated deep-seated principles of Republican governance, or tread too heavily on state jurisdiction, its authority would be rejected. How could Congress construct an administrative apparatus that was both efficacious and legitimate? Judged by congressional practice there was no single answer to that question. In a true spirit of democratic experimentalism, Congress struck out in multiple directions. We will look first at the careful and complex arrangements for tax collection. Here perhaps more than in any other statutory domain Congress gave careful thought to the details of administration. Taxes were the spark that lit the revolutionary flame, and Congress did not want another one in which it would play the role of King George. But beyond taxes there were a host of other issues: What should be the structure of departments, and how should they be related to Congress and the President? Was all administration to be done through departments? And what was a department anyway? How much authority should be delegated to administrators, and how involved should Congress itself be in administration? And, if administrative coercion— at least the exercise of administrative authority—was inevitable, how should it be made acceptable to a populace deeply suspicious of centralized authority? Structuring Tax Collection

The revenue statutes were the most complexly articulated administrative system devised by the early Congresses. These statutes pay close attention

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to the balance between effective tax collection and the protection of the individual rights of reluctant taxpayers. They also employ a host of different techniques to energize officials, guard against corruption, bring relevant expertise to bear on the determination of the value of goods, satisfy local interests, and utilize existing state and local enforcement resources. On July 31, 1789, Congress adopted “An Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandises imported into the United States.”35 This Act gave all major ports three officials— a collector, a naval officer, and a surveyor— who had both separate responsibilities and requirements to act in unison to accomplish certain tasks. This division and combination of functions seems to have been part of a scheme to avoid corruption in revenue collection, which as colonial and Confederation practice had shown was a constant threat. The statute armed these officials with substantial powers of enforcement. Ships entering a port were required to clear in with the port authorities and surrender their ship’s registration. The registration was returned only on clearing out of the port with a certificate showing the ship’s next destination. Without a registration the ship would, at the next port, be treated as a foreign vessel and its cargo subjected to import duties as if they were all foreign goods. Under the terms of the Act, goods could be unloaded only with permission of the collector, who issued a statement, countersigned by the naval officer, that all duties had been paid or a bond supplied for their payment. Collectors were authorized to enter and inspect any ship to search for dutiable merchandise and to make similar inspections on land after obtaining a warrant from a justice of the peace. (Here we see the first of many instances in which Congress would rely on preexisting state personnel as a part of federal administration.) If goods were found on which duties had not been paid, they were forfeited and subject to sale. Customs officers were also authorized to seize any goods declared if they suspected that the invoices showing their value were fraudulent. Ships used in any scheme to defraud the United States of its revenue might be seized and forfeited as well. The statute provided compensation for collectors, naval officers, surveyors, inspectors, weighers, and gaugers by a combination of commissions, piece rates, and daily fees, and by the right to receive one-half the value of goods or ships that were forfeited for fraud or nonpayment of duties. Thus energized by the prospect of gain, these officers were also given a rare statutory protection against harassment by lawsuit. In any claim against an official

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for improperly seizing or levying duties on ships or goods the officers were entitled to plead the Act as a defense, and, if they prevailed, to collect double their litigation costs from the plaintiff. Moreover, even if the plaintiff won, the judge could excuse technical errors by finding that the officer had reasonable cause for seizure of goods or a ship, thus rendering the officer not liable for either damages or court costs. These protective provisions make clear that Congress presumed that a common law action would lie for any improper seizure or excessive duties charged. The statute further protected shippers and carriers against fee gouging by requiring that all fees, which were paid directly by ship’s masters to the relevant officials, be posted conspicuously, and by providing stiff penalties for taking excessive fees. Moreover in cases of disputes over the value of dutiable cargo, valuations were to be made by two reputable merchants— one selected by the collector and one selected by the owner or consignee of the shipment. Presumably these local worthies would have the interest of the ship and shippers at least as much in mind as the interests of the United States in effective tax collection. Similarly, when collectors decided whether to allow the unloading of cargo at a port other than the port of destination shown in the ship’s papers, their decision had to be attested to by either the wardens of the port (presumably state or local officials) or, if none, two reputable citizens “acquainted with matters of that kind.”36 Congress adopted a similarly detailed and complex administrative system for the collection of taxes on distilled spirits in the Act of March 3, 1791.37 That statute contained yet further measures to protect both officers and taxpayers. Strong inspection provisions nevertheless made a nice distinction between routine inspections and special investigations. Inspectors could be placed in a distillery at all reasonable times (but only in the daytime) to observe and ensure compliance with the Act. But, entry into premises for the purpose of seizing spirits concealed fraudulently was authorized to be done with the assistance of a search warrant issued by a judge, either state or federal. While we tend to view warrant requirements as protecting the citizen, warrants in this context also protected the officer from damages for trespass should a local jury fi nd a warrantless entry unreasonable. Taxpayers were given a special statutory suit for any injury resulting from an officer’s failure to perform his duties in accordance with the Act. And while officers were protected against damages when they seized goods with reasonable cause, claimants could nevertheless recover damages for loss, waste, or detention from the United States if the seizure was determined to be improper. Moreover, penalties for fraud could be mitigated through a

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process of petition to any court that would, acting as merely a fact finder, take evidence and submit the case to the Comptroller of the Treasury for decision.38 As these revenue statutes attest, congressional attention was not directed exclusively to getting the government up and running—the empowerment side of governance. Men who had experience in colonial affairs, and who had suffered under the yoke of British administrative practices, were hardly naive about the need to control government as well as empower it. In the Continental Congress, political control of administration had been straightforward: agents were mostly members of and responsible to Congress, a system that had rendered the government incompetent. Having abandoned that model of constitutional legitimacy Congress was creative under the new regime. It deployed multiple federal officials, state courts, and private parties to construct a scheme that, it hoped, would prove both administratively effective and politically acceptable. But how much control should Congress cede to others in carrying out its aims? The Federalists’ success in creating an executive branch with a single head having independent political authority was not the ratification of a consensus vision of a powerful central government meant to deploy an extensive administrative apparatus. The early revenue statutes were carefully constructed because they were highly controversial. There were important compromises between Federalist ambitions and widespread suspicion of big government, particularly big government represented by armies of federal administrators wielding discretionary power.39 When delegation of authority was required, how could Congress ensure that its will was being carried out and that administration would, therefore, be perceived as “democratic” and legitimate? Whose Agents Are These Anyway? The Struggle over the Removal Power

The United States is famously a government of separated powers. In theory this division of functions protects the citizen against tyranny. But separation of powers also poses obstacles to political accountability. Administrators are accountable both to the President who appoints them and to the Congress who creates, regulates, and funds their offices. Who is to have the upper hand? And if political principals disagree, does this leave administrators paralyzed— or free to exercise their own notions of good public policy? To what extent can, or should, the courts referee this contest for the hearts and minds of administrative actors? Should they resolve conflict by unifying authority, or by maintaining contested joint control?

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These questions have plagued American administrative law for over two centuries, and they were debated in earnest as the first Congress began to create administrative departments. The Constitution is tolerably clear about how the heads of these departments will be appointed—by the President with the advice and consent of the Senate. But, how are they to be removed? Solely by impeachment—the only method mentioned in the Constitution? By the President who appoints them? By the President with the advice and consent of the Senate? By no one, if Congress provides for a secure term of office? By the President, but under such regulations and procedures as the Congress shall provide? Virtually all of these views were represented in the First Congress,40 which was made up of some of the same people who drafted the Constitution and participated in state ratification debates. But reflection on the constitutional debates provided the Representatives and Senators with little definitive guidance. The delegates to the Constitutional Convention seem to have been so fi xated on the question of appointment that they virtually ignored the question of removal. There was, therefore, agreement in the First Congress on very little. The House bill to establish a Department of War provided that the Secretary might be removed by the President. This provision was opposed both by those who thought the advice and consent of the Senate was required, and by those who thought that to put such a provision into the statute would imply, contrary to sound constitutional interpretation, that the President’s removal power could be established or withheld at the discretion of Congress. Even those who favored the constitutional interpretation that the President’s removal power should be unencumbered by senatorial acquiescence disagreed about whether the provision for removal should be in the statute. Some of those in favor of the statutory provision thought, not that it was necessary, but that it was dangerous to leave the legislation silent on the matter when there seemed to be a clear majority in favor of confirming the President’s removal power.41 Representative Benson proposed a clever compromise.42 He moved to strike out the clause specifically providing for the President’s removal power. In its place, he proposed to insert, in a section making the Chief Clerk the default custodian of all the records and papers of the Department, the words, “whenever the said principal officer shall be removed from office by the President of the United States, or any other case of vacancy.”43 Benson’s amendment, presuming but not creating a presidential removal power, passed.44 The proponents of an implied presidential power of removal thus won a narrow victory, but the issue of the extent of Congress’s power to regulate removal has never died.

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The removal debate and its resolution thus provide a splendid microcosm of the difficulties of deriving general principles from early constitutional practice. At one level this episode— engaging some of the ablest members of Congress for many hours— can be seen as of the greatest importance in confirming the powers of the President vis-à-vis lower-level executive officials. A President without removal authority might be seriously weakened, even ineffectual, in ensuring that the laws were “faithfully executed.” But what exactly was resolved and what were its implications? The removal power conferred would be of little utility if a reluctant Senate refused to confirm replacements. The potential role of the Senate was reduced, but hardly eliminated. The statutes spoke directly only to heads of departments, not to the subsequently sticky questions of congressional power to provide fi xed periods of tenure for appointees or congressional regulation of the terms upon which removals could be effected. Administration’s Many Forms: Structuring the First Departments

Whatever the President’s power to remove heads of departments, early Congresses made clear that they too meant to exercise political control over administration. While Congress was content to direct the Secretaries of War and Foreign Affairs to do little more than carry out the instructions provided by the President,45 the Treasury was a quite different matter. The organic act establishing the Treasury46 gave the Secretary a substantial number of specific functions, and later grants of authority added even more statutory detail. More important, the statute vested important powers in other officers in the Department, such as the Comptroller, the Auditor, the Treasurer, and the Registrar, all of whom were subject to presidential appointment and senatorial confi rmation. These officers were meant to provide checks on the Secretary and each other in the crucial matter of safeguarding the integrity of the fiscal and monetary affairs of the nation.47 Moreover, some of these officers had independent, quasi-judicial authority. Requests for payment from the Treasury were sent to the Auditor, who examined and certified the amount due and then transmitted the accounts and accompanying documentation to the Comptroller for a final decision. Any person who was dissatisfied with the audit of an account was provided with an appeal to the Comptroller against the Auditor’s settlement.48 Because of this authority to determine individual appeals, James Madison suggested that the Comptroller should not hold office subject to presidential removal, but should be given a term of years.49

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Given that the Treasury was where much of the real power lay in the early structure of the American government—the Treasury collected and dispersed all public money, had some supervisory authority over the Bank of the United States and the Post Office, and was in charge of all military procurement— Congress seemed jealous of its own authority over the Department. The initial Treasury statute thus appears to make the Secretary of the Treasury responsible primarily to Congress rather than to the President. The Secretary was required to “perform all such ser vices relative to the finances, as he shall be directed to perform.”50 Because the President was not mentioned, and the Treasury Department, unlike the Departments of War and Foreign Affairs, was not statutorily denominated an “Executive Department,” these directions were presumably to come from Congress.51 The Secretary was also enjoined to “make report, and give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office.”52 The Secretary’s accountability to Congress, thus, was to be direct and to each chamber independently. Indeed Congress sometimes acted as if it thought that the Secretary of the Treasury was functionally a part of the Congress. As soon as Hamilton was confirmed to that office, the House abolished the Committee on Ways and Means and turned its functions over to the Secretary.53 Where money was concerned, congressional control seemed to be Congress’s model of political responsibility.54 The special position of the Treasury is one of those exceptional instances in which institutional design in the matter of financial administration55 responded to (but did not copy) Confederation, colonial, and state precedent. It was not until late in the proceedings of the Constitutional Convention that the provision for the appointment of the Treasurer of the United States by both houses of Congress was struck from the document in favor of presidential appointment of all department heads.56 But one can make too much of these peculiarities in the Treasury’s position. The Salary Act, adopted nine days after the Treasury Department’s organic statute, described the Secretary of the Treasury as an “Executive Officer.”57 That the Secretary reported to the Congress hardly prevented him from reporting to the President or receiving directions from him. Moreover, the idea that the Secretary was to be directed by law, without more, in no way denies that his discretion within the law might be subject to presidential direction. The Secretaries of State and War were certainly different, but that resulted in no small measure from the virtual absence of any “law” in their departments’ organic acts, other than the injunction to follow the President’s directions.

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Giving the Treasury Secretary special responsibilities to Congress could also be a double-edged sword. Congress did not hesitate to exercise its powers to call the Treasury to account. As Alexander Hamilton learned to his dismay, the reporting requirement in the hands of political opponents could be a prodigious mechanism for harassment.58 On the other hand, many of Hamilton’s famous reports to the Congress—for example on the public credit, manufacturers, and the Mint— allowed him to set major portions of the domestic agenda throughout his tenure at the Treasury.59 By binding the Treasury to itself, Congress, perhaps inadvertently, created a powerful vehicle for executive leadership on matters of legislative policy— a danger Congress sought to remedy by reestablishing its Ways and Means Committee in the first session of the Fourth Congress. The statutes60 constructing the original departments of the federal government thus reveal a complex balance among presidential power, congressional prerogative, and the need for agency independence. The independent functions of officers within the Treasury, particularly the Comptroller, seem to respond to what we now recognize as “separation-of-functions” protections within agencies to assure fairness in the adjudication of claims.61 They also interrupt the line of hierarchical control that might be thought to run from the President through department heads to lesser officials.62 And while presidential appointment and removal were common to all the departments, Congress seemed to distinguish between those departments that were exclusively under presidential direction and those that were also directed according to law. In short, administration was constructed contextually to solve practical problems. Congress was building a system of checks and balances, calibrated differently in different areas, to produce effective governance and to avoid undue concentration of power.63 Mongrel Administrators: The Attorney General and Others

Edmund Randolph, the first Attorney General, complained to a friend in 1790: I am a sort of mongrel between the State and the U.S.; called an officer of some rank under the latter, and yet thrust out to get a livelihood in the former,— perhaps in a petty mayor’s or country court. I cannot say much on this head without pain, which, could I have foreseen it, would have kept me at home to encounter my pecuniary difficulties there, rather than add to them here.64

Randolph’s complaint about his status was largely a complaint about his inadequate compensation, a retainer of $1500 per year, one-half the salary of

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department heads.65 He was expected to support himself by an independent law practice, and thus seemed halfway between an officer of the United States and a mere hired attorney or contractor. But Randolph was a mongrel in other ways as well. His office was created by one paragraph in the Judiciary Act of 1789, which neither provides for the Attorney General’s appointment nor creates a department of which he is the head. Indeed, the initial draft of this provision seemed to presume that the Attorney General was a part of the Judicial Department because his appointment was conferred upon the Supreme Court, while that of U.S. Attorneys was given to the district courts in each state.66 In the absence of the statement of an appointing power, the President appointed the Attorney General and, presumably, could remove him as well. We have come to view the Attorney General as almost an extension of the President, but that was hardly his initial position. To be sure, the Judiciary Act gave the President the right to request opinions from the Attorney General, but that right was also given to the heads of executive departments, and in the early years was repeatedly exercised by Congress as well.67 Moreover, we know that Washington treated at least Jefferson, Hamilton, and Jay, and even Knox (the Secretary of War) as legal advisers, and famously took Hamilton’s advice on the constitutionality of the first Bank of the United Sates, notwithstanding the contrary views of Randolph and Jefferson.68 The position of the Attorney General was, to modern eyes, equally peculiar in relation to the U.S. Attorneys in each district. These officers were supervised, not by the Attorney General, but by the State Department. They in fact acted more like independent law officers—their contact with the State Department was slight. And, while Attorneys General sometimes attempted to direct their activities, these “directions” carried no legal authority. Randolph attempted to obtain directive authority (and a clerk), but Congress failed to act.69 Hence, unlike Attorneys General in England or the several states, the U.S. Attorney General was not the nation’s chief prosecutor. He began as a counselor and Supreme Court advocate whose administrative authority would depend upon the utility and persuasiveness of his opinions. The Attorney General was not the only mongrel created by Congress in the Federalist period. Congress created commissions and boards outside of any of the major departments to oversee the Mint, to buy back debt of the United States, and to rule on patent applications. Because these commissions and boards were made up of already existing officers of the United States, Congress in effect appointed the officers by the same legislative act that created their offices. From this perspective these were “independent commissions” in an even stronger sense than those we recognize today.

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Some of these ex-officio commissioners could be replaced by the President by replacing the officers. But other Boards of Commissioners contained nonremovable officials like the Chief Justice and the President of the Senate.70 The Post Office, which had a continuous existence in various forms dating from the colonial and Confederation periods, was similarly established outside of any departmental hierarchy. The Postmaster General was required to provide quarterly reports to the Secretary of the Treasury, but the statute gave the Secretary no explicit power other than to receive them.71 Finally, as I will discuss later, Congress occasionally gave administrative adjudicatory powers to both state and federal courts and to ad hoc commissions appointed by the President. In short, if practice is any guide, early Congresses created departments and officers, charged them with administrative tasks, and subjected them to political supervision in ways that exhibit modest concern for rigid or formal conceptions of the separation of powers. While one can find individual expressions of doctrinaire, or even extreme, opinions on separation of powers questions in the debates, when Congress acted to fill the hole in the Constitution, it acted in a spirit of pragmatic compromise. The Problem of Delegation

Early Congresses also micromanaged administration, particularly Treasury administration, through specific instructions. Many statutes laid out in excruciating detail the duties of officers and of private parties subject to the legislation. The 1791 statute outlined earlier (laying taxes on distilled spirits) occupies fifteen pages in the Statutes at Large and specifies everything from the brand of hydrometer to be used in testing proof to the exact lettering to be used on casks that have been inspected and the wording of signs to be used to identify revenue offices.72 Reading this legislation, one would hardly be surprised to find an instruction concerning when inspectors were to rise in the morning, or that while engaged in official duties the collectors should keep breathing. The 1791 Revenue Act was not unique, but excise taxes on domestic products were exceptional. The use of customs duties— and Congress hoped land sales and postage revenue— as the primary means of fiscal extraction from the populace was a response to serious and sustained political opposition to lodging general taxing powers in the central government. Land sales and use of the Post Office were voluntary; customs and tonnage duties directly affected that group of seaboard merchants and shipowners who were economically most benefited by the union. Moreover, customs duties fell

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upon manufactured items. Many of these commodities were considered luxury goods by agrarian anti-Federalists and were of no great concern to them. Customs collection also required no substantial corps of federal collectors in a potentially hostile countryside. Excises, on the other hand, could be applied to anything, anywhere.73 Congress acted with restraint when the nation’s need for revenue demanded expansion into excise taxation. It levied taxes on goods that were widely perceived as contributing to vice and sought, through detailed specification of powers and procedure, to assure that whiskey producers would be treated strictly according to law. More general claims that early congressional practice establishes a narrow view of what could constitutionally be delegated to administrative officials are not convincing. For one thing, political control of all official behavior by statute was never feasible. Legislative language might instruct the Collector of Customs at the Port of Philadelphia to permit imported teas to be exported under the same regulation as other tea, or describe the specific forms to be used for ship manifests, but there are inherent limits to political control by statutory instruction. No one doubted the delicacy of collecting taxes or the wisdom of constraining the discretion of tax collectors, yet even here statutory precision was elusive. Statutes could specify the level of the tax and on what it should be levied. But when objective tests, such as proof measured by a specific type of hydrometer, were not feasible, judgment by revenue officers was inevitable concerning the nature or grade of the articles taxed and their value. Administrative discretion was also required precisely to avoid the injustice of rigid application of highly specific statutory requirements. Tax collectors, for example, were given the power to excuse offenses when there had been “substantial compliance” or no “intent to defraud,” or when a violation was caused by unavoidable circumstances.74 Nor was Congress’s choice of detailed statutory provision necessarily driven by perceptions of constitutional propriety. The debates over the Post Office—the agency other than the revenue ser vices that employed the most personnel and most directly affected individual Americans—provide an illuminating case study of both statutory form and divided congressional beliefs. The first attempt at bringing the Post Office under the new Constitution by providing a statutory charter failed because of a dispute over delegation.75 Some members insisted that the establishment of post offices and post roads should be left to the President or to the Postmaster General as had been true under the Articles of Confederation. Opponents insisted that the power to establish post offices and post roads was vested in Congress by an express clause of the Constitution and could not be delegated elsewhere.

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The battle resumed in the Second Congress with opponents of delegation making extravagant claims that if the designation of post routes were left to the President, the Congress might as well adjourn and leave all objects of legislation to his consideration. Those claims were met by the sensible response that Congress’s responsibility for the post was no different from its authority under many other constitutional provisions. And surely the Constitution did not imagine that the Congress would as a body borrow money, manufacture coins by working in the Mint, or punish pirates by taking to the high seas. In the end the nondelegation forces seemed to have been victorious. The bill goes on for several pages listing the stations through which the main post roads should pass, and postal rates are set out in exquisite detail. But these provisions are not characteristic of the remainder of the statute. The Postmaster General was given the authority to provide for additional post roads and to decide where to set up post offices. He was given full authority to contract for the carriage of mail by whatever devices he thought “most expedient” and to prescribe regulations for his subordinates as he found necessary.76 In his magisterial study of congressional debates on constitutional issues David Currie concludes: “Despite all the crocodile tears, one is tempted to attribute the House’s zest for detail [in specifying the postal stations] more to a taste for pork than to a principled concern for the virtues of representative government.” 77 Other scholars have argued that when Congress kept the designation of post offices in its own hands in the Postal Act of 1792, it recognized that it would set in motion demands for the expansion of the postal ser vice that would inundate the Congress with petitions from virtually every hamlet in the Republic. On this view keeping post office designation in congressional hands had as much to do with maintaining the vitality of the petition process as with either pork barrel politics or separation of powers concerns about the constitutionally appropriate specificity of legislation.78 Moreover, the specificity of revenue and postal statutes was in many ways exceptional. Congress made broad delegations of authority in a host of other statutes, often to the President, but with full knowledge that his discretion would of necessity be subdelegated to others. For example, by an Act of September 29, 1789, Congress assumed responsibility for the payment of the disability pensions to veterans that had originally been paid by the states pursuant to a resolution of the Continental Congress. The statute— one sentence long—provides simply that pensions should be paid “to the invalids who were wounded and disabled during the late war . . . under such regulations as the President of the United States may direct.”79

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Pension law did not remain so simple for very long. Indeed, amendments to military pension statutes and public lands laws were so frequent that they often seemed to dominate the legislative agenda of the early Republic. Kristin Collins, for example, counts over ninety public laws regulating widows’ access to military pensions prior to 1860.80 And as Chapter 14 reveals, if anything congressional activity in respect to military pensions only accelerated after the Civil War. Yet notwithstanding this legislative attention, both in Collins’s account 81 and in mine, more extensive legislation simply changed the terms that remained to be interpreted and applied in a continuous and larger-scale exercise of administrative discretion. And any claim that early Congresses declined to delegate broad authority to others must also conjure with the First Bank of the United States.82 The Bank’s function, in effect if not in form, was essentially that now served by the Federal Reserve Board in regulating the money supply. Given the collapse of credit during the revolutionary conflict, the general scarcity of specie, and the distrust of most of the paper money then in circulation, the Bank could hardly have been of greater significance. Yet, if anything, the Bank operated more independently of congressional instruction, or indeed presidential direction, than does the Federal Reserve Board today. The statute authorizing the Bank provided a charter and specified the total capitalization of the enterprise. It also provided voting rules for stockholders, limits on total debt and the amount of interest to be charged, and a limit on the subscription to be made to the Bank by the federal government. But all of the Bank’s operating policies—including when and where to establish branches—were left to the regulations to be adopted by the Bank’s directors, only a minority of whom would be selected by the United States.83 The Secretary of the Treasury was authorized to require reports from the Bank and to inspect its records, and the United States or a private party was authorized to bring a lawsuit to recover from the directors if they exceeded the Bank’s lending authority. But, if the Secretary thought the Bank was failing in its operations in any other par ticular, the only remedy seemed to be to seek further legislation from the Congress. Thus was one of the most sensitive and crucial aspects of restoring commerce and prosperity delegated to a hybrid public-private corporation. In some areas Congress attempted, as in the Confederacy period, to administer the law itself. For example, during its first twelve years the House of Representatives received nearly 3,000 petitions seeking monetary relief.84 Indeed, according to a contemporary journalist, the “principal part of [Congress’s] time has been taken up in reading and referring petitions—the number of which is great.”85

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But the usual system for handling these requests was a hybrid congressionaladministrative procedure. A memorial or request to the Congress would be presented by the representative from the petitioner’s district.86 The House might immediately take up the request for debate, refer it to its Committee on Claims, or refer it to an ad hoc committee. More characteristically it referred the petition to some officer in the State, War, or Treasury Departments. When a report came back from one of these sources, often the Treasury,87 Congress would then vote merely on whether to concur in the report of the officer or the committee. Mostly it concurred. Many statutes were so-called private bills that settled the claim of a single individual. But petitions also came in concerning classes of parties, and here the press of business made it almost impossible for Congress to avoid setting up some purely administrative machinery to adjudicate individual claims. A 1794 statute appropriated $15,000 for the relief of persons resident in the United States who had fled the insurrection in Saint Domingo.88 The criteria were large and loose, authorizing the President to withdraw and distribute funds “in such manner, and by the hands of such persons, as shall, in the opinion of the President, appear most conducive to the humane purposes of this act.” Indeed, Michele L. Landis has argued that the American welfare state, and its accompanying welfare bureaucracy, began with a bill to relieve those whose property was damaged or destroyed by the insurgents in the Whiskey Rebellion.89 Once again the authority was given to the President to appoint a “board of inquest” to determine the extent of the damages and then to distribute money “[t]o aid such of the said sufferers as, in his opinion, stand in need of immediate assistance.”90 Using the President’s Political Authority

As the claims processing for Saint Domingo refugees and victims of the Whiskey Rebellion reveals, Congress did not constantly seek to wrest power from the President in order to exercise its own political authority over administrative officials. Political accountability can be constructed on a presidential base as well. The President’s electoral pedigree was different in kind from that of either the Senate or the House of Representatives but a source of constitutional legitimacy nonetheless. These considerations, along with the functions involved, help explain the extremely general language used in establishing the Departments of War, Navy, and Foreign Affairs (soon renamed State and Foreign Affairs). Nor

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were these the only occasions on which Congress used direct accountability to the President as the principal device for assuring administrative accountability to the political branches. When Congress came to exercise its power to regulate commerce with the Indian tribes, for example, it basically ceded the regulatory authority to the President.91 Congress delegated broadly to the President whenever war or foreign affairs were involved.92 After all, unlike the overseer role that the text of the Constitution imposes on the President with respect to the faithful execution of all the laws,93 the President is given direct executive authority with respect to the command of the military. And early Congresses seem to have simply presumed that in foreign affairs it was essential that the nation speak with one voice through one officer who functioned as head of state and was always on the job. In other cases the rationale for delegating broad authority to the highest political official of the government is not always obvious.94 Or perhaps I should say “is not always obvious to us.” The modern convention of strong distinctions between internal and external affairs simply may not apply to the situation of the early republic. Brian Balogh argues that for most of the nineteenth century the distinction between foreign and domestic policy was blurry if not completely opaque. In Balogh’s words Taking seriously the problems the early 19th century national government addressed erases the bright line scholars traditionally draw between “domestic” politics and foreign policy. With borders shifting daily and trade subjected to the whims of powerful nations that dominated the sea lanes, the distinction between domestic and foreign policy was meaningless. Land, security, and trade required the intervention of the national government. That, in turn, affected virtually all of public policy from internal improvements to debt financing.95

Moreover, broad delegations of authority to the President were in substance broad delegations to others. Although the President was politically accountable for carrying out these far-flung statutory grants of authority, Congress could hardly have expected either Washington or Adams to do all these things himself. The power to subdelegate authority has always been presumed,96 save in those circumstances when the statute by text or context made clear that action should be taken only by the named officer. In reality, these broad delegations of authority were delegations to other administrators who would be accountable to the President—to the extent that he had the time and resources to supervise them.

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Boards of Eminent Officers

When not borrowing the political legitimacy of the presidency for administrative tasks, Congress occasionally pursued a similar purpose by allocating authority to boards or committees of top-level appointees. The Chief Justice, the Secretary and Comptroller of the Treasury, the Secretary of State, and the Attorney General were to inspect the coinage at the Mint.97 The President of the Senate, the Chief Justice, the Secretary of State, the Secretary of the Treasury, and the Attorney General were designated commissioners for the federal debt.98 And allocation of public lands in the territories involved the combined action of the Secretaries of Treasury, State, and War.99 Perhaps the strangest board of eminent political appointees was that created by the first statute authorizing the issuance of patents.100 Section 1 of that statute makes the Secretary of State, Secretary of War, and the Attorney General into the Patent Office. Applications were to be filed with the Secretary of State, who also kept the records. The Attorney General was then to make a recommendation on patent availability and, upon approval of the patent by any two of the three eminences, the Attorney General also prepared the letters patent. But the patent was not official until it was signed by the President and the great seal of the United States was affi xed by the Secretary of State. As the Supreme Court noted much later,101 this function was quasi-judicial and represented, however awkwardly, America’s first flirtation with the independent commission.102 An awkward arrangement turns comical when the reader gets to Section 7 of the statute, which provides various fees for recording the application, filing the documents, preparing the patent papers, and affi xing the seal of the United States, all to be paid individually to the officer who carried out the duty. That the underpaid Attorney General got two dollars for preparing the letters patent is not perhaps too strange. But I cannot imagine Jefferson, the Secretary of State, receiving fifty cents for fi ling the patent application, a dime for fi ling every sheet of patent specifications “containing one hundred words,”103 and one dollar for affi xing the great seal of the United States, without at least a smile.104

Patterns of Pragmatism Several patterns emerge from a review of Congress’s early structuring of administrative institutions in the Federalist period. First, Congress emphatically did not imagine that all federal administrative activities should be performed by officials lodged in departments and accountable directly

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and exclusively to the President. The Bank was a hybrid public-private corporation, and the Post Office was only nominally accountable to the Treasury, which itself had independent reporting obligations to both houses of Congress. The Attorney General had no department, and the U.S. Attorneys, although nominally in the State Department, were virtually independent actors. Commissions outside of departments were used for a number of functions, ranging from oversight to managing the public debt to ruling on claims for patents or disaster relief. Moreover, Congress gave departmental officials below the level of the Secretary, particularly in the Treasury, independent responsibilities that were not subject to the Secretary’s direction or control. Second, far from self-executing, many early statutes not only required public administration, they were almost devoid of policy direction. Effective government required continuity, knowledge and flexibility— all in short supply at the level of legislative action. Even highly specific statutes, like the revenue laws, were neither self-executing nor self-interpreting. As we shall see in the next chapter, administrative officials filled in the details both by general rules and by the adjudication of countless claims and disputes. Recognizing that administrators wielded discretionary authority that affected private rights, Congress sought to make their individualized decisions acceptable by providing for appeal to higher levels, by associating private arbitrators with official deciders, and by harnessing administration to high-level and highly visible presidents and cabinet officers. It utilized state officials to issue warrants, approve the unloading of vessels, and grant citizenship. It reciprocated for this borrowing of state capacities by enforcing state inspection and quarantine laws via the central government’s customs officials. In short, Congress in the period from 1789 to 1801 created neither a single model of hierarchically organized administration nor a regime of self- executing laws that needed little more than judicial enforcement. But that hardly meant that it was inattentive to the need for either administrative efficiency or the legitimacy of administration; it meant only that Congress had a broader and more complex vision of how government might be organized and made acceptable to a populace suspicious of centralized governmental authority. Administrators could be bound more closely to Congress itself, as was the Treasury Department, in ways other than through statutory specificity. Congress could monitor behavior by reviewing petitions as well as by demanding reports. Broad grants of authority could be lodged in the President, who had an independent political base, or in other high officials of considerable political authority. Integrity might be assured by requiring that boards or commissions of notables act together, or through

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internal checks and balances, or by political oversight. Private parties and state officials could be associated with national administration, thus integrating local with central administration. Congress understood not only that political accountability could be structured in a host of ways, but, as the next two chapters reveal, that other forms of accountability beyond political control were available to reinforce both the efficiency and the legitimacy of administration.

3

“To see that the laws are faithfully executed” Managerial and Hierarchical Control in the Early Republic

How can principals, whether they be the shareholders and bond holders of a corporation or the citizens or representatives in a democratic government, insure that the agents in charge of the actual execution of corporate or governmental policy will be faithful to their principals’ instructions and energetic and careful when acting upon them? While providing answers to this question is in some sense the obsession of contemporary students of business organizations and positive political theory, the principal-agent issue is surely as old as the first time one of our human ancestors sent another out to gather suitable firewood or find a dry cave to shelter the family. The situation was no different for Federalist administration. The Congress that empowered departments and other officials to carry out its laws would be thwarted if its agents failed to be faithful to its policies or to act with energy and care. And, many of the structural and procedural features of Federalist legislation described in Chapter 2 are designed to promote faithful agency. But Congress is not in charge of executing a law or, indeed, as a textual, constitutional matter, charged with overseeing its execution. That constitutional responsibility falls to the President and, as we have seen, the direct power of execution was delegated to him by a host of early statutes, albeit with the understanding that he would often subdelegate. Other statutes delegated authority directly to subordinate officers, both department heads and the heads of par ticular bureaus. And they in turn were assisted by others, both at the seat of government and in the countryside. How were all these agents to be made accountable for the faithful execution of the law?

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In some sense this question sounds in effectiveness or efficiency: What managerial or bureaucratic techniques are available to get people to do their jobs? But, as was suggested in Chapter 1, managerial or bureaucratic accountability is also crucial for politically-responsive and rights-respecting administration. Indeed, that arch enemy of central executive power, Thomas Jefferson, described in precisely these terms his actions in controlling the exercise of discretion by customs collectors. Writing to Governor Charles Pinckney concerning the enforcement of the embargo in 1808, Jefferson explained: The legislature having found, after repeated trials, that no general rules could be formed which fraud and avarice would not elude, concluded to leave to those who were to execute the power, a discretionary power paramount to all their general rules. This discretion was of necessity lodged with the collector in the first instance, but referred, finally, to the President, less there should be as many measures of law or discretion for our citizens as there were collectors of districts. In order that the first decisions by the collectors might also be as uniform as possible, and that the inconveniences of temporary detention might be imposed by general and equal rules throughout the states, we thought it advisable to draw some outlines for the government of the discretion of the collectors, and to bring them all to one tally.1

Of course, as anyone who picks up a morning newspaper can attest, the problem of maintaining faithful execution of the law at any level, whether federal, state or local, has never, and will never, be solved. Claims of laziness, error, stupidity, fraud, and corruption punctuate the criticisms of officials in all organizations, both public and private. Our interest here is how Federalist Congresses and administrators sought to meet the principalagent challenge. I lump their chosen techniques into four major categories: supervisory control, nurturing of loyalty to common purposes, positive economic incentives, and penalties.

Supervisory Control During the earliest years of the Republic supervisory control of executive action at the very top—that is, any matter involving the head of a department— was both informal and powerful.2 Although John Adams’s long absences from the seat of government interrupted the pattern, Washington early established the practice of treating departmental secretaries as essentially deputies or assistants to the President. Notwithstanding the political and regional balance in Washington’s first cabinet, which included two Virginia Republicans, Jefferson and Randolph, in the four major offices, it was clear

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to everyone that where statutes permitted or required executive discretion, the program to be implemented was the President’s program. While Jefferson politicked shamelessly against Washington’s policies through proxies, he (mostly) carried them out as Secretary of State. When he found himself no longer able to do so, he resigned. Washington imposed his will through a consistent style of broad consultation, independent judgment, and continuous oversight. He saw his cabinet ministers almost daily, corresponded with them ceaselessly, and continuously requested their views. Moreover, he seems to have reviewed virtually all significant correspondence going out of any department that expressed the official position of the U.S. government.3 Although unity of policy could be maintained in the environment of a capital in which Washington and his major deputies worked almost within hailing distance of each other, monitoring and managing officers of lesser rank in the field was quite a different matter. The central government grew steadily throughout the Federalist Period. By the time Thomas Jefferson took office in 1801 the federal civilian establishment numbered roughly 3,000 officers. But only 150 of those were located in the capital; the others had to be managed by correspondence and inspection in an age in which communication and transportation were both difficult and hazardous. There is much evidence of effort on the part of capital-based superiors to instruct and oversee field personnel. Audits, reports, and field inspections were all carried out to some degree and in some departments, most prominently the Treasury. But the results of these labors were uncertain. Looking at the early system of annual audits in the General Land Office, for example, Matthew Crenson reported: The department would appoint some respected citizen who lived in the vicinity of a district land office to take a day off from his private labors and look in on the affairs of the register and receiver. Frequently, the examiner was a friend and political ally of both officers, and it was not uncommon for him to know nothing at all about the proper manner in which to conduct the business of a land office. The report which he sent to Washington was, in most cases, completely useless.4

Leonard White provided a more sanguine account of the capacity of central administrators outside of the Land Office5 to control the activities of widely dispersed officers.6 In the fields of foreign and Indian affairs the Secretary of State and the Secretary of War commonly provided consular officials and territorial governors (who were the Commissioners of Indian Affairs in their territories) with instructions concerning general policy as well as

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detailed directions concerning actions to be taken or avoided. And at the Treasury Hamilton ran a notoriously tight ship.7 The indefatigable Secretary of the Treasury prepared extensive forms and procedures to be used by collectors and others—procedures that were eventually codified in the Collection Act of 1799.8 He issued dozens if not hundreds of circulars and instructions.9 And he acted vigorously to stamp out the view that the collectors’ oath to uphold the laws of the United States meant that they should uphold their own construction of the laws rather than the Secretary’s, or should rely on private lawsuits to settle matters of interpretation. Hamilton viewed the latter technique as vexatious to the parties involved and totally unsuited to the needs of trade.10 As a consequence, field officials often corresponded with the Secretary seeking his opinion about doubtful or novel cases. Hamilton’s instructions and rulings are thus the predecessors of the thousands of pages of IRS regulations and revenue rulings with which every modern tax attorney is familiar. Congress reinforced supervisory authority in numerous provisions specifying that lower-level officials were subject to the superintending instruction of higher-level administrators.11 Statutes establishing higher offices, such as the Secretary of the Treasury, specified that their occupants were “to superintend the collection of the revenue.”12 Lower-level tax collectors were later instructed that the imposts that they collected “shall be received, collected, accounted for, and paid under and subject to the superintendence, control and direction of the department of the treasury, according to the authorities and duties of the respective officers thereof.”13 And, again, in an apparent effort to negate the notion that deputy postmasters were independent entrepreneurs, the organic act establishing the Post Office said of the Postmaster General: “He shall also have power to prescribe such regulations to the deputy postmasters, and others employed under him, as may be found necessary, and to superintend the business of the department.”14 To modern eyes this constant attention to the supervisory authority of top-level administrators is a bit puzzling. For us hierarchy is the essence of bureaucracy, and administrative departments are self-evidently bureaucratic organizations. This was, however, not the case in antebellum America. While an office was not heritable property as it had sometimes been in England, subordinates hardly held the well-regulated positions that emerge from modern civil ser vice legislation. Indeed, the question of whether a par ticular person was an “officer” or a “contractor” was a thorny and oftenlitigated question.15 Moreover, as with the U.S. Attorneys, or the accounting officers in the Treasury, Congress did not always intend that apparent administrative superiors have powers of direction.

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Resistance to control from central authorities was hardly unknown and may have been based on lower level officers’ oath of office. One of Alexander Hamilton’s many letters to Treasury officials on administration suggests as much. The power of “superintending” the collection of revenue, an incident to the duty of doing it, comprises, in my opinion, among a variety of particulars not necessary to be specified, the right of “settling” for the government of the officers employed in the collection of the several branches of the revenue, the “construction” of the laws relating to the revenue, and all cases of doubt . . . . A reference has been made to the oath of office, proscribed to the first collection of law for the officers of customs. They are by that law severally required to swear or affirm, that they will execute and perform all the duties of their respective offices “according to law”; whence it seems to have been inferred, that they are bound each to pursue “his own opinion of the meaning of the law.” But it is conceived if the officer of the customs executes his duty according to law, when, in the cases mentioned, he conforms his conduct to the construction which is given to the law by that officer, who, by law, is constituted the general Superintendent of the collection of the revenue.16

The far-flung actions of the postal and revenue officers also stimulated thousands of early Americans to complain. As we have seen, those complaints were often sent in the form of petitions to Congress, which then referred them to the appropriate administrative official for a recommendation.17 Complaints from the field thus permitted officers at the center to monitor the actions of personnel on the periphery. Systems of internal appeal served a similar oversight and rights-protecting function. Field officers charged with collecting taxes on carriages, land, and dwellings, for example, were subject to two levels of internal appeal.18 The usually reliable Frank Goodnow was thus doubly and spectacularly wrong when he claimed (1) that American law never imagined that lower-level tax officials were subject to instruction and supervision by superiors, and (2) that administrative appeal was unknown.19 Indeed, as we shall see in later chapters, provisions for internal administrative review of lower-level determinations became so common that, by the early twentieth century, commentators described them as establishing a new system of administrative adjudication seldom found in state law or practice.20

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Promoting Loyalty The loyalty of administrative personnel was secured in three major ways. Perhaps the most ubiquitous (then and now) is the oath of office in which the officer swears both to uphold the laws of the United States and to carry out the duties of the specific office to which he or she is appointed. The effectiveness of the oath, beyond the threat value of the penalties often attached to failure to live up to it, is difficult to gauge.21 But, beyond moral force, oaths were often backed by bonds that might be forfeited should the official falter in his duties, a technique to which we shall shortly return. Loyalty was further reinforced by confl ict- of-interest legislation and Washington’s famous reliance on “character” as the basis for appointments. Conflict-of-interest provisions were common in early statutes creating departments and offices and appear in relatively predictable places. Treasury Department officials were forbidden from engaging in “the business of trade or commerce.”22 Customs officials could not own ships,23 collectors of duties on spirits could not buy or sell liquor,24 and Indian agents could not maintain commercial relations with the Indians.25 Violation of these provisions often carried substantial fines, forfeitures, and disqualification from further office-holding. Insulating officers from the temptation of putting personal above public interest is obviously important, but it does not by itself ensure energy, prudence, or integrity in administration.26 And in some cases these prohibitions may have been counterproductive. Nor does it necessarily assist markedly in legitimizing the actions of administrators who, of necessity, bring the law’s burdens concretely to bear on private citizens. Appointing agents of fit character was an attempt to do both. By appointees with “fitness of character,” George Washington meant people who, because they already had the respect of their fellows, would help to engender respect for the new national government.27 Almost all field personnel were appointed from residents of the state and often the locality in which they would serve. Washington sought counsel widely in determining whether proposed appointees were of fit character, and expected his cabinet officers to do likewise. Moreover, it was generally agreed that officers would be removed only for incompetence. Washington viewed the appointments power as a way of binding the country together by having the government represented by local notables who demonstrated competence in their offices. Presumably good character would also assure conscientious attention to official duties.

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The degree to which these ideals were carried out in practice or produced an efficient civil service is uncertain.28 The Post Office, which had the largest number of employees, was a focus of constant complaint for its inefficiency or worse. President Washington complained often of delays and misdirection of his correspondence and reprimanded the Postmaster at Alexandria: Sir: The letters enclosed, were sent up to your Office yesterday afternoon, and were returned to me. It is not the first, nor second time I have been served in this manner; but it may be considered as evidence of the inattention with which the duties of your Office are discharged.29

Finding that his letters were being opened and read by inquisitive deputy postmasters or contract carriers, Washington wrote to Hamilton, “About the middle of last Week I wrote to you; and that it might escape the eye of the Inquisitive . . . I took the liberty of putting it under a cover to Mr. Jay.”30 Matters had apparently not improved appreciably by the time the Federalists were ushered out of office. Jefferson similarly complained of “the infidelities”31 of the Post Office and was warned by his friend Elbridge Gerry just after his inauguration that sending letters through the post was likely to “betray all the secrets of the chief magistrate.”32 The Post Office was not alone in failing to live up to the highest ideals of public administration. Suits against customs officers for excessive zeal in collection or failure to turn over funds to the United States were, in later years, quite common,33 and Congress gave relief by private bills to petitioners who had been damaged by “incompetent” administration. For example, the owners of the ship Hero obtained relief by private bill from excessive tonnage and customs duties that had been paid because the ship had been improperly, and therefore, invalidly, registered by a customs officer.34 Beyond integrity and competence the Federalists’ conception of fitness of character included the notion that appointees should be well-disposed toward the government of the United States. In the context of the times this often carried the partisan connotation that the appointee was a good Federalist. In the early years of the Republic political disagreement was regularly interpreted as disagreement about the fundamental principles upon which the new government was to be based. Jeffersonian Republicans continuously suspected Hamilton, Washington, and Adams of monarchical designs. Federalists viewed Jefferson and his Republican allies as conspirators eager to bring the bloody “democracy” of the French Revolution to American shores. Federalist appointees also sometimes exploited office for partisan purposes. The most notorious examples may have involved the awarding of

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deputy postmasterships to Federalist printers. These printer-postmasters found their dual occupations useful in circulating their Federalist newspapers and broadsheets, sometimes without paying the postage. They were also accused of delaying or misplacing Republican publications that had been consigned to them for delivery through the mails.35 In short, internal control of the federal bureaucracy through a character test at appointment was hardly a foolproof means for insuring efficient, evenhanded, or even honest administration.

Pecuniary Benefits The complaints about postmaster-printers highlight a feature of Federalist administration and office-holding that was central to the difficulties of exercising managerial or bureaucratic control in the early Republic. Not only were the government’s agents acting at a distance from their superiors, but a huge proportion of them were part-timers who were paid at piece rates or on the basis of a percentage of revenues collected. These officers were not the full-time, salaried, career civil servants of modern imagination. They occupied some hybrid category that fused salaried employment, independent local standing, and private entrepreneurship.36 At one level this system of discrete payment for specified official actions, or commissions on revenues generated, was simply a measure of economy. Customs and excise tax collectors, federal marshals, and deputy postmasters were spread across the country in areas of both large and minimal population and commerce. Outside of major cities there was often not enough work to justify a full-time salaried employee. Even the Attorney General was a part-timer and not provided with so much as a clerk until 1818.37 Paying on a piece rate or by commission also tended to promote energy in office. Officers who failed to act did not get paid. To be sure, paying on commission or at piece rates was to some degree a holdover from the period in which offices were treated as a species of property.38 But judicially enforceable property rights in office died out in the colonies and were never a part of the federal system.39 Instead these forms of payment were recognized for their incentive value, whatever their history. Tench Coxe, U.S. Commissioner of Revenue, wrote to Alexander Hamilton that “it was more easy to excite [the tax collectors’] attention and Vigilance and to animate their exertions by an addition to their Commissions (at least in part) than to their salaries.”40 And Hamilton’s papers are full of pleas to Congress to allow the Treasury some discretion in calibrating salary, commission, and piece rate payments to better incentivize the collection of revenue.

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However, Congress seems rarely to have granted this discretion, and when it did, the authority was given to the President.41 Early statutes are replete with provisions for fi xed payments for par ticular acts, as in the original patent statute, or for fi xed-rate commissions. Federal marshals, for example, were paid for specific services— so much for serving a summons, so much for empanelling a jury, and so on.42 Letter carriers, who were generally employed only in cities, were authorized to collect two cents per letter delivered, not from the Treasury, but from the recipient of the correspondence. If those receiving letters had their mail held at the post office, they were required to pay the deputy postmaster personally a penny for each piece of mail collected.43 Deputy postmasters were also paid commissions— a percentage of the postage fees that they collected—with the percentage to be determined by the Postmaster General.44 Customs officers got a share of ship registration fees45 as well as a percentage of duties collected (again with a cap on total commissions).46 Moreover, enforcement personnel responsible for prosecuting violators of tax47 and many other statutes were entitled to a share of the fines or forfeitures collected. Pecuniary incentives for naval officers and crew were particularly attractive. Capture of an armed foreign vessel produced a reward to the officers and crew of the captor that equaled half the ship’s value. If the captured ship had greater firepower than the American vessel, the American officers and crew received 100 percent of the value of the prize.48 The line between officers and entrepreneurs was further blurred by the multiple provisions enlisting private parties in the enforcement of federal law or policy. Dozens of statutes contained provisions for sharing the proceeds of prosecution with informants in so-called qui tam actions.49 And the United States followed the standard international practice of issuing letters of marque to private vessels, licensing them to seize enemy vessels and their cargos as prizes. Like the naval officers and crew, these privateers were paid through their receipt of a share of the proceeds from the auctioning off of the seized vessel and her cargo. The problem with these pecuniary rewards for private enforcement is getting the incentives right. Energy can be too energetic—privateers tended not to make nice distinctions between friend and foe, and were sometimes hard to restrain once peace returned. And, informer’s suits could be used for personal harassment or to corrupt public officers through collusion between informant and enforcer. Both privateering50 and qui tam enforcement51 were later largely abandoned. Indeed, as Nicholas Parrillo’s forthcoming book52 demonstrates, payment of public officers by fees, commissions, and

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bounties had all but disappeared at both state and federal levels by the early years of the twentieth century. But Parrillo also makes clear that the path from incentive payments to salaries was long, tortuous, and uneven. Nineteenth-century Congresses and state legislatures experimented continuously with various forms of “for profit” office-holding.

Bonds, Forfeitures, and Criminal Penalties Judged by the statutes of the Federalist period, administrators were often expected to be supervised via lawsuits. Instead of providing disciplinary machinery within bureaus for the hierarchical control of wayward administrators, Congress liberally sprinkled fi nes, penalties, and forfeitures throughout the early federal statutes.53 The range of penalties was enormous: A deputy postmaster who destroyed or misappropriated mail containing a monetary payment faced the death penalty.54 Tax commissioners who failed to show up for any meeting held in furtherance of the Land Tax Act of 1798 were subject to a fine of $10.55 Port officials who accepted a bribe faced a $2000 fine and disqualification from holding all future offices under the United States.56 Federal marshals derelict in their census-related duties could be fined $800,57 and a collector of duties on spirits who was guilty of “oppression or extortion” could be fined $500 and/or jailed for six months.58 Fines were made more easily collectible by the provision for bonds or sureties, both of which were often required before administrators were eligible to take up their positions. Some of these bonds were impressive. The collector of the Port of Philadelphia was required to post a bond of $60,000,59 and the Treasurer of the Bank of the United States was required to pony up no less than $50,000.60 Occupants of lesser positions sometimes posted substantial bonds as well, for example, $20,000 for a U.S. marshal,61 up to $10,000 for diplomatic consuls,62 and up to $2000 for land surveyors.63 The bonds also facilitated recovery of funds from dispersed officials who collected taxes or collected fees for postage. These officers were required to file regular accounts (often quarterly) and, after deducting their commissions, fees, and expenses, to remit surpluses to the Treasury. If they failed to file their accounts or make their remittances, their supervisors were authorized to bring suit on the wayward officers’ bonds.64 Once again qui tam actions were often provided by statute as a means of recovering from wayward officials.65

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Assessing Managerial Control Public administration was not a conceptual category until one hundred years after the ratification of the U.S. Constitution. But Congress, the President, and department heads were attentive, almost hyper-attentive, to assuring accountability of federal administrators for the per for mance of their duties. Some of the techniques deployed were characteristic of what was understood as the “law of officers” at English common law and in the colonies—including oaths, bonds, forfeitures, criminal penalties, and qui tam actions. But because federal law was generally not thought to incorporate the common law,66 most of the Federalist law of officers had to be created by statute. Indeed, it is difficult to overemphasize the degree to which the U.S. Constitution provided a radically new legal context for offices, office-holding, and official authority. Historic institutions that populated English and colonial practice, offices that had evolved organically as aspects of common law governance and that had widely understood, inherent, and generalist jurisdictions, simply did not exist at the national level. Every instance of administrative authority was a delegation from Congress and carried with it an implicit notion of accountability to the law that created it. Historical practices were hardly ignored, but Congress and the Federalist administrations of Washington and Adams were required to adapt English and colonial practices to the novel context of the new American Republic. Property in office, a common European practice, was thought to lead to corruption and oppression.67 The Federalists, therefore, devised incentive payments— commissions and fees—to promote energy, but sought to limit excessive zeal by capping the officials’ total returns and leaving all officers subject to removal. The Federalist period also witnessed increasingly strenuous efforts to build internal control through instructions, audits, and inspections. And the innovative development of internal administrative appeals helped to harness external private interest to internal supervisory control. Even so, the power of the government to command both allegiance and obedience was suspect. Washington’s remedy was to build loyalty, both of officers to their duty and citizens to their government, by borrowing the local authority of persons of high standing or reputation. Indeed, as Martin Shefter has argued, deploying a “regime of notables” may have been the only feasible alternative in a state with both weak parties and a weak bureaucracy.68 The idea of office was changing but remained ambiguous. Part-timers paid by fees or commissions, and apparently expecting to be policed by

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criminal penalties (often at the initiative of private parties) are not a professionalized, hierarchically organized civil ser vice. Indeed, such a civil ser vice existed nowhere at the beginning of the nineteenth century.69 But the beginnings of some such idea can be glimpsed in Congress’s extensive provision for supervisory control by departmental superiors, audits to assess performance, and conflict-of-interest rules to separate public functions from private interests. Moreover, the limited utility of courts and lawsuits as a remedy for certain forms of official non- or malfeasance became obvious before the Federalists left the Presidency. In 1793 Congress substituted an administratively issued distress warrant for a lawsuit when excise officers failed to render their accounts,70 a provision that later gave rise to the first procedural due process claim ever to reach the U.S. Supreme Court.71 In the chapters that follow we will return many times to the themes that have been introduced in this exploration of Federalist attempts to address the ubiquitous and eternal principal-agent problem. As territory and population expanded and as the federal government took on more and more tasks— and more and more agents—finding effective means of managerial or hierarchical control became more urgent. Given the weaknesses of political control through congressional statutes or presidential supervision, and the limitations on legal accountability through judicial review, the successes and failures of these efforts at managerial control emerged as the defining feature of nineteenth-century administrative law. But this gets ahead of our story. Political and managerial controls were not the sole accountability systems that operated in the Federalist period. The courts were involved as well and, even if criminal pursuit of wayward officials was too ponderous to provide effective reinforcement of managerial controls, that does not demonstrate that lawsuits of all kinds were of little or no use in shoring up the accountability of administrative officials. Although the record of judicial review in the Federalist period is thin, the next chapter’s discussion is enough to suggest that legal accountability in court played a role in making Federalist administrators accountable to law— or at least to lawsuits.

4

Legal Accountability The Common Law Model

Louis Jaffe, in his classic treatise on judicial review of administrative action, claimed that judicial review was limited and uncertain in the United States until the early twentieth century. In his view, “[t]he Supreme Court of the [1870s, 1880s, and 1890s] appears to have entertained considerable doubt, in the absence of statutory provision, as to the propriety of judicial control of ‘executive’ action.”1 And, because Congress had enacted few specific statutory review provisions, “doubt” presumably pervaded the field.2 Frederic P. Lee echoed Jaffe’s analysis and laid the problem at the doorstep of inadequate common law remedies. Lee wrote, “The right to collateral review through the relatively unimportant common law remedies, such as trover, detinue, assumpsit, and replevin, against executive officers who had acted in excess of their jurisdiction, was not questioned. But could their actions be directly reviewed by the courts through mandamus, injunction or appeal?”3 The answer seemed to be no, unless the action was “purely ministerial,” meaning that there was a clear legal duty that provided the official no scope for the exercise of discretion.4 The general picture that emerges from most of the secondary literature is that judicial review of administrative action in the early Republic was limited and, where present, deferential.5 It is true that writ review was quite limited, and because we see modern judicial review as the successor to common law writ review, the movement from older to contemporary forms seems to imply a massive broadening of judicial control. There is much truth in this notion, but not the whole truth. To better assess the relationship between legal accountability and judicial review in the Federalist period, we need to pay close attention to how both

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courts and government operated. The adequacy of judicial remedies must be determined in the context of what government was doing and how it affected private interests. Moreover, during this period Congress deployed the federal and state courts in somewhat novel ways. Congress seems to have presumed that officers could and would be sued in state courts in common law actions and that they would be pursued through qui tam actions as well. Statutes also provided liberally for criminal penalties for dereliction of duty. Finally, legal control of administration by courts included not only post hoc review of the legality of official action but the insertion of courts into administration— sometimes making them the administrators.

Those “Unimportant” Common Law Actions Judicial review of administrative action is desirable to the extent that administrators take (or refrain from) action affecting individual legal rights or interests. The more government regulates our activities or defines by statute the scope and structure of our property interests, the greater the need for judicial review to protect private rights. But if government is limited in its activity, limited judicial review may still be adequate— even robust. And, to a considerable degree, this is the case in the early decades of the American Republic. As we have seen, federal governmental activities included the collection of customs and excise taxes, the regulation of immigration and navigation, the establishment and operation of the postal ser vice, the granting of public lands to veterans and others, and the conduct of military affairs, including trade with belligerents and with Indian tribes. The federal government also issued patents and copyrights, provided disaster relief, and engaged in proprietary functions such as running seamen’s hospitals, building and maintaining lighthouses, and carrying the mails. Frederic Lee’s “relatively unimportant common law remedies” provided a remarkable array of means for both direct and collateral attack on many of these sorts of official actions. Common law actions had the capacity to provide substantial relief with respect to the activities of the most numerous federal agents: tax collectors and postal officials. Any seizure, detention, or impoundment of property by revenue officers under the tax statutes could be tested by one of a number of common law writs—trover, detinue, assumpsit, and so on. Official immunity was nonexistent; the officers’ only defense was that they were carrying out their statutory responsibilities. That defense put at issue the legality of official conduct, thus subjecting it to judicial review. Similar actions were available against postal officials who lost or damaged items consigned to

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the mails. The propriety of official action with respect to land patents and invention patents could be tested collaterally by various forms of property actions or in suits for patent infringement. Cases that largely postdate the Federalist period show that litigants were remarkably resourceful in deploying these common law devices.6 Eighteenth-century Americans seemed to believe in the efficacy of these forms of action, including the imposition of criminal penalties, as a means for making officials legally accountable. For example, even before the Constitution of 1787 was adopted, as the Continental Congress reluctantly appointed officers to implement national legislation, it began to recognize the dangers of this fledgling executive power without judicial restraint. On August 14, 1786, Charles Pinckney of South Carolina proposed the institution of a “federal Judicial Court for trying and punishing all officers appointed by Congress for all crimes, offences, and misbehaviour in their Offices.”7 Moreover, the debates surrounding the ratification of the Constitution reveal that Americans valued common law actions and criminal prosecutions, subject to trial by jury, as protections against the depredations of federal officials. Objections were made in virtually every state to the failure of Article III to provide for jury trials in federal courts for civil cases.8 And while jury trial was valued for other reasons, protection from federal officialdom was raised in incendiary terms. A writer styling himself a “Democratic Federalist” had this to say in an article in the Pennsylvania Packet: Suppose, therefore, that the military officers of Congress, by a wanton abuse of power, imprison the free citizens of the United States of America; suppose . . . that a constable, having a warrant to search for stolen goods, pulled down the clothes of a bed in which there was a woman and searched under her shift— suppose, I say, that they commit similar or greater indignities, in such cases a trial by jury would be our safest resource, heavy damage would at once punish the offender and deter others from committing the same; but what satisfaction can we expect from a lordly court of justice, always ready to protect the officers of government against the weak and helpless citizens, and who will perhaps sit at the distance of many hundred miles from the place where the outrage was committed? What refuge shall we then have to shelter us from the iron hand of arbitrary power?9

Like the Democratic Federalist, most opponents of a lower federal judiciary tended to focus on the potential for federal courts to extend and enhance federal power rather than constrain it. They feared that federal courts might as easily side with federal officers as with citizens. Federal courts would thereby become effective instruments of oppression rather than pro-

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tectors of individual rights. That is why the anti-Federalists were so outraged by the failure of the Constitution to include a jury trial requirement in Article III. And they felt somewhat betrayed when the First Congress turned immediately to the business of establishing a federal judicial branch that included federal trial courts. Madison and others supporting the Constitution had predicted the use of state courts as trial courts with only an appeal to the federal Supreme Court.10 Many of the people making these complaints seemed to be thinking not of suits by citizens against federal officers, but of enforcement actions by federal officers against citizens. And here judicial review would be fulsome, generally de novo. In suits to enforce federal law, the courts would be triers of both fact and law; administrators would merely be litigants. Hence the focus on the jury as a means of avoiding the potential bias of a national judiciary. The Judiciary Act of 1789 allayed the critics’ fears to some degree. Each state was given its own district judge who was required to be a resident of that state. Both in district court proceedings and in the circuit courts, which consisted of the district judge and at least one Supreme Court justice, the laws of the several states were to be regarded “as rules of decision”11 (unless, of course, overridden by superior federal law). Except in equity and admiralty cases, trials would be before a jury chosen from the locality and assembled in accordance with local practice.12 Jury decisions were protected by making them reviewable only by a writ of error on questions of law,13 rather than by an appeal that would encompass issues of both law and fact. Localization was carried further by a prohibition against any person being arrested or tried in any civil action “in any other district than that whereof he is an inhabitant.”14 The Act also protected locals against the creation of collusive federal jurisdiction by the assignment of negotiable instruments to out-of-state residents.15 Moreover, in large classes of cases the state courts’ jurisdiction remained concurrent with federal courts.16 General federal question jurisdiction resided only in the Supreme Court in cases appealed from state supreme courts.17 Yet the federal judiciary in the Federalist period was a major instrument for the extension of federal governmental power. The charges of federal judges to federal grand juries were often the occasion for lecturing the public on Federalist constitutional principles.18 Mining the record and minute books kept by the court clerks, along with a host of other documentary sources, Dwight F. Henderson described how energetically the federal trial courts asserted the supremacy of treaties over state law and of national laws and courts over state laws and courts.19 Moreover, it is probably the case that

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Hamilton’s successful efforts to promote commerce and agriculture by reestablishing national credit would have been much less effective without federal courts to enforce the revenue laws.20 Whether the lower federal judiciary was also an instrument of oppression— save in prosecutions under the Alien and Sedition Laws—is uncertain. That it was in those cases is abundantly clear,21 and Federalist judges have also been criticized for using their offices to further Federalist political ambitions.22 But what can we say about how the state and federal courts functioned as protectors of individual rights? How did they treat actions that, in one form or another, sought to review the legality of official action in the earliest years of the Republic? Most of the reported cases that would allow us to say something definitive about that question postdate the Federalist era. But the evidence that we do have offers a perspective that counters the notion that administrative action in the early Republic was mostly free from legal oversight. To the contrary, being a federal administrative agent may have been legally quite treacherous. One of the most interesting stories that emerges from judicial decisions in the Federalist period involves William Bingham. In 1776, the Committee of Correspondence of the Second Continental Congress sent the twenty-four-year-old Bingham to Martinique as a “special agent” to attempt to procure arms and other supplies for Washington’s army, to promote the American cause, to recruit privateers, and, acting undercover, to nudge France into the American camp.23 Bingham seems to have been quite successful in gaining the confidence of the French governor, Bouillé, and in securing some much-needed supplies. But he was neglected by his faraway bosses in the Continental Congress. Bingham ran up large debts that Congress failed to pay and rapidly found himself in other legal and political difficulties. In particular, the good ship Pilgrim, an American privateer, became a source of endless trouble, and embroiled Bingham in litigation lasting twenty-five years. The Pilgrim captured the Hope of Arundel near Portugal. A prizemaster, following the standard North Atlantic tradewinds route, conducted the Hope to Martinique, where it stopped for food and water en route to Massachusetts. The Hope’s captain claimed that she was a Danish vessel carrying Portuguese goods and hence not a lawful prize. Denmark and Portugal were neutral powers and their ships and cargoes were not lawful prizes unless engaged in activities that violated their neutrality. Because the French admiralty courts in Martinique disclaimed authority to consider cases of American capture, the governor consulted with Bingham, who took depositions from William Carlton (the prizemaster) and the Hope’s captain.

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Despite the admiralty court’s self-proclaimed jurisdictional limits, it ruled, on the basis of these depositions, that the capture was illegitimate. Bingham and the French governor together decided that the ship should be given back to its captain, but that the cargo on board—flour—should be sold to counteract a shortage on the island. Bingham arranged the sale of the flour and used the proceeds to repair the captured Hope and pay other expenses. He then credited the rest “to the account of the commercial committee of [the Continental] Congress ‘until the claim of the real owner in Europe is made clear and manifest.’ ”24 The Cabot family, owners of the Pilgrim, were not pleased with the loss of their prize. The Cabots demanded that Bingham pay them the value of the Hope and its cargo. Bingham refused; lawsuits followed. The litigation began with an action of trover fi led by Carlton, the prizemaster, in Massachusetts state court. Bingham reacted by getting Bouillé to put an entry in the record that, as governor, he had ordered everything that happened in Martinique. Bingham then asked his boss—the Continental Congress—to get the suit dismissed. The latter responded by passing a resolution suggesting a suspension of the case until it could be heard by the French courts, whose jurisdiction had by this point changed. Several months later, Congress passed a second resolution applauding Bingham’s work and promising to pay the costs of any legal suits. Although these resolutions failed to stop the Massachusetts proceeding, the second resolution was entered into evidence there, and, in 1784, a jury found in Bingham’s favor.25 Nine years later, the Cabots relaunched their attack, bringing two federal suits against Bingham: one for the flour and one for the Hope. The Pilgrim’s captain also filed separate suits for the ship and the flour. The latter two suits were stayed pending the outcome of the Cabots’s suit for the flour. Based on the Continental Congress’s resolutions, Attorney General Edmund Randolph determined that the federal government was responsible for defending Bingham, but its efforts on Bingham’s behalf were unavailing. After the judge excluded much evidence favorable to Bingham, including the congressional resolutions, the jury found for the Cabots. Bingham appealed to the Supreme Court, and the judgment against him was reversed in 1795. The Cabots were not finished. They pursued their separate action seeking the value of the Hope, and from here forward the judicial record is murky.26 After a return to the Supreme Court on a question of whether the circuit court had sufficiently established diversity jurisdiction,27 the Cabots won at trial by default when the U.S. attorney failed to show up to defend the suit.28 However, it appears that on the default Bingham only lost his $30,000 bond. Not satisfied, the Cabots pressed their claims again in state

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courts in 1799, based on new evidence that the Hope was indeed British, but carrying forged Danish papers, and therefore a fair prize.29 Bingham lost again. He urged his lawyers to try to get back to the Supreme Court on a writ of error, but it is unclear whether he succeeded in doing so. Bingham was particularly concerned because, as his biographer explained, he “had always been sure that Congress, having officially accepted responsibility for his actions in Martinique, would reimburse him for a lost judgment; but now he had reason to fear that a Republican Congress would refuse to honor the claim of a Federalist.”30 Sometime shortly after Bingham’s death in 1804, his estate paid the Cabots to finally settle the suit. There are many loose ends to the story of Bingham’s unhappy history in state and federal courts in the Pilgrim affair. The court records and reports of the period have the usual fragmentary quality, and to the eyes of a modern lawyer it is a puzzle how the Cabots got into state and federal court so many times on essentially the same claims.31 However, the point is not to understand the intricacies of eighteenth- and early-nineteenth-century procedure, but to notice that far from being remediless, private citizens objecting to official action by an agent of the United States had multiple legal weapons at their disposal. And defendant officials were often at the mercy of local judges and juries: harassment was not unknown, and may have been present in Bingham’s case. Bingham’s biographer believed that the Cabots were after Bingham’s land holdings in Maine, which were attached in a number of the suits and valued by the Massachusetts sheriff at absurdly low prices.32 Other federal officials were not so bold as William Bingham, who could afford to defend himself. Although harassed by litigation in relation to his efforts as an agent on behalf of the United States, Bingham was not an impecunious official abandoned by his government. The Cabots were after his land in part because it represented plum holdings—2 million acres, nearly one-ninth of the territory of the state of Maine. Bingham’s activities in Martinique had helped to launch his career as a trader and speculator, which made him at one point the richest man in America, a business partner of Robert Morris, a confidant of Alexander Hamilton, the Speaker of the House of Representatives of the Pennsylvania legislature, and a U.S. senator. A staunch Federalist, Bingham was a person of precisely the “character” that Federalist administrations might seek out to bear the administrative burdens of the new nation. Olney v. Arnold33 tells a similar story of the vagaries of a federal officer in state court, and of the thin protection offered him by the availability of appeal to the Supreme Court. But Olney lacked Bingham’s resources, and the

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facts of the dispute reveal that the risks of litigation made him extremely cautious in the exercise of his authority. Jeremiah Olney was the first collector of customs in Providence, Rhode Island.34 He seems to have enforced the collection laws with great exactness and to have been at cross-purposes with a number of Providence merchants.35 He and Arnold, the defendant in error, had been involved in prior litigation in 1791. Arnold had defaulted on a bond he had given for payment of duty, and Olney brought suit on the bond. That suit was settled, but in 1792 Arnold defaulted on another bond. This case went to trial through the U.S. Attorney and the jury decided for the government. Because Arnold failed to pay that judgment, the customs statutes disqualified him from any longer posting bond for customs duty. Hereafter duties would have to be paid up-front, before the goods were sold. To avoid this difficulty, Arnold began transferring his interests in goods to other ships or to other individuals so that bonds could be posted in their names. Olney was uncertain how to proceed in the face of Arnold’s subterfuge. Apparently to avoid the possibility of personal liability for improperly denying bond to a third party fronting for Arnold, Olney, for a time, allowed third-party ships to post bond for Arnold. He also sought advice from higher authority. Alexander Hamilton informed Olney that Arnold’s actions evidenced an intent to evade the collection laws and that this intent was sufficient to justify refusal to accept the credit or bond of any of Arnold’s transferees. Hamilton also promised that should the collector be sued successfully for damages, it would be incumbent upon the federal government to indemnify him, as long as he had acted “with due caution and upon sufficient ground of probability.”36 Olney, however, remained concerned about his own liability and requested that a statute be passed to clarify the appropriate course of action before he refused bonds from the third parties who were shipping Arnold’s cargo. Hamilton reiterated the indemnification pledge, and Olney then refused the next bond offer from a third party, a man named Dexter. In negotiations with Dexter, Olney took the position that he would continue to refuse bonds until Arnold finally satisfied his prior debt. Perhaps from fear of legal complications Olney ultimately accepted Dexter’s bond. But neither Dexter nor Arnold was satisfied, and they both filed suit against Olney. An exchange of letters among Hamilton, Olney, and the local U.S. Attorney reveals that it was agreed that the U.S. Attorney would defend the case and that the federal Treasury would pay the legal costs.37 The Court of Common Pleas for the County of Providence originally held for Olney on the ground that his acts were justified under the customs laws

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of the United States. The Rhode Island Superior Court disagreed and remanded. After trial, a Rhode Island jury gave judgment for the plaintiffs and assessed damages with costs against Olney. The U.S. Supreme Court, reviewing on a writ of error, reversed. Thus after trips to four courts the collector finally prevailed. But Olney’s caution in the face of the ever-present prospect of litigation before local juries is surely understandable. The Olneys of the world made dozens of decisions every day that might land them in court, facing personal liability for simple mistakes. In at least a few cases Congress recognized that these federal officials were at unacceptable risk and provided some protection. As noted in Chapter 2, the Collection Act of 1789 tried to discourage baseless suits against federal officials by allowing them to recover double their costs if the plaintiff lost his suit. Moreover, the court was allowed to absolve the defendant by finding reasonable cause for a seizure, even if a jury verdict had declared it illegal.38 Congress placed a similar provision in the 1799 Act regulating collection of tonnage duty.39 And in 1792 Congress absolved U.S. Attorneys of costs if they failed to obtain a criminal conviction for an alleged violation of federal law, provided that there was reasonable cause for commencing the lawsuit.40 But the reasonableness of the federal officials’ conduct was often to be determined by a state court judge. And the provisions for costs both applied to a restricted category of acts and presumed that the officer would be able to collect if successful. How much comfort these provisions gave to federal officers is unclear. The quantitative significance of litigation against federal officials in the Federalist period is also difficult to assess. The reported decisions in federal cases reveal few suits against officers, but this is surely less than the tip of the iceberg. Most lower federal court decisions were not reported, and, as Bingham’s and Olney’s stories reveal, plaintiffs might easily have preferred state court actions. Because these actions were in the form of private writs against individuals not named in their official capacities, and in jurisdictions with sketchy case reporting,41 any attempt at quantification is virtually hopeless. One should surely be skeptical, however, that Bingham or Olney were peculiarly unlucky officers or that federal officials were unaware of the threat that any action they took affecting person or property might put them before a local judge and jury—where their only defense would be that they had acted entirely properly pursuant to the laws of the United States.

The Courts as Administrative Tribunals While Congress left judicial review primarily to common law actions for damages, it provided for access to courts by statute in several situations that

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effectively made courts (both state and federal) into administrators. One example is a 1790 statute that seems to have been the national government’s first foray into health and safety regulation.42 In addition to some highly specific requirements concerning food, water, and medicine chests aboard sailing vessels, that statute required that the master of a ship remain in port if the mate or first officer and a majority of the crew felt the ship was unseaworthy. In order to put to sea, the master was required to petition a district judge, if present, and if not, a justice of the peace. The judicial officer was instructed to appoint three skillful mariners in the town to examine the vessel and make a report on its condition. The judge or justice of the peace was then given fi nal authority to decide whether the ship was fit to sail and, if not, what actions needed to be taken by the master to make it seaworthy. Indeed, contrary to modern fastidiousness about saddling courts with “nonjudicial” business, Congress in the early years of the Republic seemed to have little hesitation in using courts or judicial personnel43 as administrators, or to “commandeer” state judicial resources. The seaworthiness statute was hardly unique. The First Naturalization Act specified that any free white person who resided in the United States for two years could become a citizen upon application to any common law court of record in the state where he had resided for at least one year. The court was instructed to admit such persons to citizenship if they established “good character.”44 The courts were also given the highly political function of certifying the breakdown of local law enforcement as a predicate for the President to call out the state militia.45 In a more ministerial role, federal courts were used to make records for ultimate administrative determinations. A 1790 statute providing for the mitigation or remittance of tax penalties allowed persons seeking relief to petition the judge in the district where the fine had been levied and pray for mitigation or remittance. But the judge did not decide the case: he only held a hearing and created a record that was then transmitted to the Secretary of the Treasury, who was given the power to mitigate or remit if “in his opinion the [fine] was incurred without wilful negligence or any intention of fraud.”46 While the federal courts seemed content with their immigration and tax collection administrative duties, they balked when assigned the task of making initial determinations in veterans’ disability pension cases. The difference between the Pension Act, to which the justices objected, and the remission and immigration statutes, which appear less controversial, lies in the articulation of the judicial and executive roles under these various

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schemes. The act establishing the remissions system only required the courts to collect information to be forwarded to the Secretary of the Treasury; the latter was the sole decision maker. And in immigration petitions the courts (state or federal) were the sole decision makers. By contrast, the Pension Act, passed on March 23, 1792, required federal circuit courts not only to hear the claims of veterans applying for pensions, but to decide eligibility and amount before forwarding the information to the Secretary of War. The Secretary of War could then overturn the courts’ decisions in case of “imposition or mistake,” and was required to report the final result to Congress, which might re-decide the case by private bill.47 The justices objected to the constitutionality of the Pension Act because, they argued, any decision subject to revision by the Secretary of War, and perhaps Congress, could not be considered judicial.48 A new pension law, passed while the Supreme Court delayed decision on the first in Hayburn’s Case, apparently addressed the justices’ constitutional concerns.49 The new law took decision-making authority out of the hands of judges. District courts were to collect evidence, but to make no decision on eligibility or amount. Rather, they would, as in tax remission cases, merely forward the information to the Secretary.50 The use of courts as administrative tribunals to make initial or recommended decisions seems analogous to the modern role of the administrative law judge. Federalist Congresses provided late- eighteenth- century Americans with a trial-type process for presenting factual claims, not by creating a new corps of administrative hearing officers, but by using courts (both state and federal) that were already available. And it marks, perhaps, the beginnings of a tradition that has persisted in American administrative law—the identification of fair individualized decision making with judicialized or trial-type procedure.

Assessing Legal Control Contemporary administrative lawyers presume that judicial review will be available, in the words of the Administrative Procedure Act (APA), to persons “adversely affected or aggrieved”51 by governmental action or inaction, unless some special considerations limit reviewability. Review is impersonal; it targets a bureau or an office, not an individual. And the normal remedy is injunction—mandatory or prohibitory— or declaratory judgment. Plaintiffs must generally prove that the official action was unreasonable, not just incorrect. Damages against the government or an official are special and limited remedies.

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Federalist practice turns these contemporary understandings inside out. Actions were personal, against the individual; damages were a normal remedy, and office-holding carried no special immunity from suit. Officers could plead their statutory authority as a defense, but if the court— or jury— thought them wrong on the law or the facts, liability followed. Both systems of judicial review seem symbolically appropriate to their respective periods. Contemporary administrative law sees judicial review as a means for controlling administrative action by full-time, salaried officials whose identities merge with their offices. The rule of law as practiced in courts entails keeping these officials within the bounds of their official discretion, while avoiding judicial trespassing on an administration’s delegated power to make policy or Congress’s power to control expenditures. But in the early Republic, office-holding was an ambiguous station. Offices were often populated by part-time incumbents who were paid on commission or by fees for piece-rate work. Many simultaneously pursued other occupations and operated in their official and private capacities out of the same premises. They were, in short, citizens, who also carried out certain public functions. The rule of law entailed careful attention to keeping these identities separate. As a private citizen, the officer was subject to the usual requirements of the common law. Statutory authority might provide a special defense, not because officers were officers and were due judicial deference, but because they had in fact carried out the statutory duties assigned to them.52 Yet, however symbolically appropriate, the question of the adequacy of Federalist judicial remedies remains. Judicial remedies may both over- and under-deter, and their scope of application may prove either too limited or too broad. To take the breadth issue first, is Frederic Lee correct that common law remedies left too much official action outside the scope of effective judicial review? As to the Federalist period my hesitant conclusion is “not really.” Taxation was the most consistently coercive administrative activity. Customs officers seized property, held goods in shoreside warehouses, refused to return or release bonds, and held ships in port. A host of standard common law actions—trespass, trover, debt, detinue, assumpsit, or the like— were available to test the legality of these official actions. As discussed in Chapter 3, these multiple common law remedies were reinforced by systems of administrative appeal, followed in at least one case by statutorily provided judicial review. Seizures pursuant to embargo or nonintercourse legislation entailed essentially the same common law remedies as seizure or detention of goods under the tax laws, and ship seizures as prizes by the navy or privateers had to be ratified in court. Common law remedies also

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seem reasonably well-suited to policing the ser vice activities of the Post Office, to trying out land office titles, or to challenging invention patents. Pursuit of governmental largesse (for example, veterans’ pensions, naturalization, or disaster relief) and defense of government entitlements (such as licenses to trade with Indian tribes) were less well protected by reliance on common law forms of action. Yet these interests had other judicial and congressional protections. Courts decided naturalization issues themselves and assembled the records in pension cases. And the robust petition process may have provided greater remedial avenues for those whose claims were denied by relief-dispensing commissions than would be provided today. For example, the Special Master’s findings pursuant to the 9/11 compensation fund are final and not subject to judicial review.53 And, earmarks aside, modern Congresses have largely abandoned the special bill business that so preoccupied early Congresses. License denials or revocations would not appear to be susceptible to review by mandamus or conventional common law actions. But, national licensing was often a noncontentious activity in the Federalist period. Ship licenses and passports, for example, were really just certificates that were required to be issued if proper documentation was presented. There is no evidence of controversy over these matters in the Federalist period, and because the statutes imposed mandatory duties, this is one arena in which mandamus presumably would have been available. Indian traders, who were required to demonstrate good character and abide by trading regulations, had a clear judicial remedy for license revocation. Revocation entailed forfeiture of the trader’s bond, which required that the Superintendent of Indian Affairs put the trader’s bond in suit. If the trader prevailed in the forfeiture action his license was restored.54 Although the scope of judicial remedies in relation to the scope and form of governmental action may have been adequate, the form of review may nevertheless have been problematic. The Bingham and Olney stories suggest that there may have been a serious problem with the free use of damage actions to control official conduct. As Peter Schuck has argued in the context of modern constitutional tort litigation, getting the incentives right is tricky.55 Damage actions can simultaneously overdeter and undercompensate. As would later become evident in land-patent litigation, review via an action of ejectment entailed a severely limited judicial inquiry—what Ann Woolhandler labeled a res judicata model—in which factual and legal errors that were not jurisdictional were immune from investigation.56 Whether this limited review of land patents was appropriate is a story for another chapter. The development of the administrative system for titling

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western lands, and disputes concerning land patents, began in the Federalist period. But that system became a truly major administrative activity, indeed a legal morass, after Federalist administrations had given way to administration by Jeffersonian Republicans. The scope of legal remedies against federal officials at the close of the Federalist period was captured succinctly by Justice Marshall in his iconic opinion in Marbury v. Madison.57 As Marshall described the situation, officers who acted illegally had no protection from liability according to the ordinary course of the common law. But a suit to control an officer’s discretion by mandamus would not lie; indeed, an attempt to do so was described as “an extravagance, so absurd and excessive [that it] could not have been entertained for a moment.”58 As we shall see, it would take more than a century for the Marshallian idea of “discretion” as “political” and outside judicial jurisdiction to give way to a more modern understanding of the reach of judicial review of administrative action.

PART II

reluctant nationalists 1801–1829

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5

Federalist State-Building Meets Republican Small-State Ideology

A great irony propels American political development: the search for more direct democracy builds up the bureaucracy. James A. Morone, The Democratic Wish 1 (rev. ed. 1998)

Reflections on Federalist Administrative Law The government that the Federalists built and bound calls into question the notion that national administration and administrative law became of significant interest only in the late nineteenth century. From the very beginning national actions were not limited to subsidies and patronage, or more broadly to defense and development. Nor did Congress attempt to run the government, as Continental Congresses had, without the aid of administrators. Within the first few years of the founding, Congress had initiated programs that we would now characterize as welfare state activity: veterans’ disability pensions, establishment and operation of seamen’s hospitals, and provision of relief to persons suffering from “disasters” brought about through no fault of their own. Indeed, these three programs have features that closely correspond to modern welfare state provisions. Veterans’ disability pensions still take the form of disability ratings of the sort contemplated by the first pension act. By financing provision of medical care through a tax on seamen’s wages the seamen’s hospital program anticipated the contributory social insurance financing of our now-massive old-age, survivors, disability, and health insurance programs. And disaster relief responded to moral premises that undergird both the Social Security system and need-based assistance to the “deserving poor.” Nor was regulation ignored. Regulation of health and safety found expression in the regulation of the seaworthiness of vessels and the application of state quarantine laws to arriving ships. Commerce was regulated by the licensing of vessels for access to the Banks fisheries, by granting patent monopolies, and by licensing trade with the Indian tribes. To be sure, none

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of these operations was large, but each required the development of administrative techniques that would generate both a capacity for implementation and sources of control and accountability. The big operations, those governmental functions involving a substantial number of federal employees and reaching into a large proportion of communities, were revenue collection and the operation of the Post Office. The crucial novelty of the tax system in the Federalist period is that it, operating through its own officers, more than any other national function established the coercive authority of the United States in the domestic sphere. And, as we have noted, the expectation of resistance prompted Congress to develop the administrative system for tax collection in much greater procedural and structural detail than with respect to other federal activities. The significance of the postal system as an aspect of early nation-building has only recently been emphasized. But just as the tax system helped to establish the citizens’ responsibility to respect the authority of a national administration, the postal system generated a shared sense of that citizenship by facilitating the development of a shared language of political discourse. These developments would be of little significance were it the case, as Gordon S. Wood once declared, that the Federalist period was “the most awkward decade in American history, bearing little relation to what went on immediately before or after.”1 But, as Richard R. John and Christopher J. Young put it, Wood’s approach to history tended to obscure the distinction between ideological commitments and institutional outcomes. In so doing, it minimizes the institutional momentum set in motion with the establishment of the federal government in 1789 and understates the extent to which administrative mechanisms originating in the Federalist era continued to shape public policy long after Jefferson’s victory in the election of 1800.2

Administration could have these effects because much of the law that Congress adopted in the Federalist period was not, as Lowi and Bryce had claimed, a self-executing and highly specific set of behavioral rules enforceable in court. Federalist programs required administration, and the officials who did the administering were hardly automatons rigidly following the prescriptions of detailed congressional statutes. Congress did not delegate with abandon. Some of its statutes were almost comic in their attention to detail. Nevertheless, very broad authority was devolved upon the President and his delegates to develop appropriate policy. Along with the empowerment side of administration, Congress and federal administrators gave significant thought to the structuring of

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administrative accountability. Congress made careful distinctions between the political accountability system for the War, Navy, and State Departments and the one applicable to the Treasury, the Post Office, and the Attorney General. And although the Constitution spoke only in terms of departments, Congress experimented with independent boards and commissions and established Post Office operations outside of any departmental structure. These early statutes also showed substantial attention to the structuring of internal bureaucratic controls and accountability, but hardly on a single model. The single-headed Post Office, with supervisory authority lodged firmly in the Postmaster General, was an attempt to structure a hierarchical organization with effective control over widely dispersed personnel. That attempt was hardly an unqualified success. In Leonard White’s description of the early Post Office, “[t]he laxness and indifference of deputies . . . [was] progressively more marked as the miles stretched away from Philadelphia.”3 The major officers in the Treasury had similar supervisory responsibility over lower-level employees and apparently greater supervisory success. But hierarchy in the Treasury was not universal. Certain officers had independent responsibilities within the fiscal system and checked and balanced each other both by their division of functions and the requirement that two or more act together to receive, hold, or dispense the monies of the United States. The Treasury structure of checks and balances at supervisory levels was replicated lower down in the hierarchy by statutory provisions establishing the independent authority of, and requiring joint action by, customs collectors, naval officers, and surveyors at the point of collection of customs duties. Meanwhile, law enforcement was given a radically coordinate structure. Federal law was enforced in substantial part via state courts, prosecuted by U.S. Attorneys with little centralized guidance from the Attorney General (or indeed anyone else), and supplemented by citizen “informers.” Even when prosecuted in federal courts, the enforcement of federal law was still in the hands of local juries. With respect to tax collection, naturalization and the regulation of ship safety, and ancillary administrative activities in connection with federal court litigation, Congress borrowed state and local officials and private parties as implementers of federal legislation. The President, the heads of departments, and others were given extensive general rulemaking authority, and large classes of individual claims— for remission of taxes, payments on contracts with the Post Office, veterans’ disability pensions, and disaster relief—were subject to individualized administrative adjudication and administrative appeal. But save for those

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claims that used courts as commissioners, and therefore borrowed judicial procedures for finding facts, there seems to have been little legislative, and no judicial, attention to the processes by which rules were promulgated or cases decided. The proceduralism that dominates contemporary administrative law discourse and whose sources are located largely in the Constitution, the Federal Administrative Procedure Act (APA), and agency organic statutes, is almost wholly absent, unless one peers into the internal rules and practices adopted by the various departments or ad hoc commissions—a topic to which we will return often in later chapters. The use of merchant arbitrators to value goods and to report on the seaworthiness of vessels virtually exhausted the early Congress’s attention to matters of administrative adjudicatory process. Congress expected political and bureaucratic accountability systems to be supplemented by judicial control of administration. But judicial review in the Federalist period was quite unlike our contemporary practice, which emphasizes access to prohibitory and mandatory injunctions and declaratory judgment. Federalist Congresses relied instead on criminal penalties, bonds, qui tam enforcement, and preexisting opportunities for common law actions. Where we see judicial review as a relatively unified and statutorily prescribed practice of holding government accountable to law, Federalist Congresses, administrators, and courts accepted and adapted a variegated set of highly particularized common law actions in which the legality of official conduct entered litigation only by way of defense. Appellate review within departments, although formally de novo, may have been more like modern judicial review than were lawsuits pursuing the available remedies against federal officials in court. Lacking an institutionalized Congress of standing committees and subcommittees to provide political oversight of administrative functions, Federalist institutional designers relied on broad delegations to a President who was trusted by almost everyone, close association by Congress with the Treasury (the government’s most important department), ad hoc congressional investigations of par ticular events, and information provided by the incessant petitioning of ordinary citizens. Energetic and responsible administration was clearly a central concern. Hence, lacking even the idea of expert administration by career civil servants (with the possible exception of the example of the Army Corps of Engineers trained at West Point and highly influenced by French practice), they concocted a mixture of positive and negative incentives—political, legal, economic, and social—to manage federal officials. Practicing what Dicey later preached, Congress seldom sought to constrain public administration by special public law forms of

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legal action, but relied instead on criminal penalties and common law actions against officials whose public and private personas were rather thoroughly confused. Federalist administrative law is thus both familiar and strange. Its overall accountability structure—its attention to political, managerial, and legal accountability—remains ser viceable in organizing thought about the shape of modern administrative law. But many of its specific techniques— piece rate or commission payments, bonds and qui tam actions, common law damage remedies, and the like— are now considered only minor topics in the analysis of how the modern administrative state is empowered and constrained.

Enter the Jeffersonian Republicans—Stage Right Federalist administrations and Congresses had been committed to building national capacities that would stitch a fragile union together with the threads of effective administrative governance. They moved forcefully to establish the Departments of War, State, and Treasury; to increase the reach of the postal ser vice; to “nationalize” responsibility for the debts from the Revolutionary War; to establish a national bank and a sound national currency; to institute an effective system of taxation; and to create a national court system. They supported a strong army and navy and extended the preexisting system of publicly owned and managed trading “factories” to regulate trade with Indian tribes. These state-builders were hardly inattentive to the need to control state power—politically, administratively, and legally. As they built administrative capacity, they also bound it. But when creating a government to exercise the authority established by the new Constitution, the major official actors of the Federalist period did so mindful of the weakness of the national government under the Articles of Confederation and the feeble executive power provided in virtually all the post-Revolutionary state constitutions.4 But the Federalists lost their political mandate in the bitterly contested election of 1800— an election that Jefferson later described as effecting a “revolution in the principles of our government.”5 Convinced that the ascendancy of the Republican Party had saved the Republic,6 Jefferson and his supporters subscribed to a “Republican” ideology that was anti-Federalist at almost every major point. Republicans were strict constructionists who viewed the legitimate sphere of the national government as limited almost exclusively to war and foreign affairs. They were fiscally austere. They abhorred the national debt

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and the national bank that managed it. Republicans not only begrudged the expense of a standing army and navy, they viewed the Army, commanded by the President, as a threat to democracy itself. For them democratic governance resided in Congress, particularly in the House of Representatives, the national body closest to the people. Republicans hoped that the federal government could carry on its limited affairs and conduct its administration so softly and invisibly that citizens would hardly know that it existed.7 In his first inaugural, Jefferson prayed for “a wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”8 In short, Republicanism’s general answer to the problem of controlling and structuring administration was to eliminate administrators when possible and to restrict their discretion when elimination was infeasible.9 The realities of governance would put these principles to a harsh test.10 The early years of Jefferson’s first term were blessed with peace and prosperity, and Republican principles triumphed. Under Jefferson’s leadership Congress substantially reduced the military establishment, abolished internal taxes, and made progress toward retiring the national debt. Resistance to new federal programs reinforced the domestic authority of the several states— as did the repeal of the Judiciary Act of 1801, which had expanded the federal judiciary.11 But these idyllic circumstances did not last. Two forces militated against a passive national administration. The first was the rapid territorial expansion of the country. Settlers were pushing ever westward into the public domain—national public lands created by state cessions of western land claims to the federal government, the Louisiana Purchase, and the acquisition of the Floridas. Following the end of the War of 1812, the stream of settlers from the east to the west side of the Alleghenies became a flood that put severe pressures on the American political and administrative systems. The public domain had to be surveyed, sold, and governed— a task that could be accomplished only by the federal government. Republican “small-government” orthodoxy fit awkwardly with an explosive expansion of national territory and population. Indeed, Jefferson viewed his own purchase of Louisiana, which helped to fuel westward expansion, as unauthorized without an amendment to the Constitution. He withdrew his proposal to request an amendment only out of fear that delay would prompt Napoleon to retract his offer of cession.12 Not all Republicans agreed that the federal government lacked the power to annex foreign territory,13 but the Louisiana Purchase would be only one

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of a series of actions from 1801 to 1829 that violated the principles of strict construction of national power to which Republicans were supposedly committed. Franco-British rivalry also resumed in Jefferson’s second term— a competition that threatened both American commerce and American sovereignty. British and French naval vessels seized hundreds of American ships, and the British impressed thousands of American seamen. Jefferson met this challenge by resorting to commercial pressure— a cessation of all foreign trade. The commercial embargo that he substituted for military might ultimately required the use of domestic coercive authority that was more aggressive and intrusive than the Federalists’ hated Alien and Sedition Acts.14 And when war finally came in 1812, it demonstrated that the Republican policy of avoiding the expense and political dangers of a professionalized military establishment had been a paradigmatic triumph of hope over experience. Following the sobering events of the War of 1812, Republican administrators proposed, and Republican Congresses authorized, major reorganizations in many federal departments.15 These reforms were designed to provide precisely that “energy” and system in the national administration that Republican ideology disdained. But with the Federalist Party no longer a threat, strict adherence to Republican principles had become less attractive for many Republicans. They were now relatively comfortable with a national government run by themselves. Even Jefferson, in his second inaugural address, declared that the surplus of federal revenue should “be applied in time of peace to rivers, canals, roads, arts, manufacturers, education, and other great objects within each State,”16 a statement that would have fit easily in the collected works of Alexander Hamilton. But strict construction remained official Republican dogma. In Jefferson’s view, the application of federal monies to domestic activities within the states required a constitutional amendment. Thus framed as “we must do it, but we cannot,” the issue of internal improvements vexed Congress and the country throughout much of the Republican period.17 Other parts of Republican ideology also remained intact, and not just in the “Old Republican” wing of the party. After Jefferson left office, Congress increasingly insisted that it should play the major role both in policy making and in the structuring and control of administration. Administrators were, if possible, to be kept on short fiscal and statutory leashes. When the practicalities of administration demanded that these principles be abandoned, Congress was determined to oversee administration in a more substantial and systematic way than it had during the Federalist period.18

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This clash between Republican ideological commitments and the realities of an expanding nation in a dangerous world produced many uneasy compromises. The Federalist administrative system was reformed and extended rather than reduced to insignificance. Congress reintroduced internal taxes when fiscal necessity demanded. It reauthorized the Bank of the United States and, following the debacle of 1812– 1814, both strengthened and professionalized the Army and Navy. Survey and sale of the public lands shifted from being a secondary, revenue-raising function of the Treasury to occupying a position of major political and administrative prominence. Jefferson inherited two land offices that reported directly to the Secretary of the Treasury. John Quincy Adams, the last “Republican” President, bequeathed to Andrew Jackson a General Land Office, thirty-nine local land offices, and a system of administrative land claims commissioners whose adjudicatory output rivaled that of the judiciary.19 The land office expansion was merely symptomatic of the growth of national governmental activity with respect to Indian affairs, post offices, and post roads—indeed, anything having to do with the settlement of the West. A population of 5.3 million in 1800 more than doubled to 12.9 million in 1830.20 Government grew faster. Public civilian employment nearly quadrupled, from slightly fewer than 3,000 in 180121 to nearly 11,500 in 1831.22 Technological innovation was also intruding. The steam engine and the cotton gin were giving a whole new complexion to transportation, manufacturing, agriculture, and—incidentally, but momentously—the question of slavery. In some sense the history of Republican ideological retreat is an oft-told tale. Garry Wills’s biography of James Madison describes his presidency as “carried by events toward a modernity he neither anticipated nor desired.”23 And Wills has suggested that we might agree with the bitter “Old Republican” John Randolph that the Republican Party had by the end of Madison’s term won the hearts of the people by losing its soul.24 Madison’s successor, James Monroe, had a vision of the United States as a continental empire that generated a muscular foreign policy and spilled over into an increasingly nationalist domestic policy.25 And the final “Republican” President, the one-time New England Federalist, John Quincy Adams, proposed a domestic program in his first message to Congress that was so energetic that his cabinet, presciently, urged him not to send it.26 But these developments should not be understood to suggest that Republican small-government ideology had little effect on the politics or policies of the Republican era. Republican Congresses extended the Federalists’ regulation of merchant seamen’s labor contracts27 to fishermen28 and even enacted some mild regulation of ocean-going passenger ships.29 But it balked

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at proposed regulations to stem the rising death toll from bursting boilers on steamboats,30 ended the publicly owned system of Indian trading houses that had existed since the Confederation period,31 and repealed the lateFederalist legislation regulating bankruptcy.32 Congress also ended a largely successful experiment with federal promotion of smallpox vaccine distribution on the ground that it was an improper incursion into the police powers of the states.33 The election of the one-time Federalist John Quincy Adams might have been thought to signal an end to systematic Republican reticence to flex national muscles. But congressional Republicans almost instantly rebelled at Adams’s “national program”; little of his legislative agenda succeeded, and he was swept away in the next election by antipathy to—in Andrew Jackson’s words—the “splendor and magnificence of the government,” which “must end in consolidation and then in despotism.”34 Given Republican parsimony, one might wonder what Jackson was talking about, but small-government political rhetoric had power then, as now.35 State and local government remained the ideological preference of the people, however much events pressed presidents (and sometimes Congresses) to abandon the true faith. Managing an enormous, indeed explosive, growth in territory, population, and commerce while maintaining the idea of a small and frugal national government put serious strains on the efficacy of administration. Administration was demanded, but Congress was loath to fund it. The insistence on congressional control introduced both inefficiencies and local politics into national administrative organization and functioning.36 And as federal officialdom expanded numerically and spread across a vast territory, the administrative and legal control mechanisms employed in the Federalist period often proved either inadequate or counterproductive. The next two chapters examine how administrative structure, organization, and technique were challenged by the most important developments of the Republican period—the threats posed by belligerent and powerful foreign states and the dramatic westward expansion of the United States. I concentrate on only two areas of national policy and administration: the embargo of 1807– 1809 and the sale and settlement of the public domain. Many other areas of national administration obviously were also affected by territorial and population growth as well as by the reluctant realization that America could not remain aloof from the fratricidal competition among European sovereigns. The size and organization of the military, the management of Indian affairs, and the organization of the Post Office are chief among them. But an investigation of the embargo’s implementation and of

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the sale of the public domain is sufficient to illustrate how administrative law struggled during the Republican period to structure effective political control of administration, to maintain centralized administrative control of distant and multiplying federal officials, and to accommodate external legal control in the courts. It also illustrates weaknesses in the administrative system and what then passed for “administrative law” that would take many decades to repair. Chapter 6 explores the administration of the embargo of 1807– 1809. This grand experiment had many interesting moments for a student of administrative law. Among others, it featured stunning delegations of discretionary authority both to the President and lower-level officials, as well as heroic struggles by the President and the Secretary of the Treasury to unify administration. The embargo also generated massive resistance, often through the medium of a “judicial review” conducted in the form of jury trials. The history of the embargo thus has much to teach us about early understandings of the nondelegation doctrine, about the crucial importance of the “internal law” of administration, and about the limits of administrative power in a legal world in which judicial enforcement was the norm, jury trials were standard, and official immunity was nonexistent. While Chapter 6 describes a brief but dramatic episode in the nation’s regulatory history, Chapter 7 examines a governmental function—the sale of public lands—that dates to the colonial period and that continues today, primarily in the attenuated, but voluminous, often contentious, and occasionally corrupt, form of mineral leases, timber sales, and grazing rights. And while the discussion of the embargo focuses on presidential power, administrative rulemaking, and judicial review, the analysis of public land sales in the Republican era features large-scale administrative adjudication and the modalities of congressional control of administration. Together these two stories sketch a picture of what “administrative law” was like in a period not only before that term existed, but also in which the dominant political actors might well have considered it ideologically suspect.

6

Administering the Embargo An Exercise in Regulatory Hubris

Eighty years before the Interstate Commerce Act of 18871 Thomas Jefferson and an overwhelmingly Jeffersonian-Republican Congress embarked on a much grander regulatory experiment—the embargo of 1807– 1809. Indeed, the scope of the embargo and the powers that it gave the executive branch over American commerce make the Interstate Commerce Act’s attempts at regulating the railroad industry seem almost pathetic by comparison. And while the embargo is generally treated as a dramatic episode in the early political history of the nation,2 the administrative significance of the embargo’s massive attempt at economic regulation has been only sketchily explored.3 While the embargo’s legal technique was regulation of commerce, it was motivated by foreign policy concerns. From the Founding of the Republic, the British Navy had harassed American shipping through seizures and through the impressment of American seamen. Franco-British belligerence often led to French interference with American shipping as well. By 1807, a combination of British Orders in Council and decrees by the Emperor Napoleon had made virtually any U.S. vessel on the high seas fair game for the British or French navies, or for privateers acting under British or French authority.4 This systematic interference with American neutral commerce would clearly have justified a declaration of war by the United States. But declaring war against the world’s greatest naval power, or the world’s greatest land force, or both at once, hardly seemed prudent. Indeed, the Jefferson Administration’s reductions in the military establishment had made war virtually

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infeasible.5 Yet to accept British and French depredations on American commerce was as insufferable as war seemed disastrous. The alternative, promoted jointly by Jefferson and by Madison, his Secretary of State, was an embargo on all transport of goods from U.S. ports to foreign destinations.6 The embargo of 1807– 1809 was novel in two separate senses. First, it was novel as a matter of foreign policy because the nation had never before experimented with such an extensive form of peaceful coercion.7 Nonimportation statutes and temporary or limited embargoes respecting a par ticular country were relatively common, but Jefferson proposed a complete embargo with no fi xed term on all foreign commerce. His purpose was “to keep our seamen and property from capture, and to starve the offending nations.”8 The first purpose, if the embargo could be put into effect, would surely be successful:9 American maritime assets could not be captured on the high seas if they were all in port. Starving the offending nations was surely more problematic, but not wholly implausible. British and French colonies in the Caribbean were highly dependent upon American trade for most of the necessities of life,10 and the dependence of British manufacturers on American cotton and other commodities was significant.11 There is substantial evidence both that the embargo dramatically curtailed foreign trade and that the negative economic impact on Great Britain was greater than the admittedly harsh effects on American commerce, agriculture, and manufacturing.12 The embargo was ultimately a political, not an economic, failure.13 Second, the embargo was a commercial regulatory experiment of equal or greater novelty. Mercantilist trade regulation by the great European powers had long subjected their commerce to pervasive governmental control. And for a host of purposes states and localities in the United States heavily regulated internal commerce.14 But mercantilist regulation was designed to promote commerce, not to stop it in its tracks. And commercial regulation under the states’ general police power was an exercise of an authority implicitly denied to the national government by its establishment as a government of enumerated powers. Indeed, preexisting federal regulation of ship-borne commerce simply adopted state inspection and quarantine laws by making compliance with state regulations a requirement for clearing into or out of U.S. ports.15 And federal “licensing” of vessels was really only a certification requirement that facilitated customs collection16 or provided a necessary condition for the receipt of federal subsidies.17 Moreover, unlike the “association” embargoes of the colonial period—which had been carefully tailored to sectional interests, adopted by agreement, and enforced by local persuasion, publicity, and

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social ostracism18 —the laying and enforcement of Jefferson’s embargo would entail executive implementation authority of enormous reach and coercive force. To stop all commerce with foreign nations was to impair, if not to imperil, the livelihood of most citizens of the United States.19 Resistance was inevitable. The Jefferson Administration and Congress quickly discovered that effective implementation of a general embargo required draconian administrative authority.

The Embargo’s Statutory History The initial Embargo Act,20 passed three days before Christmas of 1807, was brief and to the point, and delegated vast discretion to the President. No ships or vessels in the ports of the United States were to be cleared for any foreign port save by the explicit direction of the President. He was given the further authority to issue “such instructions to the officers of the revenue, and of the navy and revenue cutters of the United States, as shall appear best adapted for carrying the same into full effect.”21 Registered vessels of the United States were allowed to engage in coastal trade within the United States itself, provided that the owner, master, consignee, or factor of the vessel gave a bond equal to double the value of the vessel and its cargo, guaranteeing that the ship’s cargo would be re-landed in some port of the United States, “dangers of the seas excepted.”22 Merchants flocked to customs officials to exchange their foreign registrations for coastal licenses.23 The likely intent to evade the embargo was obvious: coastal trade had not suddenly exploded. The new year had hardly begun, therefore, before Congress returned to the embargo question.24 Supplementary legislation made the embargo applicable to vessels exclusively in the coastal trade and to fishing vessels as well. Any violation of the statute subjected the guilty party to forfeiture of the ship and its cargo, or, if these were unavailable, to a fine equal to double their combined value. In addition, any master or commander of a ship, or any other person who was knowingly involved in a prohibited foreign voyage, would be subject to fines of between $1,000 and $20,000. Owners of ships violating the embargo would also thereafter be denied all credit for duties payable to the United States, and masters or commanders of such ships would no longer be able to give any acceptable oath or affirmation before any collector of the customs of the United States. These disabilities would effectively deny the offending parties the ability to pursue their livelihoods. Enforcement could be had in federal court, revenue officers were granted up to one-half the value of forfeited vessels and cargos, and vessel owners or masters were remitted

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to the administrative appeal process for relief from forfeitures or penalties that the Treasury deployed for relief from customs duties generally. Two months later, Congress acted again to preempt further techniques of evasion. The second supplementary statute applied the embargo to small unregistered vessels and to any exportation carried out on land as well as by sea.25 This statute also required merchants to document their re-landing of goods at an American port by obtaining a certificate from the collector of customs of that port. In its only ameliorating action, Congress responded to the complaints of merchants with goods stranded abroad by giving the President authority to authorize a voyage solely for the purpose of recovering those goods.26 Congress was then close to adjournment. But before it left, it passed two more embargo statutes. The first authorized the President to suspend the operation of the embargo in whole or in part “in the event of such peace or suspension of hostilities between the belligerent powers of Europe, or of such changes in their measures affecting neutral commerce, as may render that of the United States sufficiently safe, in the judgment of the President of the United States.”27 Should these happy circumstances fail to materialize, the administration was to have yet more authority. In another “supplementary” statute, Congress provided that no ship was to receive clearance to leave any port unless it had been loaded under the direct supervision of the revenue officers.28 Furthermore, there was to be no clearance from any harbor adjacent to foreign ports (Canada and Spanish Florida) without the specific authorization of the President himself. All naval vessels and revenue cutters were authorized to stop and examine any U.S. ship if there were “reason to suspect [it] to be engaged in any traffic or commerce, or in the transportation of merchandise of either domestic or foreign growth or manufacture, contrary to the provisions of this act.”29 While naval vessels and revenue cutters needed “reason to suspect” that a violation was in progress, the collectors of customs were empowered “to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever in their opinions the intention is to violate or evade any of the provisions of the acts laying an embargo.”30 Collectors were to refer such cases to Washington, and the detained vessel could be released only upon a decision by the President. Moreover, collectors were authorized to seize “any unusual deposits” of goods “in any of the ports of the United States” that were “adjacent to territories, colonies or provinces of a foreign nation.”31 Authority to seize or detain vessels on “suspicion,” or on an official’s

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“opinion” that the vessel intended to violate the embargo laws, or to seize deposits of goods viewed as “unusual” were, to put it mildly, remarkable grants of administrative discretion. Even these extreme provisions proved unavailing. Having returned from its recess, in January 1809, Congress passed its penultimate embargo legislation: the so- called Enforcement Act.32 Under this statute, all preexisting penalties and forfeitures were applied to anyone aiding and abetting the violation of the embargo. Informers were given a bounty of half of the fines resulting from their information. Ships now could not be loaded without a permit from the collector of the port, and were required to be loaded under his supervision. Collectors were to deny a permit if, in their “opinion,” there was “an intention to violate the embargo, or whenever they shall have received instructions to that effect by the direction of the President of the United States.”33 “By the direction of” acknowledged the realities of administration: the President had delegated much of his authority to the Treasury. The Enforcement Act went on to specify evidentiary provisions making the government’s proof easier when it sought forfeitures or penalties, and the defendant’s proof more difficult when it sought to justify going to a foreign port because of capture or distress. Indeed, these latter facts had to be proved by the testimony of every living member of the vessel’s crew.34 Collectors were given authority to seize any goods on land or sea when “there is reason to believe that they are intended for exportation” or “apparently on their way towards the territories of a foreign nation, or the vicinity thereof, or towards a place whence such articles are intended to be exported.”35 The statute also purported to give collectors virtual immunity from suit for actions designed to prevent violations of the embargo, as long as the collectors were carry ing out the statute or any general rules or instructions issued by the President. Anyone who sued a collector and lost would be required to pay the collector treble the cost of the suit.36 And, in perhaps the most spectacular provision of the statute, Congress gave the President the authority to employ such part of the land or naval forces or militia of the United States, or of the territories thereof as may be judged necessary . . . for the purpose of preventing the illegal departure of any ship or vessel, or of detaining, taking possession of, and keeping in custody any ship or vessel, or of taking into custody and guarding any specie, or articles of domestic growth, produce or manufacture, and also for the purpose of preventing and suppressing any

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armed or riotous assemblage of persons, resisting the custom-house officers in the exercise of their duties, or in any manner opposing the execution of the laws laying an embargo, or otherwise violating, or assisting and abetting violations of the same.37

Having given the President all these powers, they took from him, at his request, the authority to give permission to recover goods stranded in foreign ports.38 In combination, the various embargo statutes made virtually everything that moved in commerce in the United States potentially subject to seizure. Collectors of revenue, naval personnel, and masters of revenue cutters could stop sea and land transports on mere suspicion, or on forming the “opinion” that violation or evasion of the embargo was intended. No ship could be loaded without a permit, and then only under the watchful eye of a federal official. The President could use the full force of the Army, Navy, and militias not just to suppress insurrection, but simply to prevent the violation of any provision of the embargo statutes. Virtually nothing could be loaded or moved in commerce without a permit or a license, often backed by a huge bond. Permission to load or move goods was subject to the apparently unconstrained discretion of the permitting authorities. This was regulatory authority of astonishing breadth and administrative discretion of breathtaking scope. That such an administrative system would raise constitutional doubts and provoke stiff resistance was inevitable. Indeed, Congress’s willingness to go to these extremes suggests the level of resistance that the embargo and its implementation encountered. Resistance triumphed. Only three months after adopting its most draconian enforcement provision, Congress repealed the embargo and substituted a much milder regime of nonimportation.39

The Constitution, the Embargo, and Republican Constitutional Principles There is little doubt that the embargo, as established by statute and carried out in practice, violated virtually every constitutional principle that the Jeffersonian Republicans held dear. Limited government was clearly out the window, as was congressional control of administrative authority. Administrative powers of coercion were to be applied on the basis of suspicion or opinion, backed by the Army, the Navy, or presidentially controlled militias. Henry Adams concluded:

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[T]he embargo and the Louisiana purchase taken together were more destructive to the theory and practice of a Virginia republic than any foreign war was likely to be. Personal liberties and rights of property were more directly curtailed in the United States by embargo than in Great Britain by centuries of almost continuous foreign war . . . [E]ven the Secretary of the Treasury and the President admitted that it required the exercise of most arbitrary, odious, and dangerous powers.40

Were federal statutes providing this level of administrative regulatory authority constitutional? From the perspective of 1808, the question was far from fanciful. A broad swath of contemporary opinion urged the embargo’s invalidity. The proponents of unconstitutionality were, to be sure, strange political bedfellows. They included radical Republicans, who clung to a compact or confederation theory of the Constitution, and New England Federalists, many of whom were willing to jettison their traditional beliefs in both broad national power and the need for an energetic executive in the ser vice of protecting New England’s commerce from the embargo’s devastating effects.41 Charles Warren, in his classic history of the Supreme Court, stated “[t]he Embargo Law was a far more extreme exercise of Congressional power than either Republicans or any one else had believed possible under the Constitution.”42 And Justice Joseph Story, who argued in favor of the constitutionality of the embargo in the only case that straightforwardly addressed the issue, later wrote that he considered the embargo “a measure[] which went to the utmost limit of constructive power under the Constitution.”43 Story’s arguments favoring constitutionality were accepted with alacrity in Judge John Davis’s opinion in United States v. The William.44 Davis, a staunch Federalist, found the embargo constitutional not only as a regulation of commerce, but as an exercise of the war powers, as a preparation for war under the Necessary and Proper Clause, and as appropriate to carrying out the general purposes of the Constitution and to protecting the inherent sovereignty of the nation.45 The opinion in The William, which reads as if written by Chief Justice John Marshall in one of his more unguarded moments, upheld Federalist principles of judicial supremacy but dashed the New England Federalists’ hopes for quick relief from the embargo. For Republicans, Davis’s ruling was both a blessing and an embarrassment. Their embargo had been upheld, but viewing the court’s pronouncement as conclusive violated deeply held Republican principles. Jefferson never accepted the idea that judicial review settled constitutional or statutory issues with finality, and Republican

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attacks on the authority and independence of the federal judiciary were a hallmark of his presidency.46 The decision in The William thus produced the odd spectacle of Republicans clasping a Federalist judge’s decision to their bosoms while Federalist opponents of the embargo continued to deny the embargo’s constitutionality.47

Administration and Its Control The implementation of the embargo, like any system of administrative implementation under the American Constitution, was subject, at least in theory, to three forms of control: political control by elected officials, administrative control through hierarchal supervision, and legal control through judicial review. All three are of considerable interest. Political Control

The Constitution divides political control of administration between the President and Congress, but the embargo represented what we might currently call pure “presidentialism.”48 Congress retained political control neither through statutory specificity nor political oversight. The President was granted almost unlimited authority to decide specific cases, to direct the activities of lower-level personnel, and to suspend the operation of the embargo (with such exceptions as he deemed prudent). And during the short period that the embargo was in effect, Congress devoted itself primarily to enhancing the administrative powers of the President and others, not to investigating or overseeing their practices. Broad delegation of authority reduced political accountability to Congress but enhanced accountability to the President. Political control thus operated more in accordance with Federalist than with Republican principles. President Jefferson proposed the embargo policy and took full responsibility for it. He was active in the development of subsidiary policies for implementing the scheme, and supplementary legislation to strengthen the embargo was consistently enacted at his request. When the embargo ultimately became intolerable to the people, they laid the blame firmly at Jefferson’s door.49 Moreover, Congress gave this extraordinary power to a president who was far from squeamish in pursuing his objectives under the embargo legislation. In their studies of the embargo, Leonard White and Burton Spivak point out numerous instances in which Secretary of the Treasury Albert Gallatin’s sounder judgment softened Jefferson’s more aggressive tendencies.50

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While complying with most of Jefferson’s request for authority, some in Congress suggested that the embargo legislation, particularly the President’s power to suspend it, was an unconstitutional delegation of legislative authority to the executive branch.51 That argument never prevailed, but it surely had some merit. The suspension power was not just a power to suspend upon the finding of certain facts, but a power to suspend with such “exceptions” as the President thought prudent. This was very close to an authority to rewrite the legislation. The nondelegation issue reached the Supreme Court in 1813 under the slightly less broad delegation to declare the Nonintercourse Act of 1809 inoperative by presidential proclamation should either Britain or France take appropriate action to cease interference with American shipping. The Supreme Court dismissed the delegation concern with the almost off hand declaration that Congress could limit the duration of a statute’s operation by the occurrence of a fact and have that fact established by presidential proclamation. The Court’s description of the President’s role, which involved delicate diplomatic negotiations, complex bilateral understandings, and uncertain compliance, was surely a model of understatement concerning the presidential discretion effectively conferred on him to find a fact.52 The System of Administrative Control

The embargo legislation obviously required thousands of individual decisions by customs collectors, naval officers, and U.S. Attorneys in the various federal districts. In addition, the statutes seemed to give the President a personal responsibility for granting permits and reviewing seizures. Moreover, state personnel— governors, legislatures, and militia— also took some part in the enforcement of the embargo. What sort of administrative system could unify the actions of all these disparate and dispersed actors? The first problem was what to do about the discretion that Congress had vested in the President himself. The initial Embargo Act prohibited any vessel from leaving for a foreign port unless “under the immediate direction of the President of the United States.”53 Merchants read this provision as allowing the President to dispense exemptions at will, and applications poured in from every quarter. The virtual impossibility of sorting legitimate requests from evasion schemes drove Jefferson and Gallatin toward a highly restrictive interpretation of the statute. Because an unrestrained power to exempt vessels from the embargo would have defeated its purposes, Jefferson decided that Congress must have meant that he was to provide exceptions only when a voyage by a private vessel was necessary to carry on

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“public” (apparently meaning “governmental”) business. Gallatin duly put a notice to this effect in various newspapers.54 Even with this restrictive interpretation, the President’s dispensing power turned out to be an embarrassment. John Jacob Astor, who had personal and financial connections to Jefferson and Gallatin (and later to James Monroe and Henry Clay, among others),55 received permission from the President to clear his vessel, the Beaver, from New York to carry home a distinguished Chinese mandarin who was stranded in the United States. Alas, it turned out that this mandarin was an ordinary Chinese man dressed up in finery. The embarrassment became more acute when it was revealed that Astor turned a profit of $200,000 on the voyage.56 Given the President’s restrictive interpretation of his initial dispensing authority, few permits were issued, and merchants who had goods stranded in foreign ports felt aggrieved. They wrested from Congress a more targeted provision authorizing the President to permit voyages solely for the purposes of recovering goods already owned by American interests but located in foreign ports.57 A remarkable number of merchants turned out to have property abroad. Before Congress repealed this authority, at Jefferson’s request 594 vessels had been allowed to sail to foreign ports. Many of them failed to return, “gladly forfeiting bond for the freedom and profits of the neutral trade.”58 The value of the property authorized to be brought back under these permits was approximately $7 million.59 And although Gallatin, in conjunction with the President, limited permissions largely to the recovery of goods in the West Indies, the volume of trade done under these permits was a substantial impediment to the embargo’s success.60 But as an administrative matter, assuring fairness and consistency in the President’s determinations was a small problem. The permits issued from a single source, the President, who had his policy advisor, the Secretary of the Treasury, close at hand. Regulating the behavior of customs collectors and naval officers was a much more challenging task. Gallatin rose to it with his usual energy. During the first eleven months of the fifteen-month embargo, Gallatin issued 584 circulars or letters of instruction to enforcement personnel concerning the implementation of the embargo.61 The major problem was the coasting trade. Stopping coastal traffic starved Americans, not Englishmen; thus it had to be permitted unless, in the statute’s terms, a collector believed that there was an intent to evade the embargo. But in an era of sailing ships, weather often diverted vessels from their intended course. And just off the coast lay dozens of British vessels capable of “capturing” American merchantmen and taking them to a British port in the

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West Indies. Virtually everything seemed suspicious when ending up in a foreign port could, under the statute, be excused if it resulted from the “perils of the sea.” The collectors clearly needed guidelines, and Gallatin supplied them. For example, in a circular of April 28, 1808, collectors were given criteria for determining whether there was an intent to evade the embargo.62 But Gallatin went on to assure the collectors that these criteria were not exclusive and that they should “detain, investigate, and refer in all doubtful cases.”63 As time went by, hundreds of questions arose, which required further circulars and instructions. And, while the general rule, “when in doubt, detain,” seemed to unify practice, the determination to routinely confirm detentions in practical effect delegated discretion to the collectors. Under the provisions of the embargo acts only their decisions to detain were referred to the President, or to his delegate, the Secretary of the Treasury;64 grants or permits were not. There was little reason to believe that collectors around the country, personal differences aside, would behave in a unified fashion. In New England, revenue and naval officers met with armed resistance. Some were killed and several resigned.65 It hardly seemed likely that those who stayed on in this environment would be as energetic in interdicting trade as those working in states where the population was more supportive of the President’s program. And in every instance, collectors had to consider whether the persons with whom they were dealing were likely to sue. Collectors were individually liable for any damages from an improper detention. Six months into the embargo experiment, Gallatin despaired of the effectiveness of the detention system. He wrote to Jefferson, “Since the collectors will not place themselves in a position to be sued, we must let the vessels go, and depend on [naval] force to enforce the embargo.”66 Leonard White concluded that collectors and U.S. Attorneys by and large did their duty. But the personnel available to implement the embargo were simply inadequate to prevent smuggling when that meant policing the hundreds of harbors and inlets along the whole Eastern Seaboard.67 The unpopularity of the embargo put Federalists back into control of some New England legislatures, and spurred open talk of cessation from the Union. In Charles Warren’s words: Every attack which Virginia had made, from 1798 to 1800, upon the Alien and Sedition Laws was now re- echoed in Massachusetts and Connecticut. The most radical doctrines advanced in the Virginia-Kentucky Resolutions

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of 1798– 1799 were adopted and strengthened. Jefferson’s own arguments as to the rights of a State and of the people to disregard unconstitutional laws were now turned against him.68

Political opposition led to administrative compromise. State governors were given two opportunities to stifle enforcement of the embargo. The fi rst was a blunder by Jefferson. In an attempt to make the determination of when coastal trade was “suspicious” more palatable to local interests, Jefferson wrote to all state governors authorizing them to issue permits for the importation of provisions, particularly flour, when it was necessary for the sustenance of their state populations. This was a move in the direction of Republican principles, the decentralization of authority, but Gallatin feared that it would be the end of effective enforcement of the embargo.69 If the governors could clear shipments of basic foodstuffs, much of the trade with the British and French West Indies might proceed unimpeded. The Treasury Department struggled to gain some control over the flour issue. Gallatin transmitted multiple,70 sometimes conflicting,71 instructions to the collectors, culminating in a general circular on May 20, 1808.72 Yet, pursuant to Gallatin’s instructions the collectors retained very significant discretion to respond to the political climate of their region when deciding whether to detain a ship. “Unusual shipments” of flour were to be considered a sufficient cause for detention, and no flour at all was to be transported to any “other place[] which export[s] such articles.” But “moderate shipments” were to be allowed if they were usually exported from the collector’s district. How was a collector supposed to interpret “unusual,” “moderate,” or “usually exported”? Meanwhile, in an attempt to ensure that the decisions by the collectors were as consistent as possible, Jefferson tried to rein in the most conspicuously lenient governor.73 In a letter to Governor Pinckney on July 18, 1808, he demanded that all shipments of flour be considered prima facie suspicious. But he then gave the governors their second chance at nullification. The provisions of the 1809 Enforcement Act authorized the President to use the Army and the militia to enforce the embargo.74 This statutory authorization to use the military for enforcement of the law was extraordinary, indeed unique in American constitutional history.75 A Federalist Congress in 1792 had authorized presidential resort to the militia in the case of invasion, insurrection, or opposition to the execution of the laws that was too powerful to be suppressed by the usual means. But a federal district judge had to certify the breakdown of civil authority.76 In 1809, by contrast, a Republican Congress passed a statute that, on its face, gave the President the authority

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to call out the militia for the ordinary enforcement of the law whenever he thought it necessary. On Gallatin’s advice, Jefferson decided that the governors, who were the commanders of the state militias, should exercise this authority. Jefferson asked the governors to pick officers from their state militias to be in charge of detachments that might be called upon by federal officers to enforce obedience to the embargo.77 The governor of Connecticut responded to the Secretary of War that he had no authority to carry out the President’s instructions under the Connecticut constitution and that the President had no authority to direct him under the U.S. Constitution. The governor reported his actions to the Connecticut legislature in a speech favoring state interposition in response to unconstitutional federal statutes. The legislature promptly adopted a statute prohibiting any state official from lending any assistance to the enforcement of the embargo. In Massachusetts Levi Lincoln, who had served in Jefferson’s cabinet as Attorney General, acquiesced to Jefferson’s request. His legislature rewarded him with a resolution of censure and formally petitioned Congress for repeal of the embargo as an unconstitutional imposition on the civil liberties of American citizens and an invasion of the authority of the states. Lincoln wrote to Jefferson that he feared impeachment.78 Yet implementation of the embargo was not an administrative failure. Although it was not successful in coercing Britain or France, the embargo managed to coerce— or perhaps one should say regulate—American commerce. As White has put it, “The major administrative question was whether the government possessed a system strong enough, reliable enough, and equipped with the necessary legal authority and physical power to enforce the embargo. The record showed that such a system existed.” 79 The concentration of administrative discretionary power necessary for success—the authority to refuse to allow anything to move in commerce on suspicion of the motives of the mover—was, however, politically intolerable. The fifteenmonth experiment collapsed. Administrative powers of this level of coercive force were not seen again until the Civil War. Notwithstanding its oppressiveness, the embargo system was not lawless. Authority emanated from Congress, not from some executive assertion of independent war powers. Congress added authority only incrementally as prior authorizations proved inadequate. The administrators at the top struggled mightily to develop clear standards and to impose consistency on the efforts of widely dispersed officials. Some “democratization” of authority through delegation to the states was attempted even though it threatened to wreck the system. And the courts were not excluded from participation in

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enforcement or in the review of official action. Indeed, White’s conclusion that enforcement was effective might well have proved much too optimistic had the embargo continued for a longer period. As we shall see, the available system of judicial review—that is, court enforcement of criminal sanctions and common law actions against officials—had the capacity to derail effective administration where the embargo was unpopular. The most impressive contribution to lawfulness came, however, from the system of internal control established by the Treasury. Contrary to Henry Adams’s proclamation that Jefferson “assumed the responsibility for every detail of [the embargo’s] management,”80 the President could not micromanage the particulars of enforcement. Though the statutory power to execute the laws was often given to the President, much of the content of the enforcement policies came from Gallatin.81 For every embargo statute, Gallatin sent instructions to the field, highlighting the particularly relevant provisions of the statute; providing a standardized set of interpretations, directives, and instructions; and authorizing the exercise of local discretion when necessary.82 Some of those missives transmitted instructions from the President. Others revealed close consultation between Gallatin and Jefferson. Many were issued simply on the delegated authority of the Secretary.83 The Treasury Department was also in daily correspondence with the collectors. Specific questions regarding permits, detentions, and interpretations of the embargo laws were sent to Gallatin, who responded with binding advisory letters84 (in which he often referenced recent circular letters). While the majority of these letters consisted of short opinions approving or disapproving of detentions, the collectors often wrote to the Treasury Department for assistance on how to proceed with special cases, for detailed instructions in enforcing new legislation, and to suggest appointments to Customs House positions. In combination, the Treasury’s circulars and correspondence attempted to ensure both informed and uniform implementation.85

The Role of Judicial Review Legal control of the embargo’s administration was divided between the federal and state courts. Enforcement suits—that is, suits for bond forfeitures, penalties, and the forfeiture of vessels and their cargo—were pursued in federal court. Suits against federal officials for illegal conduct were largely brought in state court as common law actions of trespass, replevin, and the like. In both situations, the legality of administrative action was at

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issue. Customs collectors or naval officers could detain ships that they believed intended to violate or had violated the embargo statutes. But the ship and its cargo were not forfeited, nor would other penalties attach, unless the U.S. Attorney for the district brought an action against the vessel or the owner and prevailed on the merits. The judgment in that action would determine, at least implicitly, whether the official detention or seizure had been proper. Similarly, officials sued in trespass, or under some other writ, for detaining a vessel or its cargo could only escape liability by pleading their legal authority under the embargo statutes. Because they had no immunity, the legality of their acts would be determined by trying out their defenses on the merits. These relatively straightforward approaches to determining the legality of official conduct were complicated, however, by divisions of authority, both between federal and state courts and between judges and juries. And these divisions made lawsuits a particularly potent threat to the financial well-being of enforcement personnel, particularly collectors. The Embargo and the Federal Judges

Thomas Jefferson was famously distrustful of the federal judiciary.86 He viewed it as antidemocratic and as the last stronghold of Federalist ideology. And notwithstanding Judge Davis’s opinion sustaining the constitutionality of the embargo legislation, Jefferson believed that the federal courts obstructed the embargo’s implementation.87 But a look at the reported cases suggests that the judges were relatively evenhanded in their approach. Moreover, their involvement in embargo litigation foreshadowed the development of some important principles of contemporary administrative law. Several Supreme Court decisions concerning the embargo were unhelpful to the administration, but it is hard to view them as legally unjustified. For example, in Durousseau v. United States,88 the government sued to secure forfeiture of a bond guaranteeing that a ship would land and discharge its cargo at a U.S. destination. The ship landed in Havana, and the master claimed to have been driven there by weather. The Spanish government refused to allow the ship to clear port without selling its cargo. When it returned empty, the United States moved to have the ship’s bond declared forfeit. The lower court ruled for the government. In its view, the bond guaranteed that the ship would land its cargo in an American port unless it was lost by “dangers of the sea,” not unless it was sold in a foreign port where the ship had been driven by those dangers. The Supreme Court reversed. It was of course true that the owner had obtained the benefit of selling the cargo

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in a foreign port where prices were dramatically higher than at home. But having been driven there by the weather and forced to sell by a foreign power, the owner could not be said to have violated his agreement.89 The Supreme Court allowed ship owners to escape sanction on much more technical grounds in other cases as well.90 It is not hard to understand why an administration struggling to implement the embargo would view such decisions as unfriendly, and perhaps they were. But the Court was interpreting a penal statute with harsh forfeiture provisions. It was certainly not an aberration for the Court in interpreting such legislation to demand that before liability attached, the actions of the defendant or alleged violator must satisfy all the conditions of the statute. Moreover, the Court decided several cases that gave comfort to the administration.91 In a pair of cases, for example, the Court gave a very expansive reading to the collectors’ discretion in detaining a vessel on the “opinion” that it intended to violate the embargo. In Crowell v. McFadon,92 the plaintiff argued that the collector could rely on his opinion in a suit for damages only if he could demonstrate that there were some reasonable grounds for forming that opinion. The Court rejected this plausible argument, holding that the collector had the authority to seize if he had an honest opinion of the vessel’s nefarious intent. Otis v. Watkins93 was to like effect. The plaintiff there argued that a collector must exercise reasonable care in seeking information to form his opinion of a vessel’s intentions. In discussing his claims, the Court, per Justice Livingston, stated: The jury are told that it was the collector’s duty to have used reasonable care in ascertaining the facts on which to form an opinion. . . . But the law exposes his conduct to no such scrutiny. If it did, no public officer would be hardy enough to act under it. If the jury believed that he honestly entertained the opinion under which he acted, although they might think it incorrect and formed hastily or without sufficient grounds, he would be entitled to their protection.94

It is perhaps understandable that the Court would take this broad view of the collector’s authority in the context of a damage action tried before a Massachusetts jury. Not only was Massachusetts notoriously unsympathetic to the embargo, but the Chief Judge of the Massachusetts Supreme Judicial Court had often stated his opinion, extrajudicially, that the embargo was unconstitutional.95 Indeed, on one occasion the U.S. Supreme Court had to reverse the Massachusetts court three times in the same case in order to provide legal protection for a hapless collector.96

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Nevertheless, the idea that administrative discretion could be legally exercised, not only incorrectly, but hastily and without a rational basis, troubled Chief Justice Marshall. He filed a separate opinion noting that the statute under which the collector had acted required a collector who detained a vessel on his own suspicion to hold it “until the decision of the President of the United States, be had thereupon.”97 In Marshall’s view, “[i]t follow[ed] necessarily from the duties of forming an opinion and of communicating that opinion to the president for his decision in the case, that reasonable care ought to be used in collecting the facts to be stated to the president and that the statement ought to be made.”98 On that basis, Marshall believed that the trial judge’s instruction to the jury “that it was the duty of the collector, as collector, to have used reasonable care in ascertaining the facts on which to form an opinion” was not erroneous.99 But “reasonableness” as a basic standard for judicial review of administrative action would not characterize American administrative law for at least another century. The most important case concerning the embargo, other than the decision on its constitutionality, was also decided by the lower federal courts. Ex parte Gilchrist100 involved one of the Treasury’s early instructions to collectors that the President considered vessels loaded with provisions to be suspicious and subject to detention. Acting on this instruction, the collector at Charleston refused to grant clearance to a vessel loaded with rice and ostensibly bound for Baltimore. The collector had stated publicly that in his personal opinion the vessel was not suspicious but that he was bound by presidential instructions to detain it. Armed with this admission, the owner brought a mandamus action in the circuit court to require the collector to grant a clearance. Justice Johnson, for the circuit court, granted the mandamus, holding that President Jefferson’s instructions to the collector had been unauthorized. In Johnson’s view, the statute required the collector to exercise his own judgment in forming an opinion. Nothing in the statute gave the President the authority to direct the collector’s judgment (in fact, that authority would not appear explicitly until the Enforcement Act in 1809101). Without saying so directly, Johnson in effect held that the President had no inherent authority to direct lower-level officials in the exercise of their discretion under a statute— at least when the statute itself seemed to demand that the lower-level officer exercise his own judgment based on the facts and circumstances of the par tic u lar case. And in ringing tones Johnson declared “[t]he officers of our government, from the highest to the lowest, are equally subjected to legal restraint; and it is confidently believed that all of them feel themselves equally incapable, as well from law

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as inclination, to attempt an unsanctioned encroachment upon individual liberty.”102 In his holding, Johnson foreshadowed a number of subsequent opinions, most famously the Supreme Court’s determination concerning President Truman’s instructions to his Secretary of Commerce in Youngstown Sheet & Tube Co. v. Sawyer.103 But, at the time, the decision was something of a political bombshell. The Federalist press praised it to the skies. The Republican press attacked Johnson so relentlessly that he felt compelled to defend himself in print twice over the ensuing months.104 The President was outraged at this usurpation of his authority by a judge— even one whom he had appointed. He immediately demonstrated his contempt for the finality of judicial interpretation.105 Jefferson secured an opinion from his Attorney General, Caesar A. Rodney, that controverted Johnson’s statement of the law.106 Jefferson then distributed Rodney’s opinion widely to the press and to the collectors of revenue. The latter were instructed to ignore Johnson’s opinion and to follow the President’s instructions. The press reported that collectors were following the Attorney General’s opinion rather than Johnson’s. But Gallatin was not so sure. Mandamus was the least of the collectors’ litigation worries. Recognizing that liability in damages was a much larger problem, Gallatin wrote to Jefferson, “we cannot expect that the collectors generally will risk all they are worth in doubtful cases.”107 Juries and Judges in Federal and State Courts

Gallatin’s fear that collectors would be swayed by the prospect of suit in state court was far from fanciful. State courts had issued injunctions and writs of mandamus against collectors ordering them to release detained vessels.108 And juries refused to convict many who evaded the law, even when the cases were tried in federal court. John Quincy Adams wrote to W.B. Giles concerning the situation in Massachusetts: “There may be impediments to execution (of the laws) besides those known to the Constitution. . . . [T]he District Court, after sitting seven or eight weeks and trying upward of forty cases, has at length adjourned. Not one instance has occurred of a conviction by jury.”109 The problems that Gallatin and Adams identified involved a complex and changing set of legal relations between federal and state jurisdictions and between judges and juries in the determination of law and fact. In the implementation of the embargo, these questions interacted to make successful judicial enforcement problematic at best and to render energetic administrative

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enforcement hazardous to an officer’s pocketbook. We will consider enforcement first, then official liability. Enforcement in federal court was of two types: libels in admiralty for forfeiture of ships and cargos, and civil actions for the forfeiture of bonds and civil penalties. The difference was highly consequential. Admiralty actions were tried by the court without a jury; civil actions were jury trials. Douglas Jones investigated the results of enforcement actions in Massachusetts in 1808 and 1809.110 All were in Judge Davis’s court, the Federalist judge who had so strongly endorsed the constitutionality of the embargo in The William. In cases decided by Davis alone, most resulted in conviction, either by judicial determination after trial or because the defending parties pleaded “no contest.” Federal juries during the same period brought in twelve convictions while awarding fifty-three acquittals.111 Given these numbers, a legal struggle over the reach of admiralty jurisdiction and the role of juries in admiralty and in civil actions was predictable. A number of technical arguments were available. The famous admiralty provisions of Section 9 of the Judiciary Act of 1789 reserved “to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.”112 And even before encountering issues concerning the enforcement of the embargo of 1807– 1809, the Supreme Court had been given two major opportunities to try to draw the boundary between admiralty and common law jurisdictions.113 According to that jurisprudence, admiralty jurisdiction applied to offenses against navigation acts when (1) the suit was in rem (i.e., based on a seizure of property), (2) the offense occurred wholly on water, and (3) the legislation imposed only civil penalties. Under these criteria, respondents seeking a common law jury trial could argue as a factual matter that the offense involved was partially land-based or took place on inland waters that did not qualify at that time as within the maritime jurisdiction of the federal courts. They could argue as a legal matter that the embargo was intended as criminal legislation. Indeed, there was respectable opinion that admiralty itself included jury trials because English practice, from which American precedents were drawn, treated violations of revenue, trade, or navigation statutes as offenses tried by jury in the Court of Exchequer.114 Indeed, the creation of new vice-admiralty courts that could try such cases without a jury was one of the crucial grievances that set the colonies on the course to revolution. The role of the jury in civil cases at common law was also hotly contested. In colonial practice juries had frequently decided issues of both law and fact.115 By 1808 that situation was in transition, with judges increasingly

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claiming the authority to instruct juries on the law.116 This more general legal dispute about the role of the jury also affected legal struggles in embargo cases. Samuel Dexter, for example, the losing attorney on the constitutional issue in The William, continued to argue the constitutional question to juries in common law enforcement proceedings, notwithstanding Judge Davis’s threat to hold him in contempt.117 And, of course, general jury verdicts did not distinguish between findings of law and those of fact. There is no way to know how many of those Massachusetts jury acquittals or refusals to indict were based on the juries’ opinions that the embargo was an unconstitutional infringement of liberty of commerce. While jury nullification made enforcement of the embargo difficult in federal courts, the liability of federal officers responsible for enforcement resided even more firmly in the hands of local juries sitting in the state courts where many such actions were tried. Officers had no immunity for legal or factual error unless it was provided by statute. And although the Judiciary Act of 1789 provided for removal jurisdiction, it did not provide the federal courts with either general federal question jurisdiction or special jurisdiction for suits against federal officers.118 Hence, most common law actions against enforcement officials in state court were not removable. Moreover, as Justice Johnson had held in Ex parte Gilchrist, instructions from superiors, including the President, would not protect an officer found to lack authority under the statute.119 The risk to collectors, and to their willingness to enforce the law, was thus hardly a figment of Gallatin’s imagination. We have already mentioned the case of William Otis, who had to appeal to the Supreme Court three times to avoid liability in just one lawsuit.120 Consider also the travails of David Gelston,121 appointed collector for the port of New York in 1802. While gaining $37,000 through his share of the value of seized property during his eighteen years of ser vice, he lost $107,000 in only one of the lawsuits brought against him complaining of wrongful seizures. Gelston was known as a vigilant officer but hardly a swashbuckling wielder of the sword of federal authority. One congressional report said that “[w]hile any thing was left to the discretion or judgment of Mr. Gelston, he inquired, examined, reported, but made no seizure.”122 The only remedy for officers like Otis and Gelston when found personally responsible by state courts was to throw themselves on the mercy of Congress. But the claims committees were not necessarily merciful and were always slow. In response to one of Gelston’s claims for reimbursement, Congress delivered the following dictum:

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While the Government has important rights which are to be duly regarded, the citizen has his rights, which should not be overlooked nor forgotten in our zeal to enforce the laws. If an officer will wantonly and without probable cause seize upon the property of an individual who is engaged in carry ing on a lawful commerce, he ought to be made to respond in the courts of justice for the injury inflicted, without the most remote prospect that he will be remunerated by the Government whose laws he has violated by oppressing one of her citizens.123

This in a case in which Gelston had lost in court because of a key witness’s refusal to testify, and had appealed to Congress without substantiating records because they were lost when the British burned Washington in 1814. In other instances, Gelston, or rather his estate, belatedly obtained some congressional relief. After Gelston left office in 1820, his accounts were finally settled in 1842.124 In the face of these obvious disincentives to energetic official action, why did the system of judicial review of federal official action by juries in state common law damage actions persist? A modern answer might emphasize the peculiar incentive structure of federal office-holding. Collectors like Otis and Gelston, along with scores of other officials, were compensated wholly or in part by fees and commissions. This system incentivized diligence and promoted action. Indeed Gelston, as the collector at New York, held down the potentially most lucrative job in the federal government. The prospect of damages for malfeasance, by promoting caution, made the incentives symmetrical—more or less. But the better explanation probably lies in history and political ideology. The jury was a bulwark of protection against official oppression for colonial Americans subjected to rule from afar. The Crown could manipulate admiralty court jurisdiction to avoid juries and protect officers, as it had done in the Stamp Act.125 But as long as common law courts remained open, juries could provide a check on arbitrary officials. This history informed the Anti-Federalist opposition to a federal judiciary and shaped the provisions of the Judiciary Act of 1789, not to mention the Sixth and Seventh Amendments, which preserve state court jurisdiction and the right to jury trial. Jeffersonian Republicans were the direct descendants of the Anti-Federalists. While Federalist Congresses had made some movement toward protecting officials from damages when their acts, although illegal, were taken with probable or reasonable cause, Republican Congresses were ideologically inclined to distrust both executive discretion

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and judicial judgment. Jefferson could lead them to compromise their ideological commitments to experiment with the embargo— a regime that ultimately authorized the exercise of administrative discretion of a breadth and force almost unique in American history. But Congress balked when asked to limit official accountability to the people through jury trial.126

The Embargo and the Development of Administrative Law Several important developments have already been mentioned: the extreme “presidentialism” of the embargo system; Justice Johnson’s insistence that Congress’s statutory allocation of decisional authority trumped any inherent power of the President to instruct subordinates; Jefferson’s “nonacquiescence” in Johnson’s ruling; Chief Justice Marshall’s tentative development of the idea, contrary to his dictum in Marbury, that the conferral of administrative discretion implicitly demanded reasoned and reasonable exercise of that discretion; and the potentially devastating effect of judicial review of federal official conduct in the form of state common law actions tried before local juries. At a more general level, the embargo experience demonstrates a recurring pattern in the competition between administration and legality. The law can often function only through administration. But administrative discretion is at war with law. And both courts and administrators instinctively seek to bring discretion under control. Courts faced with claims of individual rights are loath to fi nd that the law is powerless in the face of administrative malfeasance. Administrators, because of the imperatives of responsible administration, shrink from unconstrained discretion vested in themselves and fear the centrifugal effects of discretion vested in subordinates. If for no reason other than self-protection, they often seek to establish guidelines for their own discretionary judgments. And they inevitably construct supervisory routines and modes of instruction to bend peripheral discretion toward centralized control. This tendency to make discretion answerable both hierarchically and legally is prominent in the story of the embargo’s implementation. Jefferson was given enormous statutory discretion under the embargo statutes, but one of his first acts was to issue an interpretation limiting his own authority.127 He delegated much of his decisional authority to Gallatin, as Secretary of the Treasury, and Gallatin energetically employed the system of Treasury circulars and instruction letters that Alexander Hamilton had pioneered in the early years of national revenue collection to guide the actions of collectors scattered throughout the ports of the eastern seaboard.

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But internal administrative attempts at lawfulness, at creating an internal law of administration through administrative direction, almost inevitably run afoul— at some point— of the external understanding of the law in Congress or in the courts. During the embargo episode Congress conferred administrative discretion and enforcement authority with seeming abandon, but still resisted some requests for authority that administrators viewed as imperative. These instances of congressional recalcitrance largely involved the administration’s requests for protection from the other official guardian of lawfulness, the judiciary. Here real conflict arose. The courts demanded strict conformity with statutes in the prosecution of forfeiture actions. And Justice Johnson resisted the unifying authority of presidential direction when he believed that the statute provided no such authority. Jefferson’s nonacquiescence in the court’s ruling reveals for the first time in American administrative history the critical question that lies at the core of our idea of the rule of law in a government of separated powers: when implementation of law is divided between administrators and courts, whose understanding of the law should prevail? The participants in this early struggle over the meaning of government according to law could no more definitively resolve that question than others have been able to do in the subsequent two centuries. The judicial instinct to cabin administrative discretion is evident in Chief Justice Marshall’s prescient equation of administrative legality with reasonableness and reason-giving. Marshall’s view—that a statute conferring discretion and subjecting it to executive review implicitly contained at least a requirement to give reasons for the action when the actor was called to account in court—was, however, ahead of its time. His colleagues were focused instead on authority to decide: what Richard Stewart famously labeled the “transmission belt” theory of legality.128 Revenue officials and U.S. Attorneys could in some instances plead the “reasonableness” of their actions to a judge who might hold them harmless in a damage action or on a motion for court costs even though their conduct had been unauthorized or their prosecution unsuccessful. But these were exceptional statutory provisions that apparently suggested no general principle of “reasonableness” to the legal mind of the early nineteenth century. Or perhaps we are once again looking for administrative law in the wrong place. Officers held liable for overstepping their authority routinely petitioned Congress for reimbursement of their expenses. That process was arduous and torpid, but as James Pfander and Jonathan Hunt have recently shown, “Congress took these matters seriously and investigated the question of whether the officers’ activities were reasonable, even if technically unlawful.”129

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At the same time, experience with the enforcement of the embargo provided graphic evidence of the potential for jury trials and common law damage actions to defeat effective administration. Congress surely understood this potential; Gallatin pointed it out in the administration’s request for protective legislation. Congress’s refusal to provide protection for federal officials from state courts and common law juries tells us something about the understanding of governance according to law in the Republican era— but what? I suggested earlier that the answer lay in the role of the jury as a buffer between citizens and officials in Anti-Federalist and Republican ideology. That is surely a partial answer. But the role of the common law as the ultimate protector of individual liberty was hardly the partisan prejudice of Jeffersonian Republicans, or indeed of early-nineteenth-century Americans. As noted in Chapter 1, in a later but proximate summation of English constitutional principles A.V. Dicey famously proclaimed that subjecting officials to the common law’s requirements in ordinary courts was the very essence of maintaining the rule of law in England and in countries, like the United States, that derived “their civilisation from English sources.” The Republican Congress that rejected Gallatin’s pleas to protect officials from common law actions was part of a legal world that is not ours. That legal world seems to have had no categories within which to work out a system of judicial review that “balanced” the demands of administrative efficiency against judicial protection of private rights in order to produce a nuanced approach to judicial control of administrative action. That is, perhaps, why Marshall’s suggestion that a collector’s opinion about a ship’s intentions might be reviewed for reasonableness and might require reasons, while utterly familiar and routine for us, seems to have attracted no support among his colleagues. A claim of public authority was simply a special defense that might be offered by an “official” sued as a private individual. If the official acted correctly, he had legal authority to act and was protected. If he made a mistake, he had no authority and was liable. This system of common law remedies could underprotect private rights as well as disable administration. While the system of common law remedies produced de novo review via jury trials in the enforcement of the embargo, in the public lands context (explored in the next chapter), common law remedies in the form of property actions tended to make the decisions of administrative tribunals final. Judicial review was limited to claims of lack of jurisdiction. And here, once again, reasonableness was irrelevant. Some non-barking dogs are worth considering as well. While the popular and judicial consideration of the constitutionality of the embargo focused

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on congressional power to act under the Commerce Clause, the war powers provisions, the inherent sovereignty of the nation, and the Necessary and Proper Clause, little attention (save occasionally in Congress) was given to the constitutionality of delegating sweeping powers to the President to waive the application of the embargo’s prohibitions in par tic u lar cases or to suspend its operations in whole or in part. Similarly the summary seizure powers of collectors and naval officers and the ex parte review of those seizures by the President or his delegate seem not to have been challenged as due process violations. The lack of due process concerns may be easily explained. Summary seizure of property for violation of revenue or navigation acts was customary in England, in the colonies, and in the states and the national government after the Revolution.130 Indeed, it is customary today.131 And, as we have seen, under the embargo there were ample post-seizure opportunities for an aggrieved owner to try both facts and law before a court, either in an enforcement or in a damage action. The necessities of enforcement easily justified ex parte administrative action. As a theoretical matter, the nondelegation issue may be of more moment. Although that principle is honored much more in the breach than in the observance,132 somewhat similar presidential powers to regulate wages and prices have faced stiff nondelegation challenges in times of both war133 and peace.134 But during the 1807– 1809 embargo, the issue never came up except in Congress. Jefferson never exercised the general suspension power. Disappointed petitioners for a presidential waiver neither wanted to attack the constitutionality of the President’s authority nor had standing to complain of permission granted to others. Plaintiffs pursuing collectors for damages seem to have been content to challenge the way discretion was exercised, not the constitutionality of delegating that discretion in the first instance. And nothing in the Marshall Court’s subsequent jurisprudence suggested that a nondelegation claim would have received a hospitable reception.135 Of the administrative law developments engendered by the embargo experiment, Johnson’s opinion and Jefferson’s nonacquiescence in it perhaps excite the greatest interest from twenty-first-century administrative lawyers. The “unitary executive” debate and the virtues or vices of “presidential administration” are hot topics for us and seem destined to remain so.136 Johnson’s opinion suggests an understanding of the President’s inherent directive power that is decidedly unfriendly to strong unitarianism. Congress had lodged discretionary authority in the collectors, and there it would stay until changed by statute, as it was in the 1809 Enforcement Act. As

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Kevin Stack has argued, Johnson’s position is supported by congressional practice both then and now and by persuasive concerns for maintaining an appropriate balance between legislative and executive authority.137 Jefferson’s refusal to accept the Court’s position was equally consistent with presidential claims of authority throughout American history. At the time, the Federalist press denounced Jefferson’s actions as further evidence of his disrespect for the law, his intent to destroy judicial independence, and the tyranny of the embargo.138 To be sure, Jefferson’s position, supported by Attorney General Rodney’s opinion, directly contradicted Marshall’s dicta in Marbury v. Madison139 that mandamus would lie against even the highest national officers to require the performance of nondiscretionary duties. But these statements were dicta, and Johnson did not even cite Marbury in Gilchrist.140 Rodney’s opinion, however, did cite Marbury—for the proposition that the 1789 Judiciary Act had, albeit unconstitutionally, conferred original mandamus jurisdiction on the Supreme Court, not on district or circuit courts.141 And Johnson came very close to conceding this point in one written defense of his opinion.142 So Jefferson and Rodney had a reasonable, if technical, argument that collectors could legally ignore writs of mandamus issued to them by lower federal courts. But that technical jurisdictional argument sidestepped the larger issues of the constitutional position of the President in executing the law. Did even Jeffersonian Republicans believe that the President had inherent constitutional authority to direct lower-level officials’ actions under any statute, not just those explicitly delegating enforcement responsibility to the President himself? Should a President, or any responsible administrator for that matter, feel obliged to comply with lower court interpretations of the law with which he disagreed, save in the par ticular case in which a judicial decree had issued? On the latter question one might certainly argue that the Jefferson administration’s most appropriate legal path would have been an appeal to the Supreme Court. But such an appeal would have taken months, and might have taken years. Meanwhile collectors needed instruction about whether to follow the presidential directives contained in Gallatin’s circulars or their own opinions concerning statutory interpretation. A directive maintaining the administration’s power of direction under the relatively extreme circumstances of the embargo was at least prudent and probably essential. Nor was Jefferson simply waging ideological warfare against the judiciary. Jefferson explained the necessity for uniform rules, and his specific reasons for rejecting Johnson’s position in Gilchrist, in a letter to Governor

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Pinckney. That letter emphasized crucial rule-of-law values that are as familiar today as Jefferson seemed to believe they should have been then. First, Congress could not anticipate all of the ways in which the embargo might be evaded. Administrative discretion was necessary. But if that discretion were left to the collectors individually, the law would not be uniformly enforced; citizens would be treated unequally and, indeed, might be subjected to biased administration. Unified control by hierarchical superiors was therefore essential. Second, these principles of the constitutional organization of the government should not be treated as having been decided finally by a single district judge in a lawsuit that seemed to have been arranged between the parties, rather than after the serious consideration reflected in the enclosed opinion by Attorney General Rodney.143 The President bore the responsibility under the statutes and the Constitution for effective and uniform enforcement of the law. And Gallatin was energetically attempting to carry out that responsibility. From their perspectives, controlling and guiding lower-level exercises of discretion was the essence of effective, impartial, and lawful administration. Most administrators would agree. Hence, executive nonacquiescence in the decisions of one or several lower court decisions, pioneered by Jefferson in the administration of the embargo, has persisted— along with dire predictions that nonacquiescence undermines rather than reinforces the rule of law.144 The broader issue of presidential directive authority remains similarly vexed. Arguably, the Supreme Court had already decided this question in Little v. Barreme.145 But while that opinion clearly established that an executive direction could not, through misconstruction of a statute, immunize official action that would otherwise be unlawful, the misconstruction in that case was very clear. The statute authorized the seizure of vessels sailing to French ports, not vessels sailing from them, as the seized vessel had been. The seizing officer, by way of defense, offered specific instructions from the President that covered vessels both going and coming. Hence, while the officer had made a further mistake, seizing a Danish vessel thinking it to be American, the Court concluded that his actions could not have been justified even if the vessel had been of American origin.146 By contrast, the instructions that Jefferson provided under the Embargo Act could have been read as simply narrowing the discretion of customs officials by telling them on what basis to form an opinion that a vessel intended to violate the embargo. There was surely a much stronger argument that the President had an inherent authority to provide that sort of direction. Note, moreover, that the historical record seems barren of any claim of inherent executive authority to regulate foreign commerce, even though

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the embargo was motivated by foreign affairs concerns and was explicitly justified as a substitute for war. Jefferson never claimed that the initial embargo statute— combined with the Take Care Clause or his powers as Commander in Chief— authorized him to deploy whatever means necessary to make it effective. Instead he returned to Congress again and again to seek additional authority— and to divest himself of permit authority (to repatriate goods in foreign ports) that he felt compelled to exercise but that threatened effective enforcement. In any event, the repeal of the embargo signaled not only the end of that experiment, but the eclipse of virtually any form of “presidentialism” in administration for the remainder of the Jeffersonian-Republican period. Political control of administration shifted to Congress and its committees.147 While the President and the Treasury worked out implementation of the embargo using the broad authority granted by a compliant Congress, as we shall see in the next chapter, that same Treasury (and after 1812, its General Land Office) sold the public lands pursuant to much more detailed federal statutes and subject to intense oversight by an ever more vigilant Congress.

7

Bureaucratizing Land

Beyond commitments to limited government and noncoercive implementation— commitments mostly honored in the breach in the implementation of the embargo—Republicans prized two further principles that were highly salient to all administration: congressional control of policy, and governmental economy. Acting on the fi rst yielded highly detailed legislation, constant legislative revision of ineffec tive policies that could not be modified by administrative action, and incessant congressional demands for reports on administrative costs and implementation. Honoring the second led to underfunding, understaffing, and enormously timeconsuming accounting requirements.1 In combination, these legislative tendencies made administration tedious, tardy, and inflexible. When put in the early-nineteenth-century context of a rapidly expanding population and territory, a rudimentary transportation system, and a citizenry imbued with the “frontier spirit,” faithful execution of Congress’s laws disposing of public lands took on some of the characteristics of Mission: Impossible. Surveying and selling the public lands were the largest and most difficult administrative tasks of the Republican era. The “public domain,” as it came to be called, was the result of states’ cessions of their land claims beyond the Alleghenies, the Louisiana Purchase, the Spanish cession of the Red River Basin, and the acquisition of East and West Florida. Altogether, this public domain represented a vast reservoir of potential national wealth and provided a crucial outlet for the growth of the American population. It also posed a political and administrative challenge of the first importance. Alexander Hamilton had viewed the public lands primarily as a source of revenue and only secondarily as an opportunity for national expansion.2 But

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revenue from land sales was disappointing in the Federalist period,3 and the rapid development of the agrarian West, which would almost surely be a stronghold of Republican political sentiment, was not high on the list of Federalist political priorities. Jeffersonian Republicans took a very different view. Parceling out the public domain to settlers implemented Jefferson’s vision of a nation of virtuous small farmers.4 Land sales could also replace some of the revenue loss from the repeal of internal taxes, while producing government revenue without government coercion. The sale of public lands might simultaneously secure the Republican dream of an agrarian republic with an invisible government and no public debt. Selling off the public domain was crucially important for other reasons as well. Settlers were hardly waiting for the national government to get its act together: they were moving west. If these settlers were to be loyal citizens of the United States rather than agitators for secession or annexation by a foreign sovereign, they needed to hold valid title to their lands. If the U.S. government could not provide them with a secure claim to their property, they would surely be interested in some alternative governmental arrangement that could do so. Systematic surveying, sale, and titling of public lands also had national security implications. The fledgling American government had promised hundreds of thousands, perhaps millions, of acres of “bonus lands” to veterans of the Revolutionary War, a crucial incentive for enlistment and ser vice in an army chronically incapable of meeting its payroll.5 Making good on these bonus promises was an important way to people the frontier with an already trained militia. Veteran settlers would be useful as a defense against Indian raids and as a buffer on the frontiers with Great Britain in the North and with Spain and France in the South and West. Finally, land hunger was epidemic in the early nineteenth century. Eastern farmers, who had exhausted the fertility of their lands, and recently arrived immigrants, looking for opportunity, both wanted to move west. So did the veterans who had been promised substantial land bounties, and men of means and influence were eager to speculate in western lands. If the government could not satisfy the desires of all these citizens, it would be a political failure of considerable moment. The United States needed both an effective land policy and an efficient administrative system. It lacked both. The usually reliable and always interesting Henry Adams said in his biography of Gallatin: “The details of organization of the land system . . . implied much labor and minute attention, but they are not interesting, and they may be omitted here.”6 Even for Adams’s biographical purposes the claim seems doubtful. The importance of

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land office business to Adams’s subject when he served as Secretary of the Treasury can hardly be overstated.7 But if one is interested in the life of the country and the development of its administrative systems, Adams’s omission should not be repeated. As one historian asserted in another context, “[W]ho will say that the operations of the land office at Marietta or at Zanesville are less worthy of the work of the historian than are events like the taking of Fort Ticonderoga or the battle of Bunker Hill?”8

Land Policy Colonies that had sold public lands for revenue had generally used a flexible system. Their land offices or surveyors were given considerable discretion to negotiate the size of parcels sold and the price and terms of the sales. Following the advice of a report in which Thomas Jefferson had had a conspicuous role, the Continental Congress in 1785 adopted a much more formal and bureaucratic approach: No land was to be sold until substantial parts of the public domain were surveyed. Surveyors were to use the range, township, and section system based on meridian lines that had been the general practice in New England. Land was to be sold in large lots at fi xed prices and only at public auction.9 Through meticulous surveying and carefully recorded transfers, a sturdy system of land titles would bring stability and prosperity to the American West. As Edward Everett said in 1856, by this system “[t]he superficies of half a continent is thus transferred in miniature to the bureaus of Washington.”10 Everett should have said “was eventually transferred.” The original system was ambitious, but its implementation was glacial. The Continental Congress compromised its policy almost immediately by selling large unsurveyed tracts to land company speculators. But even with this attempt to jump-start sales, the opening of the public domain failed to keep pace with actual settlement. Settlement on lands in which Indian claims had not been extinguished by treaty or purchase created constant conflict. To keep the peace, the government twice sent the Army to remove squatters and burn their improvements— actions that created enormous resentment and only partially stemmed the tide of illegal settlement.11 Preoccupied by other matters, Congress did not return to the land sales issue until well after the Constitution was ratified. Meanwhile no sales were made under the 1785 ordinance. The new Congress apparently did not fault the original system. Its 1796 land statute12 was quite similar to the 1785 ordinance and equally slow in getting anything to market. The law required that seven ranges be surveyed before any sales were allowed, and it

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maintained the large tract, fi xed-price system. Most settlers could not afford to buy a large tract at two dollars per acre, nor were speculators terribly interested at that price. Congress’s solution in 180013 was to keep the price at two dollars, but to make sales on credit. To facilitate sales, it set up a system of four land offices in the West near the places where land was to be sold. Each office had a register to handle the details of surveys and the platting and registration of claims, and a receiver to handle the money. In continuing the Federalist system for paying officers, the register and receiver were put on commission and further compensated by fees for various activities connected with the sale of the land.14 The credit system boosted sales but created an administrative and political nightmare. Land could be bought for one-quarter down, with three subsequent payments that did not begin for two years. This approach fueled speculation by both settlers and investors. Buyers were confident they could make the land pay, or resell it at a profit, before the second installment came due. Many turned out to be wrong. The government thus rapidly created thousands of individual debtors who would have to be pursued for the remainder of their payments or be required to forfeit their land claims if they failed to pay. Vigorous enforcement against hordes of impecunious settlers with problematic national loyalties, and often with considerable “sweat equity,” was politically unattractive to say the least.15 Debt was in one sense the biggest land policy issue from 1800 to 1820. In 1804 Gallatin urged Congress to eliminate the credit system, sell land in smaller lots, and lower the prices.16 Others, including special congressional committees empanelled to study the problem, recommended the same thing.17 Congress, ever eager to promote sales and settlement, and pressured by both territorial governments and speculators, simply retained the credit system and provided relief to debtors, usually by extending the time for payment.18 Multiple rounds of debt relief were rationalized on two grounds. First, because locals would not bid for their neighbors’ forfeited land, and indeed would be persecuted by so-called claims clubs if they did,19 it was not clear that the government could collect much from forfeiture sales in any event. Moreover, debtors claimed that they were the victims of government policy. After all, Congress had enacted the embargo and authorized the War of 1812, both of which had undermined commerce. It had also failed to pacify Indian tribes on the frontier and was implicated in the virtual collapse of the financial system by its failure to recharter the first Bank of the United States.

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As a consequence, the United States was selling land, but it was not collecting much revenue. In 1820 nearly half of the sales price for all lands sold in the prior twenty years remained outstanding.20 This of course assumes that the government actually knew how much was owed. In a series of relief acts, Congress had, among other things, allowed claimants to pay partial amounts on their claims subject to interest and penalties based upon the degree to which they were delinquent.21 And a new statute changing the terms of these indulgences appeared almost every year. The sheer computational challenge of keeping up with all these individual debtors, who dribbled in minute amounts for past due payments, tended to overwhelm both the local land offices and the Treasury officials who tried to oversee the system.22 The Secretary and other officials in the Treasury were given some relief in 1812 when Congress established a General Land Office with a commissioner to oversee the whole operation.23 And no new sales on credit were allowed after 1820. Even so, Congress was compelled to provide additional debt relief in a series of acts from 1821 to 1832, at which point the last of the credit problems created between 1800 and 1820 were finally resolved.24 While credit had boosted sales, and purchasing interest at every auction was intense, parcels were slow to come on the market. Congress had agreed by treaty to honor claims based on French and Spanish grants, and it recognized by statute prior titles from colonial or state governments as well as “preemptive rights” for those who had settled lands prior to survey.25 Lands could not, therefore, be finally surveyed and sold until the validity of existing private claims was determined. This turned out to be incredibly burdensome.26 The British, Spanish, and French governments used different land systems, and the latter two permitted highly informal grants. Records were lost, and forgery and perjury were hardly unknown.27 One student of the claims process in the Mississippi Territory estimated that there were twenty-three different types of claims available to parties pursuant to grants from Britain, Spain, and Georgia.28 Congress recognized that the territorial courts could not make decisions on all of these claims. It therefore created the nation’s first large-scale administrative adjudication process. Suffice it for now to note that this system, while it did heroic duty, only mitigated the delays. Delay provoked more settlers to “squat” on the public domain with no formal title. Informal settlement, in turn, generated new demands for “preemptive rights” that Congress often granted, thus creating more claims to be adjudicated.29 The land claims adjudication business was growing like kudzu on a Georgia roadside.

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So-called bounty lands for veterans added a further layer of complication.30 Special plots of land had been set aside as military bounty lands or exclusive military reserves. But these often had to be shifted as surveyors came back to report that this or that military reserve consisted largely of swamp or otherwise useless property. The distribution process was also complex. The system was so difficult to administer that Revolutionary War claims were still being settled in the 1850s. Part of the problem was that every military bounty policy seemed to generate individual or wholesale injustice and a demand for further remedial legislation. For example, in the War of 1812, Congress made bounty land available only to noncommissioned officers who enlisted between the ages of eighteen and forty-five and served under national rather than state authority.31 This was a perfectly sensible recruitment policy. The Army needed able-bodied men, and the militias, when under state command, were unreliable at best. The rewards for commissioned officers were thought to be sufficient without land bounties. But when the time came to claim bounties, these and other limitations collapsed under the weight of attractive petitions from disqualified veterans. Abigail O’Flyng, for example, petitioned Congress for a bounty warrant and alleged the following facts: her husband and three sons had all served in the War of 1812, but all were disqualified under the existing criteria. Her husband enlisted when he was over forty-five, and one son enlisted when he was under eighteen. In addition, her two sons who had been killed in battle had both received battlefield commissions. In short, this patriotic family had provided four soldiers, two of whom had been killed, and none of whom qualified for a bounty.32 Responding to worthy petitions and to political pressures, Congress had by 1855 provided bounty lands for anyone who had at least fourteen days’ ser vice in any prior war.33

Administration Disposing of the public domain was a superficially straightforward administrative task. First, uniform rules needed to be established for surveys, land sales, recording of titles, and accounting. Second, a system was required for the adjudication of private claims. Third, the public domain needed to be surveyed and put up for sale. Fourth, sales had to be recorded, moneys collected, and land patents issued. Finally, as with any administrative system, some means had to be established to determine whether the officials who were carrying out these tasks were doing their jobs accurately, efficiently, and honestly.

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On another level, the tale of the administration of the public lands is a story of high politics and low farce, of individual heroics and massive corruption, and, perhaps most importantly, of the clash between the frontier mentality of western settlers and the legal and bureaucratic imperatives of the Treasury and the General Land Office. Congress demanded technical exactitude from Land Office administrators but resisted hiring, compensating, and provisioning field personnel.34 And it yielded repeatedly (and almost universally) to the demands of western settlers and speculators who could not, or simply refused to, abide by the requirements of existing statutes and regulations.35 Establishing Uniform Policies

As with modern administrative systems, uniform policy was pursued through statutory specificity, administrative rulemaking, and particularized interpretations of the rules and statutes by high-level administrators, often in response to inquiries from the field.36 And as with all such attempts to unify administrative action, these techniques were only partially successful. Beginning with its first post- Constitution land statute on May 18, 1796,37 and continuing throughout the Republican period, Congress struggled to be precise. The 1796 statute and its successors38 instructed surveyors in great detail on marking the corners of townships, running section lines, marking the section corners with marks different from those used for the township corners, numbering sections, and so on and on. Revisions were constantly required. When the specified places of sale turned out to be too far from the buyers, Congress opened four new land offices. When tracts offered for sale turned out to be too large, Congress authorized sales of half sections.39 When it was discovered that errors in the original surveys had produced sections that did not contain 640 acres, surveyors were given new instructions.40 When sales for cash (really, one-half down and a year to complete payment) failed to attract buyers, Congress initiated sales on credit, along with its much more elaborate accounting system.41 These accounting requirements included the almost comically detailed provision that the Registers of the Land Offices respectively, shall also note on the book of surveys, or original plot transmitted to them, every tract which may be sold, by inserting the letter A on the day when the same is applied for, and the letter P on the day when a receipt for one-fourth part of the purchase money is produced to them, and by crossing the said letter A on the day when the land

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shall revert to the United States, on failure of the payment of one-fourth part of the purchase money within three months after the date of application.42

Yet, recognizing that the complex accounting provisions in the statute might nevertheless be inadequate, Congress authorized the Secretary of the Treasury to prescribe such further regulations “as to him may appear necessary and proper.”43 Statutory specificity simply was not up to the job of instructing officials in the field.44 The Treasury, and later the General Land Office, had to fill in the gaps with general regulations and with specific advice. For example, the statute requiring that trees mark the corner of townships imagined that surveyors would fi nd one at the exact spot that their chains indicated. Nature was not so kind, and an early regulation authorized surveyors to put a post at the true corner of the township and then mark two “witness” or “bearing” trees.45 Regulations further permitted the use of stone markers where trees were unavailable46 and on the prairie land of Indiana prescribed the use of posts surrounded by mounds of earth. One story, perhaps apocryphal, tells of a surveyor who, in terrain completely devoid of wood or stones, stuck a burned matchstick at each corner of a section and entered in his day book that he had set charred sticks of the best available timber.47 There seems to have been no particular process for adopting these general rules or regulations, which were issued as circulars or letters to the various local land offices or to the surveyors. While the land office personnel—the register and receiver in each office and the clerks they employed— doubtless attempted to follow the Treasury or General Land Office instructions, deputy surveyors in the field were sometimes a different matter. These “officers” were contract help, paid by the mile surveyed and operating under extreme conditions imposed by terrain and weather as well as by Indian tribes that sometimes took a dim view of their activities. Many made valiant efforts under extremely trying circumstances. Others defrauded the government. In Gladwin County, Michigan, the survey crew apparently did its work entirely from a hotel room, and the government had to spend $50,000 to resurvey the 150 townships that this resourceful crew had so imaginatively plotted.48 Of course, problems with surveys were not the only, or even the most numerous, issues that arose from gaps or unrealistic requirements in the statutes or, indeed, from the attempt to apply general rules to specific cases. Faced with issues that their instructions seemed not to cover, field personnel inundated the Treasury and the General Land Office with inquiries. Malcolm Rohrbough’s classic study, The Land Office Business, is based in

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large part on an analysis of the correspondence between field offices and the seat of government from 1789 to 1837.49 According to Rohrbough’s bibliography, the general circulars sent from the General Land Office comprise four folders. Correspondence seeking and providing further elaboration of circular instructions is contained in 156 volumes— excluding correspondence concerning private land claims, which was incessant. The correspondence between the Secretary of the Treasury and the Commissioner of the General Land Office alone occupies an additional fifteen volumes. One can only marvel at Rohrbough’s diligence (or that of his graduate students) and at the extraordinary efforts made to unify federal land policy by authoritative interpretation from the center to the periphery in the first three decades of the nineteenth century. Adjudicating Private Claims

Although the surveyors had the utmost difficulty in reducing territory marked by rivers, swamps, mountains, and almost impenetrable underbrush to plats composed of the six-mile-square townships and one-milesquare sections that Congress demanded, the congressional concern for systematic and accurate surveying was well placed. The alternative system, used principally by Virginia prior to the cession of its public lands to the United States (and subsequently with respect to the Virginia Military Reserve), produced inaccurate surveys and overlapping claims that took years to resolve.50 As a result real property cases were the largest single category of substantive nonconstitutional cases on the Supreme Court’s docket between 1815 and 1835.51 Land claims often took years to unravel and involved highly complex questions of statutory interpretation; the relationship between common law and statute; and the interplay of state, national, and international law.52 While the congressional survey scheme avoided many of the problems that plagued the Virginia system, it could not itself be implemented until preexisting claims of right to parts of the public domain were adjudicated. As previously mentioned, those claims were premised on grants from Spain, France, and Britain; grants from colonies and states with western land holdings prior to their cession to the United States; transfers from Indian tribes; and prior settlement without any assertion of title from a preexisting sovereign. Given the experience of the Supreme Court and the lower federal courts with land controversies, and the limited resources of the territorial courts, Congress was under no illusion that judicial resolution of these claims was feasible. There were nearly 10,000 private claims in the

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Louisiana Territory alone.53 Alabama, Arkansas, Florida, Mississippi, and Missouri had at least another 6,000 claims that were confirmed.54 Faced with private claims that were both voluminous and complex, Congress chose to establish a “commissioner” system in the hope that administrative adjudication could do speedily and effectively what judicial adjudication could not. Although this system ultimately accomplished its goals and laid the basis for an adjudicative process in the Land Office that persisted for decades, the trials and tribulations of the administrative adjudicators were many and varied. And disappointed applicants never tired of petitioning Congress for relief. A perusal of the congressional materials preserved for this period in the American State Papers reveals a colossal number of documents related to public lands and particularly to private claims.55 A substantial number of these documents are the reports of commissioners on private claims. A greater number (by several orders of magnitude) are petitions or congressional actions on petitions for relief from statutory requirements, legislative confirmation of claims, grants of preemptive rights, authority to withdraw erroneous locations of claims, and so on.56 Many of these petitions were from individuals, but they also originated with land companies, towns, and states. Thus, while private claims were heard by commissioners, there was always the prospect that Congress would be the final arbiter.57 Claims Adjudication in Practice

The claims adjudication process began in the Confederation period with the Continental Congress’s resolution to provide for the recognition of claims by French settlers in the Illinois Territory. Congress authorized the territorial governor to recognize claims based on prior legitimate authority and, if a settler’s legal title was inadequate, to allocate 400 acres per family to citizens who had settled there prior to 1783. The governor was to award these latter “donation lands” by lot and to examine titles otherwise presented. When titles were confirmed, land was to be laid out by survey at the claimants’ expense. This general process sounded simple enough, but it was forty years before the last claims were resolved.58 After 1800, when Republican Congresses came to deal with private land claims in the Indiana and Mississippi Territories and in Louisiana and the Floridas, they clearly had learned something from the debacle in the Northwest Territory. Special commissioners, sometimes the register and receiver of the local land offices and sometimes special presidential appointees, were empowered to adjudicate claims under much more specific criteria.

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The commissioners were given full authority to compel attendance at hearings, to administer oaths, to examine witnesses, and to decide the cases “according to justice and equity.”59 In some cases the commissioners’ decisions were made final. In others they were, at least nominally, only a recommendation to Congress, which made a final disposition.60 But as a matter of practice, Congress confirmed virtually all claims that were ruled upon favorably by the commissioners.61 Time limits were set within which claims were to be presented to the commissioners, and, according to the statutes, claims not presented by that time were forever barred.62 Again, this all sounds reasonably straightforward, but of course it was not. Many records were lost or unavailable, and parol evidence generated the usual problems of perjury and fraud.63 In addition, the land systems of France, Spain, and Great Britain were quite different. And, of course, some of the “British” practice was actually in the form of grants from colonies, such as Georgia or Virginia, which had their own peculiarities.64 In short, these were difficult cases that required energetic investigation and considerable linguistic and legal skill. But Congress, with its usual parsimony, was hesitant to provide adequate pay or support for its land commissioners. As George Graham pointed out to the Senate in response to its request for a report on the causes of delay in adjusting land claims in part of Louisiana, it was impossible to obtain the ser vices “of individuals qualified by their independence of character and discriminating powers of mind, to adjust these claims speedily and satisfactorily, unless a more adequate compensation for their ser vices [was] given.”65 And, of course, as long as claims could not be settled, lands could not be surveyed and public sales could not be conducted. Meanwhile, the settlers marched inexorably westward, entering lands by purchase from a land office when they could, and by illegal occupation when they could not. The adjudication of private claims was thus a sort of perpetual motion machine. The more claims the commissioners had to determine, the longer it took to generate surveyed lands for sale, and the more “illegal” settlers arrived to press even more private claims. Successful resolution of the latter “squatter” cases was facilitated by Congress’s leniency toward settlers with defective claims. It relaxed the evidentiary requirements for proof when the rules excluded too many claimants,66 and authorized awards of lands to whole categories of claimants that the commissioners had previously disqualified.67 The rules changed so often that Congress ordered the collection and arrangement in one volume of all laws, resolutions, treaties, and proclamations related to the public lands and their distribution to the land offices and the claims commissioners.68

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Having a copy of the statutes was surely useful, but the laws were not self-interpreting. The Louisiana land commissioners were instructed to decide “according to the laws and established usages and customs of the French and Spanish governments.”69 Gallatin was sufficiently confused about exactly what this meant, and how this criterion related to other statutes Congress had passed on the same subject, that he despaired of providing any interpretation for the commissioners. He finally transmitted copies of the statute to the registers without any interpretation or instructions concerning the law’s meaning.70 In the event, the commissioners took testimony from leading citizens of the territory concerning prior usages and customs and used this testimony as their guide to French and Spanish law.71 A later compiler of the French and Spanish land laws stated, however, that he had examined the reports of the various boards of commissioners from their inception to 1829 and that he had found very few references to French or Spanish law or custom. The uniform rules that he had uncovered seemed to him to consist largely of common law principles.72 Congress sometimes passed “get tough” statutes that criminalized settlement without title and disqualified illicit settlers from ever gaining a patent. The President was authorized to use whatever military force was necessary to remove them from the land unless they obtained a temporary residency permit from the relevant land office.73 But these statutes were almost impossible to enforce, and Congress, in the end, generally provided relief from them.74 The massive entrance of settlers onto the unsurveyed public domain created the political necessity of providing them with some sort of preemptive right to purchase when surveys were finally accomplished. Congress passed thirty-two special or temporary preemption statutes between 1799 and 1838,75 along with general preemption acts in 1830, 1832, and 1838.76 Occupancy or cultivation was usually required for a preemptive claim but, by custom, these activities had taken many forms—ranging from building a house and raising a corn crop to marking trees for clearing and nothing else (sometimes called “tomahawk rights”).77 Even if a settlor’s preemptive claim was defective, it was likely to be recognized by neighbors and enforced by conspiracy when the land was put up for sale. Neighbors refused to bid against each other and banded together to intimidate outsiders who might have had the temerity to bid on an already “settled” parcel.78 The statutes providing for land commission adjudication of private claims made commission determinations final against the United States, but not against third party claimants. These latter claims would have to be fought out in the courts.79 When settlers lost their preemption certificates to claimants

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with superior legal title, Congress at least refunded the certificate holders’ payments toward receiving a patent.80 In practice the mass administrative justice dispensed by the commissioners on private claims may not have satisfied the formal procedural and evidentiary criteria for trials in the courts of law. But an ever-vigilant Congress seems to have been determined to ensure that if justice were skewed, it was mostly skewed in favor of claimants. Federal statutes confirming commission awards virtually never rejected a positive finding and often made special provisions to qualify those whose claims had been rejected.81 Because commissioners were often the Recorder and Receiver of the Land Office, who earned commissions on land sales, they had a lively interest in resolving claims and getting on with public auctions. And the threat of collective action by claimants’ neighbors with similarly dodgy claims often intruded on commission neutrality in adjudication. These interests, combined with Congress’s well-known solicitude for pioneering Americans, apparently outweighed the competing concern that allowing private claims would remove too much saleable land from the public domain.82 Adjudicatory Process Before the Land Commissioners

Whatever the realities on the ground, the public lands statutes provided relatively standard and formal procedure for the determination of private claims. Each statute provided for the appointment of private claims commissioners, stated in general terms the law to be applied by them, and specified whether their decisions were final or only tentative until confirmed by Congress. The commissioners were empowered to call and swear witnesses and to receive evidence as in a court of law. Statutes instructed them on how notice was to be given of their proceedings and established the time period within which claims might be filed and adjudicated.83 Boards of commissioners were to appoint a clerk for the purpose of recording, “perfect and correct minutes of the proceedings, decisions, meetings and adjournments of the boards, together with the evidence on which such decisions are made.”84 In some cases, the statutes provided for an appearance by either a specially appointed agent or a U.S. Attorney to represent the interest of the United States.85 The clerks were also required to “prepare two transcripts of all the decisions made by the said commissioners in favor of the claimants to land.”86 When signed by the commissioners, these transcripts were to be submitted to the Surveyor General and to the Secretary of the Treasury, and any claims upon which a favorable commission decision had been made were not to be

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disposed of until a final decision by Congress. A similar requirement applied to rejected claims, but here the commissioners were to include the “substance of the evidence adduced in support” of the claims and “such remarks thereon as they may think proper.”87 That report was to be sent to the Secretary of Treasury and presented to Congress at its next ensuing session. The greater degree of formality and completeness for reports on rejected claims seems to suggest, once again, the congressional interest in assuring that justice was done to private claims petitioners. Yet notwithstanding this considerable attention to commission structure and process, federal legislation left a substantial number of questions to be resolved by administrative rule or practice. What were the formal requirements for stating a claim? Were witnesses required to appear, testify, and be cross-examined by the commissioners or representatives of the United States? Or could testimony be provided by letter or affidavit, or in some other form? What documentary evidence of a grant or title was acceptable? Could parol evidence substitute when documents were missing? Could claimants be represented by attorneys or others? What sorts of findings and reasons were expected from commissioners when they decided a case? As might be expected, the treasury secretaries, and later the commissioners of the General Land Office, were active participants in developing adjudicatory policies. For example, on September 8, 1806, Gallatin sent two documents to the private claims commissioners for St. Louis. The first contained a series of substantive directions concerning the interpretation and application of the statute authorizing the adjudication of claims in that territory. The second provided procedural instructions concerning the organization of the commissioners’ reports of claims decisions and the factual and legal matters that were to be included in these “transcripts” for each decided claim. But, recognizing that not everything could be controlled by central directive, Gallatin concluded by suggesting that the commissioners include such other matters as would in their judgment inform Congress about the facts and circumstances surrounding their decisions.88 And in his correspondence Gallatin described the commissioners as “the sole judge[s] of what should be considered” and as “court[s] without appeal for the purpose of which they were initiated.”89 The reports of the various commissions only hint at the procedures that they employed. They often contain a paragraph or two on each claim stating the evidence (in very summary form) and the basis for the commission’s decision (in a generally conclusory fashion). From these documents, one can discern that the commissioners were accepting all manner of evidence, including official certificates and grants, affidavits of interested parties and

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witnesses, and live testimony before the commissions themselves. And while enterprising “country lawyers” set themselves up near land offices to represent claimants, the commissioners’ reports have very little in them that one would characterize as legal argument. The reports were meant to satisfy Congress and Treasury officials, not a reviewing court. For, as we will see, no judicial review in any straightforward sense was available. Administrative Oversight and Enforcement

The statutes establishing the land offices in the field and the commissioner system for adjudicating claims required periodic reports, usually quarterly, but sometimes monthly, to the Treasury Department, or later to the General Land Office.90 But in any such system, there is always the question of whether the report represents reality. Examination at the seat of government could uncover inconsistencies in the reports or mathematical errors, of which there were many. But were the land offices holding public auctions in the fashion prescribed by statute? Did their entries accurately reflect what had happened at the auctions? Did the officers properly conduct private sales of unsold parcels? Was there collusion, favoritism, bribery, or extortion? None of these things could be determined from the face of the reports. And, as noted in Chapter 2, field inspections of the land offices in the early years of public land sales were not very useful. They were carried out by locals deputized for the purpose, persons who not only had no training, but who were often friends or associates of the land office personnel. In 1816 Treasury Secretary Alexander J. Dallas reformed the audit system. He deputized one of the clerks of the General Land Office in Washington to go into the field to examine all of the land offices. This examiner could use the same inspection methods in each office and compare the quality of their operations. And upon returning to Washington, he also could convey an enormous amount of useful, informal information to the central office that might not be contained in, or appropriate for, written reports. All written reports would be made available to Congress and would likely show up in the press.91 This vastly superior system resulted in many reforms, but it required some additional expenditures for the travel expenses of the clerk. The evervigilant and parsimonious House of Representatives demanded a detailed report from the Secretary of the Treasury defending the new system.92 Congress was satisfied, and the new system of audit continued. Auditing the books and inspecting the offices was one thing; collecting the money that was due to the United States for the sale of public lands was

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quite another. Republican Congresses had in effect continued the system of settling accounts that dated from the Federalist period. The Controller of the Treasury was responsible for enforcement—that is, to ensure that officers, in this case the receivers of the Land Department, submitted their accounts. When accounts were in arrears, the Controller’s only remedy was to bring suits against the receivers or their sureties. Indeed, if reports had never been submitted, two lawsuits were required: one to produce the account, and a second to pursue any deficiency. Under this cumbersome system, some accounts in the General Land Office remained unsettled for a decade.93 In part this resulted from the complex statutory requirements for accounting records. A fi scally austere Congress was loath either to relax the accounting requirements or to give the auditing departments sufficient personnel to deal with the accounts that flooded in as the land office business exploded. But the requirement that personnel be policed by lawsuit certainly did not aid the Controller in clearing the backlog. Gallatin had recognized that the system was inadequate as early as 1801,94 but Congress did not provide reforms until 1817. And that statute merely centralized the audit function and provided additional staff.95 Collection still occurred through court action. Finally, in 1820,96 Congress applied to all receivers of public monies the administrative enforcement procedure that had been used against delinquent collectors of excise taxes as early as 1793. Under this “new” summary procedure, the Controller, or a specially appointed collection agent, could issue a distress warrant to any U.S. Marshal against any officer who had failed to render his accounts or remit money as prescribed by law. The warrant permitted summary forfeiture of the collector’s bond and seizure and sale of any other of the officer’s properties necessary to settle the debt. Additional statutes in 1823 and 1828 permitted further administrative relief: withholding the salary of officers whose accounts were in arrears and dismissing them from the public ser vice for failure to submit quarterly returns.97 As a result of these reforms, most of the substantial collections of land offices found their way into the Treasury or were used for its purposes.98 Adjudication by lawsuit was gradually giving ground to more efficient and expeditious administrative processes both for determining claims to public lands and to the policing of public officers. Congressional Reports and Investigations

Congressional control of administration was a central Republican dogma. The reporting and recording requirements for land claims determinations

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and the exquisitely specific surveying statutes are cases in point.99 But, as we have seen, Republican Congresses inevitably had the same difficulties as Federalist Congresses in constraining administrators’ discretion by statute. On some major issues, such as how to adjudicate private land claims, Congress could do no better than to instruct the commissioners to honor the government’s treaty and cession commitments, to adjudicate in accordance with the law of the place and time of an alleged grant, and to confirm or deny claims on the basis of “justice and equity.”100 Uniformity in the interpretation of the applicable laws and the elaboration of the notions of “justice and equity” would have to come from Treasury and Land Office instructions. Over time even Republican Congresses came to recognize the need to tolerate administrative discretion. For example, many recording errors in locating claims resulted from the necessarily inexact surveys of the public domain and the incorrect or missing marks of the surveyors. When a buyer discovered that his land had been misrecorded in the land office, the register, operating under highly specific statutory instructions, had no authority to correct the error. The buyer’s only recourse was to petition Congress for a special statute authorizing the correction.101 Many such statutes appear in the Statutes at Large prior to 1819.102 In that year, Congress fi nally authorized the registers and receivers of land offices to make corrections upon the application of purchasers. The only statutory guidance was that buyers provide “testimony satisfactory to the register and receiver of public moneys.”103 At the same time, the Jeffersonian-Republican period saw Congress come into its own as an overseer of administrative departments. The American State Papers document hundreds of congressional requests for information, often in highly detailed form.104 As the Federalists had before them, Republican presidents and heads of departments generally complied with these requests.105 And all departments filed annual reports with Congress accompanying the annual message of the President. While Republican Congresses used many ad hoc and special investigative committees, the Republican period saw the institutionalization of Congress in ways that permitted it to exercise more continuous and informed oversight over administrative operations. By 1816 the House had established six standing committees on expenditures— one each for the Departments of State, Treasury, War, Navy, and the Post Office, and one on public buildings. This institutionalization was a part of Henry Clay’s general campaign to empower Congress “to take control of the government.”106 The House also had standing committees that dealt with matters of general legislation concerning these departments. Republican Congresses thus divided

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congressional work into roughly the authorization and appropriations functions that have lasted until the present time. But unlike Congresses of the twenty-first century, Republican Congresses of the early nineteenth century had no staff to do much of the detail work. As a consequence, while the committees on expenditures labored mightily to contain the costs of the national government, they found it impossible to inquire carefully into departmental accounts and still discharge their general legislative duties.107 Even so, after Jefferson left office, Republican Congresses shifted the balance of power with respect to the political control of administration away from the department heads and the President and toward Congress and its committees. Judicial Review and the Public Lands

The position of the officials deciding public lands claims was almost the opposite of those enforcing the embargo, who labored under the everpresent threat of a common law damage action tried before a local jury. To be sure, land office personnel had no official immunity either. But for reasons both practical and legal, errors of fact or law in determining private land claims or issuing land patents seldom, if ever, put their patrimony at risk. One practical reason was that claimants wanted the land, not damages, and officials had no title to the public domain, legal or equitable. Lawsuits pursued specific remedies rather than damage actions— sometimes mandamus, injunction, or ejectment against officials in those rare cases when they were in possession, but almost always ejectment against another private claimant in possession. This practical desire to pursue specific relief rather than damages, even when an officer was the possessor, was facilitated by a legal peculiarity. As then-Professor Antonin Scalia demonstrated nearly four decades ago, sovereign immunity had no effect on public lands litigation until the twentieth century.108 There was simply no discussion of sovereign immunity in the Supreme Court opinions involving public lands actions seeking specific remedies against federal officers,109 notwithstanding the obvious fact that the only party that could hold or transfer title or possession was the United States. A second practical consideration was the availability of relief from Congress. As noted earlier, when claimants had a reasonable moral case, but a weak legal one, Congress habitually intervened to provide relief. Congressional petitions were rendered even more attractive by a second legal consideration: the extremely narrow scope of review that the courts were prepared

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to exercise in public lands cases. There was no statutory provision for review of the commissioners’ decisions on private land claims, which meant that review by appeal or on a writ of error was unavailable.110 Moreover, most commission decisions affirming title required congressional confirmation. After Congress acted, the courts simply declined to review a legislatively settled claim directly.111 Collateral attacks on the validity of a patent might be raised by a third party claimant in an action for ejectment, or by way of defense when the holder of a patent sought to eject a third party in possession.112 But, as Ann Woolhandler has argued, the courts treated the patent decisions of the land office as the decisions of a coordinate tribunal that could be attacked only for jurisdictional error.113 This restrictive approach to judicial review broke down in the late nineteenth century under the twin assaults of judicial expansion of the idea of jurisdictional error114 and of appeals to the courts’ equitable powers to remedy “mistakes, injustice, and wrong.”115 But review then mutated into a form of the nonstatutory judicial review of government action that is familiar to contemporary administrative lawyers,116 rather than into the pursuit of errant officials for damages at common law.117

“Republicanism” and Administration According to Law The “great irony of American political development” with which this part of the book began was much in evidence in the Jeffersonian-Republican period. Thomas Jefferson and his followers understood democracy in a communitarian sense that emphasized the virtue of small-scale governments in which the people could be directly involved. He repeatedly suggested that the most important institutional development for protecting democracy would be to divide the country into wards.118 On this view, representative assemblies were merely a necessary inconvenience, the distant, national government a threat to democracy, and a powerful national administration almost the definition of tyranny. Yet the two national activities reviewed in this and the preceding chapter show the Jeffersonian Republicans trapped by James Morone’s irony into energetic assertions of national power and the multiplication of national offices. War, after all, is probably the greatest state-builder of all. War time demands for energy, unity, and obedience, and for speedy policy development and implementation, almost always enhance national administrative capacity. Jefferson reduced the Army and Navy and substituted an embargo for war not only out of necessity, but to protect democracy from the threat of a

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large military establishment and of the taxing and collecting bureaucracy that would be necessary to support it. Yet as Henry Adams concluded, this attempt to protect democracy by substituting economic coercion for war produced a level of executive oppression and limitation of citizens’ rights exceeding that to be found in European regimes that were almost constantly at war. In the embargo legislation, the delegations of discretion to the President, and to lower-level officials to act on the basis of “opinion,” approached the level of sovereign prerogative. To be sure the embargo was short-lived, but it was only the most draconian exercise of federal power in an unbroken line of trade regulation measures, including nonintercourse, nonimportation, and limited embargo measures that stretch from the Declaration of Independence to the present. Albert Gallatin has had many administrative heirs. The disposition of the public domain produced similar demands for administrative capacity and longer-lasting results. The sale of western lands in sections and half sections was part of the Republican dream of populating the expanding nation with yeoman farmers who would demand to be self-governing and who would provide a counterweight to the mercantile interests of the Eastern Seaboard. Yet land sales fueled massive speculation and colossal instances of corruption. More important for our purposes, such sales demanded the creation of a national administrative machinery that reached into every corner of the expanding national territory. The independent private landowner may have been the bulwark of democracy, but producing stable private titles required a national administrative effort of enormous proportions. Land had to be bureaucratized in order to be sold, and disputes about ownership demanded the creation of America’s first system of mass administrative adjudication. To be sure, the Jeffersonian Republicans were reluctant nationalists. But, that is the irony of their state-building. They could starve national administration for funds and personnel, and they did. But in the end they could not avoid leaving a national administration that was larger in relation to the country’s population than the one they had inherited from those statebuilding Federalists who preceded them. Population slightly more than doubled in the period 1801 to 1830, but federal civilian employment quadrupled. Growth in the postal ser vice dominated, but the number of government employees outside the Post Office showed equally large gains in percentage terms.119 There is perhaps an additional irony here. Jeffersonian Republicans were not just small government conservatives: they were also committed to local control. Yet in both the enforcement of the embargo and the regularization

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of the sale of public lands they faced and fought intense local resistance. Jefferson tried and failed to co- opt local political power to implement his embargo. But he ultimately was forced to rely on the military and naval forces, although he viewed the first as a threat to liberty and the second as an unnecessary drain on the public fisc. Similarly, the registers and receivers of the district land offices found themselves at constant loggerheads with indigenous institutions of self-governance such as local land clubs, many of whom had developed their own systems of property registration. The story of administrative capacity, action, and practice in the Republican era is not, however, merely one of a reluctant central government engaged in administrative state-building. It is also a story about how the accountability mechanisms for binding administrative power to both law and political oversight developed along with administration itself. And, as in the Federalist period, administrative accountability in the Republican era emphasized means of internal administrative control. Judicial review clearly existed, but it seemed largely to demonstrate that institution’s capacity for either impertinence or irrelevance: impertinence first because subjecting officials to personal liability in de novo proceedings before local juries was a formula for timid administration. And criminal trials before those same local juries, the standard means of enforcement of administrative orders, could derail implementation whenever resistance to national policy was substantial. Legal accountability, as the embargo episode demonstrated, can be too strong as well as too weak. But jury control, even nullification, cast legal control in a local and popular form that was not too strong for Republican Congresses, however much it might inhibit energetic administration. By contrast, as we saw in relation to the review of the determinations of private land claims commissions, judicial review could also be weak to the point of virtual irrelevance. “Judicial review” in the Jeffersonian-Republican era seemed to be crystallizing into bipolar modalities. “Common law” review in suits for damages or through defenses in criminal prosecutions was de novo and highly intrusive; the more “public law”-oriented review via prerogative writs was limited to a search for “jurisdiction” or “authority” that avoided consideration of the question that dominates twenty-first-century substantive judicial review—the reasonableness of administrative action. Here the emerging administrative constitution featured both strong separation of powers commitments and a continuing respect for individual rights as embodied in the common law. There is no irony in the Republicans’ emphasis on controlling administration through statutory specificity and congressional oversight. Representative

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assemblies were central to their understanding of democracy in a republic. Assembly control over administration was thus a democratic imperative. The only irony here is that effective congressional control tends to demand both increased bureaucratization of administration and the bureaucratization of Congress itself. In order to exercise control, Congress needed information, and its demands for reports and audits pressed administration toward formality, recordkeeping, and caution. The ever-present prospect of being called to account for the propriety of one’s actions demands not only that square corners be turned, but that those turnings be documented for subsequent inspection. If modern bureaucracy is drowning in red tape, that tape stretches back at least to the Republican era. And, of course, in order to do anything with this information, Congress had to bureaucratize itself. Federalist practice and Republican theory emphasized the assembly as a committee of the whole deliberating about the common good. Administrative oversight demanded specialized committees with knowledge of the relevant fields and time to pursue necessary information. As we have seen, statutory specificity could only do so much, and Republican Congresses could not really process all the information they demanded that administrators provide.120 Congress did not have the staff. And parsimonious Republican legislators could not be expected to ramp up the administrative expenses of Congress as an economy measure (even though it might have been). Yet they began the institutionalization of Congress through a committee system that has balkanized legislative decision making from that time forward. General democratic deliberation had not deteriorated by the end of the Republican era into modern “iron triangles” of clients, bureaus, and congressional subcommittees. But, in the name of assuring the democratic accountability of administration, that process had begun. Finally, if one looks carefully at the Republican era, the most prominent and successful accountability mechanisms were the internal controls exercised by departments over officers in the field and the systems of checks and balances within departments. Customs collectors, land office commissioners, and land surveyors took cues from congressional legislation and oversight. And revenue collectors lived in fear of litigation. But the consistency, propriety, and energy of administrative implementation was made accountable primarily to high-ranking officials in the Treasury and the General Land Office. These were the sources of instruction, interpretation, audit, and oversight that counted in the day-to-day activities of administrative officials. Given the level of internal activity designed to guide and control lower-level officials, one can hardly doubt the seriousness of the enterprise.

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Given the ubiquity of field officers’ requests for direction, this “internal law” of administration seems to have been relatively successful.121 Similar arguments might easily be made today.122 I should hasten to add that the “internal law of administration” that was so much in evidence in the studies of the embargo and the sale of the public domain was not an exercise in “presidentialism” of the sort that is now quite popular. Presidential involvement, indeed micromanagement, was evident in the implementation of the embargo. But that distinguished the embargo episode from virtually all the rest of Republican-era administration. Although Jefferson’s administrative interventions were transparent and energetic, reinforcement of democracy via presidential control was not a part of the intellectual toolkit of Jeffersonian Republicans. Assembly government was democracy. The President was picked by the electoral college, and occasionally by the House of Representatives, after a campaign in which presidential hopefuls espoused no platform and hardly showed themselves to the people. Indeed, given the limitations on the franchise, the President as a representative of the people only became plausible with the reforms in election law and the consolidation of national political parties that were ushered in by Andrew Jackson and his Democratic successors—the subjects of the next part of this book. Nor did the Jeffersonian Republicans understand administration as a function to be performed by independent experts insulated from politics. That idea, too, came later. Yet, as described in Chapter 2, from the earliest days of the Republic certain functions within departments were made independent from the control of the “political” executive officers. The Auditor in the Treasury Department, for example, determined the legality of all expenditures, subject to an appeal on disallowed claims to the Comptroller. Neither officer was subject to direction by the Secretary of the Treasury or the President, although the Auditor or Controller could, of course, be removed.123 Similar divisions of authority extended to field operations. Transactions in the local land offices were in the general charge of the register but subject to the independent authority of the receiver with respect to monetary receipts and disbursements.124 Control of administration through internal checks and balances would become even more prominent soon after the last Jeffersonian-Republican President gave way to the “Democracy” of Andrew Jackson.125 This idea of a quasi-independent, but internally responsible, administrative organization continues to attract those who are skeptical of the efficacy of governmental accountability through either judicial review or the polarized politics of electoral institutions.126 The efforts of men like Albert Gallatin

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in the Republican era make clear that this vision of self-restraining administration is something more than a mere pipe dream. To be sure, autocrats of all stripes prefer to control the behavior of underlings. And the competition for effective control between principals and agents in all organizations now sets the agenda for a healthy proportion of the economic and legal scholarship on the governance of private business organizations, and for political scientists who analyze institutional design from the perspective of the subfield of positive political theory. But in these contexts, control of administration is either normatively dubious (autocracy) or assumed to be virtuous (principal-agent theory). Was the “internal law of administration” that developed in the Republican Era in response to pressing problems of effective governance similarly disconnected from democratic and rule-of-law values that would give it a reasonable claim to democratic and legal legitimacy? That could be, of course. Administrators can pursue their own goals— just as willful politicians or judges can warp the systems of political and legal accountability that structure, monitor, and constrain administrative action from outside administration. But that is surely not the system of internal administrative accountability that has been described in these pages. Central control and instruction of field officers implementing the embargo and the government’s public lands policies strongly reinforced democratic commitments to assembly government. Treasury and Land Office circulars and manuals began with the statutes and sought to unify interpretation around the understandings of those high-level personnel who had the greatest association with the legislative process— indeed, who often drafted the statutes they were charged with implementing. And, where legality demanded divorce from political control, the statutory independence of adjudicatory and accounting functions within departments was respected. Moreover, Jefferson’s singular nonacquiescence in one judicial interpretation of the embargo statutes was premised precisely on the necessity to assure rule-of-law values— consistency in application and the avoidance of local or partisan bias. Instead of asserting executive prerogative, Jefferson validated his position by seeking and obtaining an explicit power to direct field personnel in the Enforcement Act. In a similar vein, the Treasury sought and obtained summary enforcement power against delinquent officers in order to reestablish public control over public funds, and it revised and bureaucratized its audit procedures with respect to local land offices to assure conformity with federal statutes and implementing regulations. These observations, of course, only begin to explore the questions of normative appropriateness and effective institutional design that would

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illuminate the often invisible world of internal administrative law. The experiences of the Republican period recounted here can, at most, provide some support for the idea that internal administrative law is important— a legal world too often ignored by an administrative law focused largely on external control and accountability. But it is perhaps not too audacious to conclude that Jeffersonian-Republican practices reflect an additional irony: political actors ideologically committed to the avoidance of national administrative capacity nevertheless provided us with some attractive models of what politically responsible and legally accountable administration might look like. They did so by building internal capacities for administrative control.

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PART III

administration and “the democracy” 1829–1861

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8

Democracy and Administration

Nobody knows what he will do when he does come. . . . My opinion is, that when he comes he will bring a breeze with him. Daniel Webster (1829)

Daniel Webster’s words,1 written on the eve of Andrew Jackson’s inauguration, described not just a man or an administration, but an era. It was a breezy three decades of technological, territorial, social, economic, and, perhaps above all, political change.2 Technologically, America went from the age of the sailing vessel, the stage coach, and the quill pen to the age of the steamboat,3 the railroad,4 and the telegraph.5 The technological revolutions in transportation and communications fueled economic growth and transformed the economy. Production of goods moved steadily from artisan or household fabrication toward industrial production organized on a factory model.6 Because manufacturing is capital intensive and relies heavily on the credit system, industrialization tended to produce not only stronger economic growth, but stronger swings in the economic pendulum of boom and bust. Revolutions in technology and industrial organization changed peoples’ lives and were experienced as revolutions in social7 and economic relations. Americans were wealthier, but economic life became both less secure and more depersonalized.8 Even more profoundly, factory production stripped workers of social status and of control over their own labor. Many Americans embraced these changes. But fear of corporate monopoly, soft-money speculation, and debasement of the value of honest toil also fueled a groundswell of anxious popular sentiment.9 Urbanization further fanned the flames of popular anxiety. The factory system required that workers be brought together in large numbers. Population and economic growth occurred, therefore, at hubs where transportation and communications facilitated industrial and commercial activity.10 In the cities these newly urbanized and proletarianized Americans jostled together

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with wave after wave of foreign immigrants whose languages, customs, and religions reinforced native-born Americans’ sense of a crumbling social order. Of the 31 million Americans counted in the 1860 census, approximately one in eight was of foreign birth.11 The United States began to see its first organized campaigns for workers’ rights and restrictions on immigration.12 Economic and social change also exacerbated regional tensions. Manufacturing and urbanization were largely confined to the North and the East. And while northerners and southerners had viewed themselves as living in rather different societies almost from the time of the colonization of North America, the industrializing and urbanizing Northeast became ever more distant socially from the plantation South. While these latitudinal divisions would ultimately lead to war, social divisions between easterners and westerners were also pronounced. Andrew Jackson came to the presidency as a man of the West, embodying the agrarian, republican values of the more newly settled portions of the country. Easterners were, by contrast, more comfortable with an economy built on commerce and manufacturing, and with politics centered around traditional elites.13 During the Jacksonian era, massive territorial expansion exacerbated these NorthSouth14 and East-West divisions. When Jackson arrived from Tennessee for his inauguration, the United States was only precariously settled on the western banks of the Mississippi and had no solid territorial claim to nearly one-half of the lands lying between the Mississippi and the Pacific. By 1860, through war, annexation, purchase, and compromise with foreign powers, all of the territory that would ultimately comprise the forty-eight contiguous states was under U.S. dominion. The rules and practices of politics were changing as well.15 By the time of Jackson’s election, the states comprising the United States were shifting rapidly from restrictive, property-based voting regimes to eligibility rules that promoted universal white male suffrage.16 In most states this broadened electorate, rather than the state legislature, chose electoral college delegates who were pledged to par ticular candidates. Candidate selection thus shifted from congressional caucuses to party conventions. These changes in voting rules and nominating practices transformed political participation. In 1824 roughly 27 percent of the eligible population voted in the presidential election. In the period 1828 to 1856, the percentage of the eligible population that voted in presidential elections averaged 69 percent.17 Hence, from Jackson forward presidents could claim, with some justification, that they were the representatives of the people.18 Changes in voting rules, voter participation, and the democratic symbolism of the Presidency demanded a reorganization of partisan political life.

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In order to elect a president, parties had to function both locally and nationally. Politics was no longer controlled by local notables, well-born, and wellto-do amateurs. It was becoming, if not a profession, at least a job. Much of politics remained local, but it could be mobilized nationally because it was supported by patronage distributed from Washington.19 The massive changes that swept through Jacksonian America would seem to have set the stage for equally substantial changes in American governance. Political entrepreneurs usually mobilize to respond to what they perceive to be the underlying demands of the times. New issues emerge, old problems are redefined, and the political process generates new institutions to deal with both. And as government pushes out into new fields or deploys new techniques, governmental novelty generates anxieties about the control of governmental power and the accountability of governmental officials. From this perspective Jacksonian America should have been a boom time for activist government and for the growth of administration and administrative law. Yet that is not the conventional story of Jacksonian democracy. According to that story, Jacksonian America was characterized not by the building of national capacities, but by the triumph of anti-government, anti-state political ideology. “The Democracy” that Andrew Jackson symbolized was about power to the people, and to the states and localities, not power to the federal government.20 From the perspective of electoral politics and partisan ideology, this conventional story is doubtless correct. In the late 1820s and early 1830s, a political realignment split the Jeffersonian Republican party into two warring factions. The nationalist Clay-Adams wing became the National Republicans, which shortly morphed into the Whigs. The Whig party line embraced change. It emphasized a neo-Hamiltonian program of federally funded internal improvements, regulation and promotion of credit through a powerful national bank, and protective tariffs to aid the growth of American manufacturing. The “Old Republican” wing of the Jeffersonian Republicans became the Jacksonian Democrats, or sometimes just “The Democracy.” The Democratic Party line was deeply conservative, even reactionary. It appealed to the anxious majority of Americans troubled by developments that the Whigs viewed as “progress.” Ideologically, Jacksonian Democrats insisted on strict construction of the Constitution, a small and frugal federal government, and states’ rights.21 Electorally, the Democrats triumphed.22 And, as a result, “The Democracy’s” political preferences also prevailed.23 Thomas Jefferson had hoped that the government could operate so invisibly that citizens would hardly notice it.24 Alexis de Tocqueville, visiting America at the beginning of the

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Jacksonian era, explained the strength of Americans’ attachment to the Union in terms of a federal system that left citizens free to pursue their local interests through local politics. In his words, “The Union is a great republic in extent, but the paucity of objects for which its Government provides assimilates it to a small State.”25 Given their small government ideology and electoral successes, the Jacksonians might be expected, at most, to have left a weak national government much as they found it. To be sure, the federal government grew in the age of Jackson. While population doubled from 1830 to 1860, federal expenditures more than quadrupled.26 And federal government civilian employment also grew faster than population.27 But, as Leonard White again tells us, these increases in the size of the national government were not fueled by the government’s taking on new functions.28 He echoes the conventional view that the expansion of governmental functions in the period 1829 to 1861 affected primarily state and local government, not the federal establishment.29 Such changes as there were in the administrative system during the Jacksonian era White ascribes to “changes in magnitude, in complexity, and in the influence of external forces, principally the political party.”30 If these descriptions are accurate, there should be little in the Jacksonian era to hold our attention. If one is interested in how law evolves as it both builds and binds administration, a government that systematically avoids innovation is not likely to be very revealing. Yet, however persuasive this conventional story, it obscures some crucial developments in an era that is notoriously difficult to characterize.31 First, changes in the scale of government can have effects that yield qualitative changes in government organization and practice. As size increases, reliance on bureaucratic or administrative systems of control almost necessarily displaces accountability structured through personal responsibility and loyalty.32 Indeed, when substantial increases in the scale of administrative activities were combined with Jackson’s political program to democratize administration through rotation in office, the bureaucratization of administration was almost assured. Experienced officials can operate on custom and institutional memory; constant turnover in personnel demands rules and routines. The Jacksonian period thus ultimately produced another revolution, one that changed both the understanding of the idea of “office” and ideas about how official fidelity to public duty should be controlled. Democracy begat bureaucracy.33 Second, although the Jacksonian Democrats opposed the Whig program of federal initiatives to stimulate economic development, their ideology was not the ideology of laissez-faire. Following Marvin Meyers,34 Matthew

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Crenson argues persuasively that Jacksonian Democratic belief involved fi rst and foremost a belief in republican virtue. Government had a high purpose: to make men good. But republicanism for the Jacksonians was not the classical republican ideal of the pursuit of virtue through civic engagement. It featured instead a commitment to governmental action that would tend to assure that virtue, understood as honesty and hard work, would be rewarded.35 This commitment yielded mostly a negative program: avoidance of monopoly (hence the antipathy to the “Monster Bank” and to corporate charters generally); suppression of economic activity that was viewed as mere speculation (hence the Jacksonian aversion to all banks and the embrace of a “hard money” policy); and limitations on government actions, such as the funding of internal improvements, that were thought to lead to “systematic corruption.”36 Yet the notion that government should make men good sometimes demanded that government grow. The refusal to recharter the Bank of the United States required that its functions be taken back into the government itself. As John M. McFaul put it in his study of Jacksonian financial policy, “This study . . . documents a curious but . . . familiar pattern of events in American political history: . . . Jacksonians with their anti-state, anti-government bias ended up strengthening both state and government.”37 Indeed, the Jacksonian period witnessed energetic exercises of national governmental authority to relocate Indian tribes,38 enforce federal tariffs,39 and press the boundaries of the United States to the Rio Grande and the Pacific.40 At least where the War Department was the administrative instrument, whether to relocate Native Americans, enforce customs duties, or annex territory, Jacksonians were not bashful about projecting national power. The Jacksonian period also spawned regulatory innovation and the creation of entirely new administrative institutions. One tentative step was the Patent Reform Act of 1836.41 Since 1793 the United States had operated a pure registration system for patents. Any inventor presenting a formally complete application for a patent was entitled to receive one with no exercise of judgment about whether the invention was really new or was sufficiently useful or important to warrant a patent.42 The 1836 statute created the new office of Commissioner of Patents, which was charged with examining alleged new inventions or discoveries and issuing a patent only if the Patent Office found that they were in fact new and “sufficiently useful and important” to warrant patentability.43 While this reform to some degree removed the patentability question from the common law courts and placed it in an adjudicatory administrative agency,44 it was a partial measure.

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The Commissioner of Patents was given no rulemaking authority, and administrative precedents were difficult to develop when administrative appeals went to special boards appointed for each individual dispute. Moreover, these ad hoc boards’ decisions were subject to further review by federal circuit courts in a de novo proceeding in the form of a bill in equity.45 Under this system, the Patent Office took some of the load off of the courts, but the development of the law of patentability remained largely in judicial hands, as it is today.46 The rise of steamboat travel had more transformative effects. The human carnage that resulted from collisions, fires, and bursting boilers fueled popular demand for governmental action. It propelled a reluctant Congress into authorizing a much bolder regulatory innovation—the national government’s first major health and safety regulatory program. Moreover, as will be discussed in much greater detail in Chapter 11, that program pioneered (1) “scientific regulation,” (2) the “board” or “commission” form of administrative organization that would loom so large in Progressive and New Deal regulatory legislation, and (3) the use of administrative rulemaking as a principal technique for articulating regulatory standards. Old issues of governmental organization were also reopened and given new forms. In addition to the establishment of the Court of Claims, similar, prolonged campaigns to establish a “Home Department”47 and to augment the status and authority of the Attorney General48 both bore fruit during the Jacksonian era. And the democratic mandate claimed by a popular—that is, popularly elected—President rekindled the struggle between the President and Congress over political control of appointments and removals. It also energized congressional oversight, investigation, and reorganization of administrative departments.49 Finally, resolution of confl icts concerning the supervisory powers of upper-level officials and their powers of direction— conflicts that began in the earliest days of the Republic—became ever more critical to the maintenance of administrative consistency and the rule of law.50 Growth and development of administrative capacities despite the dominance of small government ideology are hardly unique to Jacksonian America. The constitutional politics of the whole of the antebellum period tends to obscure the relatively continuous growth and organizational development of national administrative capacity in the first century of the American Republic. This is not, of course, to claim that developments followed a simple, linear trend line or to deny the transformative effects of the Civil War. If war is the great state builder, a civil war that successfully subdues sectional rebellion is the great consolidator of national power.51 It would

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take some years after peace was restored to work itself out, but a regime change would occur. A new constitutional understanding would emerge in the postbellum world, one more sympathetic to the recognition of the uses of national power and less hostile to both the building and recognition of national administrative capacities.52 In short, the conventional story of the postbellum emergence of national authority and a bureaucratized administrative state is hardly a historiographical conceit. But, like the Republican period of 1800 to 1829, in the “middleperiod” from Jackson to Lincoln, ideological commitments and constitutional politics provide only a partial picture of how American government actually operated. Alongside the democratization of American governance, administration and administrative law were evolving in the Jacksonian era in response to a changing national reality. “The Democracy” laid waste the remains of the Federalist political system of rule by social and economic elites that Jefferson’s “revolution” had not dismembered. But the institutionalization of democratic reform also promoted the building of state capacities, bureaucratization of offices, and regulatory innovation. At the same time, the recognition of the democratic authority of the executive branch sharply restricted the development of modern forms of judicial review of administrative action. The result was a distinctive structure of administrative legal authority and control of administrative action that contrasts starkly with our twenty-first-century understanding of administrative law. All of the developments that characterize that evolutionary process cannot be explored here in any detail. This part will concentrate on three major topics: (1) the development of monetary policy and the internalization of government regulation of the money supply; (2) the rotation in office and the shifts in ideas, organization, and technique that redefined the public service in the Jacksonian era; and (3) the regulatory system for steamboat transportation. These three case studies illustrate the major themes of administrative development in the Jacksonian era. And in each case, although in slightly different ways, administrative innovation emerges out of democratic commitments. The first, the de-chartering of the Bank and the internalization of monetary policy, is a harbinger of many Progressive Era regulatory reforms. Here, as in that later period, reform was motivated by loss of faith in private institutions and popular revulsion against the corruption of politics by the power of private monopoly. To control private power, democratic reformers were required to build state capacity. The second, rotation in office, is essentially a bureaucratization story. Democratization of offices yielded the bitter fruits of incapacity and corruption. Those disagreeable effects generated

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countermovements of reorganization and reform that began to build a functionally differentiated and hierarchically controlled civil ser vice. Finally, popular demand for the regulation of steamboat travel not only thrust the federal government for the first time into domestic health and safety regulation, it also introduced the quite modern theme of harnessing regulatory authority to both practical experience and scientific learning. Here, democratic demands for action generated a response that featured democracy’s twentieth-century rival, administrative expertise. These developments reveal different aspects of the development of national administration in response to the democratization of politics. Indeed, from the standpoint of institutional design or public administration, they are unified by little more than a common thread of institutional experimentation. The Jacksonians had theories of politics, but no theories of administration. Their reforms and initiatives were driven by both political commitments and emerging public demands, but neither motivation implied much, if anything, about administrative structure or technique. Yet, however eclectic (and reluctant) the Jacksonian approach to building national administrative capacities, the emergence of those capacities would seem to suggest that corresponding attention be given to administrative accountability and control. Here, administrative law played its conventional roles: mediating the struggle between presidents and Congresses for the control of administrative implementation, structuring the internal mechanisms of accountability within bureaus and within the executive branch as a whole, and providing opportunities for external accountability to law through judicial review of administrative action. The development of administrative accountability in the Jacksonian era is not necessarily a success story. This was an era whose administrative practices often challenge our contemporary understandings. We tend to assume that internal administrative structures, rules, and processes should be designed to assure the rule of law, not allegiance to persons, parties, or ideologies. Rotation in office and party control of administrative appointments and removals in Jacksonian America hardly facilitated fidelity to impersonal norms of effectiveness and legality. It was also an era in which interbranch struggles for political control of administration, and the inherited common law techniques of judicial review, revealed the weakness of administrative law, both as a set of consensus norms for the mediation of interbranch conflict and as an external check on administrative legality. But this summary account anticipates and oversimplifies a complicated story. Chapters 9– 11 analyze the administrative structures and practices that grew up around the internalization of monetary policy in the sub-Treasury

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system, the system of rotation in office, and steamboat regulation. These chapters provide, in some detail, a portrait of the body of administrative law that administrators of the Jacksonian period constructed from the oftendivergent imperatives of congressional legislation, partisan political struggle, and administrative necessity. Chapter 12 examines political and legal accountability in the Jacksonian era in order to illuminate some aspects of political control not touched on in the preceding case studies and to give content to the mid-nineteenth-century understanding of the role of courts in overseeing administration. It concludes by summarizing the contributions of Jacksonian Democracy to public administration and administrative law.

9

The Bank War and Sub-Treasury System

The so-called “Bank War,” generated by President Andrew Jackson’s determination to curb the power of the Second Bank of the United States, has been studied from multiple perspectives. Economic historians explore the effects of Jackson’s victory—the removal of the Bank from its position as the chief fiscal and monetary agent of the national government— on the boomand-bust economic cycles of the mid-nineteenth century. Political historians see the Bank War through the lens of the partisan ideological competition of the Jacksonian era. Students of constitutional and administrative history take particular interest in the perennial separation-of-powers issues evident in the struggles between the President and Congress in Jackson’s second term. Each of these perspectives has much to teach us about governance in the Jacksonian era. This chapter’s focus, however, is on the less-studied question of what the Bank War and its aftermath reveal about the administrative techniques and structures deployed in implementing monetary policy in the mid-nineteenth century. Yet, the institutional changes that built national administrative capacities during the Jacksonian period must be understood within the context of the economic, political, and constitutional dimensions of the events that surrounded the expiration of the charter of the Second Bank of the United States. The constitutional dimensions of the Bank War highlight important and continuously contested issues of administrative law—the President’s authority to direct subordinate officers, Congress’s power to limit that authority, and the coordinate powers and responsibilities of the courts, Congress, and the executive branch to interpret the Constitution. These institutional relationships form a crucial part of the architecture of the American administrative constitution.

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Economics, Politics, and the Constitution Economics

The standard story of Jacksonian monetary policy is relatively straightforward.1 In the beginning there was the First Bank of the United States. The Jeffersonian Republicans opposed the Bank on political and constitutional grounds and allowed its charter to expire. Chastened by the severe economic dislocations that followed, the Jeffersonians chartered a Second Bank of the United States, which provided the Republic with a sound currency and the government with an effective fiscal agent. The political struggle between Andrew Jackson, as President of the United States, and Nicholas Biddle, as President of the Second Bank of the United States, ended in the destruction of the Second Bank’s central banking role when Jackson vetoed its recharter in 1832 and ordered the withdrawal of all government funds on deposit with it. Government funds were then deposited in selected state banks, which used the federal deposits as reserves to issue a blizzard of paper notes. State bank paper fueled a frenzied speculative bubble, particularly in the acquisition of public lands. The bubble was almost self-perpetuating. The receivers of the federal land offices redeposited these state bank notes in the state banks, where they were treated as additional deposits upon which to issue yet more paper. Seeing that the speculative boom was spiraling out of control, the federal government made the situation worse. First, Jackson instructed the Secretary of the Treasury to issue the so-called “specie circular,” which required that, after August 15, 1836, all payments for public lands be made in gold or silver. Then Congress passed legislation that required the distribution of the federal surplus to state banks in proportion to their respective state’s population. Implementation of the specie circular moved gold and silver to state banks in the South and West, where land sales were substantial, and away from Eastern centers of commerce. The proportionate depositing of the federal surplus with state treasuries made it impossible for the federal Treasury to correct these imbalances by moving excess deposits from the West to the East, where they were needed to ensure liquidity. The consequence of all these actions was a sharp contraction of credit and a bursting of the land bubble. Banks called in their loans, debtors defaulted, and the banking system floundered. After a brief recovery in 1838, the economy plunged into a severe depression that lasted until at least 1843. In this conventional story, banking politics triumphed over sound economics

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and the country paid the price. Some version of this narrative appears in virtually every major account of the period.2 This conventional account was challenged root and branch by Peter Temin’s well-known 1969 book, The Jacksonian Economy. But, whatever the soundness of Temin’s analysis,3 the traditional story is based in large part on the understandings of people who witnessed both the Bank War and the panic.4 And for the purposes of domestic politics and policy in the midnineteenth century, what people believed at the time was what mattered. The question for us is to understand first how politics drove economic policy, and second how those policies helped define the structures, techniques and capacities of administrative governance. Politics

Andrew Jackson’s political opposition to the Bank of the United States was both ideological and personal.5 Ideologically, Jackson believed in republican virtue, exemplified by hardworking, ordinary Americans like farmers and mechanics. The Bank of the United States (BUS) was a statutory monopoly with special privileges. It represented elite financial, commercial, and manufacturing interests, not the interests of ordinary Americans. Indeed, Jackson viewed all banks as potential promoters of speculation rather than honest work. Jackson also considered the BUS a threat to majoritarian democracy. It exercised enormous financial power pursuant to a statutory charter that left it unaccountable to the President, to Congress, or to the electorate. This financial power could be converted into political influence. In Jackson’s view, the BUS was not just unaccountable to the government—it had the capacity, by deploying its financial resources for political ends, to shape the government for its own purposes. Jackson’s objections to the BUS were based on personal factors as well. He had been brought to the verge of bankruptcy by the deflationary policies of the Second Bank. From personal experience Jackson associated banks, and particularly the BUS, with both speculative excesses and squeezes on worthy, small debtors. In addition, Jackson firmly believed that the BUS had used its funds to defeat both him and other Democratic candidates in the election of 1824. Hence, Jackson’s belief that the BUS’s power could undermine the right of suffrage was more than an abstract ideological commitment. And in some sense his beliefs became self-fulfilling. Once Jackson confirmed his intent to suppress the BUS’s power by vetoing the 1832 legislation rechartering it four years before its charter was to expire, undisguised

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political warfare broke out between the Jackson administration and the BUS and its allies in Congress. Even if the BUS had stayed out of politics before, it was in politics now. Returned to office following his veto, and after a campaign in which the chartering of the BUS was a major issue, Jackson interpreted his new mandate as one to defang the BUS.6 And, anticipating congressional opposition even after his success in the 1832 elections, Jackson did not seek legislation to rein in the BUS. He used his executive powers instead.7 Because the BUS’s power depended crucially on its position as the sole depositary for federal government funds, Jackson decided to withdraw them. But the statute establishing the BUS allowed removal only by the Secretary of the Treasury, who was required to state his reasons to Congress. Faced with a Secretary of the Treasury, Louis McLane, who favored the BUS, Jackson moved him to the State Department and replaced him with William Duane, a known BUS opponent. Once in office, however, Duane had second thoughts. On his construction of the banking statutes the only legitimate reason that he could give Congress for removal was that the deposits were unsafe with the BUS. Because it seemed to Duane that they were not only safe, but safer there than in alternative depositaries, he could not bring himself to make the necessary finding. In exasperation, Jackson removed Duane as Treasury Secretary and substituted Roger Taney. Taney promptly did the President’s bidding. Jackson had properly read the congressional mood. Taney was a recess appointment. When Congress returned, the Senate refused to confirm him. High politics ensued. The Whig-dominated Senate passed resolutions censuring the President, both for removing the deposits and for removing Duane. These resolutions declared that those actions, combined with the President’s use of the veto to thwart congressional majorities, revealed Jackson to be embarked on a sinister campaign to aggrandize the power of the Presidency. Whatever the truth about Jackson’s intentions—the opposition press often referred to him as “King Andrew”— he had won the Bank War and, in the process, substantially increased the domestic administrative powers of the Presidency. After the election of 1834, when the Democrats regained control of both houses of Congress, the Senate’s censure resolutions were expunged from the records and the BUS’s charter was allowed to expire. The Constitution

The Senate censure resolutions were motivated by the strongest of partisan motives, but they raised serious constitutional questions. Jackson’s veto

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of the BUS bill was in reliance in part on a determination that a national bank, in the form provided, was unconstitutional. But had not McCulloch v. Maryland 8 authoritatively decided that question? Was Jackson claiming that the President’s view of the Constitution trumped the Court’s? And, was it constitutionally proper for a President to remove a cabinet official because the President disagreed with the official’s exercise of a discretion that was conferred on him by statute? Finally, was the veto provided in the Constitution meant to allow the President to carry out his own policies any time Congress lacked a veto-proof majority? Andrew Jackson would have answered no, no, yes, and yes to those questions. And, in asserting the President’s power as forcefully as he did, Jackson made important contributions to our understanding of the Presidency and its relationship to administration.9 President Jackson’s veto of the rechartering of the Second Bank of the United States gave rise to two different constitutional complaints. One was that to the extent that the veto was based on policy grounds, it, like a number of Jackson’s other vetoes, exceeded the proper role of the President in approving or disapproving legislation. That complaint was based on prior practice or constitutional convention, not the text of the Constitution. But, while it was true that former presidents had vetoed legislation largely on constitutional grounds, this was not the uniform practice. President Madison, for example, had wholly on policy grounds vetoed the first attempt to charter the second BUS.10 More to the point, the political position of the Presidency had shifted. Because of the broadening of the electoral base and the move to popular selection of presidential electors, Jackson was the first President who could realistically claim to be popularly elected. He believed that he wielded veto power in the name of a majority of the people. Jackson’s practice both reflected and solidified a change in the institutional relationships within the national government. But President Jackson did not rest his case for his veto on policy alone: he also had constitutional objections. And if Jackson’s policy grounds asserted a presidential equality with the Congress in legislation, his constitutional objections to the BUS claimed for the President an equal status with the Supreme Court in interpreting the Constitution. Jackson’s critics viewed this as a claim that the President was above the law.11 But Jackson’s veto message made no such assertion. To be sure, the Supreme Court had decided in M’Culloch v. Maryland that Congress had the power under the Constitution to charter a national bank. And much of Jackson’s veto message chipped away in an unconvincing fashion at par ticular features of the

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bill rechartering the Second Bank. Yet Jackson made two connected arguments that were both persuasive and important. First, a crucial part of the McCulloch rationale was that it was not proper for the Court to inquire into the degree of necessity for congressional action that was premised on the Necessary and Proper Clause. In Jackson’s words: “Under the decision of the Supreme Court, therefore, it is the exclusive province of Congress and the President to decide whether the par ticular features of this act are necessary and proper in order to enable the bank to perform conveniently and efficiently the public duties assigned to it as a fiscal agent, and therefore constitutional.”12 Jackson generalized this position in his well-known claim that every public officer takes an oath to support the Constitution and swears to uphold it as he understands it.13 Hence, concluded Jackson, “The authority of the Supreme Court must not . . . be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”14 As stated, Jackson’s constitutional position literally had no point of tangency with a claim that the President is above the law or that the Constitution authorizes the Chief Executive either to override judicial decisions or to refuse, on constitutional grounds, to enforce a law as passed and signed. Like the veto controversy,15 the constitutional debate over the removal of the government’s deposits from the BUS, and over the removal of a Treasury Secretary who declined to follow the President’s instructions, reopened perennial questions concerning the appointment and removal of administrative officers.16 Jackson’s political opponents had two connected legal complaints. The first was that in removing the deposits, Roger Taney willfully misconstrued the statute under which he was authorized to act.17 We need not attempt to resolve this statutory question. The important point from the standpoint of American administrative practice is that Taney’s action was simply a highly visible illustration of the thousands of interpretive decisions that are the daily staple of administrative implementation, most of which are unlikely ever to be subjected to judicial review. In our Chevron-saturated legal world, we are likely to forget that agency statutory interpretations are not important because the courts give agencies deference—they are important because in most cases federal statutes mean what administrative agencies take them to mean. That is the operational reality of our administrative constitution. The opposing senators’ second argument was a constitutional claim that was also premised in part on the statute. According to Henry Clay, the statute

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vested authority to remove deposits in the Secretary of the Treasury, not in the President. In discharging Duane for refusing to follow his instructions, Jackson had, in effect, usurped the Secretary’s statutory authority. In Clay’s view this was part of a more general scheme by President Jackson to paralyze the Congress and consolidate all power in the President.18 Clay thus reopened the debate that began in 1789 about the President’s removal power and the position of the Treasury Department. It is often said, even by the Supreme Court,19 that the First Congress settled this question in its extensive debates concerning whether the Constitution presumed a presidential power of removal, or removal dependent on Congress’s statutory prescriptions. But, as recounted in Chapter 2, the so- called decision of 1789 was ambiguous. The language adopted in the statute establishing the Treasury Department satisfied both those who thought that Congress could decide whether the President should be able to remove the Secretary of the Treasury and those who believed that the Constitution gave him unfettered authority to do so without congressional authorization.20 The Whig leadership in Congress contested Jackson’s authority to direct the actions of Executive Branch officials, as well as the President’s control over the Treasury, from a number of directions. But all of their attempts to curb the President’s power failed. The Senate passed Henry Clay’s resolution: “Resolved, that the President, in the late Executive preceedings in relation to the public revenue, has assumed upon himself authority and power not conferred by the constitution and laws, but in derogation of both.”21 Jackson responded by presenting a “protest”22 that reasserted the President’s power to control executive officers, including the Secretary of the Treasury, and to remove them at his pleasure. Jackson’s staunch defender in the Senate, Senator Thomas Hart Benton, then waged a continuous campaign to expunge the censure resolution from the Journal of the Senate and, as has been noted, succeeded when the Democrats retook control of the Senate in the 1836 elections.23 Further Whig attempts to curb presidential removal authority24 and to make the Treasury into an independent multimember Board of Exchequer all came to naught.25 In some sense, therefore, the struggles over the BUS reestablished the President’s powers of direction concerning Executive Branch policies and actions that had atrophied under the Jeffersonian Republicans.26 But this position hardly established the elected monarchy that Clay, Webster, and others occasionally invoked. As the Supreme Court subsequently made clear in Kendall v. United States,27 where legislation gave an executive official

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no discretion, neither that officer nor the President (in this case Jackson again) could act (or fail to act) contrary to the explicit terms of the statute. A writ of mandamus would lie to compel compliance. Perhaps more important, the power to direct generated by an implicit threat of removal does not give the President a power of direct implementation where Congress has authorized action by a different officer. And Jackson never really contested that point. For example, while the requirement that land offices only accept specie in payment for public land purchases is often called “Jackson’s specie circular,” that circular was issued by Levi Woodbury, Secretary of the Treasury,28 at President Jackson’s direction.29 Using statutorily authorized officers as conduits for presidential policies was as common in Jackson’s time as it is today.30 But these “directions” are not claims that the President can himself exercise the officer’s statutory authority. Both Jackson and Taney fully understood this, as evidenced by Roger Taney’s opinions while Jackson’s Attorney General.31 Moreover, the politics of appointments and removals do not necessarily follow the formal authority laid down in the Constitution or the statutes. Jackson’s removal of Duane gave practical effect to his formal constitutional claims, but prudent presidents do not pick such fights with Congress very often. Nor is the formal power to appoint officers a guarantee that presidents will be able to choose officials free from powerful congressional influence. Commenting on the degree to which Congress had insinuated itself into the appointments process by the end of the Jacksonian era, Leonard White concluded, “In this aspect of the struggle for power, the legislative branch emerged relatively a victor in 1861 even though the executive still held high [i.e., constitutional] ground.”32 Roger Taney was hardly the only appointment rejected by Congress during the Jacksonian period. Indeed, with the exceptions of Jackson and Polk, presidents in the Jacksonian era were forced to yield substantial control over appointments to Congress.33 Finally, Jackson’s victory for presidential control of administration did not set the tone for the remainder of the nineteenth century. Indeed, in this never-ending struggle, Jackson’s successes were a high water mark from which presidential power and authority over administration ebbed almost continuously (Abraham Lincoln’s tenure excepted) until world wars and major depressions reenergized presidential leadership.34 Practice was cementing the President’s claims to be the head of the administration, but the powers of the administrative head were cabined both by legislation allocating authority elsewhere and the political realities of congressional politics in a system of separated powers.

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The Administrative Organization and Control of Monetary Policy Whatever the decades-long political disputes between Federalists and Jeffersonian Republicans or between Jacksonian Democrats and Whigs concerning the Bank of the United States, no one doubted the importance of a sound and stable currency. Nor was there much argument about whether agriculture, commerce, and manufacturing required a well-functioning credit system or whether the government (and others) required efficient and trustworthy fiscal agents for collections, payments, and transfers. The question was how to organize these functions in ways that were effective, consistent with the Constitution, and politically viable, given competing political visions of the meaning of accountable and democratic governance. Building on prior efforts, the Jacksonian period saw experiments with three different methods for holding and dispersing the government’s money and for regulating the soundness of the currency. The Bank of the United States

The chartering of a national bank was contentious from the very beginning of the Republic. The first substantial dispute over public policy in Washington’s administration arose out of Thomas Jefferson’s declaration that Alexander Hamilton’s plan to charter a national bank was unconstitutional.35 Jeffersonian Republicans disliked the first Bank of the United States for reasons similar36 to those later voiced by Jacksonian Democrats. Hence, when that Bank’s charter came up for renewal in early 1811, the recharter bill failed in the Senate by the casting vote of Vice President George Clinton. The demise of the First Bank left the national government without a fiscal intermediary to hold and disburse its funds. Albert Gallatin, then Secretary of the Treasury, acted to fill the void by instructing all Collectors of Revenue to deposit their collections in one or more state banks selected by the Secretary or by the Collector where there was no designated depositary bank in the relevant locale.37 The Treasury then entered into agreements with the depositary banks concerning how they were to carry out their fiscal intermediary functions for the government.38 The new contractual system worked well for a short period. But a combination of the fiscal strains of the War of 1812, the proliferation of state banks (which issued a blizzard of paper notes), and the flight of specie out of the country because of trade imbalances rapidly produced a crisis. Banks were unable to redeem their notes in gold or silver; the United States was forced to accept depreciated state bank paper in payment for debts due the

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government; and because most of this paper was not accepted outside of the locale where it was issued, interstate trade and government transfers rapidly became difficult, if not impossible.39 In 1816, the chastened Republicans chartered the Second Bank of the United States. Presumably, a chartered national bank could solve both the payments and the soft-currency problems. A properly funded and administered national bank, with branches all over the country, could make payments in specie, if demanded, or in its own notes, redeemable in specie at any of the Bank’s branches. A merchant in Ohio could thus have confidence in a national bank note, even though it was issued in Boston. The payments and the fiscal-transfers problem would be solved. Soft money was more difficult. But once confidence was restored sufficiently that state banks could again redeem their notes in specie, the BUS could regulate the issuance of state bank notes by influencing their specie reserves. Because the BUS was the depositary bank for all U.S. government funds, it accumulated large quantities of state bank paper. By constantly presenting this paper for specie redemption, state banks would be limited in the amount of new paper they could issue. This regulatory effect assumed, of course, that the state banks would operate in a sound manner, that is, that they would maintain reasonable reserves of specie against the possible redemption of their outstanding notes. Because any bank that was thought unable to redeem would see its notes circulate at large discounts, this economic discipline was mostly effective. The BUS system was obviously somewhat more complicated than this brief description allows, but our principal interest is in the way in which it structured administrative governance.40 The BUS was, obviously, carrying out significant governmental functions, but what was its relationship to the government itself? The answer lay on the face of the statute establishing the Bank.41 The government was to be part owner of the Bank, but to hold only a 20 percent share. Similarly, the United States would have only five of the twenty-five directors. These five would be appointed annually by the President, with the advice and consent of the Senate. The United States was not permitted to vote its shares in the election of the other twenty.42 The only other relationship to the United States was a provision for reports to the Secretary of the Treasury concerning the capital stock of the corporation, its debt, its deposits, the notes of the Bank in circulation, and the specie in hand. The Treasury Secretary was permitted to inspect the general accounts in the books of the Bank that related to the subjects covered in the required reports, but had no further right of inspection or direction.43

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There was, of course, a quid pro quo relationship with the United States. The Bank was to be the fiscal agent of the United States for which it was not allowed to charge any commissions or allowances.44 Compensation for these ser vices took the form of the deposit of all of the monies of the United States into the Bank, which it held without paying interest.45 Moreover, during the existence of the charter, the United States pledged not to create any competing bank other than local banks for the District of Columbia.46 The charter could be cancelled if the Bank violated it, but only through an elaborate procedure involving congressional investigation and an action in the circuit court for Pennsylvania, with all issues of fact tried before a jury.47 The Bank was given full power to regulate its own affairs by bylaws, ordinances, or regulations,48 and to open branches wherever it thought useful. Those branches would operate under regulations provided by the Bank’s central office and be managed by directors appointed by the directors of the Bank itself.49 In short, aside from authorizing the government’s contribution to the Bank’s capital stock, providing for presidential appointment of one-fifth of the directors, and establishing a limited right of inspection by the Treasury, the statute farmed out to the Bank’s directors all decisions concerning how the Bank would carry out its important fiscal and monetary functions. Moreover, in a provision that Nicholas Biddle subsequently exploited,50 the Bank was given authority to take any action by a quorum of seven members of its board of directors.51 There was no requirement that any of these seven directors be the directors who had been appointed by the President. Hence, the board could delegate all its activities to an executive committee of seven directors, no one of which represented the interests of the United States. The Second BUS was, thus, authorized to carry out many of the functions that we ascribe to a modern central bank, or to the Federal Reserve system, under a statute that allowed it to operate, if it chose, almost completely independently of the government.52 Ideological commitments and personal experience aside, it is not difficult to see why men like Thomas Jefferson and Andrew Jackson viewed the existence of the BUS with alarm. The Bank could exercise enormous economic and political power on the basis of a governmentally granted monopoly, with extremely modest accountability to the government for any of its actions. In some sense, of course, that was the point. Virtually all modern developed economies have created independent central banking functions. Fiscal intermediation and monetary policy are handed off to experts, not only because they are expert, but because political institutions are recognized as overly susceptible, at least in democracies, to the public’s consistent

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preference for easy credit. The question was whether some economically responsible and politically accountable institution could be devised to carry out these essential financial functions. The Jacksonians experimented with two additional institutional designs. Contracting with “Pet” Banks

The return to the BUS system did not instantly solve the problems of an unstable currency or of embarrassments in making transfers from one region to another.53 But by 1820 calm had returned: for the next decade the fiscal machinery of the government operated smoothly, and currency fluctuations were modest. Whether these good times were attributable to sound banking policies on the part of the BUS is difficult to determine. For one thing, the government continued to use state banks as depositaries and fiscal agents in western states where the BUS had not established branches.54 In this way the Treasury could both support state or local banks by leaving deposits beyond those immediately needed for transfers and pressure them to maintain sound banking practices by the implicit threat of removing those deposits. In addition, the Treasury by circular instructed all receivers of public money to accept no bank notes below the value of five dollars.55 Because issuance of state bank notes in small denominations had been a primary cause of prior inflationary bubbles, the Treasury believed that this regulation would also curtail inflationary pressures from the state banks. Hence, the Treasury as well as the BUS was active in regulating the money supply and stabilizing the currency. The BUS system was generally viewed as a success. A Senate Committee, headed by Senator Smith of Maryland, reported in 1830 that the customs houses, land offices, post offices, receivers of internal revenue, marshals, and clerks of court now numbered more than 9,000. The report then states: From these persons, the Government has, for the ten years preceding the 1st of January, 1830, received, $230,068,855[.]17. This sum has been collected in every section of this widely extended country. It has been disbursed at other points, many thousand miles distant from the places where it was collected; and yet it has been so collected and distributed, without the loss, as far as the committee can learn, of a single dollar, and without the expense of a single dollar to the Government.56

Smith’s report may have been overly optimistic,57 but even as Jackson was beginning his war on the bank, the BUS system was viewed as working smoothly.

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The withdrawal of the government’s deposits from the Bank of the United States ended the BUS system. And because leaving the government’s money with 9,000 receivers of funds, to be called upon by Treasury drafts, was both unsafe and inefficient, the government once again was required to deposit its funds with state banks. Yet the use of state banks was not necessarily fated to produce the inflationary exuberance and breakdown of the fiscal transfer system that had been experienced in the period from 1811 to 1816. Indeed, using state banks permitted the Secretary of the Treasury to regulate monetary policy in much the same way that the Bank of the United States regulated the state banks under the BUS system. Because the Secretary could choose banks for deposit, he could increase or decrease liquidity in different sections of the country as it was needed. Because the deposits were valuable to the banks and their shareholders, the Secretary could impose specie reserve requirements on them to either tighten or loosen the money supply.58 And by choosing to leave the government’s major deposits in large Wall Street banks where New York state banking regulations demanded conservative banking practices, the Secretary could assure the safety of much of the funds deposited.59 The system might allow the Secretary to choose his “pets,” but it also allowed him to regulate them in the national interest. The fly in this ointment was, of course, politics. While the Secretary of the Treasury might easily have made decisions about depositary banks based upon fiscal prudence and good monetary policy, the economic benefits of being a depositary institution made that status a part of the patronage system.60 And patronage produced forms of corruption that tainted the whole process. Because deposits enhanced the value of state bank stock, favored parties could get a quick and direct reward by buying and selling bank stocks on inside information about where deposits were moving. Moreover, in 1836, Congress intervened to regulate the distribution of federal deposits in ways that sharply limited the Treasury’s capacity to regulate state banks and the money supply. The 1836 “Act to regulate the deposites of the public money”61 contained two provisions that seemed unobjectionable on their face but seriously inhibited the Treasury’s flexibility. The first limited deposits in any bank to an amount equal to three-quarters of the bank’s capital stock.62 While this provision was designed to protect the safety of federal funds, it had the effect of requiring that deposits be spread among a much larger number of banks than had previously been chosen. This not only made it much more difficult for the Treasury to monitor the practices of depositaries, it made it impossible to implement another section of the statute disqualifying banks as depositories if they issued notes in denomi-

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nations of less than five dollars.63 There were too few banks that satisfied both conditions. If restraining the issuance of small notes was as important in reducing inflationary pressures as the Treasury believed it to be, easy money was about to return. The three-quarters provision was, however, a minor problem compared to the further provision of the 1836 statute requiring that the federal surplus be apportioned among the states in accordance with their relative representation in Congress.64 In order to implement this provision the Treasury had to transfer colossal sums out of existing depositary institutions. And, in order to honor the Treasury’s transfer drafts, the depositary banks were required to call loans that had been made in reliance on the continuation of the federal deposits. The consequences were severe. The transfers themselves caused huge amounts of specie to be withdrawn from the commercial system. As one commentator put it: The monetary affairs of the whole country were convulsed—millions upon millions of coin were in transitu in every direction, and consequently withdrawn from useful employment. Specie was going up and down the same river, to and from the South and North and the East and West at the same time; millions were withdrawn from their usual and natural channels and forced against the current of trade in literal fulfilment of the distribution law, to points where public money had previously never been either collected or expended except to a very limited extent.65

Moreover, the calling of the loans in order to make transfers created a general economic panic. Virtually all banks suspended specie payments, and the public distress was substantial. The situation in New York was described in near apocalyptic terms: Since the independence of America there has never been so much distress as at present. Trade and manufactures are prostrated. All confidence and all personal credit have disappeared. Thousands are without bread. Promenades and pleasure places are deserted. . . . The theaters are empty; social gatherings and concerts have ceased to be. In short, everything appears as if we had been either plundered by an invading army or persecuted by devastating plague.66

The Treasury’s quandary was also acute. Banks that had suspended redemption in specie were ineligible for federal deposits. Virtually all had done so. Through a series of circulars, the Secretary of the Treasury instructed the collectors and receivers of federal funds to retain them. These thousands of officials were now to serve as fiscal agents for the government

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by transferring funds in response to Treasury drafts.67 That primitive system was virtually certain to cause enormous inconveniences. But there was no lawful alternative. The “Sub-Treasury” System

One response to the unreliability of the state bank system, and the obvious difficulties of using the now-13,000 officers receiving federal funds as depositaries, would have been a return to the National Bank. This was, of course, the Whig position. Protective tariffs, federal financing of internal improvements, and the regulation of finance through a nationally chartered bank were the principal components of Henry Clay’s so- called American System. But the Whigs seldom controlled Congress and the Presidency at the same time, or held Congress with a veto-proof majority. Some different system would have to be found. Martin Van Buren, who inherited the economic mess that Andrew Jackson narrowly escaped, had a plan. He proposed that the Treasury be its own bank, or at least its own fiscal agent.68 The Treasury, and certain other designated entities, would receive and hold funds credited to the United States. Those funds would then be disbursed on the basis of Treasury drafts, as needed. Outside of major commercial centers, land offices, post offices, and customs houses would continue to act as depositaries and transfer agents.69 From an economic point of view this system had much to recommend it. Deposits of federal funds would be kept out of the hands of state banks, which used federal deposits of specie to paper the country with bank notes. The government’s funds would be safe from state bank failures and, if depositaries were created in major commercial centers, the inconvenience of having the government’s money in the hands of multitudinous federal officials might be mostly overcome. The creation of the independent Treasury system was seen, however, primarily in political terms. Van Buren presented his plan as a means for divorcing the operations of the government from the banking system.70 The government would no longer be beholden either to the power of a single national bank or to the weaknesses of the state banking system. Moreover, because American banks of any stripe were intimately connected to their British counterparts, an American government holding its own funds was seen as escaping the tyranny of the British banking system as well. Van Buren’s Presidency was, of course, plagued by the depression of 1837, by the smaller one of 1839, and by the resurgence of the Whigs in Congress. Congress failed to pass the centerpiece of his domestic program, the bill

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creating the Independent Treasury, until he was nearly out of office. But, when he finally got his proposal adopted in 1840,71 he made the most of it. Van Buren signed the bill on the Fourth of July, and hailed it as the “Second Declaration of Independence.” In describing the difference between the two “Declarations,” a contemporary declared, “The former delivered the American people from the power of the British throne, the latter delivered them from the power of British banks.”72 The 1840 statute made the Treasury Department in Washington, D.C., the Mint in Philadelphia, the branch Mint in New Orleans, the customs houses in Boston and New York, and new special depositaries in Charleston and St. Louis the custodians of federal funds.73 The responsibility for safekeeping and disbursement of these funds fell to the Treasurer of the United States, the Treasurer of the Mint and the branch Mint, and four new appointees denominated “Receivers General of Public Money.” These new officials were to be located at the customs houses at New York and Boston and at the new institutions envisioned for Charleston and St. Louis.74 Of course, because all of the money would not be held in these places, all collectors of customs and receivers of public money at land offices and post offices would also have responsibility for holding federal funds until they were transferred to one of the major depositaries or paid out to satisfy the government’s obligations. To insure that government funds would not pile up in places where they were not needed, and would be available in places where they were, the Secretary of the Treasury was given full power to transfer funds among any and all custodians.75 The details of keeping deposits safe and making transfers were left to the Secretary of the Treasury “by way of regulation and otherwise.”76 He was also directed to appoint special agents to audit the books, accounts, and returns of all officers holding public money. Congress established internal checks as well. An officer other than the principal custodian at each depositary was required to provide reports on the status of the public money in the depository’s possession to the Secretary of the Treasury quarterly, or more frequently as the Secretary should direct.77 Van Buren’s legislative victory was short-lived. The Whigs won the Presidency and a slim majority in both houses of Congress in the elections of 1840. The new Congress promptly repealed both the Independent Treasury statute and the 1836 statute regulating the use of state banks as depositaries.78 Having thus eliminated all statutory authority for the deposit of federal funds, Congress failed to create any substitute system. Clay’s congressional Whigs would not settle for anything that did not look rather like the Bank of the United States. President Tyler, a nominal Whig with Jeffersonian

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Republican sympathies, would not sign any bill creating an institution that did.79 This put the Treasury back in the position of cobbling together some sort of depositary and transfer system by using receivers of federal monies in the custom houses, land offices, and post offices, and contracting for services with state banks. The elections of 1844 ushered in a more popular and effective president. Very early in his administration, James K. Polk confided to George Bancroft that he would do four things in his Presidency that would make it successful and memorable: (1) he would lower the tariff, (2) he would recreate Van Buren’s Independent Treasury, (3) he would acquire Oregon from the British, and (4) he would acquire California from Mexico.80 He did them all. The statute reestablishing the Independent Treasury, which Polk called the “Constitutional Treasury” and that subsequently came to be known as the “sub-Treasury,” was virtually identical to the 1840 Legislation.81 The title of “Receivers of Public Monies” in the prior statute was changed to “Assistant Treasurers”—hence the “sub-Treasury” nomenclature.82 This system remained in place in one or another form until superseded by the Federal Reserve System in the twentieth century.83 The government now controlled its own money and could direct the activities of its depositary agents by the simple expedient of issuing Treasury circulars. But the sub-Treasury system was not without its difficulties. One was that it was incomplete. Outside of the special vaults that were constructed at the Treasury and the sub-Treasuries, receiving officers did not necessarily have any safe place to hold the government’s funds. In 1854 the Treasury’s Special Agent William M. Gouge84 reported that there was no suitable building for the government “in which to deposite [sic] a dollar or a paper” in the whole of the Ohio valley.85 Some custodians went to great, even comic, lengths to make the best of a bad situation. The Receiver of the Land Office in Jeffersonville, Indiana, hired a room adjoining the bar in the chief tavern of the town. The only entrance was through a passage requiring that the party entering the room crawl in on his hands and knees or bend over double. Inside was a store of silver lodged in boxes concealed in a wooden case that looked like a giant coffin. Gold was kept in an iron safe. Around the room a low gallery had been constructed. From this perch the Receiver could throw down stones and bottles on any intruders. Gouge reported that this diligent agent kept an ample supply of both, and that he also slept in the room with guns, pistols, and pikes.86 Other custodians adopted the sensible— and illegal—practice of depositing their funds in a special account with a local bank. This, of course, compromised the divorce of the government from the banks that the 1846 Act

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was meant to effect. In 1857, Congress expanded the sub-Treasury and required that all receivers deposit their collections with one of the sub-Treasury depositaries.87 In the panic of that year, as banks failed and suspended redemptions, the government, unlike its position in 1837, continued to discharge its obligations without “loss or embarrassment,”88 thanks to the Independent Treasury system. The sub-Treasury approach was hardly perfect or without its critics,89 but had much to recommend it. Government policy was no longer the potential hostage of a private commercial banking institution. And the Treasury was permitted to pursue safety and soundness90 without significant political meddling or reliance on the weak reed of state banking regulation. Control of government funds was lodged firmly with the national government, and the Treasury apparently operated as a politically independent custodian. The disastrous experience with the 1836 Distribution Act seems to have persuaded Congress to leave the allocation of deposits and the regulation of transfers to the Treasury.91 Moreover, on the way to this result, the Treasury demonstrated that, even without explicit statutory authority, it could piece together a minimally workable system by contract, instructions to federal receivers of funds, and circular instructions to state banks that the latter could ignore only at the risk of losing federal deposits. This was hardly administration at its finest,92 but it surely justifies McFaul’s ironic conclusion that ultimately Jackson’s war with the Bank, far from promoting The Democracy’s small government agenda, substantially strengthened the central government’s administrative capacities. The United States emerged not just with a stronger Presidency, but also with a stronger national government. Jacksonian Democrats believed the first promoted electoral democracy as they understood it; the latter was hardly a part of their political creed. The sub-Treasury system also reveals a government increasingly attentive both to matters of administrative institutional design and to the need for administrative discretion. The disastrous legislative distribution scheme for federal funds was replaced with Treasury judgment concerning where funds should be kept. The potential for inefficiency and confusion should the Assistant Treasurers adopt different practices concerning transfers of government funds was avoided by giving the Secretary of the Treasury explicit authority to regulate depositary and transfer policy. And elaborate checks and balances were provided to assure that federal depositary agents were accountable both to external auditors and to on-site officers who were required to make continuous reports to the Secretary of the Treasury. The 1840 statute establishing the sub-Treasury system thus both

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echoed the attention to governmental organization exhibited by the reorganization legislation passed during Andrew Jackson’s two terms and anticipated reforms that would be made necessary by the new system of rotation in office. The administrative constitution was evolving in ways that revealed increasing sophistication concerning the appropriate allocation of policy discretion between Congress and its delegates and the multiple techniques for administrative accountability that might be built into the design of administrative institutions. The history of the Bank War and the sub-Treasury system tends to confirm the special place of the Treasury in American administrative governance— a position that began in the first Congress of the United States, and that continues today. While all American administrative institutions are the creatures of statute, and in some broad sense are the agents of the Congresses who empower them and the presidents who appoint their highranking officials, the American Treasury also operates and wields enormous economic power in a world of high and, indeed, global finance. It often acts within the interstices of (not to mention the gaps in) its governing statutes, and in ways that can be micromanaged by its political controllers only at their peril. The machinations of Treasury officials during the financial crisis of 2008– 09 have been aptly characterized by two commentators as “regulation by deal.”93 The same might easily have been said of Treasury regulation of state banks and federal depository institutions between the demise of the Second Bank of the United States and the more comprehensive national banking legislation of the 1860s.

10

Democracy, Office, and the Reform of Administrative Organization

Andrew Jackson’s attack on the entrenched officials of the federal government was motivated by the same political considerations that supported his war with the Bank. He viewed the system that he had inherited as undemocratic. Both the Federalists and the Jeffersonian Republicans had selected officeholders largely on the basis of “character” or “standing in the community.” Although Jefferson had engaged in partisan removals to establish parity between Federalists and Republicans in the public ser vice, the general practice from 1789 to 1829 was to retain appointees in office unless they were demonstrably incompetent or corrupt. In some sense this produced a “career ser vice” of experienced administrators, which may have contributed to the efficiency of federal administrative operations. It unquestionably produced a relatively stable class of officers, with sons sometimes following their fathers into the same positions.1

Rotation’s Democratic Rationale Jackson attacked this system in his famous first annual message to the Congress: There are, perhaps, few men who can for any great length of time enjoy office and power without being more or less under the influence of feelings unfavorable to the faithful discharge of their public duties. . . . Office is considered as a species of property, and government rather as a means of promoting individual interests than as an instrument created solely for the ser vice of the people. . . . The duties of all public officers are, or at least admit of being made, so plain and simple that men of intelligence may readily

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qualify themselves for their per for mance; and I can not but believe that more is lost by the long continuance of men in office than is generally to be gained by their experience. . . . In a country where offices are created solely for the benefit of the people no one man has any more intrinsic right to official station than another.2

In short, government was to serve the people, and rotation in office was a means by which that ser vice could be secured. The aristocracy of office that had grown up in the fi rst three decades of the Republic was to be no more. There is no reason to believe that Jackson was insincere when articulating his reasons for instituting rotation. Many others had voiced similar rationales for a system of rotation or limited terms of office-holding. As Carl Russell Fish’s classic study demonstrates,3 public-spirited rationales for rotation can be traced back to Dutch, English, colonial, and state practices.4 Prominent among them are Jackson’s reasons— that is, avoiding autocracy and corruption, and eliminating any sense of property in office. Other rationales had included: educating citizens in the responsibilities of governance,5 weakening executive power (where appointments required approval of the legislature), assuring the loyalty of officials to the elected government,6 and avoiding the need to assign cause to rid the government of ineffective personnel.7 The results of Jackson’s rotation policy, which were eagerly carried forward by his successors, both Whig and Democratic, were not so happy. Leonard White describes the consequences of rotation as including a loss of effectiveness of the public ser vice, the loss of the prestige previously attached to offices, and the more or less blatant use of administrative officials for partisan advantage in elections.8 By the 1850s the partisan political obligations of officeholders were so routinized that political contributions were collected on a schedule that looked like progressive taxation. Officeholders paid in accordance with the size of their salaries.9 Yet, the so-called “spoils system”10 was not utterly destructive of the integrity of the public ser vice. If tax collectors were abusive, the mails failed to be delivered, or pensions were not paid, the political party in power would pay for it at the next election. Party officials hardly had an interest in selecting incompetents or thieves.11 Moreover, while rotation was substantial, it was never complete. Some men who knew their jobs were retained so that the government’s business could be carried on with an acceptable level of efficiency. While Nathaniel Hawthorne comically described his lazy, incompetent, and superannuated colleagues in the Customs House at Boston, he

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also noted that important posts, such as the Surveyor, were awarded without regard to political ser vices, and described with a respect bordering on awe a man he called “a man of business” who knew the customs rules inside out and who routinely remedied the errors of his politically appointed brethren.12 There were also democratic gains from rotation. It was surely correct, as Jackson observed, that continuance in office had created a sense of property rights in office that were antithetical to the pursuit of the public interest. And the shrewd political operative, Martin Van Buren, defended the spoils system as essential to a democratic politics that simultaneously featured party competition and widespread participation by the populace.13 Fish gives a normative justification for the spoils system that closely tracks Van Buren’s. For the mass of the people to influence the ordinary operations of government they must be organized. Having a party is not enough; the party must be continuously active in order to shape the agenda of government and to bring out the vote on issues of moment. The continuous effort of a party organization requires resources, and if influence is not to be limited to the rich and well-born, the party must supply those resources. Politics must be made to pay. The only way that it can is for the civil ser vice to provide the payroll for the party leadership.14 In Fish’s words, “[P]resent appreciation of the evils of the spoils system should not blind us to the fact that in the period of its establishment it served a purpose that could probably have been performed in no other way, and that was fully worth the cost.”15

Objectification of Office While today we view the insertion of partisan politics into the routine administrative operations of government as a formula for inefficiency, administrative favoritism, and, possibly, lawlessness, the creation of the spoils system in Jacksonian America had an almost opposite symbolic effect. As Jackson had maintained, offices belonged to the public; their inhabitants were temporary placeholders. When offices became impermanent and open to all, offices were separated from officeholders. The government’s actions were thereby depersonalized and objectified. Administrative actions were the actions of the United States, not the personal actions of longtime incumbents. Objectification of office is, of course, one step toward the bureaucratization of office holding.16 And, bureaucratization, in accordance with Max Weber’s classic analysis, is a movement toward both efficiency and formal legality. Could it be that the spoils system was a movement toward the rule of law in American administration?

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The answer seems to be both no and yes. In a nonbureaucratized system of administration, officers tend to have authority because of their status or standing in a community rather than because of their expertise or their official positions. Offices are defined in terms of general responsibilities rather than functionally differentiated ones, and officials have broad discretion to act in accordance with community values rather than well-developed rules. Private and public functions of officials are perceived to be commingled rather than sharply separated, and compensation often comes from fees, commissions, and indirect emoluments rather than from fi xed salaries for full-time performance of public duties. The early American reliance on character or status for office-holding certainly suggested this nonbureaucratized model of administration. Moreover, many officials were paid by fees and commissions rather than by salary. On the other hand, federal officials were never given general jurisdictions like those that pertained to a local justice of the peace, a sheriff, or a county judge. And, as previously mentioned, at the most general level the legal authority of federal officials was derived from statute. Positive law provided the foundation for administrative action. And while discretion under early federal statutes was sometimes broad, as we have seen, superior officers tended to circumscribe that discretion by the formulation of administrative rules. The Jacksonians inherited a system that exhibited some characteristics of personal authority and some of bureaucratic organization. Moreover, the time seemed ripe for movement in bureaucratic directions. The economy was becoming more specialized and complicated. And the democratization of politics was moving in the direction of a demand for formal legal equality of citizens. As if anticipating Weber’s classic synthesis of state development, emerging organizational practices in Jacksonian America began to suggest, however tentatively, that effective and formally lawful administration could be accomplished only by officials who were detached, objective, expert, and legally accountable.17 William Nelson has argued persuasively that the United States by 1830 might best be understood as having the necessary but not the sufficient conditions for bureaucratized administration.18 So long as the emphasis in American government was on majority self-rule, administration could remain organized around political parties. The authority of the majority party, and appointment through the party machinery, would serve as a substitute for the older status-based authority system. In a spoils system both expertise and objectivity are suppressed by the demands of party loyalty and rewards for partisan political service. Hence, on Nelson’s view, bureaucratization, and with it formal legality in administration, developed in the United States

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only after the Civil War, when the emphasis on majority self-rule was displaced by concerns for the legal protection of minority rights. But the situation was complicated. As is so often the case in American history, governmental practices did not necessarily reflect ideological commitments. Indeed, Matthew Crenson argues that “the chief administrative legacy of the Jacksonians was bureaucracy.”19 Crenson’s case focuses on several concrete developments during the Jacksonian period. First, departmental reorganization: during the first forty years of the Republic there were only two significant administrative reorganizations, but during Jackson’s two terms virtually every federal department was reorganized at least once. And, according to Crenson, the “capacity to reorganize implies an ability to deal with administrative operations in formal and abstract terms. . . . Administrative functions have to be abstracted from the people who performed them before they can be divided, combined, or redistributed.”20 With reorganization much that was informal became formal. Administrative jurisdictions and responsibilities were explicitly defined; hierarchies became more elaborate as agencies were divided into specialized bureaus and offices. Moreover, executive control of subordinates increasingly relied on systematic audits, investigations, and reporting systems rather than on personal loyalty and personal supervision.21 If Crenson is correct, there was substantial development in the Jacksonian era of the internal law of administration—that is, rules, routines, and organizational checks and balances that promoted bureaucratic adherence to effective and consistent implementation of statutory mandates. The administrative constitution was moving toward an understanding of offices, officers, and administrative organization that would begin to separate the understanding of legitimate federal administration from its long-standing connections to partisan politics and local control. But exactly how did reorganization promote legality? Bureaucracy at the Post Office

The Post Office, which employed the majority of federal civilian workers and was at the center of the patronage system, is an important case in point. Deficits in the Post Office accounts prompted major investigations by both House and Senate committees in 1834 and 1835.22 Historically the Post Office had been self-sustaining. It financed its activities out of postal revenues, often ran a surplus, and plowed the surplus back into expanded service. That was certainly the happy situation under the leadership of Postmaster General John McClane from 1823 to 1829.23 But by 1835, under the stewardship of Major William T. Barry, the department was several

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hundred thousand dollars in debt (the exact figure could not be determined), and a Senate committee estimated that Barry had, in four years, wasted over $3 million. The most substantial losses resulted from maladministration in the letting of contracts for the carriage of mail and in their administration after the contracts were let. By statute contracts were required to be let by competitive bidding. But under Major Barry collusion between the contractors and Post Office personnel had made competitive bidding a sham. Unreasonably low “straw bids” were put in by fictitious bidders, or by bidders incapable of posting the necessary bond to secure performance. Post Office personnel would then disqualify these winning “low bids” and let the contract to the next lowest bidder, a Post Office favorite.24 Nonetheless, the government might not have lost much money on these contracts with the second lowest bidder had the contracts been performed as bid, but often they were not. Sometimes the favored bidder actually submitted two bids— one for ser vices as advertised by the Department, the second in the form of an “improved bid” proposing better ser vice at a higher price. The improved bid was then accepted, thus eliminating all competition.25 Even if the contract was let through competitive bidding, the government was not necessarily protected: the Department also accepted combined bids for multiple routes.26 Because these combined bids by large contractors could not be compared with individual bids for specific routes, the contract officer could declare a low bid at his own discretion. In addition, contractors often found that their ser vices went beyond those specified in the contract. They routinely claimed extra allowances, which, in Barry’s administration, seemed to have been just as routinely allowed.27 The House report found that in four years Barry had managed to authorize over $1.5 million in extra allowances.28 The awarding of contracts without competition probably cost the government more than the Post Office’s other failings, but other failings were also prominent. The Department neglected to supervise contracts in ways that required the contractors actually to perform them. It made extravagant contracts for advertising of bids to favored printers. And it allowed large increases in personnel in order to increase the Department’s already extraordinary patronage possibilities.29 Even the Postmaster General’s partisan friends, the Democrats on the House committee, concluded that “[t]he finances of this department have hitherto been managed without frugality, system, intelligence, or adequate public utility.”30 Major Barry resigned and Amos Kendall, one of General Jackson’s closest advisors, was brought in to clean up the mess.31

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Both Matthew Crenson and Leonard White describe Kendall’s reforms in some detail.32 The basics of Kendall’s system were bureaucracy incarnate— hierarchical supervision and a functional division of authority that created checks and balances, both within the central office in Washington and in the widely distributed offices of assistant postmasters around the country. Kendall intended “to make postmasters and contractors feel that [the Department’s] eye was constantly upon them, not only collectively, but individually.”33 At the national level Kendall made it his policy to separate the three major functions of (1) establishing operating rules through contracts and regulations, (2) disbursing funds, and (3) auditing and settling accounts. Indeed, he did not believe that even he, as Postmaster General, should have supervisory authority over the settlement of accounts if he also supervised operations and payments.34 As was true of departmentally initiated reorganizations elsewhere in the government, Congress obliged Kendall by ratifying his reforms.35 Henceforth, the Post Office would not be self-funding. It transferred its receipts to the Treasury and received annual appropriations like other departments. Perhaps more crucially, an Auditor of the Treasury for the Post Office Department was appointed to oversee all charges against the Department. No deduction from the appropriated funds for the payment of expenses was valid until submitted for examination and settlement by the Treasury Auditor.36 Kendall further differentiated the functions of the central office by establishing an Appointments Office to supervise the location of new post offices and the selection of postmasters, a Contract Office to approve and oversee contracts, and an Inspections Office to monitor the performance of mail contracts and the behavior of postmasters.37 Keeping the Department’s eye on local postmasters was a more difficult administrative task. As noted in Chapter 7, the General Land Office had much earlier established a system of independent and unannounced inspections of local offices by personnel dispatched from Washington. That system could work for roughly three score local land offices, but not for thousands of local post offices. The principal difficulty with local postmasters was delinquency in balancing their accounts with the Department. Kendall’s idea was to have the contractors collect their payments directly from the local post offices along the routes that they served. The contractors were then required to submit quarterly reports to the Department showing the amount that they collected from each office. Similarly the local post offices were directed to report how much they had paid out and to whom. Presumably the contractors would be energetic in getting their payments, and most of local post offices’ receipts would go to honor contractors’ drafts. Less Post

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Office money would be in the hands of recalcitrant local postal officials, and the books could be checked in Washington by simply comparing contractors’ reports of collections against postmasters’ reports of payments.38 Per for mance by contractors was checked by adding a new set of reports from the local postmasters. Those reports provided a record of each contractor’s ser vice during the preceding quarter, including timeliness, means of transport, and any infractions of departmental rules. Fines were required to be levied against contractors for every infraction. With postmasters reporting on contractors and contractors reporting on postmasters, Kendall hoped to have created a self-policing system. Evasion and collusion were obviously still possible, but the improvement in operations was substantial.39 The Post Office example lends credence to Crenson’s claim that Jacksonian administration was moving from reliance on reputation, status, or personal relations to reliance on bureaucratic systems to assure integrity in administration. Indeed, Amos Kendall thought it unwise to trust even himself, and his reorganization plan, aided by congressional legislation, moved the Department toward functionally differentiated roles and systematic checks and balances to ensure proper behavior. These developments were replicated elsewhere. At the beginning of the Jacksonian era the organization of federal departments was much as it had been in 1800. At the capital clerks aided the Secretary, and field offices were established to carry out the government’s business as and where necessary. Virtually all action was taken in the name of the Secretary, who often had to sign and seal every official document personally. By 1860 there were not only more departments, they were organized into bureaus that carried out specific functions, often almost independently of the department in which they were lodged.40 Departments and bureaus had inspection systems to assure the integrity of field activity. And they had begun to compile and index records so that the rules and practices of the departments could be made available to those who needed to know them.41 Custom and personality still mattered—they always will—but system was increasingly entering the public ser vice.42 Action according to law was hardly assured, but it was made more probable. Moreover, the creation of specialized bureaus within departments was moving federal public administration increasingly in the direction of knowledge-based administrative implementation. This may seem an odd claim in the midst of a democratic revolution featuring rotation in office. But, as previously noted, rotation did not necessarily dislodge knowledgeable personnel needed to keep administration functional. And, as bureaus

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developed expertise, institutional memory and institutional initiative were built into the system. The second-level administrators and administrative institutions that Daniel Carpenter identified43 as the preconditions for bureaucratic autonomy were in place in most departments by the end of the Jacksonian era.44 Carpenter, of course, emphasizes the ways in which this formal recognition of the importance of specialized knowledge within bureaus was undermined by further structures of oversight and supervision by generalists, or political appointees, who maintained control over policy development and innovation. True enough. Much the same system remains today in the 3,000-plus political appointees that populate the upper ranks of the federal civil ser vice. But, knowledge is still power. The differentiated bureaus of 1860 may not have been able to dictate policy in the strong sense that Carpenter defines as bureaucratic autonomy—the ability to innovate in opposition to congressional preferences. Nevertheless, specialization breeds routines that shape day-to-day operations and regularizes administration in the direction understood to be appropriate by the bureaus’ more experienced personnel. The bureaucrats remain accountable to politics, but the government’s capacity to act effectively is simultaneously dependent on harnessing the knowledge embedded in the bureaus. The Limits of Reform

Other aspects of a full-fledged bureaucratic system, however, were only beginning to develop. Many field personnel were still paid by fees and commissions, although they were now more firmly under the control of central office personnel, all of whom were salaried full-time officials. And under the spoils system, selection into much of the public ser vice was certainly not based on a merit system. Examinations had long been used for selection of Army and Navy surgical personnel, West Point cadets, and naval midshipmen, and, by the 1850s examinations were being used for clerks in a number of departments.45 But outside of the military, these examinations were applied after the fact to assure that appointees were not wholly incompetent. Moreover, examinations were under the control of the departments, not a separate Civil Ser vice Commission. And, of course, under “rotation,” neither experience nor effective performance was a guarantee of security of tenure, save in the military and the central offices of the two most important departments, Treasury and War.46 Finally, hierarchal control of field offices from the capital was far from perfect, particularly where administration faced serious local resistance.

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For example, as Chapter 7 details, the Treasury and later the General Land Office labored endlessly to regularize the survey and sale of the public lands by using circular instructions, audits, and inspections. But the instructions were differently interpreted in different land offices, often based on local and congressional pressures.47 Some local land office officials admitted that while they would like to follow central office rules, they were simply unable to do so because of resource constraints and local resistance. Fraud was practiced wholesale, and local land clubs banded together to assure that no neighbor’s preemption claim would be denied and the land sold to an outsider.48 Speaking of the influence of land clubs on auctions, Commissioner Hayward of the General Land Office lamented, “When a large population stands thus affected it is futile to attempt to counteract such combinations.”49 Similar local opposition undermined the enforcement of the postal statutes. Abolitionists in New York and Boston sent tens of thousands of pamphlets into the South through the postal system. Fearing slave insurrection, local citizens in Charleston, New Orleans, and Norfolk broke into the post office buildings, seized the pamphlets, and burned them. Hearing these reports, the postmaster in New York refused to transmit any further abolitionist literature until he received instructions from Washington.50 While fearlessly stamping out corruption in the financial affairs of the Post Office, Amos Kendall was more circumspect with respect to this political controversy. He informed the postmaster in Charleston that the latter had no legal authority to exclude any newspapers from the mails or to prohibit their delivery because of their contents. On the other hand, said Kendall, “We owe an obligation to the laws, but a higher one to the communities in which we live, and if the former be perverted to destroy the latter, it is patriotism to disregard them.”51 Kendall then sought instruction from the President, who provided shrewd political advice. Jackson was clear that as the executor of the law the Post Office had no power to prohibit transportation in the mail of anything that the statutes authorized. Hence he suggested to Kendall that the papers should be delivered, but only to persons who specifically subscribed to them. In addition Jackson suggested that the postmasters should take down the names of the subscribers and have them published in the local newspapers. Local pressure, Jackson was certain, would thereby suppress the pernicious influence of these abolitionist rabble-rousers. Kendall issued these instructions which, while perhaps technically within the law,52 were designed to permit local sentiment to undermine federal administration.

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Southern resistance to the delivery of abolitionist literature by the Post Office mirrored Northern resistance to the implementation of the fugitive slave laws. Commenting in 1850 on the effectiveness of the Fugitive Slave Statute of 1793,53 Senator Mason said that it was “just as impossible to recover a fugitive slave now” in Pennsylvania or Ohio “as it would be to bring him up from the depths of the sea.”54 State officials in the North and in freesoil territories would not implement the original Fugitive Slave Statute, and there were too few federal circuit or territorial courts to do the job. In an attempt to keep the peace and maintain the union, Congress adopted stronger legislation.55 The 1850 Act authorized circuit court judges and superior court judges in the organized territories to appoint sufficient numbers of “commissioners” to provide “reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act.” The statute also contained substantial penalties for federal marshals who failed to carry out their duties under the Act and for private citizens who interfered with its enforcement. Even so resistance continued at a sufficiently high level to inflame Southern passions, and in some states, such as Wisconsin, was articulated by the legislature in terms that precisely paralleled Calhoun’s South Carolina doctrine of state nullification.56 It was not until after the Civil War that Congress was prepared to oppose sectional resistance by constituting a specialized agency, the Freedman’s Bureau, to enforce its will, rather than relying on the traditional remedy for failed enforcement of federal law, enhancement of judicial authority. What then of Matthew Crenson’s thesis that the spoils system, born of a commitment to democracy, instead promoted the rise of bureaucratic administration? The record is surely mixed. For the Jacksonians, as for any governing coalition, on large questions politics often dominated administration. When the chips were down, impersonal and objective administration could be sacrificed to the needs of the party or to the insistent demands of local sentiment. And even were that not so, faithful execution of the laws was no easy task. Congress, as usual, was extravagant in its criticism of administrative failures and parsimonious in providing administrative resources.57 Nevertheless, Crenson is certainly correct that Jacksonian administration made progress toward regularizing and bureaucratizing administration and assuring administration in accordance with law. As we have seen, there was administrative success as well as failure, and both Congress and federal administrators supported organizational innovations to reform and regularize administration. The raw materials and some of the architectural designs for further reform of the administrative constitution were in place.

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Moreover, in one instance (the administrative system created by the Steamboat Safety Act of 1852), federal administration took giant steps toward modern techniques of regulatory administration. In that legislation Congress created a quasi-independent board; gave it broad rulemaking, licensing, and adjudicatory authority; and allowed it to carry out its functions based (largely) on the best available scientific understanding of the problems of steamboat safety. The origins and operation of that statutory scheme hold an interest far beyond the limited attention that they have been given in the literature on the development of the American administrative state.

11

Regulating Steamboats

A half century into the American democratic experiment Congress was no stranger to regulatory legislation. From the earliest days of the Republic federal statutes regulated seaman’s contracts, trade with Indian tribes, and access to the Banks fisheries. The central government licensed commercial vessels, created patent monopolies, regulated bankruptcy, and enforced the substantive provisions of state quarantine and product quality statutes. And there was, of course, the central government’s draconian and unsustainable regulation of foreign commerce in the 1807– 1809 embargo legislation. But none of these regulatory schemes was as innovative, indeed downright modern, as Congress’s regulation of the safety of passenger carriage by steamboat. Beginning in 1838 and carried forward in multiple statutes thereafter, Congress launched a regulatory enterprise that persisted well into the twentieth century.1 The steamboat inspection system was innovative along three dimensions. Legally, it wielded the national commerce power to regulate matters of personal safety that were conventionally addressed through the police power of the states. Scientifically, it pioneered the development of regulation motivated by and based on new scientific understandings. Administratively, it combined something of the “New Deal” independent regulatory commission with “Great Society” health and safety regulation by delegating administrative authority to a multimember Board that combined licensing, rulemaking, and adjudicatory functions.

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“Bursting Boilers and the Federal Power” In his pioneering and award-winning study of antebellum steamboat regulation, John G. Burke claims that steam power, and particularly its use in steamboats, changed American attitudes about the legitimacy of the exercise of national governmental power in relation to private property. According to Burke’s account, while nineteenth-century Americans often believed that the government should promote industry through “patent rights, land grants, or protective tariffs . . . they opposed any action that might smack of governmental interference or control of their internal affairs. The government might act benevolently but never restrictively.”2 The steamboat changed opposition into support, indeed into a demand, for federal regulation. It was not steam propulsion itself, of course, that caught Americans’ attention in ways that would demand regulatory controls. It was instead the propensity of steam boilers to explode. Injury and loss of life from bursting boilers rose steadily in the early years of the nineteenth century.3 The explosion of the “Aetna” in New York Harbor in 1824 provoked Congress to consider the expediency of enacting legislation, but the bill reported out of committee died amid the crush of other business.4 The death toll continued. Two hundred seventy-three persons were reported to have died between 1825 and 1830, and by 1829 the high-pressure steam boiler had insinuated itself into American speech as a metaphor for unsafe power in quite different contexts.5 In his State of the Union message in 1833, President Andrew Jackson urged Congress to pass legislation.6 Nothing happened. Jackson’s successor, Martin Van Buren, took up the call7 and, following some spectacular loss of life in boiler explosions in 1837 and early 1838, Congress responded.8 While Burke presents this congressional action as overcoming serious doubts about the constitutionality of national regulation of private enterprise, his evidence for that claim is weak. Reviewing the constitutional debates in Congress for the same period David Currie finds that the steamboat regulatory statutes of 1838 and 1852 raised no questions of constitutionality in either house.9 This is perhaps not too surprising. The Commerce Clause jurisprudence during this period largely concerned the permissibility of state legislation that affected interstate commerce.10 It had been conceded since Gibbons v. Ogden11 that the commerce power included the regulation of navigation. The questions of moment in the reported cases seemed to be (1) whether that regulatory power was exclusive, and (2) whether state legislation adopted pursuant to the state’s traditional police powers was valid

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when interstate commerce was incidentally affected. According to Carl Swisher, the only issues raised about the constitutionality of the 1838 Act, or subsequent steamboat regulation statutes, concerned their applicability to ferries that operated wholly within the confines of a single state.12 Nevertheless, the steamboat regulation of the mid-nineteenth century was, as Burke asserts, the fi rst instance of Congress using the interstate commerce power to closely regulate a specific industry.13 And it was later used as constitutional precedent. The Windom Committee Report of 1874, which began the legislative process leading to the creation of the Interstate Commerce Commission, dealt at some length with the Commerce Clause question, and referred to the Steamboat Safety Acts of 1838 and 1852 as evidence of Congress’s well-established power to adopt regulatory legislation governing all modes of interstate transportation.14

Regulatory Design Steamboat regulation came in two major phases that established radically different regulatory regimes. The Steamboat Inspection Act of 183815 was parasitic on a 1793 statute16 that required the enrollment of all U.S. vessels engaged in the coastal trade. The 1838 Act demanded that steam-powered vessels renew these previously undemanding coasting licenses after demonstrating that they had complied with the new statute’s safety regulations. Owners or masters of vessels were to make such proofs by presenting certificates of inspection to the collector or surveyor of the port that had issued their licenses. For our purposes, the interesting part of the 1838 Act involves how those inspection certificates were issued. Under Section 6 of the Act each owner or master of a steamboat was required to obtain an inspection of the vessel yearly and an inspection of its boilers once every six months. To get an inspection the master or owner petitioned a federal district judge to appoint one or more persons who were competent to make an inspection of steamboats and their boilers. The statute did not further specify who might be a competent inspector. And although they were required to take an oath to faithfully carry out the inspection duties contemplated by the statute, these “inspectors” were not in any sense full-time employees of the federal government. Inspectors, whoever they were, simply received a fee from the owner or master of the vessel—five dollars for the inspection of the boat for seaworthiness, and five dollars for certifying that the boilers were fit for use. Seaworthiness and boiler fitness were left to the judgment of the inspectors with no further definition in the statute other than the requirement that steamboats carry

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lifeboats and firefighting equipment. The one “technology-based” standard in the Act was a requirement that in order to keep the steam pressure in the boiler, the safety valves on steam engines be opened whenever the steamboat was not underway. Beyond these rudimentary inspection requirements, the 1838 statute relied on enhanced civil and criminal liability to promote steamboat safety. Masters and owners were required to employ competent and experienced engineers to run the vessels. Failure to do so would cause them to be liable for damages for any loss to property or person “occasioned by an explosion of the boiler or any derangement of the engine or machinery of any boat.”17 Failure to have a proper certificate and license would subject the owner, master, or captain of a steamboat to a fine of five hundred dollars, which could be collected by an in rem action against the vessel.18 More dramatically, if captains, engineers, or pilots caused loss of life because of any misconduct, negligence, or inattention, they were subject to prosecution for manslaughter. In all actions for injuries arising to persons or property from the bursting of a steamboat boiler, the collapse of a flue, or any injurious escape of steam, the simple fact of failure of the steam engine was made prima facie evidence of negligence. As was customary in many early statutes an informer could bring suit for the penalties specified for various violations and, if successful, was entitled to half the recovery. The 1838 Act was very far from a modern regulatory statute. There was no “agency” charged with enforcement of the regulations or with authority to further specify the vague statutory standards. Inspectors were part-timers, appointed by district judges, and might or might not be qualified to carry out their duties. The requirements for yearly and half-yearly inspections were a move in the direction of ex ante or preventative safety regulation. But the statute relied heavily on traditional nonadministrative deterrence strategies— enhanced common law civil liability and criminal penalties for specified misconduct. These strategies failed. Death, injury, and property loss from bursting boilers continued to plague steamboat travel, and by 1848 Congress was seriously considering further legislation. In December of that year, Edmund Burke, the Commissioner of Patents, reported to the Senate concerning his investigations into the extent, causes, and prevention of explosions in steam boilers used either in boats or on railroads.19 Burke’s report related the objections to the 1838 steamboat safety legislation that he had collected in his survey of Collectors of Customs and others. First, district judges were poor candidates for the appointment of steamboat inspectors. They often resided far from the ports and knew little of

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the people who applied to be inspectors. Second, the 1838 Act imagined that the same person could inspect a boat for general seaworthiness and a boiler for soundness. But persons having the requisite knowledge of both boat construction and steam propulsion were virtually nonexistent. Captains of vessels selected inspectors least qualified to inspect the aspects of their steamboats that were most problematic. Indeed, because the boats covered substantial distances, they could often choose inspectors from any of numerous districts. Competition among inspectors for the five dollar fees further exacerbated this regulatory race to the bottom. The requirement of the 1838 legislation that owners and captains employ competent engineers had turned out to be completely ineffective. Indeed, in Burke’s view, the single most useful action that might be taken was to professionalize the status of the steamboat engineer. He urged the development of a required course of training for engineers followed by governmental licensing after a strict examination.20 This was the system used to certify physicians for the Army and the Navy medical corps, and as Burke noted drolly, incompetent physicians killed their patients at retail; incompetent steamboat engineers killed passengers wholesale. According to Burke’s informants, not only had the system of inspection become little more than a useless tax on steamboat operators,21 but the penalties in the Act were equally dysfunctional. Juries simply would not convict masters or engineers of manslaughter when they were guilty at most of simple negligence.22 And the provisions making any escape of steam from a boiler presumptively the result of negligence were tantamount to the imposition of absolute liability. Burke reported that “The severity of this feature of the law is said to have driven many worthy and enterprizing steamboat proprietors from the business and left it in hands less responsible.”23 Finally, Congress’s attempt to regulate the conduct of operators directly by requiring the opening of safety valves whenever the vessel was not underway may have backfired. Under certain circumstances it appeared that opening the valve manually, rather than by the buildup of pressure in the boiler, might precipitate an explosion rather than prevent one.24 Burke’s report leaves little doubt that the 1838 legislation was not working. But beyond professionalizing and licensing of engineers, Burke was not a fan of more complex federal regulation. He believed that enhanced civil liability, recoverable both in personam and in rem, combined with the increasingly stringent safety requirements that were being imposed as conditions on insurability by private insurers,25 would be the best course of legislative action. But agitation for reform remained intense,26 and Burke’s recommendations for strengthening traditional deterrence remedies were

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not to be the future of federal steamboat safety regulation. In 1852, Congress amended the three-page, thirteen-section statute that it had passed in 1838; the bill contained forty-three sections and ran fourteen pages in the statutes at large.27 Federal safety regulation was about to take on entirely new forms. Although Congress may have made missteps in the 1838 Act by requiring specific equipment or specific conduct, knowledgeable students of the causes of boiler explosions had long agreed on a number of important design and performance requirements to reduce the incidence of injury, death, and property damage from steamship travel. The 1852 statute reflected much of this scientific consensus,28 including the maximum operating load of boiler pressure and a requirement that boilers be hydrostatically tested at 1.5 times their permitted operating pressure.29 More importantly for our purposes, the administrative provisions of the 1852 Steamboat Safety Act contained significant innovations that moved safety regulation toward more modern forms. Most notably, implementation of the statute was put in the charge of a Board of Supervising Inspectors. Individually these inspectors were in charge of nine licensing districts. Along with the judge of the district court and the Collector (or other chief officer) of the relevant customs district, each Supervising Inspector appointed and supervised separate local inspectors of hulls and of boilers. Unlike local inspectors under the 1838 statute, these new inspectors were paid a fi xed annual compensation, and all fees for inspections were paid to the Collector of Customs for deposit in the Treasury. The local inspectors of hulls and boilers not only inspected and certified vessels and boilers, acting as a local board for each customs district, they also jointly licensed engineers and pilots of all steamers carrying passengers and granted special licenses for the carriage of flammable or explosive materials. As a board they were further authorized to hear complaints concerning the negligence or incompetence of engineers or pilots and to withdraw their licenses. In carrying out these duties local inspectors were empowered to compel the attendance of witnesses at hearings and to take testimony under oath. Although many of the provisions of the statute were quite specific, local inspectors nevertheless had considerable discretion. They were authorized to adopt any means they thought necessary to test the sufficiency of a steamboat or its equipment. While the statute instructed inspectors to allow boilers to have a working pressure of three-quarters of their tested pressure, they were permitted to reduce the working pressure of the boiler below that

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rating if in their judgment, the construction or materials used in a boiler made the normal working pressure imprudent. Moreover, the inspectors were allowed to waive any of the rules in the statute concerning boiler requirements if their application would be unjust and the inspectors determined that variance from the rules could be accomplished with safety. Indeed, the inspector of hulls, who examined the overall seaworthiness of the vessel and determined that it carried all the required safety and life saving equipment, acted under a statutory provision that demanded merely that the inspector be satisfied that the vessel was “suitable for the ser vice in which she is to be employed.”30 Operating as a local board for the licensing of pilots and engineers, the local inspectors had similarly broad discretion. Congress did not take Commissioner of Patents Burke’s advice to prescribe a required course of study and a strict examination for the licensing of engineers and pilots. Instead the 1852 statute merely instructed the inspectors to license engineers annually “if, upon full consideration, they are satisfied that [an applicant’s] character, habits of life, knowledge, and experience in the duties of an engineer, are all such as to authorize the belief that the applicant is a suitable and safe person to be entrusted with the powers and duties of such a station.”31 Inspectors were to license pilots if after diligent inquiry the inspectors found that the applicant “possesses the requisite skill, and is trustworthy and faithful.” Hence, while the 1852 Act attempted to avoid the lax inspection and raceto-the-bottom problems of the 1838 statute, Congress found itself, as usual, incapable of legislating with a specificity that would exclude substantial discretion on the part of widely dispersed implementing officers. Some means would have to be found to monitor their performance and ensure uniformity and consistency. That system of control was lodged in the Supervising Inspectors. They exercised general administrative supervision of the local inspectors in their respective districts and heard appeals from their decisions. Local inspectors who denied or revoked a vessel’s certificate or who denied or revoked an engineer or pilot’s license were required to state their reasons for those actions in writing. A disappointed owner, pilot, or engineer was then given a de novo appeal to the Supervising Inspector for the district. The Supervising Inspectors acting as a body were also given rulemaking authority. In the words of the statute, the Supervising Inspectors were required to meet at least once each year for “joint consultation and the establishment of rules and regulations for their own conduct and that of the several boards of inspectors within the districts.”32 They were also given the

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authority to adopt rules concerning the safety precautions to be observed by steam vessels when passing each other, rules which were the direct lineal ancestors of the now elaborate and detailed collision regulations (COLREGS) known to all mariners.33 All navigation rules adopted by the Board were required to be furnished to each licensed vessel, and the vessels were then required to post them in conspicuous places.34 Congress seemed keenly aware that information was the key both to enforcement and to sound regulation. Licensed engineers and pi lots were required to report any known defect or imperfection in their vessels at the earliest opportunity, or risk losing their licenses. Moreover, the Supervising Inspectors were charged with the responsibility of collecting information on a continuous basis concerning all aspects of steamboat construction, equipment, and navigation. These reports were to be synthesized by the Secretary of the Treasury and presented to Congress, together with recommendations concerning further legislation that the Secretary thought proper for the “better security of the lives of persons on board steam vessels.”35 Although the local inspectors made reports to the district collector of customs, and the Supervising Inspectors to the Secretary of the Treasury, the implementation of the Steamboat Safety Act of 1852 was only loosely situated within the Treasury Department. The statute gave the Secretary of the Treasury no authority to supervise or to make rules for what came to be known as the Steamboat Inspection Ser vice. Supervising inspectors were appointed by the President and confirmed by the Senate, and the local inspectors were appointed by the strange triumvirate of a district court judge, a customs collector, and a supervising inspector (subject, however, to the approval of the Secretary of the Treasury).36 All rulemaking and adjudicatory authority rested with the inspectors— either the local boards or the supervising inspectors. To be sure, the supervising inspectors were presumably removable by the President at will. In that sense they were not so independent as those later creations we commonly call “independent agencies.” But in virtually all other respects, the Board- dominated regulatory regime constructed by the 1852 Steamboat Safety Act was a semi-autonomous bureaucratic enterprise— one designed to apply expert knowledge to the task of promoting steamboat safety. Indeed, the Steamboat Inspection Ser vice combined the multimember structure, single-industry focus, and licensing/adjudication features of Progressive and New Deal regulatory commissions with the rulemaking capacities of later health and safety regulators like OSHA, NHTSA, and EPA.

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Unlike its 1838 predecessor, the 1852 statute relied upon administrative remedies rather than common law or criminal sanctions. The statute’s design and performance requirements, along with its inspection and licensing provisions, emphasized preventative regulatory controls rather than incentive-based deterrents. The primary threat to regulated parties was now failure to obtain (or loss of ) a license— either to put or keep a steamboat in ser vice, or to serve as a pilot or engineer. Inspectors were given the power to inspect without notice, and their investigatory powers were backed by authority to call and swear witnesses in hearings to determine the existence of negligence or misconduct. To avoid the problem of “board shopping,” inspectors in one district were prohibited from modifying any order made in another district that required a vessel to make repairs or modifications. Along with these administrative enforcement provisions came administrative remedies. So far as I have been able to ascertain, this is the fi rst statute at the national level to require written reasons for an administrative decision. And while not unique (administrative appeals had existed for decades in customs collection and elsewhere), the 1852 Steamboat Statute created an explicit hierarchy of adjudicatory jurisdictions when permitting de novo appeals to Supervising Inspectors from the decisions of local boards.37 In a nod toward expertise, the Act functionally differentiated boiler inspection from the other aspects of a vessel’s seaworthiness. But lacking established engineering or marine architecture professions, Congress could do little to ensure competence beyond dividing inspection responsibilities and demanding that inspectors of hulls and boilers be knowledgeable and reliable.38 The Act seems to have contemplated that both local and supervising inspectors would be, or had been, involved in the steamboat business in some way. Otherwise where would they obtain the requisite knowledge and experience?39 The 1852 statute, therefore, disqualified them from involvement in any case where they might have a conflict of interest.40 And, although the compensation for Supervising Inspectors, and for local inspectors in some of the larger and busier ports, was substantial, the statute did not require (and probably did not contemplate) that inspectors devote their full attention to their public duties. Nevertheless, by 1852 the promotion of steamboat safety was no longer in the hands of episodically appointed, ambiguously qualified, fee-seeking inspectors or the generalized judgment of judges and juries. Congress had decided to build an expert regulatory agency, one that reflected the increasing application of scientific method to both public and private pursuits in the mid-nineteenth century.

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Administration The Board of Supervising Inspectors began to implement the statute almost as soon as its members were appointed and confirmed.41 It held its first annual meeting in Cincinnati in 1853. But even before that conclave the Board had held three other meetings at Washington, New York, and Pittsburgh, two before the effective date of the statute. Although Congress had crafted relatively specific provisions, the Supervising Inspectors immediately discovered gaps, vague provisions, and opportunities for inconsistent application. Rules and regulations came forth in a steady stream. At its first meeting at Washington, D.C., on October 27, 1852, the Board immediately elected officers, adopted some procedural rules for its own governance, and appointed two committees— one for the consideration of Rules and Regulations for the Government of the Local Boards of Inspectors, the other to prepare Rules and Regulations for the Pilots and Masters and to prevent collisions.42 By November 2, the Board had approved all the necessary forms to be used for certificates and licenses required to be issued under the statute and had adopted initial rules on pilotage and inspections.43 It also plugged a gaping hole in the statute. Oddly enough the 1852 Act had provided for nine Supervising Inspectors but had left their respective districts to be determined by the Board itself.44 A committee composed of Supervising Inspectors representing the Atlantic Coast, the Great Lakes, and the Mississippi Valley recommended boundaries for nine districts, along with the assignment of a resident Supervising Inspector for each. The report was unanimously accepted.45 The only hesitation the Board showed in adopting needed rules was to inquire of the Attorney General, through the Secretary of the Treasury, whether it had the authority to establish a rule to guide local board determinations of the number of passengers that steamships were allowed to carry pursuant to the ninth and tenth sections of the statute. Two days later the Attorney General instructed the Board that, because local inspectors were compelled by the law to certify the number of passengers that steamers were allowed to carry, it was surely prudent, if not legally required, that the Board adopt a rule to assure uniformity of local inspectors’ decisions. The Board considered a number of other matters. Chief among them was insuring that the Secretary of the Treasury exercised the authority granted to him under the statute in ways that would facilitate the Board’s operations. The Secretary, for example, was given the responsibility of providing testing instruments to local inspectors for determining the safe operating pressure of boilers. But there was no reason to expect the Secre-

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tary to be knowledgeable about these matters. The Board, therefore, determined the type of hydrostatic pump that should be employed and wrote to the Secretary “to suggest that the manufacture of them be put under contract at your earliest convenience.”46 The latter moved with dispatch. Only two days later the Board recorded a letter from the acting Secretary of the Navy informing it that the pumps would be manufactured at the Navy yard in Washington, D.C.47 The Board met again two months later,48 to adopt additional rules governing the activities of the local boards of inspectors and amendments to the rules previously adopted for pilotage. Hence, by the time the 1852 statute went into effect on January 1, 1853, the Board of Supervising Inspectors had put in place a substantial set of regulations to govern the licensing activities of the local boards and to regulate navigation by steamship pilots. But, as might be expected, experience in administering the statute would quickly reveal a host of additional problems. Because there was a “want of uniformity” in different districts concerning the standards for licensing pilots, at its next meeting, in Pittsburgh, the Board required that pilots not only obtain a license from a local board at either extremity of their route, but an endorsement or approval from every local board in the districts through which their boats passed.49 The Pittsburgh meeting addressed a host of other matters, and in a substantial number of cases imposed requirements that went well beyond the explicit demands of the 1852 statute.50 There was some initial leniency in applying the 1852 statute, but not much. Responding to petitions from steamboat owners, Congress authorized any inspector of steamers to delay the operation of its statute for ninety days where a steamer was found deficient with respect to the requirements of the Act, provided that the inspector found that those deficiencies were not caused by any fault or neglect of the owner or master.51 According to Louis C. Hunter, [S]teamboatmen quickly learned that the careless old days were gone when each steamboat owner was the undisputed master of his property. . . . Notices soon began to appear in the newspapers of the suspension and revocation of officers’ licenses, of trials of the officers involved in accidents, and of the refusal to grant licenses to steamboats.52

Ten months after the effective date of the Steamboat Safety Act of 1852 the Board of Supervising Inspectors convened its first annual meeting in Cincinnati.53 As at its earlier meetings, the Board received reports and petitions, amended its rules and adopted new ones, and gave interpretations

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and instructions for the guidance of both the local boards and the affected public. It also submitted its first annual report on the workings of the statute to the Secretary of the Treasury. Although the information was not so complete as they would have liked, the Supervising Inspectors were confident that “the operation of the law has been highly beneficial and has in a great degree attained the object for which the law was established, viz: greater safety to the lives of passengers.”54 Accidents and loss of life seemed to be declining rapidly as compared with the period prior to the law’s enactment. Moreover, those who had initially opposed the law— owners, captains, engineers, and pilots—were rapidly being converted to its virtues. In the Board’s words “many of those formerly arrayed in the ranks of its enemies are now numbered amongst its strongest friends.”55 The Board also took comfort from the fact that insurance companies were using the inspection statute as a basis for making decisions concerning the insurability of steamers, and from the returning confidence of the traveling public.”56 The Board’s report to the Secretary of the Treasury summarized the experience in each supervisory district for the prior year.57 In case after case the Supervising Inspectors and their local board counterparts found that various requirements of the statute had prevented accidents and reduced or eliminated loss of life where accidents occurred. All in all, the data since the enactment of the statute showed that explosions were occurring at one-fifth the prior annual rate, leading to a 75 percent reduction in loss of life and an over 90 percent decrease in property losses. While often intimating that this improvement resulted from the effects of the statute and its implementation, the Board concluded, “whether this is to be attributed solely to the operation of the law, or to fortuitous circumstances, we will not express an opinion but leave each one to judge for himself.”58 Whatever its effects on safety, there was no doubt that enforcement of the statute was proceeding apace. Hundreds of steam vessels had been inspected and thousands of pilots, engineers, and assistant engineers licensed. The Board of Supervising Inspectors did not, of course, find that the statute was perfect. Less than a year after the Act went into effect, the Board began to suggest needed amendments. Commerce and navigation were increasing on the West Coast and the Board saw a need for a Supervising Inspector for the Pacific. More crucially, the Board thought that exempt classes of steamers—ferryboats, freight boats, tug boats, and the like— should be brought within the statute. And it complained that the pay for local boards was inadequate, indeed “in some cases so small as to render it

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impractical to obtain or retain competent persons to discharge the duties required.”59 As is often the case, licensing promoted the professionalization of the licensees, who then sought to influence the licensing scheme itself. An Association of Engineers in Cincinnati recommended that the local boards should grant or refuse licenses to engineers based on the examinations of the Societies of Engineers that had formed in major port cities. The Board was not inclined to delegate its authority to a professional association. As the Board saw the matter: The rights of Engineers and others are fully secured, while they have open to them the opportunity of presenting for consideration all evidence for or against an applicant, whether verbally, in writing, or under oath. But the province of judging of the weight and force of that evidence must be and remain in the Inspectors; they cannot transfer this power to others; they must be satisfied with the proofs which the applicant produces in support of his claim, and from the examination he may have undergone.60

Publication of the new rules and regulations61 and the notoriety of enforcement actions were virtually guaranteed by the newspapers’ avid interest in steamboat accidents and the operation of the 1852 Act.62 And the local and supervising boards did more than inspect, license, enforce, and issue regulations: they provided advice. Entrepreneurs were constantly touting one or another safety device as effective in preventing steamboat accidents, fires, or explosions. The Board of Supervising Inspectors investigated many of these claims and publicized their findings. During the fi rst few months of the implementation of the 1852 statute, only a relatively small number of boilers were found defective; licenses refused, suspended, or revoked; or steamers reported for prosecution for violations.63 The Supervising Inspectors were at pains to point out that the modest number of sanctions was largely the result of their cautious application of the statute at this early stage. Violations were reported to the U.S. Attorney only when they continued after being detected and the owner notified. And rather than outright refusal of licenses to engineers and pilots, local boards often found it possible to grant them a license for a lower grade of activity. Finally, when revoking or suspending licenses, the Board reported that local boards had been cautious in “giving the party ample notice of the charges against him, and an opportunity either to disprove them, or present in defence, such palliating circumstances or occurrences, as should be properly considered in fi xing upon or waiving the penalty.”64

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Although the statute itself provided no administrative adjudicatory process for license denials, suspensions or revocations, or for other sanctions, local boards seem to have fi lled the gap based on custom and notions of fundamental fairness.

Executive and Congressional Relations As previously noted, the whole steamboat regulatory apparatus was nominally a revision of the licensing scheme for domestic vessels that had begun as a revenue measure in the early days of the Republic. Hence, while local boards of inspectors were supervised by the Supervising Inspector in their region, they also provided reports to the Collector of the revenue district where they operated. The Collectors and the Secretary of the Treasury also participated in the appointment of local inspectors, and the Supervising Inspectors provided an annual report on the implementation of the statute to the Secretary of the Treasury. In the early years, there is evidence that the Secretary of the Treasury sought to exercise supervisory authority over the Board. Treasury Special Agent William Gouge first appeared at the Special Meeting of the Board of Supervising Inspectors at Washington in 1854. He was invited to sit with the Board to obtain such information as the Secretary of the Treasury required.65 Gouge was once again present at the annual meeting in Detroit in 1854 and at the annual meeting in St. Louis in 1855.66 Two years into the implementation of the Act the Board seemed to have gained the Treasury’s confidence. From 1855 forward, the proceedings of Annual and Special Meetings of the Board of Supervising Inspectors reveal almost no contact with the Secretary’s office. There is little evidence that the Secretary of the Treasury exercised much influence over Board policies during the Jacksonian period. For example, having twice failed to persuade the Board of the efficacy of his “patent safety guard,” an inventor named Reeder managed, through influential friends, to get the Secretary of the Treasury to request a report on his device by the Board of Supervising Inspectors. The Board was not impressed: it responded with a report from its Committee on Machines explaining that the device would not work as claimed.67 And when the Secretary of the Treasury requested that the Board consider realigning its districts to ensure more effective implementation of the law, the Board declined. It explained to the Secretary that the complaints that he had received of unequal and lax enforcement were unfounded (as a prior Board investigation had demonstrated), and that the proper remedy was the creation of a tenth Supervising

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Inspector for the Pacific Region— a remedy that was already before Congress.68 In short, the Board of Supervising Inspectors of Steamboats was in the Treasury but not of it. Like the U.S. Marshals and the Patent Office, which were lodged in the State Department, the Board had been provided a home of convenience in a department whose basic mission was quite different from its own. Moreover, the Board had independent relationships with the relevant committees of Congress. In 1854 it appointed a committee to confer with the Commerce Committees of the House and Senate concerning its 1853 proposals for amendments to its statute.69 In that same year, the Board appointed another committee to confer with both commerce committees to explain issues related to implementing the fusible alloys requirements of Section 9 of the 1852 Act, and the Senate Commerce Committee requested the Board’s views on whether Congress should purchase “Evans’ patent safety guard” for use on government steamboats.70 Indeed, the Board devoted the whole of its special meeting in Washington in 1856 to little more than lobbying Congress concerning its proposed revisions to the 1852 statute. A committee of the Board drafted amendatory legislation containing twenty-eight sections—rivaling in bulk the 1852 statute itself.71 The Board and its committees then held meetings with relevant congressional committees to explain its proposals. The Board also actively opposed legislation that it thought ill-advised. It commented unfavorably, for example, on a petition to Congress from the residents of Paducah, Kentucky, seeking to have a local board established there.72 And, at the request of the House Commerce Committee, the Board prepared a substantial report on the subject of the means for removing snags from the Mississippi River.73 There is no indication in the Board’s records that any of these matters were discussed with or cleared through the Treasury. Independent relationships with the Congress did not necessarily produce results. Although post- Civil War amendments would follow many of the Board’s recommendations, its annual reports up through 1860 repeatedly lament that, notwithstanding favorable reports from the committees of jurisdiction, Congress had never acted on its proposals.74 As the country approached an ever more inevitable and apocalyptic civil war, Congress doubtless had other things on its mind. On the other hand, these legislative activities reflect two practices of some moment. First, Congress obviously saw no impropriety in dealing with the Board of Supervising Inspectors as an independent entity. It might only be able to request opinions of the Attorney General and obtain funds

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through the Secretary of the Treasury, but it could deal with Congress directly. Second, when Congress had questions that fell within the Board’s jurisdiction, it was prepared to view it as the expert body whose advice should be sought, if not always taken.

Organization and Process When the reports of the annual and special meetings of the Board of Supervising Inspectors from 1852 through 1860 are read chronologically, the movement from informal to standardized, indeed bureaucratic, processes is obvious. The Board’s business involved preeminently the adoption of rules for the guidance of local inspectors and pilots and the preparation of its annual report to the Secretary of the Treasury. But it received memorials and petitions from interested parties, and adopted resolutions that were more in the form of interpretations or advice than formal rules. In the early years, problems that were identified by petitions or by the annual reports of the local boards were referred to ad hoc committees or dealt with by the Board as a committee of the whole. By 1858 this process was inadequate. The Board established separate standing committees on the annual report, regulations, pilot rules for both the Eastern and Western waters, lifesaving apparatus, machinery, and fire apparatus.75 Thereafter issues that arose were routinely referred to the appropriate committee for recommended action. Over time the Board also demanded more detailed and standardized reports from the local boards, and its annual report to the Secretary of the Treasury took on a formulaic character. As data were accumulated, the annual reports also increasingly emphasized statistics on the licensing and enforcement activities of the local Boards, steamship accidents, lives lost, and property damage. Beyond overseeing the activities of the local boards, the Board of Supervising Inspectors’ principal statutory function was the adoption of rules. And following its early inquiry of the Attorney General concerning its authority to make rules limiting the number of passengers carried on steamers, the Board moved forward with apparent confidence. By 1857 it had a substantial inventory of rules, both for the guidance of local inspectors and for pilots. At its annual meeting that year it adopted a complete revision and restatement of the pilot rules, including a special set of additional rules for rivers discharging into the Gulf of Mexico.76 Indeed the time for codification had arrived. In 1858 the Board charged its Committee on Regulations to compile an index of all of its prior rules and resolutions in order to make them more easily available.77 That compilation

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would be composed of both “hard law”—that is, regulations— and “soft law”—that is, recommendations, interpretations, and explanations. This was necessary because the Board often acted by a resolution that merely called upon local boards to recommend certain practices or to be particularly attentive to some aspect of inspections or licensing. The Board also issued interpretations of its own rules, and documents that it called “circulars.” These documents explained the rules in greater detail than were contained in the regulations themselves. Rule drafting was done by ad hoc and then the standing committees of the Board. Publication occurred incidentally in the interested press, but also by distribution of the rules to all potentially affected parties. In 1857, for example, the Board ordered 4,000 copies of its new Pilot Rules and Rules on Signal Lights printed for distribution to all steamship pilots.78 It also set aside a day for the Supervising Inspectors to individually sign all 4,000 copies. Without an official gazette for the publication of administrative rules, apparently the signatures of the Board’s members were thought necessary to authenticate these communications. Although the Board held no hearings on its proposed rules, it often described its rules as responding to petitions or complaints from outside parties, and sometimes invited outsiders with special interest or competence to meet with the Board concerning par ticular issues.79 And while much of the Board’s information came from its own investigations and the experience and reports of the local boards and inspectors, by 1858 it was setting aside some time at its annual meeting to hear orally from petitioners.80 The Board was generally attentive to explaining the basis and purpose for any new rule or amendment. These explanations appeared both in the preamble to resolutions spread upon the minutes of its proceedings and in its annual reports to the Secretary of the Treasury, which often elaborated the necessity for and rationale for new regulations. These explanations may be rather like the “concise statements of basis and purpose” that the drafters of Section 553 of the Administrative Procedure Act had in mind in 1946.81 But, because no one in the 1850s would have imagined judicial review of the Board’s rulemaking activities, these explanatory statements did not metastasize into the book-length treatises that one now often finds in the Federal Register. The Board was merely engaging in the politically prudent activity of explaining itself to its formal superior officer, to Congress, and to the public at large. The other major quasi-rulemaking activity of the Board was the evaluation of inventions and techniques that were pressed upon it by either publicspirited or proprietary petitioners. The annual proceedings are replete with

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reports on matters such as Evans’ patent safety guard,82 a patented lifeboat and an apparatus for extinguishing fires on steamships,83 a patented detachable safety deck saloon cabin, Hoyt’s Watergate and Allen’s Steam Gauge,84 Miller’s Safety Steamboiler, or Stubblefield’s Steam Alarm Water Gauge.85 The Board sometimes found the gadgets useful and recommended them, and sometimes useless and to be avoided. It made clear, however, that its acceptance of a par ticular device as a useful safety mechanism should not exclude any alternatives that also performed effectively.86 The Board seems to have had a clear preference for performance versus design regulations and tried to avoid either prejudging patentability or providing a regulatory monopoly. On the other hand if a design failed to work, the Board banned its approval by local inspectors.87 Whereas the Board of Supervising Inspectors was engaged primarily in rulemaking and general advice giving, the local boards’ responsibilities were for licensing and enforcement. Every annual report contains a summary of all accidents occurring during that year in every supervisory district; a discussion of the local board’s investigation into the causes of those accidents; and a description of the enforcement actions taken where vessels, pilots, or engineers were found to be at fault. With few exceptions, the Board of Supervising Inspectors provided almost no specification of how local boards should operate in connection with their enforcement activities, investigations, or licensing functions. The statute gave them authority to hold hearings and swear witnesses, but the Supervising Inspectors did not seek to regulate their procedures. As early as 1855, the Annual Report of the Board of Supervising Inspectors reported that enforcement was easier and contested cases were constantly decreasing because the courts had now decided many doubtful questions.88 Standing alone this might suggest significant judicial involvement in the enforcement of the statute. But there is little other evidence to support that inference. The reports of federal cases for this period reveal a few reasonably generous constructions of the statute by federal courts.89 However, the reported cases are sparse, and four years later the Board complained about the tardiness of action by U.S. Attorneys in pressing prosecutions for violation of the statute.90 If the Act were having beneficial effects, these were more likely to flow from the high level of administrative inspections and investigations.

Results The new regulatory system did, indeed, seem to be having the desired effects. The passage of the steamboat safety legislation had been driven in

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significant part by public attention to the available statistics on steamboat accidents and explosions.91 Based on the reports that they had by regulation required of local boards, the Supervising Inspectors larded their annual reports with statistics on the number of accidents, their causes, lives lost, and property destroyed.92 These data were publicized by an alwaysinterested press. In 1857, for example, under a headline reading “Interesting Statistics,” the Baltimore Sun summarized the data from the most recent Supervising Inspectors’ Report.93 The news was encouraging: By an examination of these statements we find that for five years prior to the passage of the steamboat act we have accounts of the loss of 1,571 lives, and for the five years since said passage, the total loss of life on the western rivers is 315, leaving a difference of 1,226 lives.94

The supervising inspectors had reported inspecting 1122 steamers during 1856 as well as examining and licensing over 2500 pi lots and nearly 3000 engineers. The total number of passengers carried by licensed steamers during the period topped 3.6 million. Three hundred and fifteen deaths out of a total passenger carriage of 3.6 million suggests that steamers had become a relatively safe mode of transport. And, the decrease in lives lost between the period before and the period after implementation of the Steamboat Safety Act was impressive— deaths had fallen by a factor of five. The problem with these comparative numbers was that the “before the act” figures were compiled from newspaper reports, which were almost certainly exaggerated. Fatalities reported in the newspapers in the late 1850s were nearly twice as large as the number compiled from the reports of the local inspectors investigating accidents.95 Nevertheless, the implementation of the Steamboat Safety Act was almost certainly having a salutary effect. Reductions in accidents and lives lost were occurring in the face of significant increases in steamboat tonnage in use and in passengers carried. Thousands of inspections and hundreds of specific orders, both for repairs and replacements and for the suspension and revocation of licenses, focused the minds of the steamboat operators on safety. Indeed, in report after report, the Supervising Inspectors noted that the owners of steamers not covered by the statute were requesting inspections because it had been demonstrated to be in their own interest.96 There were even requests for inspections of locomotives and land steam engines, and some companies running exempt steamships declined to employ engineers who had not been licensed pursuant to the 1852 Act.97 Although boiler explosions would remain a problem in steamboat travel for many years, the move from general deterrence through civil and criminal penalties to specific requirements,

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administered by a vigorous and increasingly knowledgeable agency, seems to have been a success.98

Science, Technology, and Steamboat Regulation An idealized model of the relationship among science, technology, and public policy might go something like this: scientific discoveries often lead to useful technological applications. Government policy supports and encourages the generation of new scientific knowledge and the development of useful technologies. It also responds to scientific and technological innovation by regulating new products and processes when necessary to limit their harmful side effects. However, this idealized vision hardly describes the world as it is. Technological progress often precedes scientific understanding. Much, perhaps most, technological innovation is the result of incremental adjustments to existing methods, not the abstract application of new scientific learning to previously perceived needs. Similarly, public policy may retard, ignore, distort, or imagine science, almost as often as it supports it or uses good science to develop effective, cost-beneficial regulatory policy. Policy making has never been only a search for scientific truth.99 The regulation of steamboats in the mid-nineteenth century in the United States provides a classic example of this uneasy relationship among science, technology, and public policy. For the Jacksonian period witnessed not only a series of major technological innovations, but a dramatic upsurge in the general interest in science— or what was then called “natural philosophy.”100 By the time the first major boiler explosion occurred on the steamboat Washington in 1816, steam technology development was well in advance of scientific understanding. While steam power had been used in the United States since the middle of the eighteenth century,101 engineers had only a  sketchy idea of how their steam engines actually worked. According to Robert Bruce: Antebellum inventors were no more inclined to scientize than they were to professionalize. Most being devisers of mechanisms, they carried on no experimental research to derive new principles or generalizations. Instead they used well-known mechanical principles and counted it success when their models worked as envisioned.102

And when machines based on their models failed, as bursting boilers did so dramatically, they could only guess at the reasons.

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As the editor of the Journal of the Franklin Institute put it in January 1829: “With respect to the cause of such explosions, there is not, by any means, a concurrence of opinion, even among scientific men.”103 Many apparently believed that the problem was negligent operation. But, this theory was dealt a severe blow when the steamboat New Haven exploded in 1830 in circumstances that could not be attributed to negligent operation, or to any other cause that had previously been postulated. Professor Benjamin Silliman of Yale, the founder of one of the chief scientific journals of the age, wrote that the “painful conclusion is forced upon us, that explosions of steam boilers are produced by the energy of the power and by the weakness of the materials.”104 But why did some explode while others did not? Alexander Dallas Bache105 hypothesized that, contrary to popular wisdom, the safety valves on steam boilers might actually cause boiler explosions.106 Bache’s hypothesis was based on an analogy to another conjecture: that adding water to a hot boiler increased rather than decreased the pressure in the boiler and caused explosions. Others thought that the explosions resulted from the decomposition of water inside a boiler into its component elements.107 Although it had been founded for quite different purposes,108 the managers of the Franklin Institute decided to pursue serious research on the causes of steam boiler explosions.109 Three months earlier Congress had requested that Treasury Secretary Louis McLane collect information and report his views concerning what regulations the Congress might adopt to guard against the dangers from bursting steamboat boilers.110 McLane happened to read a newspaper account of the Franklin Institute’s proposed actions and wrote to suggest a cooperative effort, including the possibility of appropriating federal funds to support the Institute’s experiments. Bache, who headed the Franklin Institute’s committee of inquiry, responded with a proposed set of experiments and a budget of $1500.111 The appropriation was approved in October, and the first partnership between the federal government and a scientific institution was launched.112 The Institute set out to determine “the truth or falsity of the various causes assigned for the explosions of steam-boilers, with a view to the remedies either proposed, or which may be consequent upon the result of the investigation.”113 Its committee developed twelve specific research projects, and meticulously documented the specifications of the various devices used in its experiments and the experimental methods employed.114 These investigations disproved many of the standard hypotheses concerning the causes of steam boiler explosions, including all of those previously mentioned. Perhaps most importantly, the Committee’s report demonstrated conclusively

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that “the most violent explosions might occur without a sudden increase of pressure within a boiler.”115 And, although the Board of Managers of the Franklin Institute had entered upon its investigations with considerable skepticism about adopting federal legislation,116 Bache’s general report offered Congress a twenty-section bill containing all the technological provisions that would eventually find their way into the 1852 legislation.117 Here, of course, science met politics. Congress was not stimulated to act by the Franklin Institute’s report and proposed legislation, but by the spectacular boiler explosions that occurred in 1837 and early 1838. And Congress’s 1838 and 1852 legislation omitted many of the Franklin Institute’s technical suggestions. The path-breaking experiments of the Franklin Institute almost certainly had some impact.118 But the 1852 legislation was technologically less sophisticated than French regulations that had been in effect since 1823, and which were well-known in the United States.119 Congress was no more persuaded by scientific understanding alone in the midnineteenth century than it is in the twenty-first. The conclusion is almost inescapable that the real improvements in the effectiveness of the 1852 over the 1838 regulatory legislation lay in the 1852 Act’s administrative provisions. A permanent cadre of inspectors, armed with licensing power and with rulemaking authority to fill in the holes inevitably left by the congressional legislation, could make a difference. Year by year, based on the testimony of experts, the experience of the local boards, and their own investigations, the Board of Supervising Inspectors of Steamboats learned what worked and what did not. This knowledge was impounded into regulations, recommendations, and advice, including much advice that went unheeded by a Congress preoccupied by other matters. Although little-known to twenty-first-century administrative lawyers, the 1852 Steamboat Safety Act anticipated the organizational form, the practical operation, and the congressional politics of much modern health and safety regulation.

12

The Administrative Constitution of “The Democracy”

Administrators operate within three overlapping systems of accountability: political accountability to elected executives and legislatures, administrative accountability to hierarchical superiors in the administration, and legal accountability to courts. Each of these systems both builds administrative capacity and binds or controls administration. The legislature provides the legal and fiscal resources for administrative action while simultaneously limiting the scope of those resources and overseeing administrative implementation. Department heads and bureau chiefs seek to control subordinates, but also to provide leadership and managerial resources that energize administration. And while courts are largely called upon to constrain administrative excess, their insistence on a demonstration of statutory authority can also protect administrators from improper political pressures. Indeed, by demanding performance according to law, courts may leverage administrative requests for authority, personnel, and budgets, thus building administrative capacity. The relatively stable patterns established by the individual and interactive operation of these accountability regimes in building and binding the administrative state define the character of the administrative constitution for any par ticular era. How should we understand the administrative constitution of Jacksonian America? Not an easy question. This was a dynamic period marked by crosscutting and contradictory developments in American governance. For example, the constitutional ideology of “The Democracy” featured popular control through a strong party system that fed on the patronage of appointive office-holding. Yet the state constitutional conventions of the 1840s were convened and acted precisely to curb the powers of

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popular legislatures. These new constitutions created elected state judiciaries, thus freeing the judges from executive and legislative control and setting the stage for the laissez-faire constitutionalism of the late nineteenth and early twentieth centuries, which aggressively reviewed state legislation.1 Take another example: Jacksonian democracy included a belief that markets should be freed of regulation favoring special interests and “monopolies.” Yet this democratically inspired “free market” ideology combined, as we have seen, with an increasing demand for the government to control its own finances, for specialization, for internal checks and balances within government agencies, and even for central government regulation of highvisibility threats to health and safety. A responsive Congress thus steadily increased government administrative capacity on the odd foundation of small government ideology and a reverence for elections as the fount of legitimate authority. In the midst of profound social and economic change, and seemingly contradictory or anomalous political developments, the administrative constitution continued to develop mostly along paths previously trod. Change there surely was, but often in the direction of reinforcing, expanding, or restructuring the accountability regimes that had gone before, on the basis of new understandings of what “democracy” required.

The Legal Accountability System What I previously styled the “bipolar approach” to judicial review survived, indeed was strongly reaffirmed, in the age of Jackson. The common law system of de novo review in damage actions and criminal prosecutions continued, as did the extreme reticence of courts to interfere with administrative judgments by writs of mandamus or injunction. Yet, the Taney Court that presided over most of this period decided some important administrative law cases that both cemented and began to unsettle the bipolar tradition.2 Two of the more important cases of the period involved Amos Kendall’s attempts to control corruption in the Post Office. Kendall had disallowed payment of a claim by the firm of Stockton and Stokes, one of the Post Office’s major contract carriers and stagecoach operators. He apparently believed that the Stockton and Stokes charges were based on one of those lowball and then “improved” bids that had undermined competitive bidding for mail carrying.3 Stockton and Stokes made an end run around Kendall’s denial by getting a statute passed that directed the Solicitor of the Treasury to determine the legitimacy of their claim. It also directed the Post Master General to honor the Solicitor’s determination. When the Solicitor not only sided with Stock-

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ton and Stokes but added an additional $40,000 for a period that had not been included in the original claim, Kendall refused to honor the additional award. Further politicking ensued. President Jackson apparently instructed Kendall to stick to his guns, but referred the matter to the Senate Judiciary Committee, which issued a report stating that under the terms of the statute, Kendall had no authority to revise the Treasury Solicitor’s determination.4 Stockton and Stokes then got a writ of mandamus from the Circuit Court of the District of Columbia ordering Kendall to make payment, which was duly appealed to the Supreme Court of the United States. Attorney General Butler argued before the Supreme Court that the judiciary had no power “to interfere in advance, and to instruct the executive officer how to act for the benefit of an individual.”5 But the Supreme Court was unconvinced. In a statement that redeemed the promise of Marbury v. Madison, the Court responded “to contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution; is a novel construction of the Constitution, and is entirely inadmissible.”6 Because the actions of the Postmaster General under the statute were purely ministerial once the Solicitor had rendered his judgment, the Court upheld the lower court issuance of a writ of mandamus. Kendall v. Stokes was a foot in the door that might easily have pushed back the extreme deference that had previously been shown to all exercises of administrative discretion. After all mandamus jurisdiction was not limited to instances in which officers had absolutely no discretion either in England or in some of the states. As early as 1758 Lord Mansfield had asserted in a case involving mandamus to a Justice of the Peace that the writ would lie “if it appeared to the Court . . . that their conduct was influenced by partial, oppressive, corrupt, or arbitrary views instead of exercising a fair and candid discretion.7 And the King’s Bench under Lord Ellenborough issued mandamus for abuse of discretion in several nineteenth-century cases.8 Similar developments could be found in state law. The opinion in State ex rel. Adamson v. Lafayette County Court captures the essence of state practice in a number of jurisdictions. When ruling on whether official action should be categorized as either ministerial or discretionary, the Missouri Supreme Court found that the officer’s action was “essentially a ministerial act, though coupled with a discretion. When the law devolves upon an officer the exercise of a discretion, it is a sound legal discretion, not a capricious, arbitrary, or oppressive one.”9 Other state cases similarly problematize the ministerial-discretionary distinction.10 Indeed, Kendall had argued to the Supreme Court that, whatever the determination of the Solicitor of the Treasury, he still had the responsibility to

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determine whether the Solicitor’s decision overstepped the bounds of the Solicitor’s authority under the statute. He was bound to pay on the basis of a valid determination by the Solicitor, he argued, but he believed that he also had the responsibility to determine whether the decision by the Solicitor was indeed valid. That surely was not a “ministerial determination.” On the other hand, it would have been quite easy to find that otherwise discretionary decisions based on clear errors of law, clear mistakes of fact, or clear violations of procedural requirements were plainly unauthorized. Because an official has no authority to act outside of his statutory mandate, such a decision would make up no part of his official discretion. Hence, he has a “ministerial” duty to carry out the law as correctly interpreted— or so the argument might go in the hands of courts motivated to expand review of executive action. But that was not the Taney Court, as evidenced by its other major mandamus decision, Decatur v. Paulding.11 The case arose because of a congressional blunder and the greed of Mrs. Steven Decatur, widow of the famed commodore. Fearing the failure of a general bill to provide a pension for the widows and orphans of men who had died in the country’s ser vice, Mrs. Decatur’s friends in Congress secured a special act granting her a half-pay pension for five years. But the General Pension Bill also passed, and Mrs. Decatur filed petitions for pensions under both. Told that she could only collect under the general statute, she filed a petition for payment under the special act with the Circuit Court of the District of Columbia seeking a mandamus to force Secretary Paulding to pay. The Circuit Court refused to issue the writ, and the Supreme Court affirmed. A finding that the Secretary was exercising a discretionary function was certainly awkward. The widow Decatur was applying for a pension under a statute that granted it to her by name, amount, and term of years. Distinguishing this function from those at issue in the Kendall and Marbury cases was not going to be easy. But Chief Justice Taney was up to the task: his opinion suggested that he could find discretion virtually any time an officer was required to think about whether what he was asked to do was actually authorized. In Taney’s words: The claim of Mrs. Decatur having been acted upon by his predecessor in office, the Secretary was obliged to determine whether it was proper to revise that decision. If he had determined to revise it, he must have exercised his judgment upon the construction of the law and the resolution, and had made up his mind whether she was entitled under one only, or under both, and if he determined that she was entitled under the resolution as well as the law,

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he must then have again exercised his judgment, in deciding whether the half pay allowed to her was to be calculated by the pay proper, or the pay in emoluments of an officer of the commodore’s rank. And after all this was done, he must have inquired into the condition of the Navy Pension Fund, and the claims upon it, in order to ascertain whether there was money enough to pay all the demands upon it; and if not money enough, how it was to be apportioned among the parties entitled. A resolution of Congress requiring the exercise of so much judgment and investigation, can, with no propriety, be said to command a mere ministerial act to be done by the Secretary.12

This was a wonderfully expansive view of the Secretary’s discretion under a statute that the Court itself described as providing a pension to a named individual for a specific term of years. Moreover, the statute provided that payments be backdated to the date of the death of Commodore Decatur, that they be made at the level of half pay of a post captain, and that the arrearages and the pension be invested by the Secretary of the Treasury in trust for Mrs. Decatur’s use.13 Subsequent Supreme Court cases made clear that the Kendall case should never be read except in conjunction with Decatur v. Paulding. In a stunning interpretation of Kendall and Jackson’s actions in the Stokes affair, the National Intelligencer had described the Supreme Court’s Kendall opinion “as a beacon to mark to demagogues in office, for all future time, the point at which their presumption in tyrannous despotism will be rebuked and effectively staid.”14 Kendall might well have been a bright beacon, but Decatur v. Paulding and subsequent cases made clear that its light shown in a very narrow arc. Under Taney’s leadership, the Court also tried to provide some protection for officers who were sued for damages at common law. The possibilities for harassment of conscientious officials through damage actions were wellknown and were richly illustrated once again in the events following the Court’s decision in Kendall v. United States. Having obtained their supplementary payment, Stockton and Stokes went back to the Circuit Court of the District of Columbia to collect damages from Kendall himself for his delay in payment. A jury, which according to Kendall was composed of eleven Whigs and one Democrat,15 awarded Stockton and Stokes $11,000 in damages. Kendall could not pay and avoided going to jail only by the passage of a special statute, promoted by ex-President Jackson and Mr. Justice Catron, that prohibited imprisonment for debt in the District of Columbia for any person who had an appeal pending with respect to a judgment against him.16

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Kendall won in the Supreme Court.17 Writing for the majority, Chief Justice Taney stated, We are not aware of any case in England or in this country in which it has been held that a public officer, acting to the best of his judgment and from a sense of duty, in a matter of account with an individual, has been held liable to an action for an error of judgment.18

This was decidedly odd. Revenue and naval officers had been held liable repeatedly for erroneous levies or erroneous seizures of goods and vessels with no showing of bad faith or malice.19 Moreover, as Justice McLane pointed out in his dissent, good faith could be a protection only where the official was exercising a discretion conferred by statute. But Kendall v. United States, if it stood for anything, stood for the proposition that Amos Kendall had no discretion concerning the payment to Stockton and Stokes once the Solicitor of the Treasury had acted. Justice Taney’s majority opinion may have been fair to the Amos Kendalls of the federal establishment, but it was attempting to work a dramatic change in the law under the guise of settled doctrine. Late nineteenth-century commentators understood the case as merely following the English rule that the heads of departments, not lower level officials, were personally liable for damages only on a showing of bad faith or malice.20 In the same year, Justice Daniel tried even harder in Cary v. Curtis.21 As a part of the reforms following the massive embezzlements by Collector Swartwout of the New York Customs House, Congress required that Collectors immediately pay over all funds received to the Treasury of the United States, whether or not those funds were paid under protest or a suit was pending for their recovery. This was prudent legislation. Holding onto funds paid under protest, or allegedly paid under protest, had greatly facilitated Swartwout’s embezzlement schemes. But Daniel was concerned that, if Collectors were unable to retain funds where there was a dispute, they would then have to pay out of their own pockets if judgment went against them. (This concern, of course, admits what Taney had denied in Kendall v. Stokes, that is, that Collectors could be legally responsible even if acting in good faith.) Daniel, therefore, construed the federal statute as intending to eliminate the Collectors’ personal responsibility for funds improperly collected.22 Justice Story was appalled.23 He saw no reason to imagine that Congress, in a statute designed merely to protect the Treasury from theft by its collectors, intended to eliminate the standard remedies of the common law against officers who made erroneous tax collections. Story was clearly cor-

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rect about congressional intent. Congress quickly enacted a statute reconfirming the taxpayer’s right to maintain any action at law against such collector, or other person acting as such, to ascertain and try the legality and validity of such demand and payment of duties, and to have a right to a trial by jury, touching the same, according to the due course of law.24

The Taney Court nevertheless made narrow inroads on the liability of Collectors for improper collection of customs duties where the duties were based upon the Collector’s appraisal of the value of the imported goods. As described in Chapter 2, the customs laws provided that an objecting party could demand a second appraisal made by private parties, one to be appointed by the Collector and the other by the protesting taxpayer. In a pair of cases, Rankin v. Hoyt25 and Bartlett v. Kane,26 the Supreme Court eliminated any action against a Collector based on a claim of a faulty initial appraisal. The majority opinions argued, this time persuasively, that allowing a jury to redo the appraisal was tantamount to destroying the scheme of external review that Congress had established. As was his want, Justice Taney’s dicta elevated these narrow rulings into general principles of judicial deference to executive power. In his words, It is a general principle, that when power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter. . . . The interference of the courts with the per for mance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief; and we are satisfied that such a power was never intended to be given to them.27

In so doing, Taney seemed, as in Kendall v. Stokes, to be attempting to import into the jurisprudence on the personal responsibility of officers limitations on the judicial power that were derived from the quite-separate jurisprudence on the reach of the writ of mandamus. Taney’s statements nevertheless represented the conventional view of separation of powers among his contemporaries. Indeed, cases like United States v. Ferreira28 and United States v. Ritchie29 suggest that the Supreme Court doubted the constitutionality of provisions for review of official action that would involve the federal courts in any sort of substantive review of administrative discretion. In the earliest treatise on American administrative law, Bruce Wyman discusses Ritchie and Ferreira as standing for precisely

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that proposition.30 Wyman condemned as a blatant violation of the separation of powers a then-recent case, United States v. Buell,31 which upheld legislation providing for a statutory appeal to the Court of Appeals of the District of Columbia from decisions of the Commissioner of Patents. What then to make of judicial review during the Jacksonian era? In many ways it seems as confused and conflicted as the political history of the period. The Court redeemed Marshall’s promise of mandamus review in Marbury v. Madison and then immediately limited it to the almost-vanishing category of purely ministerial actions. The Court was clearly troubled by the continuing possibilities of harassment of federal officers by common law actions, but failed to develop an immunity defense out of common law materials. And it had its wrists slapped by Congress when it tried to graft one onto a statute that was obviously adopted for a different purpose. Yet one might see in these cases a general theme that permeated “The Democracy” as understood by Jacksonians. The Taney court in par tic u lar was clearly committed to protecting executive action from judicial interference. For Jacksonian Democrats this was not a formula for tyranny or despotism as the National Intelligencer had implied in its praise for Kendall v. United States. Quite the opposite: deference to executive discretion followed from an understanding of electoral democracy in which the President was an authentic representative of the people. With no appellate-style review, limited mandamus jurisdiction, and a relatively undeveloped jurisprudence on the reach of injunction, litigants had precious little recourse to the courts against officials in their official capacities. To take but one example, engineers or pilots prosecuted for fines or penalties under the steamboat regulatory system might well have raised objections in their criminal prosecutions to the legality of the local boards’ rulings. But the central enforcement mechanisms in that statute were administrative— suspension, revocation, or denial of licenses. And while applicants and license holders had the opportunity for a de novo appeal to a Supervising Inspector, there is no suggestion they would have any legal recourse outside of the steamboat ser vice itself. Individual protection from erroneous or abusive administrative decision making was largely a function of internal systems of administrative adjudication and appeal. The processes for internal review of administrative decisions respecting the licensing of steamboats, or of engineers and pilots, were hardly unique instances of administrative remedies in the early republic. Administrative hearings and appeals were common in revenue collection, the adjudication of private claims to public lands, the awarding of veterans’ pensions, and ruling on petitions for relief under special relief

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statutes. If administrative appeal was unavailing, petitions for relief to Congress were hardly uncommon. Although the courts were rarely prepared to exercise review of administrative adjudication, they might have been prepared to insure that the administrative process gave private parties a fair hearing on their claims. But the modern judiciary’s solicitude for administrative procedural regularity on a judicial model was little in evidence. Murray’s Lessee v. Hoboken Land and Improvement Co.,32 the Supreme Court’s first case on administrative due process, makes reasonably clear that the Jacksonian judiciary did not intend to play a significant role in restructuring administrative adjudicatory processes. The case arose out of the notorious embezzlement of federal funds by Samuel Swartwout. After Swartwout absconded to England with funds estimated at nearly one-fifth of the annual federal budget, the Solicitor of the Treasury attempted to recoup some of the government’s money by levying on Swartwout’s property by distress warrant. Swartwout’s lands were seized and sold, as authorized by an act of 182033 providing for expedited process, and the question in Murray’s Lessee was whether the sale had passed good title. The plaintiff in this action of ejectment argued that the distress warrant seizure and sale was invalid because that process violated Article III, which put the judicial power in the federal courts, and the Due Process Clause of the Fifth Amendment to the Constitution, which guaranteed proceedings according to the common law. For most purposes Justice Curtis’s opinion for the Court treated these two legal claims as synonymous: “The question, whether these acts were an exercise of the judicial power of the United States, can best be considered under another inquiry,” that is, whether the proceedings authorized by the Act “deprive[d] the party, against whom the warrant issues, of his liberty and property, without due process of law.”34 Curtis asserted that Congress could not make any process due process “by its mere will.”35 Rather Curtis, for a unanimous Court, viewed the question as one to be settled by looking at the “settled usages and modes of proceeding”36 that had been used in England before the immigration of the colonists to America and that had been “acted on by them after the settlement of this country.”37 From that perspective this was an easy case. Curtis found that summary methods for collecting from public officers stretched back for centuries and were ubiquitous in the laws of the colonies and the several states.38 In short, the Court viewed the question of due process to be one of whether the process provided fit within the general contours of processes used for similar matters in the past. Traditional legislative and administrative practice was the touchstone. The Court showed no inclination,

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however, to demand exact conformity of the challenged process to the various historic methods that had preceded it. The Court then went on to dispatch the notion that the determination of all claims that might be put before the Article III judiciary were required to be put there. While the Court admitted that extrajudicial remedies authorized to be taken by private parties were always subject to de novo redetermination by a court of law, this was not true of “a public agent, who acts pursuant to the command of a legal precept, [and] can justify his act by the production of such precept.”39 In this latter case Congress is free to make the question of whether the officer’s actions were justified the subject of judicial cognizance or not at its election. For this proposition the Court cited the practice in public lands disputes where “[i]t has been repeatedly decided in this class of cases, that upon their trial of the acts of executive officers, done under the authority of congress, were conclusive, either upon par ticular facts involved in the inquiry or upon the whole title.”40 The contributions of the Jacksonian era to modern administrative law are thus to be found largely in the understandings that are reflected in the perennial competition between Congresses and presidents for political control of administration, and in the internal rules, practices, and systems of the administrative agencies and departments themselves. Save perhaps the idea that “public rights” adjudication can be assigned to Article I courts or administrative agencies that is implicit in Murray’s Lessee, not much administrative law that reflects our contemporary understandings of the scope of judicial review was to be found in the opinions of Jacksonian era courts.

The Political Accountability System The most dramatic and obvious change in the political accountability system in the Jacksonian era was the way in which democratic control of administration was reimagined to fit a new electoral context. The Federalists, who had the dominant role in crafting the Constitution and establishing the basic structure of the administrative system, emphasized the need for presidential direction and control to give “energy” to administration. But this was not a position, as Jeffersonian Republicans tirelessly argued, that emphasized electoral democracy as the foundation of administrative legitimacy. The President was not elected by the people. And when the Jeffersonian Republicans took over in the “Revolution of 1800,” their idea of democratic legitimacy was the legitimacy of congressional control and direction of administration. Their practices belied their beliefs, at least so long as Thomas Jefferson was President, but the belief was that the

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Presidency smacked of monarchy and was a threat to democracy. Democracy was institutionally represented by Congress, particularly the House of Representatives. Under Jackson the position of the Presidency was reimagined. Presidential control and direction of administration may be necessary for energy as the Federalists believed, but for Jacksonians it was necessary for democracy. The Jacksonians thus pioneered a form of “presidentialism” that is the direct ideological ancestor of certain contemporary ideas of presidential responsibility.41 During the Bank War, Jackson refought the battles over the removal power that were supposedly decided by the “decision of 1789.” But he fought them on the basis of a claim to democratic legitimacy rather than on Federalist grounds of efficacy or constitutional command. “The Democracy” also transformed the idea of office. Long-term, quasiproperty-holding incumbents gave way to partisan appointments that opened offices to a broader range of Americans. To some degree rotation in office increased presidential control of administration. The President was the head of the party that controlled the offices. But the operational reality was that local and congressional politics played a larger role in appointments than presidential prerogative. Democratic accountability in this partisan sense thus confused lines of authority and reattached federal office-holding to both congressional and local politics. These practices were ideologically distinct from, indeed specifically targeted at, Federalist and Jeffersonian appointment of local notables and retention in office during good behavior. Yet they had one striking similarity with their rejected antecedents. Both bolstered the legitimacy of the central government by attaching federal power to local social or political authority. Nevertheless, the change in the idea of office was profound. Offices became the people’s offices in more than the theoretical sense that Jackson espoused in his inaugural address. As that ubiquitously cited commentator on American democracy, Alexis de Tocqueville, put the matter: A public officer in the United States is uniformly civil, accessible to all the world, attentive to all requests, and obliging in his replies. I was pleased by these characteristics of a democratic government; and I was struck by the manly independence of the citizens, who respect the office more than the officer, and who are less attached to the emblems of authority than to the man who bears them.42

The democratic impulse also demanded the control of private power— particularly private power that had the capacity to interfere in electoral politics and that through its monopoly position could in effect make public

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policy. As has been noted, Jackson’s curbing of the power of the Bank of the United States somewhat ironically demanded the building of public administrative capacities in the central government that Jacksonians generally opposed. There is an additional irony as well: the construction of the Independent or Sub-Treasury system, like the creation of the regulatory regime administered by the Board of Supervising Inspectors of Steamboats, signaled the emergence of an alternative ground for administrative legitimacy. In both cases Congress turned over specialized functions to specialists whose legitimacy depended more on performance, knowledge, and neutrality than on electoral accountability. Indeed, the scale and complexity of administration tended to reduce political control by both the President and Congress even as both busily reasserted its necessity. Moreover, while virtually all administrative operations, save the Court of Claims, were formally lodged in a department, the formal locations did not necessarily describe the degree to which department heads, subject to the direction of the President, had operational control of administrative functions. In the debates on the bill establishing the Interior Department, for example, Senator John M. Niles noted that the bureaus that would be included in the new department were already “substantially independent of the departments” to which they had been attached: “All the detail of the ordinary business of the bureau may be considered as independent of the department.”43 By the time that Andrew Jackson took office as President, Congress had already institutionalized itself in ways that promoted oversight of administration. It had begun to exercise its investigatory powers to publicize and correct administrative malfeasance, and it had put in place a number of reporting requirements that kept Congress systematically informed about administrative operations, particularly the use of public revenue. These trends continued in the period 1829– 1860. The House and Senate investigations into customs collections and the Post Office were just two examples of a multitude of inquiries throughout the Jacksonian era. These investigations were often fueled by partisan motives, and the recurrent clashes between congressional Whigs and Democratic presidents produced partisan stalemates that often prevented congressional investigations from producing useful legislation. They turned up important information nevertheless. Congress also added to the substantial list of reports that executive departments were required to make to the legislative branch concerning their activities and expenditures.44 Perhaps the most important general development in administrativecongressional relations in this period was the growing recognition that the

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knowledge necessary for effective policy making now resided with the administrators of the various governmental departments. Although Jeffersonian Republicans feared, and had often resisted, departmental influence on congressional decision making, by 1834 Congress recognized that much of its business depended on reports and information from executive agencies.45 In 1850, for example, Senator Jefferson Davis conceded that it would be unwise to legislate on technical matters without the advice of the relevant administrators. Speaking of the Patent Office he said, “I think it would not detract from the Senate, but be acting the part of prudence, to go to those who have special information before legislating upon such subjects.”46 Indeed, Congress often depended upon the departments to draft major legislation. The statute reorganizing the General Land Office was drafted by Commissioner Ethan A. Brown,47 and the bill reorganizing the Navy Department was written by Navy Secretary Upshur.48 Legislative drafting by administrative personnel might occur even when a department did not exist. The bill providing for the Department of the Interior, for example, was drafted by the Treasury at the request of the Ways and Means Committee.49 In short, while presidents and Congresses contested for political control over administration, both were beginning to lose power to administrators themselves. Scale, complexity, and the redefinition of office-holding promoted functional differentiation of bureaus and politically neutral systems of administrative control. And as had long been true in military matters, policy making on monetary, patent, and transportation safety issues was moving into the hands of administrators whose training or experience fitted them for the tasks at hand.

The Administrative Accountability System To some degree the system of rotation in office undercut the development of administrative expertise. But as we have seen, rotation often left untouched precisely those offices demanding expertise. Something of a dual system emerged, one that permitted massive use of patronage in some areas of administration (the Post Office and large customs houses in par ticular), but that still protected experienced officials both there and elsewhere. Rotation also sometimes threatened the system of hierarchical controls in departments and bureaus that had been building steadily since the founding of the Republic. Political appointees with powerful constituencies occasionally thought that they were a law unto themselves. For example, Jesse Hoyt, Samuel Swartwout’s successor as Collector of the Port of New York, resisted compliance

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with the statute requiring that Collectors immediately pay over funds received to the Treasury of the United States. He wrote to the Controller of the Treasury, “I write now to say, peremptorily, that I will not pass the money I receive under protest to the credit of the United States until Congress makes provision for my protection.”50 Congress responded with a statute that explicitly conferred authoritative interpretive power on the Secretary of the Treasury: And be it further enacted, That it shall be the duty of all collectors and other officers of the customs to execute and carry into effect all instructions of the Secretary of the Treasury relative to the execution of the revenue laws; and in case any difficulty shall arise as to the true construction or meaning of any part of such revenue laws, the decision of the Secretary of the Treasury shall be conclusive and binding upon all such collectors and other officers of the customs.51

But resistance like Hoyt’s was not common. Moreover, as has been discussed, the democratization of the federal civil ser vice generated a countervailing bureaucratization that emphasized functional differentiation of roles, checks and balances within departments, and inspections and audits to assure bureaucratic conformity. Indeed the understanding of supervisory control reflected in Congress’s 1842 statute on the authority of the Secretary of the Treasury may well have represented the core of what Jacksonians understood by the term administrative law. Although that locution seems to appear rarely outside the writings of Attorney General Caleb Cushing, he uses the term as encompassing the regulatory and supervisory power of higher-level officers over subordinates.52 It is probably no accident that when providing the rulemaking authority for the Supervising Inspectors of Steamboats in the 1852 Steamboat Act, Congress articulated its rulemaking responsibilities as premised on the need to assure consistent application of the Act by the local inspectors. Whether or not it was identified explicitly as “administrative law,” officers other than Cushing emphasized consistency in the internal law of administration and recognized that it was built upon administrative rules and practices. Internal law thus persisted through time as well as across the space of geographically dispersed officials. Writing to the Secretary of War in 1852, Attorney General Crittenden opined: Adherence to established rules prevents the arbitrary action of the executive branches of the government, and produces certainty and equality, at least, in their administrations. I would never advise a departure from them except

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where they appeared to me to be clearly wrong and in plain opposition to the public law, or its fair execution.53

Note also that Attorney General Crittenden’s attention to equality in application of the law echoes a concern for protection of private rights in administration that Thomas Jefferson featured in his defense of his attempts to unify enforcement discretion pursuant to the embargo legislation. “Equal protection” inhabited the internal law of administration many years before it was memorialized in the Fourteenth Amendment. A robust internal law of administration is always necessary to systemic legality and is often the most constant protector of private rights. The oversight of elected officials and the courts of justice is episodic, and is generally motivated either by partisan political imperatives or the particularized grievances of private parties. The mine run of cases are left untouched. Jacksonian America richly illustrated the limitations of external political and legal control of administration, for this was a period in which political controllers seemed more than routinely consumed by sectional divisions and by partisan and institutional competition, and in which administrative law in courts oscillated between timidity and de novo second-guessing of administrative action. Administrative supervision, by contrast, is continuous and systematic, or can be made so, as Amos Kendall demonstrated when he took the helm at the Post Office. Across numerous departments and functions the internal administrative law fashioned in response to the scale, complexity, and politicization of office-holding in Jacksonian America was more than usually important to the building of a culture of administrative legality. And the practices of the Board of Supervising Inspectors of Steamboats created a model of quasiindependent, knowledge-based, and transparent administrative regulation upon which many later regulatory innovations might be patterned.

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PART IV

administrative government in the gilded age

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13

Nation, State, and Administration in the Gilded Age

The so-called “Gilded Age” of Mark Twain’s invention, roughly from the end of the Civil War to the 1890s, was a sprawling, complex, and rambunctious period. Rapid change was its hallmark, as was governmental corruption and governmental reform. We can hardly do justice to this era in a few pages. My strategy in this chapter is to trace broad administrative developments that I organize in accordance with two of our now-familiar topics—the relationship between political and administrative institutions and developments in judicial review of administrative action. Chapter 14 then analyzes in more detail a significant development in the administrative constitution: the rise of mass administrative justice. To be sure administrative adjudication is not a late-nineteenth-century novelty, as our prior discussions of land claims and tax collection have illustrated. But the awarding of postbellum veterans’ pensions and Post Office fraud order enforcement provide especially apt illustrations of how ideas of administrative due process emerged largely through the internal administrative law developed by the administrative adjudicatory institutions themselves. But first a bit of stage-setting.

A Nation Transformed Postbellum America witnessed the remaking of political, economic, social, and cultural life.1 By war and constitutional amendment, national power triumphed over state prerogative, but with consequences that were hardly predictable given the war’s ostensible aims or the content of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. Reconstruction failed to produce either a substantially reformed Southern political economy

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or equal citizenship for African Americans.2 And judicial construction of the Civil War Amendments eviscerated their civil rights purposes while providing new constraints on public regulation of business.3 The new nationalism that the North’s victory had promised was put in the ser vice of a national capitalist market.4 The elimination of local barriers to commerce, new technologies, and rapid development of the nation’s physical and financial infrastructure transformed the economy.5 This was an age in which inventors like Alexander Graham Bell and Thomas Alva Edison became national heroes,6 and Americans were recognized as masters in the application of technology to enterprise.7 Reacting to the exhibits in Machinery Hall at the 1876 Centennial Exhibition near Philadelphia, novelist and commentator William Dean Howells concluded that it was in engineering that “the national genius most freely speaks; by and by the inspired marbles, the breathing canvases . . . for the present America is voluble in the strong metals and their infinite uses.”8 Tremendous expansions in railroad transportation drove industrial development.9 The railroads’ demands for capital, labor, and materials stimulated the economy. Their capacity to move people and products cheaply buoyed other markets and spurred the development of territories underserved by earlier transportation revolutions in steamships and canals. To produce a coherent and transparent national railroad timetable, the railroads created unified time zones. Local time disappeared. Conquering both space and time, the railroads unified the nation. Although the evolution of the American economy away from its agrarian past toward its industrial future had begun much earlier,10 the decades following the Civil War were characterized by a revolution in the size and organization of industrial enterprises.11 Consolidation brought to the fore men like John D. Rockefeller in oil, Andrew Carnegie in steel, Pierpont Morgan in finance, and James Duke in tobacco.12 As the association of a few prominent names with massive enterprises suggests, postbellum economic development in America produced massive fortunes and dramatic changes in the concentration of wealth. In 1840, there were perhaps twenty millionaires in the United States; by 1910 there were probably twenty in the U.S. Senate. Indeed, by 1893 the Census Bureau estimated that 9 percent of the families in America owned 71 percent of the wealth.13 The new American rich were objects both of fascination and resentment.14 Their luxurious lifestyles generated tastes for conspicuous consumption among the rising middle classes. Their aggressive, not to mention monopolistic, business practices stimulated the Populist and Progressive political movements. The Gilded Age merged with the “Age of Reform,”15 whose early accomplishments included

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the Pendleton Civil Service Act of 1883, followed by the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890. Industrial revolution in America is commonly associated with three other developments that changed the social and political, as well as the economic, outlook of American citizens.16 The first was massive immigration. Emma Lazarus’s poem that adorns the pedestal of the Statue of Liberty idealizes America’s efforts from the 1860s through the 1880s to attract immigrants. Both public and private actors not only welcomed immigrants, they avidly sought them. But Lazarus’s humanitarian emphasis reveals little of the complexity of the immigrants’ reception. Immigrants challenged the economic position of skilled workers, the political control of the Republican Party, and the moral authority of dominant protestant religious groups. Reaction was almost inevitable. The press lampooned immigrants’ stereotypical attributes; nativist politicians demonized them. By overwhelming margins, in 1885 Congress adopted America’s first national legislation restricting immigration by nationality.17 The growth of organized labor paralleled, but hardly matched the growth and power of big business. As the mechanization of industry that had begun in the Jacksonian period accelerated in postbellum America, the plight of the American worker deepened. National industries demanded national unions to protect workers’ interests, but internal cleavages in the union movement and a hostile legal environment inhibited effective organization. Strikes became more common and widespread, often attended by violence and police suppression of union activity. Although most union demands were for the humanization of capitalism—shorter hours, protections for women and children, and more healthful working conditions—union opponents dampened public enthusiasm for the union movement by associating it with socialism, and even with revolution. Agitation for national legislative reform of working conditions was generally unsuccessful.18 Finally, as American industrialization attracted youth from the countryside and immigrants from abroad, it concentrated both the population and the ownership of the means of production. New cities appeared, and old ones grew at remarkable rates. During the three decades immediately following the Civil War, urban population in the United States grew twice as fast as rural population, notwithstanding the vast settlement of the Western states that was occurring simultaneously. The problems created by rapid urbanization— overcrowding, poverty, poor health, and crime—are deeply familiar. Urbanization also accentuated the clash of cultures among immigrant groups and between them and native-born Americans. By 1890, in eighteen of the cities having a population greater than 100,000, immigrant adults outnumbered

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native adults. The title of Charles Loring Brace’s 1872 book, The Dangerous Classes of New York, and Twenty Years’ Work among Them,19 perhaps captured the middle classes’ perception of urban immigrant labor. The failure of local city governments to respond to the needs of urban populations provided fertile soil for the rise of the big-city political machine. Working long days at low wages, and crowded together in dilapidated tenements, the urban immigrant and lower classes needed help. The machine supplied assistance and jobs in return for loyalty, labor, and votes. Even where reformers managed to beat the machines at the polls, as when the New York City reformers dethroned the Tweed Ring in the 1870s, their gains were largely limited to the elimination of massive corruption. Reforms aimed at alleviating the serious social and economic conditions of city residents did not gain traction until the 1890s and beyond.20 The rapaciousness of the industrialists and the corruption of city politics also infected the national government. Edwin L. Godkin, the editor of both The Nation and the New York Evening Post, sought to characterize the whole of society in the title of his article “Commercial Immorality and Political Corruption.”21 Godkin’s views were not unrepresentative of reform-minded Americans.22 In describing the triumph of the completion of the transcontinental railroad, Representative George F. Hoar lamented, “I have seen our national triumph and exultation turned to bitterness and shame by the unanimous reports of three committees of Congress, two of the House and one here, that every step of that mighty enterprise had been taken in fraud.”23 Dorman B. Eaton, a New York reform leader, described the national political parties as “highly complicated organizations through which politicians are enabled to make themselves a great power for their own benefit and for coercing and baffling the people.”24 Henry Adams summed up the period’s politics with his usual pith: “One might search the whole list of Congress, Judiciary, and Executive during the twenty-five years 1870–1895 and find little but damaged reputations.”25 If the postbellum period in America is remembered positively, it is largely for the inventiveness and energy of the private sector. The railroad and the telegraph spanned the continent, and great industries and great cities seemed to spring up from almost nothing. Enormous wealth was created, and the extravagance of the rich created a market for art and architecture that fueled what is now known as the American Renaissance.26 Social movements for the rights of workers, farmers, and women urgently pressed state and national governments for reforms in both the political and economic systems. And while those movements gained responses at the state and local levels, Theodore Lowi asserts that “it would be impossible to gain any awareness

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or understanding at all of these social movements by studying the laws of the national government.”27 The social, economic, and political ferment of the last quarter of the nineteenth century makes our twenty-first-century pace of change seem almost modest by comparison. Private enterprise ruled, we are told, and bent government to its will. A squalid politics of partisan competition and a corrupt scramble for government subsidies disgraced America’s democratic pretensions. The conspicuous display of private wealth gilded an era whose underlying realities were widespread poverty, urban slums, and social injustice.

The Reform of Government Administration This story is more than an historical conceit, but it fails to do justice to the generation that, emerging from the horrors of the Civil War, built the foundations of an empire in a few short years.28 The crucible of war revealed the underlying self-indulgence of Emersonian idealism and individualism.29 Military duty and comradeship schooled a realistic faith in values of competence and useful work. Educated men who returned from the war, and women who endured it, chose active lives in both private and public life. They understood their reborn nation in nationalist terms,30 not in terms of Jeffersonian longings for weak and decentralized governance or agrarian individualism.31 In many ways, the national government provided a tepid response to the social, economic, and political demands of the times. Yet there was reform and there was state-building. Between 1861 and 1891, while the population of the country doubled,32 federal civilian government employment more than quadrupled.33 Moreover, in Leonard White’s description, the government bureau was moving toward a model of “businesslike” government.34 Not only were businessmen found as the heads of departments, executive leadership was provided by the appointment of returning military officers to civilian posts and the increasing presence of academics whose specialties were of the more practical sort found in departments of statistics, economics, or political science. Even before civil ser vice reform in the Pendleton Act, bureaus were instituting systems of merit appointment and promotion, as well as organizing their work into specialized units. Stephen Skowronek argues that these civil ser vice reforms were a “patchwork” built on top of a dominant and countervailing system of patronage. In his words, “[t]he merit ser vice grew as an expedient response to new demands on government, but it operated as a contradiction within a state that relied upon very different talents and procedures.”35 Skowronek uses a similar patchwork metaphor to characterize reforms in the Army and for the

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passage of the Interstate Commerce Act. His general position is perhaps summed up in his description of the politics of the Interstate Commerce Act: “Congress had not transformed the conflicts within society into a coherent regulatory policy but had merely translated those conflicts into governmental policy and shifted them to other institutions.”36 I have no quarrel with Skowronek’s account, only with his emphasis. When compared with European models of bureaucratic administration, or with American bureaucracy in the post-New Deal era, American civil administration was indeed a patchwork— a work in progress that contained many conflicting elements. But what American governmental reform, then or now, has not been a patchwork, a compromise between the old and the new and among the contending interests with a stake in the policy outcome? Coherence is not the dominant attribute of congressional legislation. The failure of Pendleton, or other reforms, to reconstitute the American state on a rational-bureaucratic model should not blind us to developments that left American government with significantly greater capacities near the end of the nineteenth century than it had when it emerged from the Civil War. Similar caution should be used in assessing Theodore Lowi’s claim that a student of congressional legislation in the Gilded Age would be unaware of major social movements to promote the rights of workers, farmers, or women.37 Women’s rights are nowhere to be found in late nineteenthcentury national legislation. But the creation of departments of labor and agriculture surely hint at the recognition of the demands of workers and farmers for attention from the national government. And the fingerprints of farmers’ groups were all over both the Interstate Commerce Act and the Morrill Land Grant Colleges legislation subsidizing higher education in the agricultural and mechanical arts. To be sure, much remained to be done, but these new departments institutionalized the voice of important social movements in public administration. Subsequent legislative policy would depend importantly on the information and proposals generated by the administrators charged with attending to these clientele groups. Modest first steps provided the capacity for bolder strides through both legislative and administrative initiatives.38 These are hardly the only areas in which the federal government occupied new policy space, created new bureaus and departments, or increased governmental capacities.39 Administration was growing, taking on new roles, and becoming more professionalized. And the struggle for political control of administration continued apace. That battle was fought out on three fronts:

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the persistent question of the President’s power over removals; the creation of a competent, nonpartisan civil ser vice; and the respective roles of Congress and administrative departments in state-building.

Politics and Administration Discussions of political control of administration in the United States often feature parables of a tragic fall from constitutional grace. In one parable, historic democratic control of administration by Congress, through detailed statutory prescriptions and close control over administrative expenditures, has given way to an unaccountable bureaucracy exercising enormous policy discretion under vague statutory delegations of authority 40 while extracting ever larger appropriations from a poorly informed and compliant Congress.41 In the other, democratic control by the constitutionally ordained “unitary executive” has been undermined by the twentieth-century creation of multiple independent commissions and a host of organizational arrangements that diffuse authority and hamstring presidential direction of administrative discretion.42 Both of these parables imagine a world that never was. As we have seen, from the earliest days of the Republic presidents and Congresses have struggled with each other over control of administration. That battle still rages and remains as inconclusive in 2012 as it was in 1789. The only difference is that it now surfaces, at least occasionally, in the courts, whereas throughout the nineteenth century the contest was waged exclusively in Congress and the court of public opinion. The Gilded Age was no exception. The peculiar and paradoxical feature of the presidential-congressional struggle in this period is that formal constriction in the Civil Service Act of presidential power over appointments and removals almost certainly did more to weaken congressional than presidential control of administration. As we shall see, this period also provides a rich illustration of the weaknesses of both congressional-control and unitary-executive mythology. Gilded Age presidents were almost uniformly weak executives who ceded most of their patronage power to congressional delegations and local party elites. But while many federal officers may have been beholden to individual congressmen or party machines for their jobs, their authority was poorly circumscribed by either statutory specificity or congressional budgetary controls. Administrators sometimes pleaded in vain for more concrete statutory directions, confronted a Congress with virtually no capacity to evaluate their budget requests, and often drafted the legislation that provided their jurisdiction and the organization of their bureaus.

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Appointments and Removals, Again

The struggles over the President’s power to remove federal officials, which began in the first Congress and marred Andrew Jackson’s presidency, erupted with a vengeance after Andrew Johnson succeeded Abraham Lincoln. Johnson, a Southerner who had provided sectional balance for the Republican ticket of 1864, in some loose sense might be said to have attempted to continue Lincoln’s generous Reconstruction policies. But inflected through Johnson’s racist beliefs, generosity turned profligate. And Johnson faced a congressional majority that had quite different ideas. In firm control of both houses of Congress following the election of 1866, congressional Republicans moved aggressively to protect their Reconstruction policies from Johnson’s approach to implementation. Congress prohibited the President (or the Secretary of War) from issuing Army orders or instructions save through the General of the Army, Ulysses Grant. The same statute established the Army’s headquarters in Washington and prohibited the President from removing, suspending, or relieving Grant from command or assigning him to duty outside Washington without the Senate’s consent.43 With Reconstruction firmly under Grant’s control, Congress then passed a new Reconstruction Act requiring a thoroughgoing reform of politics and governance in the Southern states before they could be readmitted to the Union.44 Congress’s techniques for constraining Johnson’s authority were hardly exhausted by these measures. Harking back to Hamilton’s long-dormant interpretation of the Constitution’s appointments clause, the Tenure of Office Act45 required Senate approval for the removal of any officer appointed with its advice and consent. The President could remove or suspend an officer when Congress was not in session only on specific grounds of misconduct. Any such suspension was required to be reported to the Senate within twenty days of the beginning of its next session. Should the Senate fail to agree that the removal was proper, the officer was to resume his duties. Johnson vetoed the bill on both constitutional and policy grounds. His veto was overridden, but he was not deterred. In an attempt to reclaim control over Reconstruction policy, Johnson removed Secretary of War Stanton, who had close ties to the congressional Republicans.46 He also removed the more radical military governors in the South, replacing them with generals who shared his approach to Reconstruction. The battle between Johnson and the Congress then took on tragicomic proportions.47 The Senate rejected Johnson’s reasons for removing Stanton, who resumed his office. Johnson then removed him again and appointed

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adjutant General Lorenzo Thomas as interim Secretary of War. Stanton at first declined to vacate his office and barricaded himself inside the War Department, but ultimately yielded “to superior force.”48 The House responded with a Bill of Impeachment whose principle ground was violation of the Tenure of Office Act. Johnson survived impeachment by one vote in the Senate. As Johnson’s able counsel in the impeachment trial pointed out, not only was the Tenure of Office Act arguably unconstitutional, as written it did not apply to Johnson’s removal of Stanton. The Act provided that cabinet members would hold office during the term of the President by whom they were appointed, and would be subject to removal only with the advice and consent of the Senate. Stanton had been appointed by Abraham Lincoln. Indeed, Senator John Sherman, who authored the relevant language and headed the conference committee on the bill, had informed the Senate that the Tenure of Office Act would not apply to Johnson should he remove any of Lincoln’s cabinet appointees.49 One-third plus one member of the Senate were apparently persuaded by one or the other (perhaps both) of Johnson’s arguments. That Johnson survived has ambiguous significance for our administrative constitution. The Senate vote is opaque concerning its grounds and hence tells us little concerning contemporary beliefs. Moreover, as Saikrishna Prakash has ably demonstrated,50 congressional involvement in “removals,” through specific tenures for offices, sunset provisions, and defunding and abolition of offices, was common from the earliest days of the Republic. The 1867 version of the Tenure of Office Act persisted until 1887 and other similar, but more targeted provisions clearly continued in force until a provision requiring Senate approval for removal of postmasters was struck down in 1926 in Myers v. United States.51 Even those who support a strong view of the “unitary executive,” that is, that the Constitution gives the President the power to remove and control all policy-making subordinates in the executive branch, agree that the Tenure of Office Act and Johnson’s impeachment significantly weakened the Presidency during the Gilded Age.52 To be sure, presidents resisted,53 but Congress remained ascendant.54 Its members tended to view this as the natural order of things. As John Sherman put it, “The Executive Department of a republic like ours should be subordinate to the legislative department. The President should obey and enforce the laws, leaving to the people the duty of correcting any errors committed by their representatives in Congress.”55 The post-Johnson subservience of the President to Congress was especially marked in relation to presidential appointments. President Grant reportedly said, with

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apparent equanimity, “The President very rarely appoints, he merely registers the appointments of members of Congress.”56 Not all presidents were so docile as Grant. His immediate successor, Rutherford B. Hayes, put the contest between the President and Congress over the control of administration on a different footing. Hayes was a civil service reformer who believed in appointments based on open competitive examinations and elimination of civil servants’ participation in political activity beyond voting and public speaking. Indeed, he made the first substantial movements toward civil service reform by issuing executive orders to that effect.57 Hayes seems to have understood that moving a substantial number of government jobs “outside of politics” would weaken Congress, particularly the Senate, and empower the President. The struggle between Congress and the President over appointments and removals and the struggle for civil ser vice reform overlapped, but they were not the same battles. The former was fought largely on a constitutional plane emphasizing ideas of separation of powers and checks and balances. The latter was a movement to curb corruption in government and increase administrative competence. Civil Service Reform

Were politics and history “rational,” the story of the development of civil ser vice reform in the post- Civil War era might go something like this: the Civil War demonstrated the staying power of an industrial society when pitted against an agrarian one. The war made clear what the prescient already knew—the future belonged to industry and commerce, not to agriculture. Moreover, the farsighted might have understood that this new economy and its government could not be built on the foundations of the past. Rapid industrialization would challenge the government with new social and economic problems. Even a public ser vice composed of honest but untrained backwoodsmen straight out of Jacksonian mythology would be inadequate to the task of twentieth-century governance. A spoils system that exalted partisan patronage and disparaged technical competence was not long for the new world. But history and politics are seldom so straightforward. That civil ser vice reform went hand in hand with rapid industrialization does not demonstrate that the latter caused, or even much influenced, the former. Civil service reform in the Gilded Age58 was as much a moral crusade as a battle for technocratic competence.59 The Grant Administration was corrupt on a scale never before witnessed in the United States, and its recurrent scandals were

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understood to be intimately connected to the way in which officials were selected and party loyalties maintained. If industrialization was a cause of civil ser vice reform, it was largely in the sense that the wealth generated by industrialization created breathtaking opportunities for corruption in a spoilsoriented public ser vice. And the scale of theft and corruption exposed in post- Civil War America gave it a notoriety that virtually demanded a reform movement. Given Congress’s major role in patronage appointments, it is not too surprising that civil ser vice reform was championed first by presidents or aspiring presidents, not by congressmen. It was the historically reviled Grant who first appointed a Civil Ser vice Commission to look into the reform of the public ser vice.60 Perhaps equally significant, Grant’s authority to appoint the Commission derived from a rider tacked on to an appropriations bill by Carl Schurz, who was a proponent of civil ser vice reform well before his election to the Senate.61 The formal pattern of reform was presidential initiative with congressional acquiescence, but the real heart of the civil ser vice reform movement lay outside the government. The extragovernmental civil ser vice reformers of the 1860s and 1870s were the heirs of the abolitionist movement, indeed, sometimes the same persons. They saw the partisan spoils system as a scourge on the republican political landscape that, like slavery, had to be removed in order to free the nation from immorality and corruption. The reformers’ analysis of the spoils system and its relationship to democratic values was in some ways reminiscent of Jackson’s view of the antidemocratic, Federalist public ser vice. But, while perhaps benign in its initial conception, from the reformers’ perspective rotation in office had become a cancerous growth that threatened American democracy. The first report of Grant’s Civil Ser vice Commission reflects the moral fervor of the reform crusade. The document was prepared by the commission’s chair, George William Curtis, one of the major players in the civil ser vice reform movement. In Van Riper’s description, [T]his fifty page document begins soberly enough, but after a few pages of introduction quickly develops a distinct Old Testament eschatological flavor, declaring, “The moral tone of the country is debased. The national character deteriorates.” As if this and forty more pages like it were not enough, the report then resoundingly concludes: “The improvement of the Civil Ser vice is emphatically the people’s cause, the people’s reform, and the administration which vigorously begins it will acquire a glory only less than that of the salvation of a free Union.”62

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When the Grant Commission expired for lack of congressional appropriations, the battle was carried on outside of government by civil ser vice reform leagues at the local, state, and national levels.63 This was an essentially religious campaign carried on in an age in which religious images, epitomized by William Jennings Bryan’s “crown of thorns” and “cross of gold” speech, were the standard coin of political exchange. But as with most moral crusades, success hinged as much on contingency and the baser instincts of erstwhile allies as on the rightness of the reformers’ cause. While civil ser vice reform was a constant and repetitive theme of editorials and stories in the daily and weekly press throughout the postCivil War period, the contingency that galvanized public opinion was the assassination of President Garfield in 1881 by a man found to be a “disappointed office seeker.”64 The President’s death was interpreted to and understood by the nation as a symbol of the low state to which American government had fallen through exploitation of the spoils system of administration. Before, the spoils system had been equated only with theft—now it was equated with murder. By the time of the election of 1882, civil ser vice reform had become a major issue in most parts of the country. Indeed, it was such an issue that the Democratic Party, languishing throughout the whole of the post- Civil War period, very nearly took back the Presidency. The lively prospect of a Democratic administration four years hence moved a Republican Congress to action. Jumping on the public bandwagon, it passed the civil ser vice reform measure sponsored by Senator George H. Pendleton and drafted by the New York Civil Ser vice Reform Association.65 Of course, the demand for new public policy does not necessarily mean that it will be supplied. Responsiveness to general public clamor is certainly one explanation for the passage of civil ser vice reform in 1883. But, as Ronald Johnson and Gary Leibcap argue,66 the explanation also lies in the way in which the spoils system had come to disserve the interests of both the President and Congress. The vast increase in public employment following the Civil War had made the spoils system ungovernable. So many offices were to be filled that neither presidents nor representatives and senators could devote sufficient time to it to ensure that appointees were both loyal to them and reasonably competent. Appointments were thus in effect delegated to political operatives at the state and local level. As a consequence, office holders viewed local politicians as their benefactors, which, in turn, made the national politicians dependent upon the local power structure to mobilize voters in general elections. But, to the extent that the public ser vice was

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seen as corrupt and incompetent, national politicians, not the locals, were blamed for the inadequacies of the public ser vice. And because the assessments on patronage appointees supplied a decreasing percentage of the funds necessary for effective campaigning, it was in the interests of both presidents and representatives and senators to limit the reach of the spoils system and curtail their dependence on local political machines. The reform that emerged, the Pendleton Act, was both unsurprising and limited in its basic principles. It called for competitive examinations for hiring and promotion and provided relative security of tenure for covered officeholders (that is, tenure during good behavior). The implementation of these principles was left largely to the President and the new Civil Service Commission. Nor was the President’s removal power seriously circumscribed. Civil ser vice employees were not to be removed for partisan political reasons, but enforcement was left to incentives. If appointment had to be by competitive examination, then perhaps the temptation to remove for partisan reasons would be stifled. As the Pendleton Act tread cautiously around the boundaries of the President’s removal power, it also dealt lightly with presidential appointments. The Pendleton Act itself brought only about 10 percent of the positions in the federal public ser vice into the competitive civil ser vice. The rest were to be incorporated by presidential executive order, if and when the President saw fit.67 This creeping quality to the Civil Service Law had a distinct political advantage. To the extent that incoming presidents profited from the availability of offices not covered by the Act, outgoing presidents would see the possibility of their handiwork being undone by the next incumbent. They thus had a political incentive, and indeed would be importuned by their existing appointees, to take more and more of the public service into the civil service system on their way out of town. Once in place the reforms of Pendleton were rapidly consolidated. Over 50 percent of the public service outside the Post Office was covered by the Pendleton Act within five years of its passage.68 The Pendleton Act neither took federal administration “out of politics” nor consolidated the President’s power with respect to administration. Presidential power was at a low ebb from Lincoln’s assassination to the inauguration of Theodore Roosevelt. Presidents won some victories concerning the maintenance of their removal powers and could reduce congressional and local influence with each new batch of federal government employees covered into the civil service system by executive order. But this is a far cry from having effective control over the federal bureaucracy. On presidential control and

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influence in the period 1869 through 1901, Leonard White, the great student of public administration in the nineteenth century, concluded, [the presidents] were at the head of the machine, but the machine had power of self-propulsion and power to preserve its own shape and motion. The established course of the public business went on its appointed way, for the most part without requiring or inviting the collaboration of the man who sat in the White House.69

Congress and the Administrative State

White’s study of congressional control of administration revealed much greater activity, but with decidedly mixed results concerning the course of administrative development. By his account,70 Congress constantly inserted itself into administration through private acts and investigations. But the former distracted Congress from the consideration of general issues of policy, and the latter tended to be completely ineffectual in the absence of congressional staff. Meanwhile Congress was active in establishing new departments. It created a Department of Agriculture in 1862, under a Commissioner not of cabinet rank,71 then raised the Department to executive cabinet status in 1889.72 Congress established a similar, nonexecutive Department of Education in 1867,73 but subsequently abolished the Department and moved its functions to the Interior Department.74 A Department of Justice, first suggested by President Washington, was finally created in 1870,75 and labor got a department with noncabinet status under the direction of a Commissioner in 1888.76 Congress was also active in establishing and reorganizing departments, bureaus, and offices. Theodore Lowi estimates that “[n]early half of [Congress’s] output during the Distributive Era [1800– 1933] was . . . constituent policy.”77 Lowi also notes that Congress reorganized and institutionalized itself continuously from 1816 onward to ensure that there were standing committees that paralleled the jurisdiction of major departments. Hence, Woodrow Wilson’s famous conclusion that “Congressional government is committee government.”78 But it would be a mistake to imagine that many of the activities that are evident from perusing the statute books represent congressional initiatives. To be sure, the creation of a department often involved high politics and generated partisan ideological conflict. Whether any aspects of education policy should be a national concern, and whether interests such as agriculture or labor should have departments devoted to issues of particular interest to them were controversial questions, often contested in Congress on grounds

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of constitutional principle. But how the work of administration got done was largely a function of how departments organized themselves, and, in this regard, the departments had the leading role. Outside of the Treasury Department, in whose workings the Congress maintained its historically lively interest, the creation or reorganization of bureaus and assignment of personnel was generally done by departments. Legislation addressing these matters responded to departmental proposals or recognized structures that had already been established by administrative action.79 Congress seems to have been quite self-conscious about the direction of its administrative state-building. Williamjames Hull Hoffer has recently argued that the period 1858 to 1891 represented a distinctive “second state.” That state lay between the limited government, assembly- dominated, and antibureaucratic “first state” of antebellum America, and the enlarged, activist, expert administrative “third state” that emerged in the first half of the twentieth century.80 Hoffer describes the building of this second state as following a distinctive progressive logic. It began with federal sponsorship of activities through funding, land grants, or data gathering; moved on to federal supervision of the sponsored activities through new bureaus or departments; and ended in a standardization or unification of policy through federal rules. Hoffer emphasizes that these developments involved a layering of new “second state” ideas on top of older first state commitments to local control, collective decision making, and protection against authoritarian administrative excesses. His case studies provide example after example of a Congress that used data and reports compiled by administrative agencies as a basis for its legislative debates, amendatory legislation, and the creation of new agencies. Noting that between 1862 and 1888, Congress created as many new departments as had been created in the previous history of the United States, Hoffer concludes, “In the congressmen’s minds this was no longer the state ‘of courts and parties’ and had not been for years.”81 But there was no big bang, no transformative ideological conversion. In Hoffer’s words, [T]he thought processes behind an expanded national government in the United States, from 1858– 1891, did not constitute a series of radical departures. . . . Congressmen learned to encode novelty as the most conservative possible response to absolute exigency or as the most practical housekeeping measure to deal with pesky inefficiencies.82

As Hoffer’s careful study of congressional debates suggests, when looking at congressional legislation one must be careful not to allow the form of the

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legislation, or the partisan debates surrounding it, to obscure the degree of administrative discretion that new statutes vested in administrators. While congressional statutes empowering departments, bureaus, and commissions continued to contain massive detail, critical questions remained for administrative determination. In some sense administrative influence (if not direction and control) of national policy was a virtual necessity. Although Congress organized itself into specialized committees, it had little or no staff and was preoccupied with particularized legislation that responded to constituents’ petitions. As we have seen, even in the antebellum Jacksonian era, the drafting of important legislation had migrated to the departments and bureaus. Highly detailed statutes that seemed to give administrative officials modest discretion, such as the statutes creating a national currency and a national banking system,83 represented proposals originated and developed by the Treasury.84 While in form it elaborated highly specific congressional decisions, the legislation, in substance, ratified Treasury policy. The National Currency Act,85 and its successor the so-called National Banking Act (NBA),86 also reintroduced federal regulation of monetary policy. Under the NBA national charters were provided to banking organizations that satisfied the statutory criteria as determined by the newly created Office of the Comptroller of the Currency (OCC). The OCC, which persists to the present day, was given broad visitation and inspection powers and the ability to place banks violating the NBA or the terms of their federal charters in receivership and wind up their affairs. State banks were enticed into the regulatory system by provisions permitting them to serve as depositories for federal funds and issue notes having the same status as national bank notes, provided they complied with similar regulatory requirements. Even more favorable terms would apply if the state banks converted to national banks. The U.S. government was back in the business of banking, but this time primarily as a regulator rather than as a keeper of its own coin or contractor with state institutions. The 1871 statute consolidating and amending the piecemeal laws enacted since 1838 for the regulation of steamboat safety provides another dramatic example.87 Although the Act’s seventy-one sections contain enormous amounts of detail concerning safety equipment, boiler pressures, navigation lights, and the like, these provisions codify many rules previously adopted by the Board of Supervising Inspectors of Steamboats and respond to suggestions for legislative reform that the Board had pressed on the relevant congressional committees for two decades.

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The jurisdiction of the Board was broadened to license virtually all vessels powered by steam and their captains and mates, in addition to the engineers and pilots previously required to obtain licenses. A new office of Supervising Inspector General was created to assist in monitoring and unifying practices across inspection districts, and compensation was increased to attract more highly qualified inspectors. Resistance to new requirements on the floor of the House was met by the constant refrain that the statute had been drafted in the Treasury Department and unanimously approved by the Board of Supervising Inspectors.88 Objections to the expense of new offices and higher salaries were rebuffed by the report that fees for license exams and inspections brought in approximately double the cost of running the steamboat inspection service.89 Like regulation by the OCC, steamboat regulation financed itself through charges on the regulated parties.90 The new statute continued in force the broad discretion of local boards in licensing boats, boilers, and personnel,91 and of the Supervisory Board in making further rules and regulations having the force of law.92 However, the 1871 statute, more than its 1852 predecessor, reflected Congress’s general preference for unified authority within departments. A number of that statute’s rulemaking provisions required approval of the Secretary of the Treasury, now assisted by the new Inspector General, who was to “be selected with reference to his fitness and ability to systematize and carry into effect all the provisions of the law.”93 The enormous detail of appropriations statutes could also be deceiving. These often contained elaborate specification of personnel and salary, among other things. But, with respect to some of the largest items of expenditure, appropriations for the Army, Navy, military pensions, and Post Office, Congress simply allocated lump sums. Its attempts to control expenditure by prohibiting transfers among accounts, holdovers from year to year, and advanced obligations of funds not yet appropriated were not terribly successful. Departments came back for deficiency appropriations under the implicit threat of ceasing to operate. They generally received the funds they requested. Indeed, the specialized organization of Congress tended to work against fiscal control. The Treasury had no authority to screen departmental requests or estimates. These went directly to different committees, which competed to fund the activities within their jurisdictions. To a significant degree, agencies controlled the allocation of their own funding, if not the total amounts allocated.94 While late-twentieth-century public choice scholars may have overstated the degree of administrative control over Congress as a matter of contemporary political economy,95 that approach may

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more accurately characterize the relationship between administrators and congressional committees in the Gilded Age. Woodrow Wilson’s congressional committee government could simultaneously be administrative government. Congressional abdication of regulatory policy making is the arena that tends most to exercise modern critics of the administrative state. And there is a tendency to imagine a pre-New Deal or pre-Progressive Era world in which national regulatory policy, if adopted at all, was specified clearly by statute. As we have seen repeatedly in earlier chapters, and in the 1871 codification and revision of the regulatory system for steam-propelled vessels, this image is false. Indeed, Congress’s other forays into direct federal regulation during this period sometimes ceded virtual carte blanche to the implementing authorities to develop substantive policy. For example, although extremely hesitant about entering a field that had been a traditional province of state regulation, when Congress finally passed a general quarantine statute, it conferred remarkably broad authority: The Secretary of the Treasury shall, if in his judgment it is necessary and proper, make such additional rules and regulations as are necessary to prevent the introduction of such [communicable] diseases into the United States from foreign countries, or into one State or Territory or the District of Columbia from another State or Territory or the District of Columbia.96

The statute regulating communicable diseases in animals was similarly expansive. Although internal regulations were to be enforced by state authority (financed by federal funds), the rules and regulations promulgated by the Commissioner of Agriculture were simply to be those “he may deem necessary for the speedy and effectual suppression and extirpation of [communicable animal] diseases.”97 Even Congress’s halting pre-ICC approach to railroad regulation evidenced a similar willingness to rely on administrative discretion. In 1878, Congress adopted an investigation and reporting scheme for railroads that had received any federal subsidy, that is, most of them.98 Although the new auditor of railroad accounts was only empowered to investigate and make reports to the Secretary of the Interior, these reports were to contain information “on the condition of each of said railroad companies, their road, accounts, and affairs.”99 In order to carry out this function the auditor was empowered to examine all of the railroads’ books and accounts and “to prescribe a system of reports to be rendered to him by the railroad companies.”100 Regulation was only by information. But what information was required to be revealed was left to be determined by administrative rule.

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Developments in Judicial Review If political control of administration was relatively weak, judicial review remained anemic by modern standards. As in antebellum America, officials remained at personal risk if some common law action was available to challenge their actions. But barring that prospect, mandamus was confined to ministerial acts.101 Although the Supreme Court of the District of Columbia was at times sympathetic to the extension of mandamus jurisdiction to control official action, in case after case the U.S. Supreme Court reaffirmed the narrowness of the writ.102 Moreover, the Court, in Gaines v. Thompson,103 for the first time explicitly made the mandamus jurisprudence applicable to suits for injunction. The Court there described its mandamus jurisprudence as but part of a “general doctrine, that an officer to whom public duties are confided by law, is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as a part of his official functions.”104 This doctrine, the Court said, “is as applicable to the writ of injunction as it is to the writ of mandamus.”105 Postbellum mandamus jurisprudence nevertheless reflected movement toward reconceptualizing direct judicial review as a public action designed to control official behavior rather than as a private lawsuit between individuals, one of whom happened to occupy a public office. Recognition of the “public law” nature of judicial review was incremental and began inauspiciously. In Secretary v. McGarrahan,106 for example, the Court engaged in dictum that suggested that mandamus would not lie against a current officeholder where the decision in question had been made by his predecessor. Mandamus was characterized as a personal action available only against named individuals.107 United States v. Boutwell108 confronted the issue directly and confirmed the McGarrahan dictum. The McGarrahan and Boutwell private-action conception of mandamus was both reinforced and potentially undermined by Rees v. Watertown.109 The plaintiff in Rees had obtained a judgment against the city of Watertown, as well as a writ of mandamus to compel the city to levy a tax to pay his judgment. But before the writ could be served, a majority of the members of the city council resigned and the marshal, viewing the writ as personal, declined to serve it on the new council members. The hapless Rees went through this process twice more. Each time his writ was evaded by officials resigning their posts. Rees then attempted to get the federal court to levy the tax itself. But the Supreme Court easily rejected the notion that a court order could levy taxes— a clear exercise of legislative authority.110 The

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Court then told the plaintiff that his proper remedy was a writ of mandamus against the town council, noting, laconically, that this was so notwithstanding that “it has been thus far unavailing, and the prospect of its future success is, perhaps, not flattering.”111 Apparently recognizing that its approach to mandamus made a mockery of the writ if officials were willing to resign, the Court backed away from that part of Boutwell, albeit in halting, incremental, and sometimes disingenuous steps.112 Nevertheless the jurisprudence ultimately recognized that the writ was more than a common law action between private parties, one of whom just happened to be subject to a statutory duty. The post-Boutwell cases reinforced internal supervisory controls with external commands by holding that judicially enforceable nondiscretionary duties could also flow from departmental instructions. It is but a short step, of course, from finding that an officer’s decisions are binding on subordinates to finding that departmental regulations or precedents are binding on the department. On this theory, one might expand the reach of mandamus substantially by finding that prior departmental instructions, circulars, guidelines, practices, or precedents, until changed, bound the department as a whole, not just subordinate personnel. The “internal law” of administration would thus convert otherwise discretionary decisions into ministerial ones subject to judicial control. The Supreme Court of the District of Columbia seems to have attempted to exploit this progressive logic,113 but the Supreme Court rebuffed its efforts, leaving the reach of mandamus roughly where it was in 1860.114 Judicial review began to take on a more modern form only in land office cases. As we saw in Chapter 7, neither mandamus nor injunction could be used to control a land officer’s discretion with respect to the issuance of patents, the validation or cancellation of entries onto public lands, or the like. However, once the Land Office had acted, litigation between adverse claimants for the same tract could put the validity of administrative determinations at issue. Defendants in these proceedings often attempted to set up the Land Office decisions as conclusive, and early cases often treated them as such, provided the court found that the Land Office had jurisdiction over the property.115 Equity jurisdiction, however, began to break down this pattern. Moreover, instead of moving from limited review, confined to the question of jurisdiction, to de novo review of law and fact, the Supreme Court articulated a new division of function between court and agency. Lindsey v. Hawes116 is a good example. The Land Office had granted a patent for a particular parcel to Hawes, which the plaintiff sought to have set aside. Hawes argued, on the basis of a long line of prior precedents, that the action

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of the Land Office, as a coordinate tribunal with jurisdiction, was conclusive. The Supreme Court disagreed. The plaintiffs had not been parties to the proceeding by which Hawes obtained his patent. Where several parties were affected by an adjudication between a single party and the government, the Supreme Court believed it only right that those affected might later challenge the findings of the administrative adjudication in a court of equity. The Court then held for the plaintiff on the ground that the Land Office interpretation of the land statutes was incorrect and Hawes’s patent was therefore invalid.117 Johnson v. Towsley 118 is to the same effect, but provides a much more thorough discussion of the role of courts of equity in reviewing Land Office determinations. Moreover, in Johnson v. Towsley there were no missing parties when the Land Office made its determination. The local Register and Receiver of Public Lands had awarded the patent to Towsley over Johnson’s objections, and that decision was affirmed by the Commissioner of the Land Office. The Secretary of the Interior overruled the Commissioner and granted the patent to Johnson instead. Before the courts, Johnson argued that the Secretary’s decision and delivery of the patent were “conclusive of the rights of the parties not only in the land department, but in the courts and everywhere else.”119 The Supreme Court agreed that it was “general doctrine that when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others.”120 Nevertheless, the Court said “there has always existed in the courts of equity the power in certain classes of cases to inquire into and correct mistakes, injustice, and wrong in both judicial and executive action . . . when it invades private rights.”121 The Court went on to discuss functional reasons for the existence of this power in the courts of equity. It noted that Land Office proceedings were susceptible to the influence of fraud, perjury, and mistake. Moreover, if there were no such power in the courts of equity, private rights might be at the sufferance of the executive branch, which might recall a patent long after granting it. And without equity court involvement, there would be no way of resolving situations in which the executive seemed to have granted conflicting patents to the same parcel.122 Johnson complained, with some considerable justification, that in prior cases courts of equity had refused to accept the Land Office determination as final only if there had been some element of fraud or mistake. The Court acknowledged that there needed to be some special ground for the exercise of equitable jurisdiction.123 But it refused to accept the proposition that when

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the officers “by misconstruction of the law, take from a party that to which he has acquired a legal right under the sanction of those laws, the courts are without power to give any relief.”124 Johnson v. Towsley thus seemed to set up a new division of labor between the Land Office and the courts. Land Office determinations were generally conclusive, but could be upset by a court of equity when the Land Office had made a mistake of law.125 We begin to see here the emergence of a more modern idea of the division of responsibility between reviewing courts and administrative agencies. Judgments about the facts and the application of law to fact are for the agency; pure questions of law can be determined independently by the courts. Note, however, that these intimations of the emergence of the “appellate model” of judicial review are in cases between private parties contesting titles to real property. The form of the action is crucial, because it implicates a constitutional separation-of-powers question: whether private rights between private parties can be finally adjudicated by administrative adjudicators.126 And that, of course, is a question that bedeviled the Supreme Court well into the late twentieth century127 and still has no truly satisfactory resolution.128 These cases, therefore, were limited inroads on the dominant bipolar model of judicial review— de novo review in damage actions and criminal proceedings paired with no review of any exercise of discretion via mandamus or injunction. I can only speculate concerning the reasons that impelled courts to provide somewhat broader review of administrative action in land cases. The general history of common law property litigation suggests one possibility. For centuries land disputes had been the bread and butter of common law adjudication. Perhaps the notion that courts were powerless to intervene to correct obvious errors of law whenever title related back to a decision concerning a public land grant was a legal anomaly that could not be sustained.129 A second, more focused possibility is that the specific history of fraud, perjury, and corruption in public lands transactions led the courts first to allow investigation of those types of claims and then to take the next logical step to permit review of clear legal error. Whatever the background causes, this form of review remained limited to public lands disputes until the origins of the practice were forgotten or purposefully ignored. According to Louis Jaffe’s standard account,130 the law-fact distinction morphed into something like a general presumption of the reviewability of administrative action for legal error in the 1902 case American School of Magnetic Healing v. McAnnulty.131 With sweeping language that seemed to reject virtually the whole of the mandamus and injunction jurisprudence of

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the nineteenth century, the Court said: “The acts of all . . . officers must be justified by some law, and in case an official violates the law to the injury of an individual the courts generally have jurisdiction to grant relief.”132 To be sure, the barriers to direct judicial review did not fall all at once,133 but the seeds of that collapse were sown in the late nineteenth-century Land Office cases. Justice Peckham in McAnnulty cited only three cases for the proposition that errors of law were generally reviewable. They were all public lands cases.134 Justice Peckham did not mention, of course, that those cases, unlike McAnnulty, were all proceedings within the federal court’s equity jurisdiction in contests between private parties concerning public lands. Thus by selective myopia does the law of judicial review of administrative action continue to develop.135 The Supreme Court also ostentatiously declined to meddle in administrative procedure. The constitutional clause that leveraged significant judicial oversight of administrative procedure in twentieth-century administrative law, the requirement for due process of law, is almost wholly absent as a substantial constraint on administrative procedural arrangements in nineteenth-century administrative law jurisprudence. Indeed, the Supreme Court seemed exasperated by due process claims against either the national or the state governments, claims that it still seemed to equate with the notion that all adjudication of private rights was required to be conducted in Article III courts. In Public Clearing House v. Coyne,136 when reviewing a challenge to a Post Office fraud order, the Court said: It is too late to argue that due process of law is denied whenever the disposition of property is affected by the order of an executive department. . . . That due process of law does not necessarily require the interference of the judicial power is laid down in many cases and by many eminent writers upon the subject of constitutional limitations.137

It was even more dismissive of claims against state actors in Davidson v. New Orleans,138 where it lamented: It is not a little remarkable, that while [the Due Process Clause] has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century . . . this special limitation upon its powers has rarely been invoked in the judicial forum. . . . But while it has been a part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the

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scope of this provision as found in the fourteenth amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.139

The Court would, of course, begin to heed some of these litigants’ cries in its substantive due process jurisprudence of the early twentieth century. But it would be many more years before a concept of “administrative due process” would be developed that separated the question of administrative due process from the question of whether adjudicatory jurisdiction was required to be placed in an Article III court. Administrative process was left to be specified by statute— a rarity in nineteenth-century legislation— or to be developed by the adjudicatory agencies themselves, who did so in great detail as the next chapter illustrates.

14

Mass Administrative Adjudication Case Studies in the Development of Internal Administrative Law

A study of administrative adjudication in the second half of the nineteenth century reveals a legal world that is familiar in the structure of adjudicatory institutions and procedures, but strange in the sources of those structures and processes. Both were designed and built almost entirely by the administrative agencies themselves. Judicial requirements of administrative due process were virtually nonexistent, as we have seen, and statutes providing adjudicatory jurisdiction almost never specified internal agency structures or required adjudicatory processes. The Steamboat Safety Act of 1871 provides the one significant exception that I have located to Congress’s general practice during this period of statutory silence concerning matters of administrative hearing procedures. Inspectors were required by statute to provide written reasons and a transcript of testimony received whenever denying or revoking a license, either to a vessel or to any master, mate, pilot, or engineer. In any proceeding to investigate misconduct or incompetency that might lead to a license suspension or revocation, local boards had subpoena power and interrogated witnesses under oath. Aggrieved parties could appeal the local board’s decision to the Supervising Inspector for the district who exercised a de novo reviewing authority.1 These provisions codified practice established by the Board of Supervising Inspectors under the 1852 Act, but still left many matters of procedural and evidentiary detail to be structured by rule and practice. For here and elsewhere a robust common law of adjudication— both substantive and procedural— grew up within administration as agencies struggled to manage their adjudi-

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catory caseload, unify decisions across multiple deciders, develop reliable evidentiary bases for decision making, and provide fair opportunities for contest by interested parties. This “internal law” of administrative procedure was significant both quantitatively and qualitatively. While we tend to view mass administrative adjudication as a feature of the second half of the twentieth century, the Bureau of Pensions was deciding hundreds of thousands of cases in the immediate postwar years, and it continued to do so for decades as Congress repeatedly amended and expanded military pension eligibility. The Land Office, the Patent Office, the Court of Claims, the Controller’s Office of the Treasury, and the Post Office decided tens of thousands more. In 1869, for example, the Steamboat Inspection Service reported licensing nearly 3,000 vessels and 9,000 pilots and engineers.2 These were not trivial cases. Steamboats remained crucial to both commerce and travel notwithstanding the rapid growth of the railroads. Land was still the greatest source of wealth, even as industrial capital, often protected by invention patents, was striving for dominance. Decisions by the Land and Patent Offices and the Steamboat Ser vice were, therefore, economically consequential, as were the decisions of the Pension Office. Although individual pension amounts were small, a remarkable proportion of Northern families depended upon military pensions for a part of their livelihood.3 Finally, a fraud order by the Post Office often simply ended a firm’s capacity to do business. Yet, virtually none of those adjudicatory actions was subject to judicial review, detailed statutory procedural constraints, or systematic political oversight.

The General Contours of Agency Adjudication In 1903, Bruce Wyman published The Principles of the Administrative Law Governing the Relations of Public Officers.4 His book was the first attempt to systematize American administrative law at the national level. More important for purposes of this discussion, Wyman distinguished sharply between what he called the “external” and the “internal” laws of administration. According to Wyman, the external law—legislation and common law— regulated the relationship between citizens and officials. The internal law— agency or executive rules, orders, guidelines, and precedents—arranged the relations between or among public officers and structured their activities. Wyman, like the nineteenth-century Supreme Court, viewed these spheres as connected, but largely distinct. When a citizen sued for damages pursuant to the common law, he or she was entitled to recover unless the officer acted

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in accordance with his or her statutory mandate. On the other hand, courts viewed themselves as having no warrant to interfere with administration by prerogative writ (principally mandamus or injunction) so long as officers acted within their jurisdiction and complied with the internal law of administration laid down by superiors who had discretionary authority to direct their activities. Indeed, Wyman was so insistent upon this separation— one that immunized administrative discretion from judicial interference—he argued that statutes providing appellate judicial jurisdiction to review the reasonableness of administrative discretion should be held unconstitutional.5 True to the premise that external administrative law was relatively limited, Wyman’s treatise was devoted in large part to the elucidation of internal law, the actions, regulations, and decisions of administrators when performing their administrative functions, which Wyman characterized as execution, legislation, and adjudication. Moreover, Wyman devoted nearly half of his book to the last category. His appendices reprinted statutes, regulations, and manuals relating to administrative adjudication concerning military pensions, claims against the United States, customs disputes, patent cases, cases before the land offices, and complaints concerning the administration of the internal revenue laws. Wyman recognized that he was breaking new ground here, contradicting the conventional understanding of American lawyers, and he put the matter rather delicately: It is still the doctrine that all controversies must be decided in the judicial courts; which must be so, it is said, because the theory of the law of the land involves the supremacy of the ordinary judicial tribunals. In the face of such theories, the jurisdiction of the administration to determine its own controversies has been established to an extent not often appreciated.6

Wyman went on to discuss a host of cases to illustrate the basic point that the allocation of jurisdiction to administrators to determine controversies was simply a function of legislative design and the internal arrangements made by the administration for adjudicating disputes. Moreover, while the external law of administration governed the administrators’ jurisdiction to decide, in Wyman’s view the procedures for determining administrative controversies were a function of the internal law. Here again, Wyman reflected both the legislative practice and the due process doctrine of his times. The Steamboat Safety Act of 1871 aside, most statutes allocating adjudicatory authority said almost nothing about procedure. And, as Wyman’s treatise and subsequent scholarship7 reveal, the constitutional question that exercised the legal mind at the close of the nineteenth century was not whether administrative jurisdiction invaded judicial prerogatives, but whether the judiciary

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could, consistent with the Constitution, be given jurisdiction to hear appeals from adjudications statutorily allocated to the administrative process. While we will here be concerned largely with the processes and activities of two offices, Wyman’s appendices reveal remarkably consistent approaches to administrative adjudication across a range of different types of controversies. In virtually all cases, the administration specified how claims or protests were to be presented, what evidence should be submitted and in what form, who had initial authority to make determinations, to whom appeals might be directed, what the time limits were for filing claims and appeals, and so on. Intermediate appeals in high-volume cases were often to special boards or commissions that performed only adjudicatory functions. Some decision makers’ independence was protected by statutory “for cause” removal requirements and limitations on the number of members of the multimember board who could be appointed from the same political party.8 Variation existed, of course, as procedures were tailored to different adjudicatory functions. Procedure in adversarial cases, such as patent interference claims or mutually exclusive claims to public lands, tended to be more formal, with greater attention to matters such as the sufficiency of notice, or the avoidance of ex parte presentation of evidence. And, as the discussion of pension claims and Post Office regulation will reveal, adjudicatory systems were built and administered to facilitate the policies and accommodate the politics that provided the substance of and contextual environment for radically different government programs. But, apart from the very limited judicial review provided, the modern administrative lawyer would find little surprising in the administrative adjudicatory processes utilized in the late nineteenth century. Indeed, what Wyman seems to have failed to appreciate in his zeal to keep the judiciary from undermining what he called the “flexibility” of internal administrative law was the degree to which these practices were establishing an understanding of the citizen’s legitimate expectations of fair and accurate administrative adjudication. In addition to the statutes themselves, substantive adjudicatory norms were provided by agency regulations, manuals, guidelines, and instructions, and to a lesser degree by opinions of the Attorney General and judicial decisions. Departments and agencies consciously built substantive bodies of doctrine through rules and precedents and made them available to all interested parties. Between 1868 and 1887, the government began publishing the decisions of the major adjudicatory agencies: the Treasury (under the customs laws), the Patent Office, the Solicitor of the Post Office, the First Comptroller, the Land Office, and the Pension Office.9

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The recognition that these adjudicatory functions created law also promoted the further recognition that specialized tasks required specialized administrators. As one of the officials of the Land Office put it, those determining land disputes needed to be “able men of legal education and mature judgment.”10 Indeed, since we last visited the Land Office in the Jeffersonian Republican period, that office’s responsibilities had grown rapidly. The acquisition and settlement of huge tracts of land previously owned by Mexico, Britain, Spain and France, and the constant passage of new public lands legislation, multiplied both the disputes to be settled by the Land Office and the complexity of the legal issues that those disputes raised.11 Congress’s statutory land law included not only a multitude of public land laws governing public lands in particular territories, bonus land legislation for veterans of multiple conflicts, and major revisions, such as the general Preemption Act of 1841 and the Homestead Act of 1862, but a huge number of grants to the states for educational and other purposes and to railroad corporations for the transcontinental railroad and other lines. These congressional provisions interacted to create a rising tide of disputes among railroad corporations, settlers, veterans, and others. Moreover, the power of the railroad corporations vis-à-vis settlers and veterans generated increasing complaints to Congress that the Land Office was not doing justice for the little guy. The failures of the General Land Office in carrying out its adjudicatory responsibilities were not for lack of trying. By 188112 Land Office officials were divided into a number of specialized divisions (mineral, railroad, timber, etc.), and by regulation disappointed parties were provided multiple levels of review in adjudications. In an attempt to ensure consistency and adherence to the marvelously complex body of land law that had been developed,13 the Commissioner created a Law Division as well as a Board of Review that scrutinized decisions before the Commissioner signed them. Moreover, the Board of Review seems to have devoted itself primarily to reviewing cases that were resolved in favor of railroad corporations in order to protect the interests of the less well-resourced settlers.14 Indeed, in a rare concession that administration might be under-resourced by the ever-frugal Congress, a Senate Report laid the blame for backlogs and inconsistencies largely at the door of the legislature: It is only justice to say that the Secretaries of the Interior, and the Commissioners of the General Land Office, and the chiefs of divisions have, as a rule been able and efficient officers. . . . The clerks also, as a rule have done their duty diligently and faithfully and with far more ability than could reasonably be expected from them who eke out a bare subsistence on the salaries allowed

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them. . . . The fault is in the system, which is after all, as good as could be devised with the facilities afforded by Congress.15

As the 1881 report on the Land Office makes clear, the General Land Office had not only bureaucratized land, it had bureaucratized itself. At the Land Office the regularization of procedural and substantive adjudicatory norms often went hand in hand with the specialization and professionalization of administrative offices. This professionalization of administration, which promoted ideas of the “rule of law” divorced from common law antecedents, antedated the Pendleton Act. Whatever was happening elsewhere in the governmental ser vice, adjudicatory functions were recognized as requiring specialized skills, functional differentiation of personnel, and protection from the politics of patronage.

The Case of Military Pensions The provision of veterans’ pensions is one of the oldest functions of national government in the United States. As its title indicated, the first pension statute adopted under the 1787 Constitution merely amended and carried forward policies that had begun in the Confederation.16 Every war, and many periods of peace, brought forth new pension legislation covering new classes of beneficiaries. The Rise and Rise of Military Pensions

The Civil War and the postbellum periods were exceptional, perhaps, only in the enormous increase in pension coverage and expenditures, and administrative work for the Pension Office.17 Beginning in 1862,18 Congress passed pension legislation in every Congress and often in every year. As one student of the pension system puts the matter, pension legislation had a “simple pattern: more money for more veterans.”19 Every amendment or extension of eligibility brought a raft of new applications, and reapplications by existing beneficiaries whose benefits had been enhanced. For example, an 1871 statute made veterans of the War of 1812 and their dependents eligible for pensions without proof of disability. From the time this legislation took effect in February 1871, to October 1, 1872, the Pension Office received more than 20,000 new claims, a remarkable number for a war that had been over for nearly sixty years.20 Congress was still liberalizing the 1812 pension system as late as 1886.21 But this caseload was nothing compared to that spurred by Civil War pension legislation. Should the burden of claims processing decrease, Congress

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could almost always be counted upon to provide the Pension Office with more business. Prior to 1879, for example, benefits were payable from the date of a soldier’s death or discharge from duty, provided that the application was filed within five years of the relevant date. Applications filed after that five-year window were payable only from the date of a completed application.22 A successful lobbying effort by pension agents and attorneys23 produced the removal of the five-year window restriction.24 Applications flooded in. Between 1874 and 1878, the Pension Office adjudicated between 30,000 and 45,000 claims a year, and provided benefits to about 230,000 persons at an expenditure of roughly $30 million. In 1880, the office adjudicated 50,000 new claims, and by 1883 the number exceeded 100,000. An even greater liberalization of the pension statutes occurred just as the period under discussion closed. After years of rancorous debate, a massive lobbying campaign, and an initial veto by President Grover Cleveland (which may have cost him a second consecutive term),25 newly elected President Benjamin Harrison signed legislation in 1890 that eliminated the requirement that pensions be based on a service-connected disability.26 Moreover, because the test for disability related only to incapacity to perform manual labor, beneficiaries were not required to be out of the labor market. As one early scholar and sometime critic of the pension legislation put it, “[p]ensions were provided for the highly paid but rheumatic lawyer, for the prosperous business man hurt in a street accident, for the ex-soldier public official with heart disease, and for the mechanic who had lost a hand in an industrial accident.”27 Once again, the response was enthusiastic. Whereas in 1890 the Pension Office was paying a little over 500,000 pensioners a total of $73 million per year, by 1900, the pension rolls had reached nearly 1 million and annual expenditures had doubled. Making Pension Policy

Managing claims adjudication entailed more than deciding cases: the Pension Office was required to make substantive policy as well. Congress often left major gaps in the pension legislation and, even when statutes were relatively specific, failed to anticipate problems that arose in administration. The 1862 statute that began the Civil War pension system, for example, provided that pensions were available to Army or Navy ser vicemen who were disabled “by reason of any wound received or disease contracted while in the service of the United States and in the line of duty.”28 Benefits were provided according to rank but were to be rated in accordance with the severity of the disability suffered. Note, however, that the statute did not say disabled for what or how ratings were to be determined. The Pension Office was left to

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interpret the meaning of the term disability and to provide some uniform system for relating specific injuries to levels of compensation. Commissioner Joseph H. Barrett reported to Congress in 1864: While the Act of July 14, 1862, does not distinctly state that the disability to be taken into account is that for procuring a subsistence by manual labor, such has been the construction of its meaning. . . . In estimating the degree, reference is not had to the particular employment of the applicant before entering the ser vice, but to his capacity for manual labor of any kind. The loss of a limb, or of its extremity, has always been rated as a total disability; and the other effects of wounds have been estimated proportionably, as nearly as may be.29

In short, the Commissioner was left to determine, apparently based on practice under prior pension laws, a host of substantive questions: that disability meant work disability and that work meant manual labor; that disability was to be gauged in relation to employment in the general economy, not in terms of the applicant’s preser vice or postser vice vocation; and that a baseline of total disability would be established in relation to specific losses. Proportionate awards would then be made on the basis of whether particular injuries had equivalent or lesser effects in relation to that baseline standard. These were hardly minor matters of pension policy. In “procedural” sections of the Act, Congress was hardly any more definitive. With respect to the adjudicatory process, Congress stated delphically that applicants were entitled to a pension “upon making due proof . . . according to such forms and regulations as are or may be provided by or in pursuance of law.”30 “[I]n the line of duty” was undefined and would become a constant source of controversy. And while the statute empowered the Commissioner to appoint civil surgeons to examine applicants and to reexamine beneficiaries to determine whether their disabilities continued, Congress had nothing to say about who these civil surgeons might be and how they might be integrated into the adjudicatory process. Examples need not be multiplied. Notwithstanding Congress’s more than lively interest in veterans’ pensions, much concerning both the construction of an appropriate adjudicatory process and the development of substantive and evidentiary policies would be left to Pension Office discretion. Processes of Pension Adjudication

By the time of the Civil War, adjudication of military pension claims had long since abandoned its early practice of using federal judges as “commissioners” to make a factual record; instead it used a wholly administrative

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adjudicatory system. Postbellum claims processes evolved in response to new legislation and new information gained in the process of adjudicating claims. But the basic structure of operations was relatively straightforward.31 Three questions had to be answered. First, had the applicant been attached to the Army or Navy in one of the capacities that was pensionable under the relevant legislation? Second (prior to 1890), was the applicant under a disability that was the result of an injury or illness incurred in the line of duty? And, finally, did the disability resulting from that injury or illness qualify the applicant for a pension, and at what level? According to Robert Sewell’s 1865 treatise,32 the serviceman applying for benefits was to execute, before a court (or an official authorized to administer oaths), a declaration witnessed by two parties attesting to his identity, the fact of ser vice and injury, and his current residence and occupation. Sewell goes on to describe in great detail an ideal application with a number of highly technical requirements that would aid in a favorable outcome. When a claim arrived in the Pension Office, it was forwarded to an examiner in one of the geographically organized adjudicating divisions who determined whether the applicant’s declaration and accompanying evidence stated a prima facie case for a pension. If so, the examiner requested a service record from the Adjutant General of the Army and any available medical records from the Army’s Surgeon General. He also ordered a civil surgeon’s examination from one of the local surgeons scattered about the country who had been approved by the Pension Office for making such examinations. The medical evidence might also include a report by a three-person Board of Surgeons, which was available to the claimant if the initial civil surgeon’s or Surgeon General’s reports were unfavorable. After 1883, virtually all examinations were done by a three-person medical board in the first instance, and the review board process was retained only for those cases initially examined by a single physician. Having collected this information, the examiner then forwarded a brief recommending either acceptance or rejection to his division chief. According to a second treatise penned by Deputy Commissioner Walker, the examiner was to be careful to bear in mind that he is in charge at the same time of both the interest of the claimant and the government, and does not look upon every case with suspicion, regarding himself as the agent of the Government to protect it alone, or on the other hand, consider himself a special agent of the claimant, striving if possible to make out a claim.33

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Here lie the roots of the “three-hat” inquisitorial process that the Supreme Court approved for Social Security disability claims 106 years later (so far as one can tell in complete ignorance of its long history).34 The initial examiner’s brief and the evidence was passed on to the Board of Review. Although the examiner’s determination was not final until approved by the Board, the latter was instructed to defer to the factual determinations of the initial examiner.35 At this point, however, the case was not over. If satisfied with the legal sufficiency of the claim, the Board of Review would pass the file on to the Medical Referee (an office created in 1873), where individual medical reviewers fi xed the amount to which the claimant was entitled by reason of his disability. If the Board of Review made a finding adverse to the claimant, he was entitled to take an appeal to the Assistant Secretary of the Interior. Indeed, if at any point the examiners or medical personnel found a claim defective, the claimant was invited to submit additional information that might support an award. Although this process was based almost exclusively on paper records and sworn affidavits, it favored claimants. Information provided to the Pension Bureau came mostly from persons known to the claimant, either through his military service or residence in a local community. And, while acceptance rates are difficult to compute,36 they seem to have hovered between 70 and 80 percent.37 Moreover, as in contemporary Social Security disability adjudication, the paper record gave way to face-to-face hearings and cross-examination when the relationship between the Bureau and the claimant took on an adversarial flavor. Where claims were likely to be denied because fraud was suspected, investigation was done by special agents who examined the claimant and witnesses personally. Prior to 1881, this examination was largely ex parte, but thereafter was done on notice and opportunity to contest.38 Special agents were instructed that their examinations were to “be conducted in no way secretly, but . . . free and open to all parties in interest, and any claimant or pensioner shall have the privilege of meeting his accuser face to face, and to cross-examine all the witnesses against him.”39 While this was a highly articulated and bureaucratically specialized process, it was nevertheless one in which adjudicatory personnel necessarily exercised significant discretion. And, as anyone familiar with contemporary disability determination processes knows,40 disability decisions are analogous to fact-based determinations by one-person juries. They are influenced by the subjective understandings of the adjudicators and by the adjudicatory climate created by both administrative and political controllers. Whether the Pension Office was lenient or strict in its determinations thus depended not

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only on the understandings and discretion of individual examiners, but on whether the adjudicatory climate of the time emphasized assuring benefits for all eligible individuals or protecting the fisc and preventing fraud. And, as is true of contemporary disability benefits administration, the political climate changed in response to shifting public and congressional concerns and changes in presidential administrations. Consider In re Ammerman.41 According to the published decision of the Assistant Secretary of the Interior who first ruled on the case, [a]ppellant alleges that on or about September 1, 1863, while standing in front of his tent, certain of his comrades being engaged in play among themselves, one of them kneeled down be hind [sic] him, and another standing in front pushed him over the one kneeling, and that he was thrown on his head and shoulders, producing a fracture of the left clavicle.42

The application was rejected on the ground that this horseplay did not qualify as an injury that had occurred in the line of duty. However, when Benjamin Harrison replaced Grover Cleveland, a new wind swept through the Pension Office, and Ammerman’s claim was granted.43 Because the Harrison- Cleveland race had revolved importantly around differences over pension policy (Cleveland had vetoed numerous private bills granting pensions to denied applicants and a general statute eliminating the requirement that disabilities be service-connected), Ammerman’s case caught the attention of the New York Times. The title of the article, “Bidding for Popularity: All Sorts of Pension Claims Now Passed,” suggests some skepticism concerning the new Assistant Secretary’s pension policy.44 Indeed, there was widespread belief that the pension system was riddled with fraud and deeply compromised by partisan political competition. General M.M. Trumbull wrote, “ ‘[v]eteran diseases’ are those miraculous ailments which rage unsuspected in the bodies of old soldiers until seductive pension laws bring them to the notice of the sufferers.”45 And, William Glasson, the early historian of the military pension system, described the 1890 statute as “the high bid for the political support of the 450,000 G.A.R. [Grand Army of the Republic] men and other ex-soldiers, with both the Republican and Democratic parties bidding.”46 The views expressed about the pension system in the popu lar and elite press seemed to follow party lines. Republican outlets found the pensioners honorable and deserving; Democratic and independent sources (including some Republican reformers or “Mugwumps”) saw military pensions as ill- disguised raids on the Treasury, facilitated by unscrupulous pension attorneys and claims agents.47

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Congress also intervened massively in pension administration by passing private bills and personally assisting claimants in perfecting their applications at the Pension Office. Morton Keller reports, “in the 49th Congress [1885– 1887], 40 percent of the legislation in the House and 55 percent in the Senate consisted of special pension acts.”48 And Robert M. La Follette, Sr., estimated that he spent a quarter to a third of his time in the House of Representatives (1884– 1890) engaged in pension casework.49 In these senses, “politics” influenced pension adjudication. But, there is nothing nefarious or corrupt in congressmen passing statutes that benefit their constituents or engaging in case work. And, in cases like Ammerman, the Harrison Administration was quite open in maintaining that the Cleveland Administration had been too strict in its interpretation of the pension laws.50 On the other hand, some practices at the Pension Office could make pension administration a tool of electoral politics. With a constant backlog of work, pension cases could be rushed to completion in the months immediately preceding a national election. President Garfield’s Pension Commissioner, Colonel W. W. Dudley, is reported to have allocated scarce personnel disproportionately to the task of deciding claims in electorally critical states and to have ordered that no claims be finally denied in the months immediately preceding the presidential election.51 The level of fraud and the effects of political chicanery at the Pension Office are difficult to estimate. In her monumental study of military pensions, Theda Skocpol calculates that less than 1 percent of the 300,000 pension applications that were granted in the period 1861 to 1876 were subsequently denied because of fraudulent applications. But, as Skocpol notes, that may not be a good measure of the extent of illegitimate claims, and no other is available. She ultimately concludes that “nothing exact can be said about the proportions of illegitimate pensioners or expenditures.”52 The effects of illegitimate political maneuvers are similarly difficult to assess. Although there is some evidence that Democratic counties did better in their pension applications during Democratic administrations and Republican counties in Republican administrations, a recent statistical analysis finds that decisions on claims were overwhelmingly determined by the medical evidence submitted by examining physicians (or boards of physicians).53 Whatever the true relationship between partisan politics and pension administration, oscillations in statutory and interpretive policies could not be resisted by the Pension Office. It had to be responsive (to the extent that the law allowed) to the demands of its political overseers, even at the cost of consistency across time. Inconsistency on the part of examiners and medical

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personnel acting at any one time, however, was at least potentially within administrative control. The Pension Office’s attempts to ensure both responsive and consistent interpretation of pension legislation created an elaborate, and somewhat arcane, internal law of administration. Center and Periphery at the Pension Office

The Military Pension Bureau was one of the larger enterprises of the federal government. By the mid-1880s, it had over 1500 personnel in its central office in Washington. And as we have seen, all final determinations on veterans’ claims were made only after central office review both by the Board of Review, which determined the legal sufficiency of the claim, and by the Office of the Medical Referee, which assigned disability ratings. This centralized oversight clearly helped to unify adjudicatory norms. But, the central office was highly dependent upon information that came in from the field. While central office personnel could send cases back for additional development, they were in some sense at the mercy of both the examiners in field offices around the country and the medical professionals who did disability examinations on contract with the Bureau. In its attempts to control the activities of these dispersed and part-time personnel, the Pension Office generated a continuous stream of manuals, instructions, digests, and precedents. Two examples will provide a sense of the Pension Office’s managerial effort— its attempts to control the activities of examining surgeons and to unify the understanding of what it meant for a disability to have been incurred “in the line of duty.” The 1862 chartering legislation empowered the Commissioner “to appoint, at his discretion, civil surgeons to make the biennial examinations of pensioners which are or may be required to be made by law, and to examine applicants for invalid pensions, where he shall deem an examination by a surgeon to be appointed by him necessary.”54 Congress announced no criteria for appointment, and Commissioner Barrett described the qualifications of the physicians chosen in the most general terms: [R]egard has been had not only to the professional skill and standing of the persons selected, but also to their integrity and impartiality in rendering a just verdict on the cases coming before them. . . . The number and locations of examining surgeons having been left to my discretion, it is proper to state that I have designed to make appointments only where the convenience of applicants seemed to require such an officer, and that it has not been thought best to appoint such examiners where the constant and ready attention of regular army surgeons could be relied on.55

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By the end of 1863, over 600 examining surgeons had been appointed.56 Whether doing initial, biennial, or special exams, examining surgeons were to provide certificates giving “a particular description of the wound, injury or disease, and specify[ing] how and in what manner [the pensioner’s] present condition and disability are connected therewith. The degree of disability for obtaining subsistence by manual labor must also be stated.”57 From the onset, equitably and consistently assigning rates of compensation for the wide array of disabilities and diseases claimants presented was the Bureau’s single greatest challenge. By 1870, the Commissioner was providing the examining surgeons with detailed guidelines. “Detailed” is indeed a tepid description of the Commissioner’s rating rules. For example, the temporary loss of the use of a limb was an eight-dollar total disability, while the permanent loss of the use of a limb was a fifteen-dollar third-grade disability. Then, for purposes of subdividing the eight-dollar rate, the loss of a thumb or a single hernia was one-half disability; the loss of an index finger or a big toe was three-eighths disability; and the loss of another finger or toe was onefourth disability.58 These guidelines were further refined in each new set of instructions.59 By 1883, the Commissioner reported that there were 120 different grades of pensions being paid to disabled veterans.60 As time passed, the Bureau also sought to professionalize its rating process. In 1871, the Commissioner created a Medical Division “[i]n order . . . to multiply the safeguards against error, ignorance, and dishonesty, which affect both the right of the pensioner and the interests of the Government.”61 He staffed the Division with “competent surgeons, whose duty it is rigidly to inspect all returned certificates and to correct and adjust all medical questions, under the supervision of the Commissioner.”62 Using the expertise of this growing medical apparatus, the Commissioner promulgated yet more refined rules defining fractional rates of disability and clarifying statutory terms.63 The Bureau constantly sought to reinforce examining surgeons’ independence and professionalism. To avoid possible bias the Commissioner used multimember boards of surgeons for reviews or initial examinations where possible. In 1882, Congress was finally convinced to mandate that all examinations be made by three-surgeon boards.64 Commissioner Dudley noted in his report on the implementation of this new requirement that, as a matter of policy, where possible, he organized boards to contain two members of one political party and one of the other.65 Although all pension commissioners, including Dudley, were suspected of using their discretion to aid incumbent administrations, he, at least, seems to have attempted

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to depoliticize professional medical judgments in the adjudication of individual claims. The last line of supervision for examining surgeons was the Medical Division, which attempted to control examinations more closely by specifying the par ticular medical issues to be resolved and by scrutinizing surgeons’ certificates and returning those that did not pass muster. The Bureau initiated all medical examinations by issuing an order to a surgeon or board of surgeons (and forwarding a copy to the claimant); each order “set forth precisely the injuries and diseases, or both, for which the applicant claims, and the surgeon should therefore look very carefully to the order, that the examination shall include every alleged cause of disability.”66 Special instructions might accompany orders, and surgeons were to return those instructions and the order itself along with their certificate of examination. Insufficiently detailed certificates were rejected: When a certificate shall fail to furnish information upon which the claim may be intelligently and safely adjudicated, it will be returned to the surgeon for amendment in the defective points, and if it may not be corrected without the re- examination of the claimant, the examination will not be paid for.67

Preliminary review and rejection of such certificates fell to the medical clerks in the Medical Division.68 Because no adjudication became final until reviewed in the central office, the quality and efficiency of the nearly 1500 examiners and clerks in that office were a central concern.69 The Commissioner was at pains to explain to Congress that “[t]he speedy and proper adjudication of pension claims depends upon the judgment and qualifications of the examining force who have the work in hand.”70 He argued that this required both selection and promotion on the basis of merit, including not only formal schooling but also “a careful examination to determine whether the applicant possesses the other qualities necessary to a full understanding of the business in hand.”71 Clerks and examiners were hired based upon rather basic educational requirements but were then trained by the more experienced people in the division. They spent their first six months as probationary employees. Clerks were then promoted up through the clerical ranks (four grades) and to examiner status based upon their work in the Bureau. According to the Commissioner, “promotion has been granted irrespective of race, influence, or anything else than attainment in the work of this office.”72 It would appear that although the Bureau of Pensions operated in a highly charged political environment, it was nevertheless a highly bureaucratized

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operation. Procedures and evidentiary requirements were specified in great detail. The work was parceled out to employees who had discrete functions and who attained their positions on the basis of merit and accomplishment within the Bureau. Systematic review of the work product was provided by the Medical Referee’s office and the Board of Review. The whole adjudicatory regime operated under the rules and guidelines promulgated by the Commissioner and the precedents set by decisions on appeal to the Secretary of the Interior. All of this internal law was published and made available to interested parties.73 From the perspective of the early twenty-first century, it is easy to imagine that the rights revolution of the 1960s and 1970s finally brought recipients of government benefits within the ambit of administrative law’s insistence that fair procedures and transparent rules be made available to those subjected to adverse government action.74 To be sure, since the 1930s disappointed Social Security applicants and recipients had had a statutory right to hearings before an independent hearing examiner—the process upon which the APA’s formal adjudicatory hearings were modeled. But so-called “grant and benefit” programs, including veterans’ benefits, are excepted from the coverage of the APA. Hence, in the absence of specific statutory requirements, pre-Goldberg claimants asserting interests based on government beneficence seemed to be bereft of legal rights—left to the vagaries of discretion exercised through informal processes and applying secret law— or perhaps simply individual subjective judgment. With judicial review precluded by statute until 198875 and Congress largely inattentive to both the substance and procedures for claims adjudication, veterans seeking military pensions appear as legal stepchildren from the viewpoint of external administrative law. Yet a detailed look inside the administration of veterans’ benefits in the Gilded Age reveals a very different picture. Administrators developed a regularized, transparent system that was surely as fair to claimants and beneficiaries as the technology of the times and the demands of mass adjudication would allow. But the Pension Bureau is only one case, and we should recognize that veterans were then (and are now) a politically popular subset of beneficiaries. Although the program had its detractors, the internal law elaborated in the administration of nineteenth-century veterans’ benefits was not against the grain of broad political sentiment. Pornographers, fraudulent marketers of defective goods, and worthless stocks, abortionists, and organizers of rigged lotteries are not nearly so politically appealing. Yet, as my next case study will show, while the Post Office was both aggressive and creative in pursuing such persons or firms pursuant to a procedurally vacuous statute,

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it was, nevertheless, scrupulous in providing procedural and structural protections when denying anyone the crucial privilege of access to the U.S. mails.

Regulation and Adjudication at the Post Office From the perspective of the early twenty-first century, it is sometimes difficult to appreciate the significance of the Post Office in the political, economic, and social life of the early Republic. In Richard John’s well-known account,76 the carriage of newspapers, and hence the dispersion of news from national population centers to the interior, made the Post Office a critical, perhaps the most important, institution in the development of American national identity. This high politics of state building was, of course, conjoined with the low politics of political patronage. Post offices, indeed multiple post offices, could be opened in every congressional district, and Congress jealously guarded its legislative prerogative to designate post offices and post roads. In a system of de facto congressional appointment of local federal officials, congressional patronage went well beyond the satisfaction of local constituent pressures for the opening of a post office in every hamlet in the nation. Carriage of the mails was by contract, and these contracts provided additional scope for congressional patronage through the congressman’s influence with local postmasters. Indeed, the opportunities for corruption in the process of letting contracts for mail carriage created some of the major political scandals of antebellum politics. As we have seen, these scandals generated significant bureaucratization of Post Office administration well before the advent of Pendleton Act civil ser vice reforms, and reform continued throughout the Gilded Age.77 Members of the Railway Postal Service and the clerks in the central office of the Post Office in Washington, D.C., for example, were subjected to training and testing that went far beyond the requirements of the Civil Ser vice Commission. Indeed, the members of the Railway Postal Ser vice may have been the most highly trained and efficient personnel of the federal government outside of certain branches of the military.78 Notwithstanding increasing coverage and usage of telegraphic communication, commercial dealings at a distance were almost completely dependent upon a secure and effective system for delivering the mails. In the absence of bank clearinghouses, the mails provided not only the means for making or negotiating business arrangements but the payment system. One of the most familiar, indeed, iconic scenes in motion pictures about the American West depicts the danger and excitement of bandits robbing either a stage coach or a train. Passengers fork over their money and jewelry, but the

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principal interest of the outlaws lies in the mailbags. Those mailbags were filled with money. Federal criminal law recognized the economic importance of a secure postal system from the earliest days of the Republic. Opening a letter addressed to another and containing money was made a capital offense in 1794.79 Letter writing was not solely the provenance of commercial intercourse and political instruction.80 As restless Americans migrated from their original East Coast habitats to populate the Western lands, first across the Alleghenies and then across the Mississippi and the Rocky Mountains, familial and social bonds were maintained through the mails. The personal letter became virtually a literary form, and the privacy of a sealed first-class letter was guarded by severe sanctions for anyone breaking the seal.81 Given the importance of the mail system to the political, economic, and social life of the nation, congressional attention initially focused largely on insuring a comprehensive, effective, secure, and inexpensive postal system. The Post Office was a ser vice organization. To be sure, it had some ancillary authority to regulate how mail was packaged and to determine what postage was due for different types of communications, but the content of those communications was none of the government’s business. As with many aspects of American life, the issue of slavery and the Civil War transformed the Post Office’s regulatory authority. After the war, reformminded Americans saw in the Post Office a means for carrying on their moral crusades against obscenity, pornography, abortion, gambling, and fraudulent commercial and investment schemes. Their efforts built on earlier, sometimes extralegal, regulation of what was considered mailable. And, as we shall see, it took some time for the postal authorities to work out reasonable procedures for determining whether allegedly objectionable materials were indeed unmailable. The Emergence of Post Office Regulation

As recounted in Chapter 10, Amos Kendall seems to have been the first Postmaster who exercised authority to censor the content of the mails. And like Kendall’s actions in the abolitionists’ literature controversy, much additional regulation of mailability was of administrative rather than legislative origin. With the outbreak of war, the Post Office’s actions became even more autonomous and legally problematic. On Jackson’s advice Kendall had seemingly violated federal law by regulating delivery of abolitionist pamphlets. Postmaster Blair initiated a range of restrictions that promoted the

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war effort, but sometimes seemed to evade both congressional and presidential instructions. When the House Judiciary Committee inquired into Blair’s authority to determine what could and could not be transmitted through the mail, Blair claimed a twenty-five-year tradition of excluding treasonous communications from the mail “solely by authority of the executive administration.”82 But, Blair’s testimony revealed that his censorship activities had gone well beyond the attempt to interdict treasonous letters or publications: without statutory authority he had also withdrawn a number of obscene or scandalous publications. In the end, however, the Judiciary Committee, like Blair, concluded that the failure to exclude these materials would allow the “postal system, established and sustained for the benefit of the people, [to] be turned into the means of the destruction of life, property, and morals.”83 Congressional legislation almost caught up with Blair’s pornography policy in 1865 in a statute providing that “no obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character shall be admitted into the mails of the United States.”84 But the 1865 statute contained only criminal penalties for its violation. Provisions in the original bill that would have authorized the Postmaster General to seize obscene publications received at the Post Office were eliminated in the final statute.85 Notwithstanding this apparently intentional “gap” in the statute, the Justice Department supported the Post Office’s position that it could exclude obscene publications from the mail.86 According to one report, in 1873 alone, postal inspectors seized not only obscene materials, but 15,000 letters from young people soliciting obscene matter.87 In a similar legal move, the Postmaster General, supported by the Justice Department, found an implied seizure authority in an anti-lottery statute making it a criminal offense “to deposit in a post-office, to be sent by mail, any letters or circulars concerning lotteries, so-called gift concerts, or other similar enterprises offering prizes of any kind on any pretext whatever.”88 Congress continued to amend and reform the regulatory provisions of postal statutes throughout the 1870s and 1880s in legislation targeting lotteries, obscene or indecent materials, and fraudulent schemes of various types.89 For our purposes, the most important new initiative was an 1872 statute reorganizing the Post Office and codifying its governing statutes.90 This statute introduced the so-called “fraud order.” Upon evidence that a fraudulent scheme was being pursued through the use of the mails, the Postmaster General was authorized to issue an order directing local postmasters to refuse payment on money orders drawn to the perpetrator of the fraud and to return to sender all registered mail addressed to the target individual or

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firm. Here at last was explicit statutory authority for the Post Office to use administrative means to protect the mails from misuse, a power that it had been exercising since 1835.91 The flexing of Post Office regulatory muscle did not go uncontested in the courts. Justice Field, writing for a unanimous court in Ex parte Jackson,92 declared that Congress’s power to determine what would be carried in the mails, and to where, necessarily implied a power to determine that some items would not be carried and should be excluded. Field seemed unconcerned by the potential First Amendment problem of interdicting speech by mail, but went out of his way to make clear that under the lottery statute (which was specifically at issue in Jackson), sealed correspondence could not be opened without a warrant. So long as Fourth Amendment restraints were respected, Ex parte Jackson supported Congress’s and the Post Office’s authority to regulate the content of the mails in the interests of public welfare and morals. The antivice regulatory actions at the Post Office were, of course, part of the larger anti-vice crusades of the late nineteenth and early twentieth centuries. And they were linked together in the person of Anthony Comstock,93 a larger-than-life morals vigilante who epitomized the fears of “respectable” Americans concerning the deteriorating moral tone of the century. Comstock operated both locally and nationally. He was chair of the New York Chapter of the Young Men’s Christian Association Committee for the Suppression of Vice, and Special Agent for the Post Office to enforce the 1872 statute. Comstock was no mere enforcer. Finding the 1872 legislation too weak, Comstock mobilized public opinion and lobbied effectively for a much stronger set of restrictions that were embodied in the so-called Comstock Law of 1873.94 Armed with more powerful regulatory authority, Comstock cut a wide swath. He estimated that by the end of his career that he had been responsible for over 3600 arrests. He claimed to have destroyed 73,608 pounds of books, 877,412 obscene pictures, 8495 negatives for making obscene photos, 98,563 articles for immoral use, 6436 indecent playing cards, and 8502 boxes of pills and powders used for purposes of abortion.95 But Comstock, while a formidable and picturesque figure, was primarily interested in criminal prosecutions and the seizure and destruction of immoral articles from their manufacturers or distributors rather than in administrative enforcement. We will turn our attention, therefore, to the less titillating, but equally far-reaching, activities of the Post Office in exercising its fraud order authority.

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Fraud Order Jurisdiction

Because the use of the mails was essential to all enterprises that operated in interstate commerce, the fraud order authority gave the Post Office something akin to the jurisdiction that would later be provided to the Federal Trade Commission to issue cease-and-desist orders against deceptive acts and practices in commerce. Moreover, as exercised, the Post Office’s antifraud authority anticipated the more focused jurisdiction of the Securities and Exchange Commission and the Food and Drug Administration. The courts and the Justice Department generally acceded to the Post Office’s broad construction of its regulatory jurisdiction. For example, the Post Office intercepted the mail of, and brought criminal charges against, the issuer of bonds in an enterprise that amounted to little more than a Ponzi scheme.96 The defendant complained that there was no fraud involved in making promises that he could not keep. The Supreme Court conceded that there were no outright falsehoods in the bond offering, but the level of interest payments promised was simply implausible without fraud. The Court agreed with the Post Office that the postal statute embraced “everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future.”97 Similarly, a fraud order was issued against C.W. Mixer for peddling bogus cures for cancer. Responding to Mixer’s advertisements, the Department of Agriculture acquired some of Mixer’s medications, tested them, and found them to be completely ineffective. On that basis, the Assistant Attorney General for the Post Office Department notified Mixer that he must show cause why a fraud order should not be issued against him.98 But neither the statutes nor the judicial decisions had much to say about the means by which these broad substantive restrictions would be implemented. Those matters would be left largely to the policies adopted by the Post Office Department itself. Implementation

Early in the nineteenth century, the postal ser vice began to employ “special agents” to investigate inefficiency, corruption, and theft in the postal system.99 These special agents had broad powers of inspection, but no authority to arrest malefactors or bring prosecutions on behalf of the Post Office. Over time these temporary and ad hoc special agents evolved into a core of postal inspectors that was recognized in legislation.100 Like most parts of the federal government, the inspection bureau was perennially underfunded,101 but business was brisk. Inspectors responded not only to departmentally initiated

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inquiries but to thousands of complaints that poured in from ordinary Americans. The Office of Inspection handled nearly 30,000 complaints in 1880, a figure that had risen to nearly 200,000 by 1900.102 While many complaints and investigations involved loss or destruction of the mail, by 1879 the obscenity and fraud business was sufficient to justify a specialized group of inspectors.103 As complaints arrived, usually addressed just to the Postmaster General, the Division of Post Office Inspections and Mail Depredations categorized the complaints by topic and assigned them to field offices located throughout the country. Special agents who concentrated on particular sorts of offenses were assigned to investigate the complaints. While in the early days of the Post Office special agents were a motley crew who failed to give the central office successful control over local operations,104 by the 1870s and 1880s the special agents had become an elite corps who not only enforced the postal statutes but operated as an all-purpose investigative bureau that unified local practices and displaced the historic powers of local postmasters.105 Post Office Inspectors or Special Agents were indeed a part of the folklore of the American West. They wrote memoirs celebrating their daring deeds and investigative methods, which sold widely and promoted the detective story as a new literary genre.106 They were a quasi-military corps that was increasingly recruited from the other elite corps at the Post Office, the Railway Mail Ser vice. And, as at the Pension Office, the Post Office organized these officials along functional lines that featured specialization of subject matter and recruitment and promotion on the basis of merit.107 There was also heavy involvement in enforcement by the Assistant Attorney General for the Post Office Department. While seizures could be effected by the Post Office staff, prosecutions had to be carried out by U.S. Attorneys. Moreover, there were constant questions about whether par ticular items fell within the obscenity, fraud, or anti-lottery statutes. Questions of law, practice, and interpretation were answered by the Assistant Attorney for the Post Office Department and by the First Assistant Postmaster General through the latter’s division of correspondence. In his hagiographic account of the Post Office in 1893, Marshall Cushing described the First Assistant Postmaster General as “the great conundrum man of the Department.”108 The replies to questions sent out through the division of correspondence were periodically codified in the rulings of the Post Office, which in Cushing’s description “were printed in the Postal Guide and became the law and gospel of the postmasters.”109 The reach of the obscenity laws seems to have been a continuous source of concern to the Assistant Attorney General, who struggled to instruct the

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inspectors concerning the difficult line to be drawn between the offensive and the obscene. Thus, while the Assistant Attorney General may have agreed with the complainants that a publication called the Labor Vindicator was characterized by “great vulgarity of expression,” vulgarity was not the same as obscenity.110 The Assistant Attorney General turned back a similar effort to exclude the popular Police Gazette from the mail.111 And Reverend H.W. Spalding’s effort to suppress a pamphlet entitled The Deitistic Pestilence and the Religious Plague of Man was rebuffed with the opinion that the federal statutes prohibited the mailing of obscene material, not blasphemous attacks on the church.112 Direction of lower-level personnel obviously could not be carried out solely through the medium of opinions of the Assistant Attorney General for the Post Office Department. The primary source of instruction was the monthly Postal Guide. The Guide was distributed to all local postmasters and was available to the public by subscription. The policies of the Department were also collected from time to time in codified form in bound sets of Post Office regulations. Some instructions were procedural, such as the direction that postmasters should submit items to the First Assistant Postmaster General if they were in doubt about their mailability.113 Others were more substantive, such as the direction that regular issues of newspapers could not be excluded from the mail just because they contained advertisements for lotteries.114 And some were protective of private interests, such as the instruction that local postmasters were prohibited from detaining first-class matter on the mere suspicion that it contained forbidden articles, or from breaking the seal on any letter or package to determine its content.115 These same regulations instructed postmasters to seize obscene matter wherever encountered and forward it to the dead letter office,116 even though, as previously recounted, the statute criminalizing the use of the mails to transport obscene matter contained no seizure authority. The inability to inspect sealed or first- class mail created significant problems of enforcement. To be sure, much of the material advertising lotteries, promoting fraudulent schemes, or hawking obscene publications was mailed second or third class and was therefore open for inspection. But payments made for banned materials were almost always sent fi rst class or by registered mail. Hence, for example, so long as potential customers knew that lottery tickets were available, they could be bought and sold through the mails in sealed envelopes.117 On the other hand, once someone was determined to be engaged in a fraudulent scheme (which sometimes also applied to lotteries) all of their mail could be interdicted. The fraud

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order thus became one of the Post Office Department’s most important regulatory tools. The Fraud Order Process

As in other cases, the Post Office investigated potential frauds both on its own initiative and in response to complaints. Local postmasters who became aware of lottery or fraud schemes were directed to investigate and to make appropriate notification to the local U.S. Attorney and the Postmaster General. If the central office believed that the facts justified a fraud order, a notice was sent to the target of the potential order outlining the charges and inviting a written response.118 An Assistant Attorney General’s opinion in 1883 noted that “[w]hen a preliminary notice is sent the party charged, if he desires, is heard by himself or attorney. He is allowed to fi le his written statement and that of others supported or unsupported by affidavit. Indeed the greatest possible latitude is allowed for explanation or defense.”119 Oral hearings seem not to have been routine although there is evidence that they were provided in some cases.120 After the hearing, paper or oral, the Assistant Attorney General made a recommendation to the Postmaster General, who then decided whether to issue a fraud order. Notice and opportunity to defend were excluded in situations in which there was conclusive evidence of fraud.121 Moreover, the evidence upon which the fraud order was based may not have been fully revealed to the target, nor was confrontation of adverse witnesses always provided. Evidence often came largely from the postal inspector’s reports, which were sometimes compiled from statements by informants who had been promised anonymity.122 If the Postmaster General was satisfied that the target had engaged in fraud through the use of the mails, he issued a written order forbidding the payment of money orders to the company or individual and ordering that all mail addressed to the target of the order be returned to its sender marked “fraudulent.” These procedures were hardly the full formal trappings of civil or criminal trial. But, as was noted in the preceding chapter, the Supreme Court was unreceptive to claims that due process required judicial process before the Post Office could intercept someone’s mail.123 Moreover, given the limited nature of judicial review by mandamus or injunction, the Postmaster General’s decisions concerning whether the facts justified an order were essentially unreviewable. In the early twentieth century, federal courts did begin to review the question of whether, on the agreed-upon facts, the Postmaster had exceeded his authority by banning mailable materials,124 but they would

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not inquire into the sufficiency of the evidence upon which the Department acted. As one court said in a proceeding objecting to the evidence upon which a fraud order had been based, “It may have been hearsay; it may have been secondary; it may have been delivered by an incompetent witness; or it may not have been such as the courts would receive. But whatever it was, it was evidence satisfactory to him.”125 These limitations on judicial jurisdiction might be interpreted as a license for arbitrary enforcement, but internal law tended to furnish its own constraints. The Assistant Attorney General for the Post Office Department counseled the Postmaster General not to accept hearsay “on any doubtful proposition.”126 Moreover, the Assistant Attorney General had a lively sense of the legal novelty of permitting a person or firm to be completely excluded from the mail system. On this basis, he concluded that the power to issue fraud orders was meant to be exercised personally by the Postmaster General. In his words, The power conferred by law upon the Postmaster- General, upon evidence satisfactory to him, to order the return of registered letters or the refusal of payment of money orders, is a very arbitrary power, in derogation of common right, and can be exercised only by the Postmaster- General. He has not delegated, and can not delegate, the power to inspectors.127

Moreover, the instructional guide to Post Office inspectors and local postmasters was particularly attentive to both process and the careful supervision of street-level personnel. The manual charged the inspectors with a thorough understanding of all laws and regulations pertaining to the Post Office.128 Local postmasters were prohibited from providing advice concerning the mailability of a particular item.129 Once they received arguably unmailable material, samples were to be submitted to the central government, either to the First Assistant Postmaster General for determination where obscenity was in question, or to the Assistant Attorney General for the Post Office Department concerning lottery or fraud-related materials.130 While the instructions were more detailed concerning how inspectors were to go about their investigation of fraudulent schemes,131 the determination of whether a scheme was fraudulent or not was left to the Assistant Attorney General and ultimately to the Postmaster General.132 The great breadth of the fraud regulations, combined with vigorous enforcement, generated resistance. In 1906, a bill was unsuccessfully promoted in Congress to rein in the administrative powers of the Post Office. Under that proposal, no fraud order would take effect until fifteen days after notice of its issuance had been received by the target. And the order would

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be stayed if the target filed a bill in a U.S. Circuit Court, which would apparently have had de novo authority to determine whether the fraud order should issue. George B. Cortelyou, a former Post Office Special Agent and Postmaster General (and then Secretary of the Treasury) defended the existing administrative scheme in an article in the North American Review in 1907.133 Cortelyou had little doubt that the courts would ultimately sustain the determinations of the Department even if the bill were enacted. He noted that since the enactment of the fraud order legislation, 2400 fraud orders had been issued, but only thirty cases had sought to challenge their propriety. Moreover, the Post Office had never lost a case.134 That exemplary record is, perhaps, not too surprising given the limited nature of judicial review. Nevertheless, according to Cortelyou the purpose of the proposed legislation was really to produce delay within which the fraudulent scheme could be carried out. In Cortelyou’s words: It is not the law, but the law’s delay, which the operators of fraudulent methods would be glad to obtain. For it must be borne in mind that many, if not most, of the schemes to defraud are of the fly-by-night order; of the kind whose methods and base of operations are constantly changing; who shift from name to name and city to city, for the express purpose of avoiding too close scrutiny; who are often hard to locate for the deeds of the present and harder to convict for the deeds of the past.135

Cortelyou went on to give a number of examples of the types of frauds that had been prohibited by the Post Office fraud order process and to regale his readers with the stories of extensive delays that were attendant upon prosecution of these same malefactors in court. Cortelyou assured his readers that fraud orders were issued only after careful investigation and a hearing of all sides by the Assistant Attorney General. Moreover, he asserted that the Department often entered into settlements with targets of inquiry. According to his description, when investigators determined that “advertisements or misleading statements were not deliberately designed to defraud and that the business is not otherwise open to serious criticism, the opportunity is given to discontinue the objectionable features, and the business is allowed to proceed undisturbed.”136 He described the Post Office investigators as conciliators or mediators as well as enforcers. When investigating complaints against reputable concerns, he said, “it usually develops that misunderstandings occurred through delays in shipment, loss in transit or some other cause easily accounted for and explained, giving the Department an opportunity to act as peacemaker and adjust the difficulty.”137

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If Cortelyou is to be credited, the fraud order process was a fair, even a benign and helpful, regulatory scheme. It was one whose effectiveness depended crucially on the ability of the Post Office to enforce the postal laws by administrative means. The attempt to emasculate the fraud order process by judicial review was defeated in the same year that the Hepburn Act rescued the Interstate Commerce Commission’s regulatory authority from the clutches of an unsympathetic Supreme Court.138 But Congress seems not to have had consistent views concerning the need for administrative enforcement. In 1906, the Pure Food and Drug Act failed to provide any effective means for removing adulterated foods and drugs from the market save through lawsuits. And Cortelyou’s admonitions seem to have been forgotten when the Federal Trade Commission was established in 1914 and given a cease-and-desist authority that had no bite until judicially enforced. As recognized by the 1941 Attorney General’s Committee on Administrative Procedure, when some of the jurisdiction that was exercised by the Post Office through its fraud order process was duplicated in more specialized agencies in the early twentieth century, those agencies wielded less potent regulatory mechanisms than the ones the Post Office had been exercising in various forms since the 1830s.139

The Internal Law of Administrative Adjudication The limitations on political control and judicial review in nineteenthcentury America emphasized the role of administrators themselves in developing an internal law of administration. Some of that law was transsubstantive administrative law of the sort familiar to contemporary administrative lawyers. The Civil Service Commission had a jurisdiction that cut across the whole of the Executive Branch. And the Justice Department’s authority to provide interpretive advice not only made it an arbiter of the construction of par ticular legal provisions of interest to an individual agency, but gave it a capacity to provide constructions that informed the activities of all agencies.140 The bevy of cross-cutting legislation that now applies to all federal administrative agencies,141 however, lay far in the future. Most administrative law was “internal” in the sense that it was the work of individual agencies or departments and related to their own affairs. Yet it is not difficult to see a series of quite familiar “rule of law” principles emerging from administrative practices common to many agencies.142 The first is surely uniformity and consistency in the application of the law. To some degree this is imperative in any system in which top level administrators wish to keep control over subordinates. But, as Thomas Jefferson

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insisted in defending his regulatory directives concerning the embargo, centralized control was equally essential to protect citizens from biased or erroneous actions by federal officials.143 Our case studies document the significant administrative energies devoted to promoting uniformity and consistency in both the Pension Office and the Post Office. Each published a constant stream of rules, guidelines, and precedents to instruct lower-level personnel. Moreover, decisions were subjected to multiple levels of internal review that put final authority in relatively few hands in the central offices. Administrative practice also furthered norms of transparency. Although there was no Federal Register Act, or Federal Register, administrative rules, guidelines, and precedents were made available to the general public— at least the interested public—not just lower-level personnel. Transparent enunciation of administrative policy had reached a high degree of sophistication in the Pension Office, a practice that not only produced a “level playing field” for claimants, their agents, and attorneys, who were seeking public benefits, but provided constant fodder for critique in the popular press and more academic publications. Regulatory enforcement authorities then and now are more circumspect about publishing their enforcement methods and priorities. But information concerning the Post Office’s enforcement of the anti-lottery, antipornography, and antifraud statutes was made available through its monthly Postal Guide and the publication of decisions by the Assistant Attorney General for the Post Office. Finally, notwithstanding the absence of judicial demands for administrative due process, the adjudicatory processes at both the Pension Office and the Post Office paid significant attention to issues of adjudicatory fairness. Adjudicators were not neutral in the sense of modern administrative law judges, or the Board of Review established to review valuation questions in the Treasury Department in 1890. But the Pension Office gave strict instructions to examiners and to examining physicians concerning their posture vis-à-vis both claimants and the government. They were not to favor either, but to decide cases on the facts presented. It established three-physician boards to limit idiosyncratic bias, and even sought to avoid partisan bias by dividing the members of the boards, where possible, between the political parties. Perhaps more important, these practices established inquisitorial processes as standard fare in administrative adjudication. Claimants or regulated parties were permitted counsel and often employed them, but the government was not represented. Adjudicators were to establish the facts in a disinterested fashion, not as adversaries. In a similar fashion, the Post Office sought to avoid local or prosecutorial bias in enforcement. Without clearance from the Assistant Postmaster

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General, local postmasters were not allowed to interdict letters or publications presented for mailing. And fraud order determinations could not be made by the investigating special agents, but had to be referred to the Assistant Attorney General for the Post Office, and ultimately to the Postmaster General. Hearings concerning whether a fraud order should issue were held before the Assistant Attorney General, who was not an employee of the Post Office. Notice and opportunity to contest were also prominent features of both of these adjudicatory systems. Pension Office claimants and Post Office targets had access to counsel to press their claims, opportunities for appeal within the agency process, and the opportunity to fully present their evidence and confront and contest contrary evidence in the government’s possession. A substantial portion of these hearing processes were carried on through documentary presentations, but that is true in administrative proceedings today. Orality and cross examination were provided, then and now, only where necessary for the adequate presentation and testing of evidence.144 The rich development of what Bruce Wyman characterized as internal administrative law is mostly missing from contemporary legal analysis.145 To be sure, practitioners in one or another substantive area pay close attention to agency lawmaking within the agencies’ particular fields. But since the monumental study of administrative processes undertaken to inform the drafting of the Federal Administrative Procedure Act,146 little attention seems to be paid to the degree to which these practices reflect broader normative currents in the way administrative action should be structured and constrained. The major contemporary exception to this balkanization of the study of internal law might be found in the emerging field of global administrative law. Global administrative law almost necessarily imagines that there is a normative core of responsible and responsive administrative practice that can be identified and implemented without necessarily making administrative institutions accountable either to elected representatives or to courts having broad jurisdiction to review their decisions. At the global level, these political and legal constraints hardly exist.147 A similar attention to administrative practice in the emergence of internal administrative law norms might be rewarded at the domestic level as well. To take one example, when the Supreme Court decided the famous Goldberg v. Kelly case,148 it proceeded as if there were no tradition of notice and opportunity to contest in the law of American public benefits. This was, of course, true if one looked only for judicial decisions requiring administrative hearings in those programs. But if the Court had looked at the administrative practices of the Veterans Administration in adjudicating claims to military pensions, or the practices of the Social Security Administration in

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adjudicating disputes concerning old age or disability pensions, it would have found well-articulated practices that closely tracked the demands that it seemed to pull from thin air and impose on the adjudication of public welfare claims. And those practices could have been traced back to Pension Bureau administration of veterans’ benefits a century earlier. Justice Black, in his Goldberg dissent, looked at traditional practice, but in the wholly different context of creditor-debtor relations in private law. And only Chief Justice Burger, joined by Justice Black, gave controlling significance to the then-Department of Health, Education and Welfare’s internal administrative law. That department had a proposed rule in process concerning the requisites of a “fair hearing” in the program of Aid to Families of Dependent Children that would have required all of the elements deemed necessary by the majority opinion in Goldberg, plus some additional ones such as the public provision of the assistance of counsel. The Court’s willingness to impose procedural formalities in Goldberg was, of course, influenced by its exposure to other welfare cases involving oppressive practices in some state welfare agencies and by the racial and class discrimination issues latent in the administration of need-based public assistance. But, even if one believes that the Supreme Court should constitutionalize benefits administration beyond some very basic requirements to assure respect for individual dignity, as I do not,149 the Court’s approach would have been better articulated as an acceptance of customary best practices in a broad range of public benefits regimes. Moreover, attention to practice and internal law across agencies playing similar roles might be more protective of individual procedural protections than the “thumb on the scales” for administrative discretion that the Court invoked in retreating from Goldberg. The bland statement in Mathews v. Eldridge 150 that the Court must give “substantial weight . . . to the good-faith judgments of the individuals charged by Congress with the administration of social welfare programs that the procedures they have provided assure fair consideration of the entitlement claims of individuals”151 provides little assurance that the Court has educated itself concerning the realities of benefits administration in social security disability cases, or in similar or related programs. Because the “internal administrative law” created by agency rules, precedents, and practices is largely ignored by modern administrative law scholarship152 and legal analysis, it may seem odd to think of this law as “law” at all. Forgetting that administrative law both constitutes and empowers administrative action at the same time that it structures and constrains administrative behavior, administrative law is often thought of as just that set of external constraints that limit agency discretion. And even if one recognizes

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this broader vision of administrative law, the idea of agencies “constituting” administrative law through their internal decisions about organization and procedure seems to undermine the notion that legitimate administrative authority comes only through legislation, or in some instances presidential direction. Internal law seems to cut agencies loose from the external political and legal controls that make them “lawful” actors. But this is to confuse the hierarchy of laws within our constitutional system with the question of how to identify what counts as law. The “lawness” of internal administrative law is to be found precisely in the same place as the recognition of the law-like nature of all public law. Benedict Kingsbury has recently suggested that this same problem with respect to global administrative law should be approached from two directions, that is, by combining the Hartian positivist or “social fact” conception of law with a normative element that explains why only certain social facts give rise to the recognition of their law-like quality.153 Concerned, as other global administrative law scholars are, by the lack of legitimating electoral or legal controls for many global administrative actors, Kingsbury sees this as a special problem for global administrative law. But this is a problem for all of administrative law—indeed, for all of public law. As Jack Goldsmith and Daryl Levinson154 have argued, legal analysts often distinguish between international law on the one hand and national constitutional law and national public law on the other. National public law is understood as a nonproblematic expression of sovereign will; international law is seen as a problematic exercise in hoped-for compliance. But, this conventional understanding simply ignores the deep similarities in both systems. Mesmerized by the routine compliance of public officials with domestic statutes, constitutions, and judicial judgments, observers fail to note that the same enforcement problem that is said to be a dominant characteristic of international law also infects national public law. If those exercising the sovereign power decide not to abide by the law, there is nothing standing outside the state that will force them to do so. Thus, the question of how administrators bind themselves by their internal administrative law is but a microcosm of the more general question of how the rule of law can work, or does work, in any domestic constitutional regime. Americans tend to place their faith in judicial review. But what external source of law enforcement binds the courts, or motivates their attempts to bind others? The question of who guards the guardians is as old as the idea of government according to law. Yet, that the internal law of administration did work in nineteenth-century America, and does work now, is hardly controversial. Without internal

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administrative law, contemporary external accountability via political oversight and direction and judicial review could not operate. Statutes charging agencies with administrative tasks, presidential directives to the Executive Branch, and court orders to agency defendants in judicial review proceedings would have little effect absent a dense web of internal structures, rules, and precedents that ultimately provide the mechanisms necessary to implement both political preferences and judicial judgments.155

PART V

rethinking the administrative constitution

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15

The Administrative Constitution Then and Now

What i have called the hole in the text of the U.S. Constitution has been filled in over time by legislation, administrative practice, and judicial precedent. We have what the British might understand as a set of constitutional conventions concerning the place of administration in American government. Broadly considered, those conventions relate to three categories of questions: What is the appropriate relationship of administration to the electoral branches of government? What structures and processes for administrative action satisfy our demands for effective government and the legitimate exercise of governmental authority? And, what external legal checks on administration are necessary to protect individual legal rights? These questions, of course, mirror the purposes implicit in the overall design of the Constitution of 1787. The governance structures provided both by the Confederation and by most state constitutions had proved unsatisfactory. The weaknesses of executive functions were particularly problematic. The lack of an executive branch in the central government, among a host of other problems, rendered it ineffectual. Meanwhile state assemblies faced with weak executives engaged in majoritarian excesses that threatened individual rights. The Framers sought to design a structure that would be simultaneously republican, efficacious, and respectful of the rights of citizens. Administrative law has pursued similar purposes. Our administrative constitution is composed of the basic conventions that have structured the administrative state to make it politically responsive, procedurally legitimate, and respectful of individual rights. My basic claim in this book has been that our failure to engage with the realities of administration in the first century of the Republic has caused us

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to misunderstand the administrative law of that period—indeed to ignore the administrative constitution that was forged between the Founding and the passage of the Interstate Commerce Act of 1887. But there is more at stake than simple historical myopia. Our failure to grasp how administration worked during nearly one half of the life of the Republic causes us to misunderstand the administrative constitution of the twenty-first century as well. We tell ourselves stories about the modern administrative state that unduly delegitimate its constitutional status and mislead us to some degree about the sources of administrative law that might provide the building blocks for effective reforms. We have indeed undergone significant changes in our understandings of the administrative constitution in the twentieth and early twenty-first centuries. But it is an incomplete constitutional revolution. Our inattention to the past can easily cause us to misinterpret where we are and, therefore, what might comprise a sensible agenda for constitutional consolidation. To make this case more pointedly, let me first articulate in very general terms what I take to be our contemporary understanding of legitimate administrative governance—that is, how the administrative constitution structures political control, administrative process, and judicial review today. I will then review some of the materials canvassed in previous chapters to illustrate the degree to which these stories and understandings are built on myths about the past and support a truncated vision of possibilities for the future. There has been much change in the role of central government administration over the two-plus centuries of the American experiment. But there are basic continuities in our practices and understandings as well— continuities that, if ignored, cause us to misinterpret our constitutional history.

Our Contemporary Understanding of Legitimate Administrative Governance Political Responsiveness

The story of the history of political control of administration that dominates our discourse features a radical fall from grace followed by a series of patchwork reforms to attempt to recapture republican self-government as we imagine it initially operated under the Constitution. The fall-from-grace story has three parts. First, abandoning early congressional practice, Congress now delegates authority broadly to administrative agencies, thus effectively severing the legislative connection to administrative policy making.1 Moreover, the creation of independent agencies2 (even independent prosecutors)3

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and various limitations on appointments and removals of federal officers inhibit the President from exercising the political control that might reconnect administration to electoral democracy.4 And, finally, the sheer size and complexity of the contemporary administrative state make political control of its multifarious operations difficult, if not impossible. The impossibility of direct political control, of course, motivates a search for alternative means to steer administrative action. These attempts account for many of the transsubstantive statutes that make up much of the corpus of statutory administrative law.5 The cornerstone of our modern administrative constitution, the Administrative Procedure Act of 1946, and its close companions the Federal Register Act and the Freedom of Information Act, require substantial levels of transparency and public participation in administrative decision making. In addition Congress has adopted multiple framework statutes such as the National Environmental Policy Act and the Regulatory Flexibility Act, which attempt to get agencies to attend to broad public purposes or values outside of their central missions. To some degree these requirements substitute for continuous congressional oversight of administrative action. And Congress’s episodic oversight is supplemented by its own investigative bureaucracy, the Government Accountability Office. Similarly, American presidents since the Carter administration have by executive order sought to provide controls through the Executive Office of the President over perceived regulatory excesses or deficiencies. These controls, now generally located in the Office of Information and Regulatory Affairs at the Office of Management and Budget, pursue an analytic strategy that is similar to many congressional framework statutes.6 This is not to say, of course, that direct presidential direction and congressional oversight are missing from the modern administrative process. But the multiple framework statutes and executive orders that seek to guide administrative decision making are in some sense an admission that more direct techniques of political control are inadequate in the face of the size and complexity of the contemporary administrative state. The political branches attempt to do by audit, analytic requirements, and procedural constraints what they cannot do by specific statutory or executive direction. These bureaucratized forms of oversight and direction are seen as rather pale substitutes for the political judgments of elected officials that allegedly operated in earlier eras. Thus, we imagine the administrative state as a flawed instrument of democratic governance that to some degree abandons our historic, republican ideals. This belief in a fall from democratic grace helps motivate attention to further procedural and judicial restraints on administrative action.7

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Structure and Process

The story of contemporary agency structure and process has a somewhat similar narrative. By the end of the Second World War America had created a large administrative state that was believed by some, particularly leaders of the American Bar Association, to be lurching toward tyranny. Agency proceedings were criticized as opaque, and as diverging markedly from the standard judicial model of adversary process. Similarly, agencies’ combination of legislative, executive, and judicial functions struck many as dangerously aggrandizing executive power and creating the potential for bias and prejudgment in administrative determinations.8 Procedural and structural reform was forthcoming in the federal Administrative Procedure Act.9 That statute regularized administrative rulemaking in the now-familiar, but textually undemanding, notice and comment process.10 The APA also provided a standardized, but optional, set of formal adjudicatory procedures;11 required the separation of prosecutorial and adjudicative functions within agencies;12 and guaranteed that formal hearings, when required, would be before independent hearing officers.13 The gains of the Administrative Procedure Act were carried forward in other twentieth-century developments. The “due process” revolution14 of the 1970s brought adjudicatory decision making in grant and benefit programs within the ambit of the Due Process Clause. Judicial construction substantially embroidered the facially modest requirements of notice and comment rulemaking.15 And the transparency of agency decision making was heightened by statutes such as the Government in the Sunshine Act16 and the Federal Advisory Committee Act.17 Administrative process went from being conceived of as the artifact of par ticular statutes and practices within individual agencies to one structured by transsubstantive legislation and judicial interpretations. The emerging model emphasized public participation, transparency of government action, and judicialized procedures for individual determinations. These structural and procedural reforms are understood both as means of improving the fairness of administrative governance and as substitutes for political control via elected officeholders. The weakness of macropolitical control through direction and oversight by elected officials is reinforced or supplanted by a micro-politics of citizen participation in administrative processes and by media exposure and critique of agency action made feasible by requirements for decisional transparency. And, of course, formal processes of adjudication tend to protect individual legal interests from error or arbitrariness. Hence, the structure and process aspects of administrative law

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tend to further all of the constitutional ideals instinct in our fundamental constitutional commitments to political responsiveness, and the protection of individual rights. Moreover, because participatory processes permit the infusion of necessary and reliable information into administrative decision making, they can promote accurate and effective implementation of legislative policy as well. The implicit and widely understood message of the postWorld War II reforms in administrative structures and procedures is that control and reform of the administrative state demands general transsubstantive regulation of the administrative process. Agency compliance with those regulatory requirements is often backed by judicial review at the behest of affected private interests. Protecting Legal Rights

The Administrative Procedure Act also made clear that agency action was in general subject to judicial review. As subsequently interpreted by the federal courts, judicial review under the Administrative Procedure Act includes the presumptive reviewability of all agency actions,18 pre-enforcement review of agency rules,19 and relatively broad standing of affected parties to seek judicial oversight.20 Judicial review has been structured essentially on an appellate model in which the legality of agency action is judged on the basis of the records made in the administrative process. While this review has been articulated as deferential concerning substantive policy, it is expected to be thorough with respect to the requirements of procedural regularity, the adequacy of agency records, and the persuasiveness of agency reasoning. Through the medium of this “proceduralized rationality” review,21 courts are expected to protect affected parties from administrative illegality by keeping a careful watch over agency decision making that affects private interests, while avoiding, or at least deflecting, the charge that they were usurping agency substantive discretion.22 For many the broad availability of judicial review of administrative action has become virtually synonymous with the rule of law in the modern administrative state.

The Administrative Constitution of the Nineteenth Century The twenty-first-century model that has been described in the preceding paragraphs is a law whose sources are found almost exclusively in general principles derived from judicial review; from transsubstantive statutes that apply to most, if not all, agencies; and, to a much lesser extent, from judicial

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construction of the Constitution. When looking at par ticular congressional statutes authorizing agency action and providing par ticular structures and processes, or when looking at agency practice in a par ticular substantive area, contemporary administrative lawyers tend not to speak of administrative law. We speak instead of environmental law or communications law, or food and drug law. To the extent that those statutes or administrative regulations and practices take on common forms those commonalities tend to be ignored, or to be ascribed to the influence of transubstantive statutes, executive orders, and judicial review. But, as we have seen, in nineteenth-century America common practices across par ticular agencies and administrative functions was where administrative law was mostly to be found. Nineteenth-century administrative law had extremely limited judicial review and virtually no transsubstantive statutes. Therefore, as was argued in Chapter 1, it disappeared from view. Our forms of law have shifted in ways that make prior practices appear to be not a different system of administrative law, but no law at all. Yet, a system was there: a system that constituted, structured, and constrained administrative action and that casts doubt on our contemporary understandings of the place of administration in American governance.

Political Control Macropolitics: The Electoral Connection

Notwithstanding the conventional story of a twentieth-century fall from democratic grace, political control of administration in the nineteenth century was not really so different from political control today. The notion that early statutes delegated little discretionary authority to administrators is simply a myth. To be sure, many early statutes, and many today, have remarkably specific provisions. But, broad delegations were also present. Remember a few very early examples: The statutes establishing the Departments of War and State in the fi rst Congress said little more than that the secretaries of those departments were to do what the President told them to do.23 Similarly, when Congress established, or indeed continued, a system of military pensions, it did so in a statute that authorized payments simply on the basis of “such regulations as the President . . . may direct.”24 Private claims to public lands, the nation’s great storehouse of wealth, were to be adjudicated by administrative officers “according to justice and equity.”25 And during the Jeffersonian embargo of 1807– 09, naval officers and customs collectors were instructed to seize ships

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and their cargo if in their opinions there was an intent to evade the embargo.26 As in the pension statutes, these vague delegations were often supplemented by a provision that authorized the President to make such further regulations as he deemed necessary to carry out the intent of the statute. And as we have seen repeatedly in the preceding pages, even without specific statutory direction, the heads of departments viewed themselves as having inherent power to direct the discretion of subordinates by general rules. Indeed, while we today view the Federal Reserve Board’s power to control monetary policy as involving a breathtaking delegation of authority to a highly independent entity, the positions of the First and Second Banks of the United States were even further removed from political control by Congress or the President. Examples could be multiplied. Specific congressional directions concerning the keeping of public funds produced disastrous consequences and a return to Treasury Department discretionary regulation. The Board of Supervising Inspectors of Steamships was given broad rulemaking authority, and post- Civil War pension statutes left crucial questions of coverage and payment to the pension office. The substance of quarantine policy was left almost wholly within the discretion of the relevant administrative officers. Broad delegation ripened into settled practice. There was no doubt that administrative authority originated in statutory prescriptions. But the degree of direction provided by those prescriptions was a judgment for Congresses that enacted legislation ranging from the comically specific to the maddeningly (for administrators) vacuous. Congressional oversight of administrative action attempted to provide the electoral controls that statutory provisions failed to give. Yet oversight was necessarily spotty. Congress organized itself into committees in an attempt to provide political control over various departments and activities, required annual and special reports from departments and bureaus, and conducted investigations.27 But there was virtually no congressional staff, and congressmen spent a huge proportion of their time on casework and private bills. Moreover, when it came time to draft statutes, drafting was often done by the departments themselves.28 Let me be clear: the fl ip side of slack congressional control in practice was the unvarying and fundamental presumption that legislation preceded administration. The new central government of 1787 was not blessed or burdened with organic offices growing out of long practice under the ancien régime. Administrators had policy discretion, sometimes remarkably broad discretion, but it was bestowed by statute. A core feature of our administrative constitution is that it presumes that we remain, as in the title of a recent book, a republic of statutes.29 Delegation of authority to administrators is and has

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always been double-edged. It confirms our constitutional commitment to assembly governance while questioning its practical force in establishing public policy. The President’s authority as head of state in military and foreign affairs was common ground, but his relationship to domestic administration was ambiguous from the very beginning. While some statutes authorized the President to act, assuming that he would delegate that authority to others, many statutes also allocated discretion to specific officers other than the President. Moreover, from the early days of the Republic, Attorneys General advised presidents that they were not allowed to substitute presidential decisions for the decisions of officers who had been given statutory authority in a direct line from the Congress.30 Then as now Congress sometimes specified qualifications for offices.31 And in some cases, by designating particular officers as the holders of new positions, Congress effectively appointed them as well. Many officers and agencies in addition to the first and second Banks of the United States were set up in a quasi-independent fashion. The Post Office had an odd position. In some sense a holdover from the Confederacy and earlier colonial arrangements, its basic statute permitted it to operate independently and to raise its own revenue with only the requirement that it provide reports to the Treasury Department.32 The Board of Supervising Inspectors of Steamboats was nominally also in the Treasury Department but, until 1871, exercised its rulemaking and adjudicatory authorities independently. The Board dealt directly with Congress concerning its operations and proposed amendatory legislation. U.S. Attorneys were first in the State Department, then in the Interior Department, and not in the Justice Department until 1870. Prior to that time the Attorney General had no authority to direct their activities, a situation lamented by presidents from Washington forward.33 The Auditor and Controller in the Treasury were clearly meant to operate independently,34 as were the land commissions that decided private claims to public lands.35 In short, the conventional story of specific statutes, limited administrative discretion, congressional control of policy and a chief executive with firm control over all federal administrative officials is a caricature of nineteenth-century federal administrative governance. Again, let me be clear: certain boundaries were respected. Congress may have routinely had effective political control over appointments, but it did not attempt to appoint officers itself, or remove them, save by impeachment. Congress established qualifications for certain officers and sometimes specified limitations on removal. But Andrew Jackson established that removal

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for policy reasons was the President’s prerogative in the absence of some statutory limitation on the removal power. And insertion of the Senate into removals in the Tenure of Office Act was thought constitutionally suspect and generally abandoned long before the practice was invalidated by the Supreme Court. Then as now, political control featured sharp, and often inconclusive, competition between Congresses and presidents for control of administration. Recall W. F. Willoughby’s conclusion that the U.S. Constitution “failed utterly to recognize or to make any direct provision for the exercise of administrative powers. . . . In consequence of this failure our entire constitutional history has been marked by a struggle between the legislative and executive branches as to the relative parts that they should play in the exercise of this power.”36 Yet, there was no doubt, it seems to me, that presidents from the very beginning were the heads of administrations. Statutory failure to specify an appointing officer, as with the Attorney General, was understood to presume presidential appointment. Congress did not seek to define a “cabinet” or impose cabinet consultation requirements on presidents. It seems to have been presumed that heads of departments would be a part of that body, but the President included others without formal departmental status, the Postmaster General, and in the case of the Attorney General without the substance of a department either. The cabinet’s functions were determined by the President, and it was presumed that he could lawfully delegate his statutory authority to others and direct their performance. Congress established independent zones of operation for certain officers, or placed them outside departments, but the default structure was departmental. The presumption was that the department head was ultimately responsible for all functions allocated to his department, and those department heads were appointed by the President (with the approval of the Senate) and removable by him. In this sense there was a unitary executive with broad control over administrative affairs. It simply was not the unitary executive of inherent administrative powers, complete hierarchical authority over all administrative activities, and constitutionally illimitable powers of appointment and removal imagined by some twenty-first-century proponents of unitary executive theory. Although the “necessary and proper” clause became the fount of congressional authority to create and structure departments and bureaus, the language of that clause applies literally only to departments or officers having powers “vested [in them] by the Constitution.” But the Constitution contained no departments and only two executive officers. The only textual allusion elsewhere in the Constitution to congressional power over departments merely provides that statutes may place the appointment of inferior

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officers in the President, the courts, or the heads of departments. So far as the constitutional text is concerned, the creation, organization, and empowerment of executive agencies might have been thought to be a presidential function, as one early member of Congress argued,37 or perhaps one shared by both branches. But, the constitutional conventions that emerged in the nineteenth century concerning political control of administrative officials did not presume kingly prerogatives, such as the creation of offices, in the admittedly unitary President. Administration in a republic of statutes could not have done so. The multifarious relationships that statutes created among administrators, Congresses, and presidents, and the continual struggles over congressional and presidential authority, demonstrated instead that—within certain very broad boundaries—political control of administration by elected officials in the United States would be a constitutionally contested, various, and somewhat ramshackle enterprise. Micropolitics: Ameliorating Administration’s “Democratic Deficits”

Concerns about the legitimacy of administrative action caused by the loose linkages between administrators and elected officials are often addressed in the United States through two techniques: involving ordinary citizens in the implementation of federal law, and delegating significant implementation authority under federal statutes to state and local officials who are presumably “closer to the people.” We see this today in widespread public participation in rulemaking processes, requirements of transparency of administrative action that facilitate public critique, provisions for private enforcement of federal regulatory statutes,38 and massive involvement of states and localities in the implementation of programs ranging from air and water quality protection to the implementation of the 2010 health care reform act. These techniques of legitimation through public participation and state and local implementation were pioneered in the early years of the Republic. And they were combined with ideas of democratic or popular control of administration that also relied on the machinery of political parties. Popular or lay involvement in administration took many forms during administrative law’s first century. Indeed, one might argue that in a host of ways, early approaches to administration reinforced democratic legitimacy by systematically confusing the public and private spheres. Consider first the ways in which federal law was “privately” administered or enforced. President Washington famously based appointments of officers on what he called “fitness of character,” by which he meant people who had

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the respect of their fellows and would therefore help to engender respect for the new national government. Virtually all field personnel were chosen from the locality in which they would serve. Appointment constituted a reciprocal transfer of authority. Officers’ local status was recognized and reinforced by the office. And, the government’s authority was amplified by its association with the private status of the officeholder. Popular control, that is, control of official action by people who were respected in their communities, was in this sense built into the idea of office itself. To be sure this is a somewhat paradoxical instantiation of popular control by giving power to social elites. But that merely carried forward at the administrative level what Madison had famously asserted that representation would look like in electoral politics in an extensive republic. The people would entrust the government to men of accomplishment and high reputation. Moreover, most officials outside of the capital, which contained relatively few, were part-time employees, compensated by fees and commission. These officials were not the full-time salaried career civil servants of modern imagination, but hybrid “officers” who combined federal authority, independent political and social standing, and private entrepreneurship. To be sure, as prior chapters have repeatedly illustrated, central offices at the capital made strenuous efforts to regulate the behavior of widely dispersed federal officials. And, Congress reinforced supervisory authority in numerous statutes specifying that lower-level officials were subject to the superintending instruction of higher-level administrators. But given the difficulties of communication and transportation, even Herculean efforts on the part of central office personnel were of uncertain effect. And oversight might well be provided by nongovernmental actors deputized to provide a report on performance, as was noted in Chapter 7’s description of the early system of annual audits of the General Land Office by the Treasury Department. Local citizens were enlisted to enforce the obligations of federal officers in other ways as well. Most federal officials were required to take an oath of office and to provide a bond for faithful ser vice. Nonfeasance or malfeasance could result in the forfeiture of the bond and also in criminal penalties. Superior officers were authorized to pursue collections of bond forfeitures or fines by lawsuit. This injected yet another popular element into the control of administration— local juries—a question to which we will shortly return. In addition, many of these statutes provided a “qui tam” action, allowing a private party to bring suit against an allegedly derelict or corrupt officer and, if successful, to retain one-half the proceeds of the fine or forfeiture. This is not to say that the idea of office was static. But changes in the understanding of office generally reconceptualized popular control by giving it

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another form. Andrew Jackson’s program of democratizing offices by making them available to anyone with appropriate party backing was an attack on “elitism,” here meaning high social standing or the sense of privilege that came from long ser vice in a particular office. And while this democratic or popular innovation degenerated into a corrupt system that supported party organizations, it was justified, as detailed in Chapter 10, as democratizing administration while simultaneously giving local citizens a say in shaping national policy agendas. Party control of administration is “popular” in a double sense. First, parties are porous. Virtually anyone who is willing to devote effort and/or resources to party work can become involved and have influence. Second, unless the party is effective in getting candidates elected by popular vote, it will disappear, or be required to change its positions on matters of political moment. Elected representatives are both beholden to the party and in a position to provide it with benefits that may be essential to its continued success. As a consequence, the patronage controlled by the party must also be in the control of both local and national elected officials. Rotation in office reconnects administration to elected officials at both local and national levels through party organization. To some degree the Jacksonian spoils system, with its tendency to parcel out power to local party organizations and elected officials, created a reaction in favor of an administrative system that began in Jackson’s own administration. Officials at the center created programs of audit, oversight, and inspection that sought to allow them to control this newly democratized group of federal administrative officials. But these efforts were only modestly successful. An executive unitary in ambition could not be unitary in fact if competition for the loyalty of administrators based on local, party, and congressional connections effectively limited overhead control. This was not merely a limitation based on failures of implementation in a system committed to top-down control: local and party control were also normatively attractive visions of popular control of administration. In a number of other ways early arrangements for federal administration of the law insinuated laypersons directly into public administration. Recall that in one of its first revenue measures, Congress required that customs officials use laymen to assist in resolving any disputes about valuation. Indeed, the involvement of merchants in the activities of custom houses was much more extensive than these statutory provisions reveal. Customs officials were chosen from the merchant class and constantly accommodated federal policy to the necessities of trade. As Gautham Rau has recently demonstrated, it is hardly too much to say that in the early years of the Republic,

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the major customs houses were run by the local merchants.39 Then as now administrative capture and popular control are difficult to keep separate where the vision of democracy is responsiveness to those most directly affected. The departments of Agriculture, Commerce, and Labor are hardly meant to ignore the interests of their respective clienteles. A similar involvement of both regulatory beneficiaries and neutral parties can be found in the national government’s first foray into health and safety regulation. That statute, in addition to requiring specific provisions and medicines aboard sailing vessels, required that the master keep the ship in port if the mate or first officer and a majority of the crew felt the ship was unseaworthy. The master could petition a district judge, or if unavailable, a justice of the peace, for an order to put to sea. And, while the judicial officer— often a state official—had final authority to make a decision, he was required to appoint three skillful mariners in the town to examine the vessel and make a report on its condition. Qui tam actions have already been mentioned; they were attached to a large number of federal statutes, not only to police the activities of federal officers, but to provide additional enforcement resources beyond those available through the U.S. Attorneys in each state. Moreover, to avoid the expense of maintaining a substantial standing navy, the United States relied heavily on the issuance of letters of marque to private vessels, which authorized them to seize enemy vessels and their cargos as prizes. Recall as well the crucial role of examining physicians in the adjudication of veterans’ pensions. These doctors were in private practice. They were certified by the Pension Office, but chosen by applicants. And while the central bureaucracy attempted to guide their examinations by instructions and reviews, the basic facts of a case were what those physicians said they were. They thus gave a local flavor to what was formally a system of centralized mass administrative justice. A number of these techniques for inserting lay decision making into federal administration and law enforcement turned out to be ineffec tive or corruptible. Nevertheless, it seems clear that Congress was willing to use “non- official” administration and enforcement of federal law in extremely important areas of government policy. We tend to think of citizen participation in administration and contracted- out administration as late twentieth- century innovations. But from its earliest years our administrative constitution has utilized both top- down political control by elected officials and multiple schemes for bottom-up citizen involvement in administrative operations. The macro- and micro-politics of administration often compete with, and sometimes reinforce, each other. But democracy

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in America has had multiple meanings and institutional forms, and the administrative constitution established by the practices of the fi rst century of the Republic presumed that techniques of popu lar control could be mixed and matched in complex ways. Federal law not only insinuated private parties into the administration and enforcement of federal law, but the lay jury provided an enormous constraint on (sometimes a disabling obstacle to) official enforcement of the law. Recall that jury interposition was a par ticular problem in the enforcement of the embargo. Where popular sentiment opposed federal policy, the requirement of jury trial in criminal prosecutions or in civil forfeiture actions could virtually nullify federal administration. But the administrative Constitution evolves. The rise of official immunity in our contemporary administrative law combined with broad waivers of governmental immunity have dampened the impact of jury trials on modern federal administration. Although the willingness of juries to convict remains a significant consideration in the enforcement of federal and state law today, popular control of administration through damage actions against officials plays a much smaller role in popular control of administration in the twenty-first century than it did in the nineteenth. Decentralized Administration

Modern federal practice includes substantial utilization of state and local personnel in “cooperative federalism” schemes that leave substantial discretion in state and local authorities concerning both substantive policies and enforcement priorities. This simultaneously promotes two democratic values: reducing the size of the federal “bureaucratic elite” and promoting decision making in sites of governance that are closer to the people. Whether these state and local officials are actually more representative of the local population may be disputed, but that such arrangements limit top-down control by federal officials is hardly controversial. From one perspective these arrangements might be considered deeply problematic. After all, state and local officials do not get their basic authority and funding from Congress, are not appointed by the President or the heads of federal departments, are not subject to general structural or procedural controls applicable to federal officials, and are only indirectly subject to any form of judicial review by federal courts. Yet, from the beginning, coordinate forms of lawmaking and administrative implementation have been a part of our institutional arrangements. Consider a few early examples: Although titled “An Act to Establish a Uniform Rule of Naturalization,” the first Naturalization Act, while providing that any person who resided in

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the United States for two years could become a citizen, specified that the application for citizenship should be to any common law court of record in the state where he or she had resided for at least one year. These state or local courts were left on their own to determine whether the duration requirement was satisfied and whether the applicant was of “good character.” Local policy choice was also sometimes simply incorporated into federal administration. In some instances Congress reversed the modern scheme of state implementation of federal law by providing for federal implementation of state requirements. Thus federal revenue officers were harnessed to the enforcement of state quarantine regulation and to state regulation of the quality of exports. In the latter case federal officials not only enforced state law, they enforced the requirement that goods be submitted to inspection by state administrative officials. Indeed, it is hard to overstate the degree to which retaining lawmaking and implementation at the state level was equated in nineteenth- century America with the maintenance of government by the people. The sordid undertones of slavery protection inflected many claims for the special democratic legitimacy of “states rights,” but there is little reason to doubt that Jeffersonian Republicans, Jacksonian Democrats, and their post- Civil War successors were sincere in the belief that popular control of government meant leaving much of it in the hands of state and local officials. In twentieth- and twenty-first- century America, the vast expansion of federal legislation to some degree belies that continuing rhetorical commitment, but our techniques of administrative implementation still feature a major role for state and local officials. Indeed, in the past five decades we have made massive transfers of implementing authority to both state and private actors. While federal regulation, welfare-state provision, and central government expenditures have grown exponentially, the federal bureaucracy is today one third smaller in relation to the population of the United States than it was in the Eisenhower administration. This alchemy has been accomplished to some degree by contracting out, but importantly by borrowing state and local officials as the ground-level implementers of federal statutes. Faces of Popular or Democratic Control

It seems fair to conclude that popular control of bureaucratic elites has a number of meanings and may be pursued through multiple techniques. It may be appropriate to characterize these techniques as carrying out two more general approaches to popular government. In one, government is popular

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because those who have authority are under the control of political actors who are popularly elected. This is true of both presidential and congressional control of administration and also of decentralized administration through state and local officials. In this macro-political version of popular control, the bureaucrats’ democratic pedigree comes from their connection to the representatives of the people, whether at the national level or at the state and local levels. The second general approach is to insinuate “the people” into administration itself. One means for pursuing this vision is to blur the distinction between laymen and officials. This was a particularly prevalent form of popular control in the early Republic, either because officials were only tentatively or ambiguously attached to the national government or because official station was mediated through participation in a nongovernmental organization— the political party. In another form, citizens were the administrators, but were called upon on an ad hoc basis to resolve valuation disputes; to inspect sailing vessels, steamboats, and pension claimants; or to determine the liability of both officials and private parties by jury verdict. In other instances, these lay personnel became the enforcement arm of the government itself, either as qui tam relators or as privateers. These visions of popular control not only compete with congressional and presidential control by weakening the capacity of central officials to manage implementation effectively, they also compete normatively as independently attractive means for limiting administrative excesses, guiding administrative judgment, and enforcing official loyalty. The degree to which one or another vision of popular control seems attractive depends upon contingent factors that shift both with subject matter context and across time periods. It could hardly be otherwise. Every vision of popular control, whether it is representative democracy through established national institutions, decentralized control through local and state representatives, or insinuation of lay energy and judgment into the processes of bureaucratic administration, has both strengths and well-known defects. Strong control by the Chief Executive can promote democratic accountability; it can also degenerate into lawlessness or authoritarian excess. Statutory specificity and congressional oversight instantiate assembly governance, but often carry with them logrolling, special interest bargains, and uninformed policy making. The participation of regulated parties or beneficiaries in the administration of federal law can provide a needed corrective to bureaucratic tunnel vision; it can also facilitate the seizure of public power by private interests. Local control of administration can harmonize national policy with local political culture; it can also obstruct the effective implementation of national goals.

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Because all institutional designs have the vices of their virtues, pluralist approaches have much to recommend them. The important point to recognize is that the American administrative constitution has from the beginning deployed multiple understandings of democratic or popular control to legitimize federal administration. Problematic and institutionally competitive electoral control has been combined with multiple techniques for insinuating popular and local elements into federal administration from the very beginning of the Republic. These aspects of American administration might be considered the core of American exceptionalism in structuring administrative governance. It is the “government out of sight” that can cloak a strong administrative state in a weak state disguise. Our administrative constitution is now, and has always been, a mixed system of top-down and bottom-up political control. We have always worried about administration’s threats to both democracy and individual liberty. And we have always had a system of political control that recognized the realistic limits of overhead control by elected officials and sought to further legitimate administration by involving both civil society and state and local elected officials in federal administration. In late twentieth- and twenty-first-century administrative law we have often emphasized yet another vision of democracy— deliberative democracy— as the crucial legitimating feature of administrative policy making in a seemingly ever-expanding administrative state.40 As our image of federal administrative implementation has shifted from adjudication to rulemaking, we have reinforced legal requirements for open processes, citizen participation, agency responsiveness to commentary and critique, and persuasively articulated grounds for decision. These elements of deliberative democracy have been constructed and monitored largely by the judiciary, drawing on the facially banal language of Section 553 of the Administrative Procedure Act. This new vision of democratic administration breaks sharply from the nineteenth-century administrative constitution—normatively in its emphasis on reason rather than will or political authority as the ground of legitimacy, and institutionally in the role that it presumes for judicial review of administrative action. But its normative justification preserves continuity with the past—the implementation of yet another vision of democracy in a necessarily administrative state.

Judicial Review From our contemporary perspective the model of judicial review in the nineteenth century is considerably less recognizable than the system of

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political control.41 Recall that the courts took what I earlier labeled a “bipolar” approach to judicial review. Where review was by mandamus or injunction courts were unwilling to review to the extent that the statute provided any discretion in the administrative officer. Similarly where the actions of administrative adjudicators were collaterally attacked in judicial proceedings, those tribunals were treated as coordinate bodies whose determinations were final, provided they had jurisdiction over the subject matter. Indeed in both of these cases the review exercised by the ordinary Article III courts might be described as simply “jurisdictional.” On the other hand, to the extent that courts were presented with common law actions against federal officers, they exercised de novo review. With the exception of cabinet officers, administrative officials had no immunity from suit, either absolute or qualified. A revenue officer who seized a vessel or impounded goods was subject to a common law suit for damages. The only defense was that the officer had indeed acted correctly. Our standard contemporary approach, review for “reasonableness,” was virtually missing from the nineteenth-century jurisprudence. Moreover, the Supreme Court expressed grave doubt about the constitutionality of statutory provisions for appellate review of administrative action on the APA-appellate model. While contemporary separation of powers jurisprudence emphasizes a concern that too much business might be transferred from Article III courts to administrative tribunals, nineteenth-century courts were concerned with the mirror image problem—that appellate review of administrative action would involve the judiciary illegitimately in administrative policy. To be sure judicial review could be an effective constraint, even a debilitating one. Officers subjected to unlimited liability for error in the execution of the law, with error and the extent of damages determined by local juries, might easily give up on enforcement. Yet, where a damage suit was not available because no common law form of action applied to the administrative action complained of, “jurisdictional review” provided very little in the way of remediation. In some sense this system of judicial review looked less like legal control than the provision of a decentralized check on federal officialdom. At least where a common law action would lie, local juries had the capacity to mitigate or effectively to annul federal law.42 From this perspective it may appear that there are really no points of tangency between judicial review in the first century of American administrative law and judicial review as we understand it today. We may congratulate ourselves with the notions both (1) that common law damage actions now seldom debilitate federal administrative implementation, and (2) that virtually any

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administrative action having legal effect can be questioned in court to determine, not only that the official had jurisdiction, but that the official behaved reasonably. This may indeed be progress. But we should not forget that the so-called partnership between courts and agencies that has characterized late twentieth- and early twenty-first-century judicial review of administrative action has its difficulties. The problem is our constitutional commitment to separation of powers. Commenting on judicial practice over the fifty years following the adoption of the Administrative Procedure Act of 1946, Judge Pat Wald said candidly: “After 50 years . . . we have yet to agree on how this review should operate in practice. We are still struggling with where to draw the line between obsequious deference and intrusive scrutiny.”43 The vexing problem of how to accommodate judicial review of legality to administrators’ statutory discretion over policy arises because we now view what Thomas Merrill has recently characterized as the “appellate review model” of judicial review as the dominant paradigm in administrative law. On Merrill’s account that dominant paradigm exhibits three distinctive characteristics: One, the evidentiary record is compiled by the agency, and any need for additional information generates a remand to that institution to take further evidence. Two, the standard of review varies based on ideas of the special competences of the initiating and reviewing institutions. And, three, that judgment of comparative competence is characterized generally as the distinction between questions of law for the court and questions of fact for the agency.44 Of course, as every administrative lawyer understands, the crucial question in managing the agency-court partnership involves the allocation of policy discretion, and questions of policy are not easily characterized either as questions of fact or as questions of law. The twentieth-century Supreme Court has experimented with different means for allocating policy choice to agencies or to courts. In the justly famous Hearst case of 194445 the Court characterized the legal conclusion of whether par ticular “newsboys” employed by the Hearst Corporation were employees or independent contractors as a question of fact for the Labor Board. And, in what may now be the twentieth century’s most cited, praised, and condemned administrative law decision, the Chevron case,46 the Court redefined questions of law for the courts to exclude questions of statutory interpretation where the statute is ambiguous. While the Chevron opinion is perhaps a step up in candor, transparently merging issues of policy and statutory interpretation, over the Hearst Court’s fictional treatment of legal conclusions as questions of fact, in both

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cases the Court is attempting to manage the same problem—allocating policy discretion while operating within the basic structure of the law versus fact distinction. While both Hearst and Chevron protect policy choice by the relevant agency, the Supreme Court qualified that protection in Hearst by noting that the record before the Labor Board would have to contain sufficient evidence to make the Board’s factual determination reasonable or nonarbitrary. And in Chevron the Court placed the same reasonableness limitation on the EPA’s interpretation of the relevant statutory terms. Indeed, as David Zaring has recently argued,47 reasonableness has become the overarching standard for judicial review of agency action. But, reason lies in the eyes of the beholder, as other iconic, twentiethcentury cases like Overton Park,48 State Farm,49 and the Benzene case50 amply demonstrate. Moreover, even broad statements of deference doctrine like that contained in Chevron seem to have little effect on the outcomes of cases. In a massive study of Supreme Court determinations since the Chevron opinion was handed down, William N. Eskridge, Jr., and Lauren Baer51 found that Chevron coexists with a host of other deference doctrines concerning statutory interpretation. More tellingly, in a majority of Supreme Court statutory interpretation cases reviewing agency determinations, the Court invokes no deference regime of any sort. To be sure agencies win a significant percentage of cases when the court cites Chevron in its decisions, but that finding is consistent with the formal use of the Chevron formula to bolster a decision reached on other, inarticulate grounds. In short the struggle to manage the court-agency partnership continues because it is built into the appellate model of judicial review and the law versus fact distinction that characterizes its allocation of institutional competence. Tom Merrill suggests that the malleability of the scope of review under the appellate review model is one of its principle political virtues. It allows courts to maintain a stance of nonintervention in agency policy choice while stepping in to correct what the reviewing court believes is a clear mistake or to rein in agencies in which the reviewing courts have generally lost confidence. But this political advantage comes at a cost: the predictability of judicial review proceedings and the capacity of Congress to exercise political control over the nature of the agency-court partnership in par ticular domains by changing the verbal formulae for judicial review.52 It also stokes judicial anxiety about the proper role of the courts and promotes the search for some stable, but until now elusive, understanding of justiciability. The early federal courts managed the separation-of-powers problem differently. Federal courts and federal administrative agencies were not, to use our

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modern metaphor, in a “partnership”; they operated in separate spheres. Courts either decided questions de novo on records made in court, or they effectively declined jurisdiction. Once one knew what form of action a lawsuit would take, the “reviewing” courts’ scope of review was seldom in doubt. Lower court attempts to broaden the scope of mandamus review were routinely rejected by the Supreme Court,53 and attempts to protect officers’ reasonable missteps from common law liability were rejected by Congress.54 Predictability reigned and Congress’s expectations were presumably respected. Nineteenth-century Congresses neither broadened nor limited mandamus jurisdiction, modified the scope of official common law liability, or provided alternative forms of judicial review. There are surely some advantages to the older form of regulating separation-of-powers issues. The appellate model of judicial review puts the courts in an awkward position. That awkwardness is evident from iconic cases like NLRB v. Hearst Publications that review agency adjudication, the agency function most like the determinations of lower courts. The situation is much more awkward when the appellate model comes to be applied to agency rulemaking. The conventional lawyerly moves for separating law and policy (or for camouflaging their inseparability) when reviewing agency adjudications are largely unavailable in this context. It is simply preposterous to claim that the court is addressing an agency’s application of law to fact in the adjudication of some narrowly focused claim of right. Rules are promulgated to establish or implement legislative policy. Moreover, scope of review formulae like substantial evidence, clearly erroneous, and the like make sense (whatever their practical effect) when applied to an adjudicatory record. But, rulemaking produces no closed record like a trial court proceeding. There are no obvious boundaries on the rulemaking record, no accepted standards of proof for policy judgments, and no procedural vehicles that sharply delineate the issues in a rulemaking proceeding. Reviewing courts have managed to force rulemaking review into something like the appellate model by demanding that records be made, by focusing on the adequacy of the record to sustain the agency’s judgment, and by remanding where records are inadequate.55 But this has only papered over the incongruity of treating a legislative function like a judicial one. And, when the Chevron litigation revealed the policy skunk at the legal review garden party, the Supreme Court was required to honor what it viewed as the Court’s proper role in judicial review of agency action by simply eliding policy and law through the invention of a fictitious congressional delegation of authority to agencies to interpret their own statutes.

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The obvious virtue of the bipolar model of judicial review from the separation-of-powers perspective is its capacity to keep claims of legal right and claims of policy mistakes separate. Claimants under that model could sue officers for damages or specific relief only if they could enunciate a cause of action in some cognizable tort, contract, property, or prerogative writ form. In standard common law actions officers were sued in their individual capacities and raised their official duties as a defense. There was no separation-of-powers embarrassment in a federal court hearing a common law claim, and it made its determination based on a record compiled in court and applying legal standards that were wholly judicially determined. In a few exceptional cases Congress provided statutorily that officers might escape liability if their actions, although erroneous, were nevertheless reasonable.56 But this insertion of judicial judgment into the evaluation of an exercise of administrative discretion was extremely rare. And, of course, as we have seen, in mandamus and injunction proceedings, once it was determined that the officer had discretion to exercise, the lawsuit was at an end. That the structure of nineteenth-century review was meant to maintain a strict separation between judicial and executive power was clear from cases other than those articulating the sharp limits on mandamus and injunction, or the “jurisdictional” approach to agency adjudications in cases involving land or invention patents. Indeed, as discussed in Chapter 12, when Congress finally provided appeal from an administrative adjudication by statute, the Court, in United States v. Ritchie,57 balked at applying it as written. Modern courts, of course, have other devices for avoiding unwarranted incursions into administrative jurisdiction. The manipulation of standing doctrine is an obvious example. But, few commentators are happy with the doctrinal morass that characterizes standing doctrine since the 1970s. And, however much one might sympathize with courts struggling to avoid being dragged into policy controversies at the behest of only tangentially affected interests, it is hard to disagree with conventional wisdom that contemporary standing cases describe a line between the justiciable and the nonjusticiable that is difficult to discern. Once again earlier practices provide an illuminating comparison. The happy fact of the matter under nineteenth-century understandings of judicial review of administrative action was that standing was not a serious problem. Separation-of-powers issues were handled by the simple requirement that the plaintiff state a cause of action against the officer that was recognizable at common law or identify a nondiscretionary duty that could be policed by mandamus or injunction. While this in some degree limited standing to what we once understood as the “legal wrong” requirement, it

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could expand it as well. Nineteenth-century courts understood that mandamus actions might often seek to enforce a duty owed to the public at large. For example, in Union Pacific Railroad Company v. Hall,58 the plaintiffs were attempting to obtain an order mandating the extension of ser vice by the Union Pacific Railroad to the full extent of the territory authorized and required by Congress when chartering the company. The plaintiffs seeking mandamus were merchants who would benefit from an extension of the Union Pacific ser vice, but the Court recognized that they “had no interest other than such as belonged to others engaged in employments like theirs, and the duty they seek to enforce by the writ is a duty to the public generally.”59 The defendants, therefore, urged that the Court could not hear the case unless it was brought by the Attorney General of the United States, or at least the federal prosecutor for the affected district. But the Supreme Court rejected that argument: “There is, we think, a decided preponderance of American authority in favor of the doctrine that private persons may move for a mandamus to enforce a public duty, not due to the Government as such, without the intervention of the government law officer.”60 In short, the Union Pacific Court recognized what we would call a public action:61 a form of action that, because of separation-of-powers concerns, has now all but disappeared from our jurisprudence.62 The nineteenthcentury public action did not similarly threaten to involve the judiciary in nonjudicial business because mandamus jurisdiction was restricted to enforcement of nondiscretionary legal duties. To be sure, there is now too much water over the dam to return to the practices of judicial review as exercised by nineteenth-century federal courts. We would surely balk at making officials liable in damages for mere error either of a fact or law in the carrying out of their administrative duties. Relegating all judicial review of administrative action that could not be stated in a common law form, or articulated as the failure to carry out a nondiscretionary duty, to enforcement actions would also strike the modern administrative lawyer as an unduly burdensome approach to relief from alleged administrative error. And, we now seem wedded to the notion that courts may always review for “reasonableness” notwithstanding the degree to which we also understand that this inserts courts deeply into policy processes that, at least abstractly considered, seem much more appropriately dealt with by Congress and its administrative delegates. One point of these comparisons is to recognize the common features of the administrative constitution both in administrative law’s first century and later. Judicial review of administrative action has always been understood as fraught with separation-of-powers issues. Nineteenth- century courts simply

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solved the problem in a different fashion by exercising their review in common law forms, including prerogative writs. The effect of that approach was to make judicial review of administrative action operate substantially differently than its modern incarnation. Indeed, comparing the differences and similarities between political accountability and judicial accountability in the two time periods allows us to see contemporary administrative law in a quite different light than it is normally portrayed. Commentators relentlessly bemoan the loss of political or popular control over administration that they associate with the Republic’s first hundred years. And, they by and large view judicial review as nonexistent until the early twentieth century. Both impressions seem to me quite wrong. Overhead or topdown electoral control over administration has always been problematic, and has been routinely supplemented by other forms of popular constraints or influence on administrative action. Judicial review in a de novo form could be enormously intrusive, indeed paralyzing, at the hands of nineteenth-century courts and juries. But, if there has been a substantial revision in our understanding of what it means to have a government of separated powers, the willingness of modern courts, at the behest of modern Congresses, to insert themselves into the policy processes of administrative decision making represents the most substantial change in our administrative constitution over these 200-plus years. But it is an incomplete revolution in our constitutional understandings—a point to which we shall shortly return. The rule of law for nineteenth-century courts and Congresses meant both the retention of common law liability for officers’ invasions of private rights and the exclusion of the judiciary from the discretionary judgments instinct in the executive’s constitutional responsibility to see that the laws are faithfully executed. In this latter sense our nineteenth-century approach to judicial review mirrored (although it was surely not borrowed from) the French notion of separated powers as reflected in the early nineteenth-century French aphorism, “To judge administration is still to administer” (“Juger l’administration c’est encore administrer”). And one could imagine subsequent American developments that might have created a separate set of administrative courts or a Conseil d’État as the embodiment of rule-of-law principles in a republic of separated powers. But that is a path long not taken, and one that our common law heritage probably foreclosed. Access to the ordinary courts to pursue common law remedies was, as Dicey recognized, a core part of our understanding of the rule of law—and therefore of constitutionalism. His error was only to imagine that this access provided the citizens of common law countries with greater protection from illegitimate administrative action than Frenchmen subject to the droit administratif.

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Structure and Process While early Congresses sometimes specified the internal structure of departments and bureaus with some care, Congress more often left these questions to the agencies themselves. This was particularly true with respect to the processes for either adopting regulations or deciding cases, and constitutional interpretation failed to plug the gap that the statutes left. During the nineteenth-century the courts effectively treated due process claims as the equivalent of separation-of-powers claims under Article III. The question the courts asked was whether the particular decision at issue—in the reported cases always an adjudication—was one that was required to be decided by an Article III court. If not, then administrative process, so long as it appeared to conform loosely to traditional modes of administrative implementation, was due process. Yet, notwithstanding the paucity of external controls on administrative processes, agencies themselves adopted and used remarkably similar approaches. There was significant administrative adjudicatory activity from the beginning of the Republic. Tax collection provided perhaps the largest quantity of cases, but thousands of cases concerning claims to public lands were decided by land office commissions in the first half of the nineteenth century. And as was explored in Chapter 14, the postbellum period witnessed a further surge in administrative adjudicatory business. This period might indeed easily be called an age of administrative adjudication. Departments and bureaus also built up bodies of internal precedent and published their decisions for the information of interested parties. Decisions of the Treasury (under the customs laws), the Patent Office, the Solicitor of the Post Office, the First Controller of the Treasury (concerning claims and accounts), the Land Office, and the Pension Office all began to be published between 1868 and 1887.63 Recognition that these adjudicatory functions created law gave rise to further professionalization of adjudicatory staff and elaboration of structures for administrative appeals and separation of functions. In short, there grew up in the adjudicatory agencies familiar practices of adjudication that created an “internal” law of both substance and procedure. In Elizabeth Magill’s terms, the agencies “self-regulated” and in remarkably similar ways.64 Without the development of constitutional requirements or transsubstantive procedural legislation, the agencies developed similar procedures and divisions of function that responded to familiar notions of fairness, while seeking to maintain administrative efficacy. And, as private interests became more significant, processes became more formal. Just

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beneath the surface of this “internal law” one can see the familiar Matthews v. Eldridge 65 balancing test at work. Then as now, superiors sought to control the actions of lower-level personnel and make their actions consistent by issuing multitudinous instructions. Rulemaking was ubiquitous. Congress occasionally provided explicit statutory authority for the adoption of regulations. But whether or not they had statutory authority, upper-level officials felt the necessity to manage line personnel by making rules. While this rulemaking activity does not seem to have been governed by anything like our familiar notice-and-comment rulemaking process, bureaus like the Supervising Inspectors of Steamboats involved outsiders in the development of rules. And, although there was no Federal Register, agencies also sought to inform the interested public of their rules and guidelines through specific notice, publication in the press, and issuance of manuals. These administrative practices produced a rather rich internal law of administration. It may not have been enforceable in court, given the very limited judicial review of administrative action that I have described, but it was the operative law for both lower-level officials and the private parties who sought or opposed agency action. The study of this internal law across multiple agencies provided the factual underpinning for the Attorney General’s Report on Administrative Procedure66 and the drafting of the Administrative Procedure Act. Our contemporary transsubstantive administrative law is built on the foundation of administrative practices that long antedate the APA’s codification. The models of administrative action built up by administrative practice in the nineteenth century responded to familiar notions of legitimate administration today. Where a party’s legal rights or entitlements were involved, administrative adjudication was based loosely on the model of a civil bench trial. I say “loosely” because the government was seldom directly represented, and hearing officers were charged with the investigative function of developing an appropriate record. Attempts were made to avoid bias or conflicts of interest on the part of these “inquisitorial” officers. Investigation and the making of a record were often separated from deciding, and opportunities for appeal within the administrative process were routinely provided for disappointed claimants. Upper-level officers were responsible for the final actions of administrative agencies and departments, and internal procedures were tailored to assure, or attempt to assure, that policy issues were decided by the appropriate high-level officials. Yet pockets of independence were created where political control was thought to be detrimental to the safeguarding of private rights. Internal rules and precedents

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were made available to affected parties, and these rules and precedents governed official determinations, notwithstanding the absence of any effective judicial review to enforce them against agency personnel. Today’s administrative law defining the structures and processes of federal administrative agencies is in many ways a codification of the best practices generated in administrative law’s first century. Although the term administrative law appears rarely67 in nineteenthcentury American writings68 until Goodnow’s treatise on Comparative Administrative Law, the nation’s chief law officers (the Attorneys General) occasionally made reference to administrative law. From their perspective administrative law contained several elements. One was the unity of the Executive Branch and the requirement that inferior officers take and execute the directions of their superiors, whether those directions came in the form of specific instructions or general regulations. Perhaps the most impassioned statement of this principle was by Attorney General Caleb Cushing69 in a long essay concerning the proper organization of the Executive Branch and, not incidentally, a plea for the establishment of supervisory control over law officers by the Attorney General. In Caleb Cushing’s opinion “the rule of administrative law,” enunciated in the opinions of “successive Attorneys General,” was unity of control.70 His complaint, and his reason for writing this long essay on the proper organization of the Executive Branch, was that he did not have it. Unity of control may have been the default principle of administrative institutional design, but one that was provided— or not—as Congress decided. It also seems to have been the common understanding of Attorneys General that departmental practices established administrative law. A number of opinions base their rulings on “the received law in the general practice of the departments.”71 There may have been little occasion to attempt to enforce administrative practices and precedents in court, but Attorneys General were prepared to insist that agencies conform to them even in hard cases. For example, notwithstanding a congressional statute instructing that claims be settled according to “equity and justice,” Attorney General Cushing disallowed the payment of interest on a debt of the United States, citing several opinions by his predecessors. Cushing traced his ruling back to an early opinion of Attorney General Wirt that had relied upon “the usual practice of the Treasury Department.”72 And Cushing relied strongly on the opinion of Attorney General Legaré who said “I have no objection to admit that, as between individuals, the claim for interest in such a case (as that before him) would be an equitable and reasonable one. But that is not enough to justify the Executive Department in deviating from what I have

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understood to be one of the best ascertained and most inflexible rules of its administration.”73 By 1871 Solicitor General Bristow, then Acting Attorney General, extended the requirement of adhering to prior decisions to subsequent heads of departments. In his words, “The principle has been so frequently declared that the final decision of a matter before the head of a department is binding upon his successor in the same department, under certain well-defined exceptions, that it is entitled to be regarded as a settled rule of administrative law.”74 For our early chief law officers, administrative law simply was the internal law of administration. That law was built upon administrative practice and precedent in the implementation and interpretation of governing legislation. And through the opinions of the Attorney General, practices in one department could establish a precedent that then was applied to others in similar cases. Transsubstantive administrative law thus was evidenced not only by the similarity of practice across agencies or departments, but by the opinions of the only government officials who had the role of providing legal advice to the Executive Branch.

Back to the Future? A look at nineteenth-century practice provides an interesting perspective on our contemporary understandings of administrative law. First, it suggests that we should rid ourselves of the nostalgic idea that the emergence of administrative governance in the twentieth century upset the grand design of a non-administrative state. There simply never was a time in which federal public law was self-executing, fully specified by Congress, and enforced through judicial decree. Nor was there a time when administrative officials were directly under the control of the President and subject to his direction in all matters great or small. To the extent that we model our contemporary jurisprudence on the idea that the administrative state is sad evidence of the decline of American democracy and the rule of law, we imagine a non-administrative state that never was. To the extent that our current law, or its normative aspirations, are modeled on what we take to be original understandings of American governance, we would do well to get the original understanding right. The American administrative constitution has been a continuous experiment in institutional design that has sought, through a host of differing techniques, to accommodate administrative efficacy to multiple conceptions of democracy and the rule of law. Nineteenth-century statutes, administrative practices, and judicial opinions established relatively stable patterns of expectations concerning the

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relationship of administration to political and judicial institutions, and concerning the organization and processes of administrative functions. These understandings included: congressional statutes as the foundation for administrative authority, the President as the administrative head of the government, unity of control within both the Executive Branch and individual departments as the default rule, access to the ordinary courts for relief from the legal wrongs of administrative officials, and fair processes for the administrative adjudication of claims. These are the pole stars of the administrative constitution that emerged from nineteenth-century practice. But within these broad parameters, administrative powers and jurisdiction, and administrators’ political and legal accountability, could be shaped contextually to accommodate the competing goals of effective, responsive, and lawful governance. Much of that shaping was done by congressional statute and executive leadership. But, as we have seen, much more was done by administrative practice. The administrative constitution that emerged in the Republic’s first one hundred years presumed that administrators would construct systems of internal control and audit; issue rules and guidelines to unify agency practice around superior officers’ understanding of governing legislation; and construct appropriate internal processes for investigation, contestation, and appeal when adjudicating private claims. And, although this history is hardly self-interpreting, I draw from it another lesson: the nineteenthcentury practice that generated a relatively common internal administrative law urges greater attention to the way in which that law develops today, both within and across agencies. In our world of multiple transsubstantive statutes and ubiquitous judicial review we tend to think of our administrative constitution as a set of external constraints on agencies. We then relentlessly analyze these external constraints as if they were the major determinants of agency efficacy, procedural fairness, and legal legitimacy. Yet, in many ways it is the internal law of administration—the memoranda, guidelines, circulars, and customs within agencies that most powerfully mold the behavior of administrative officials. To the extent that we are interested in the reform of administrative law in the United States, we might do better to operate on the internal law of administration than by ceaselessly tweaking the external law. For many, if not most, agency functions remain structured primarily by agency regulations and internal directives. If one would like to see a contemporary example of mass administrative justice administered almost wholly in accordance with internal law, one need look no further than the current system of immigration adjudication. And given congressional deadlock and stringent limitations on

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judicial review, if that system is to be reformed in the near term, it will almost certainly have to come from internal Justice Department regulation and reorganization.75 Our administrative constitution has always relied on the internal law of administration for the effective implementation of its governing principles— and for their generation as well. That truth was simply easier to see in a nineteenth-century America where external legal constraints on administration seem, if anything, weaker than they are today. Finally we should recognize the degree to which our administrative constitution will always be a work in progress for it encompasses competing visions of the role of administration in governance that must somehow be managed, but that cannot be resolved. The now-235-year struggle between the executive and legislative branches for the allegiance of administrative officers is but one obvious aspect of these deeper tensions—tensions that arise out of the normative commitments of our broader constitutional culture and that have been there from the beginning. The most fundamental tension is perhaps the competition between democracy and efficacy—popular will and competent government—that is baked into the cake of American constitutionalism. In its purest form democracy seems to demand plebiscitary governance and citizen implementation by rotating officers, perhaps chosen by lot. But the constitution of 1787 is far from that model and was meant to be. Governmental incompetence was the plague of the assembly-controlled Confederation. But our constitution hardly seeks to establish Plato’s republic of competent and authoritarian guardians either. We are caught in the middle, or perhaps just a muddle, that has competing implications for the organization of administration. Should statutes be specific (electoral democracy) or grant broad discretion to knowledgeable administrators (efficacy)? Should officers be selected for political allegiance to the party in power (majoritarian democracy) or for competence in their respective spheres of action (efficacy again)? We can, of course, paper over these tensions by redefining democracy. The Progressives made this move in the late nineteenth and early twentieth centuries by claiming that “good government,” meaning governance by specialized and professionalized administrators, was what the people were demanding. Later twentieth-century theorists have argued that administration by experts, who are obliged to permit broad citizen participation in policy formation and to explain their choices in a reasoned dialogue with affected interests, instantiates a model of deliberative democracy that satisfies the demand for self-government in complex modern states. But these are thin veils to pull over the ageless conflict between will and reason— a

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conflict that plays out importantly in continuing struggles over the true meaning of constitutionalism in an administrative state. Similar normative competition besets our commitment to individual liberty. Liberty obviously competes with the exercise of majoritarian will and with transferring authority to administrators to pursue the common good in some particular domain. Administration must respect rights, often through elaborate procedural protections— even if respecting rights can derail effective governance and inhibit political control of administration. But, of course whether someone has a “right,” and of what kind, is often contestable, because liberty has both negative and positive dimensions and its own set of multiple meanings. Our understanding of what our administrative constitution demands by way of administrative procedural formalities, or permits by way of judicial review of administrative action, is thus parasitic on our understanding of what it means to be a rights-bearing citizen of a liberal administrative state. Hence, for example, judicial review in contemporary administrative law has abandoned the common law, bipolar model for the appellate model. Agencies are now presumptively subject to judicial review for their official acts. And through the judicial creation of official immunities and the waiver of sovereign immunity for many tort and contract claims, common law actions against officers in their individual capacities have been given a much reduced role in legal control of administration. A common law model based on private law traditions has been replaced by a regime of public law official legal accountability This was and is a major revolution in our administrative constitution’s vision of the relationship of administration to legal rights. But, as was mentioned earlier, the revolution is incomplete. Public law duties remain enforceable only at the behest of litigants who can shoehorn their claims into something resembling a private lawsuit—that is, a suit claiming damage to themselves by breach of a duty owed to them, as distinguished from the public as a whole. Regulated parties have little trouble satisfying this demand when administrative officials act to control those parties’ behavior. But the beneficiaries of protective legislation have failed time and again to achieve “standing” to complain when agency inaction defeats their legitimate expectations. Thus a vestige of the common law model remains because it is tethered to a vision of negative liberty that is belied, not only by the plethora of post-nineteenth-century risk regulation statutes, but by a number of statutes enacted in that century. Judicial review of administrative action remains a battleground for competing understandings of “justiciability” that reflects

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our continuing ambivalence about the role of positive liberty in the American constitution as a whole. I will not multiply the normative conundrums that surround our ongoing attempts to construct and understand our administrative constitution. My point is only that that constitution can ultimately only describe the field of battle. It specifies the basic questions to be answered and the normative commitments that bound the debate. But, the inherent tensions among our normative constitutional commitments, and a changing world that demands their accommodation in novel contexts, insures that our administrative arrangements will constantly evolve and remain a site of constitutional contestation. That those debates are now often located in judicial review proceedings, or in discussions of transsubstantive procedural or structural reforms, should not blind us to the ways in which a similar constitution was bequeathed to us by congressional, executive, administrative, and judicial practice in our Republic’s first century. Indeed, as I have argued, certain basic matters of administrative institutional design and political and legal control of administration seem mostly to have been settled before administrative law was a recognized field of practice or inquiry—if by “settlement” we mean an agreement to continue to argue within prescribed boundaries about how the hole in the text of our Constitution should be filled.

NOTES

Chapter 1: Recovering American Administrative Law 1. This description is particularly associated with Stephen Skowronek. See Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities 1877–1920 (1982). This chapter does not dispute Skowronek’s central claims that courts and parties were core elements of the institutional structure of the antebellum U.S. government or that the late-nineteenth- and earlytwentieth-century period he examines ushered in a new vision of state-building. It does challenge the notion, implicit in Skowronek’s account and the conventional 1887 starting point for administrative law, that the administrative institutions created in the Federalist period (and maintained with little significant change until Andrew Jackson’s presidency) and the means by which they were made accountable by law were minor aspects of governance that are of little significance for our understanding of the structure of the infant Republic. 2. 2 James Bryce, The American Commonwealth 465 (1888). 3. Theodore J. Lowi, The End of Liberalism 128–29 (1969). Interestingly enough, Lowi cited nothing other than Bryce for this proposition, and Bryce cited nothing at all. 4. This is hardly just Lawrence Friedman’s view. See, e.g., Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189 (1986); Richard J. Stillman II, The Constitutional Bicentennial and the Centennial of the American Administrative State, 47 Pub. Admin. Rev. 4 (1987). 5. See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996). 6. Lowi, supra note 3, at 94. 7. Woodrow Wilson, Congressional Government: A Study in American Politics (1885). Two years later, Wilson launched the field of public administration with his famous essay. See Woodrow Wilson, The Study of Administration, 2 Pol Sci. Q. 197 (1887).

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8. 2 Bryce, supra note 2, at 465. Two legislative techniques seem to provide the basis for Bryce’s conclusion. First, legislators made quite specific decisions, decisions that we would now expect to be delegated to administrators. Second, statutes often relied on ordinary legal sanctions—that is, criminal penalties or forfeitures rather than on providing administrative officers with “inquisitorial powers” that might prove oppressive. Because Bryce provided no examples, and spoke generally of the United States, not just congressional practice, his claims may have been based as much or more on observations of state legislation as on national. 9. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–35 (1952) (Jackson, J., concurring). 10. The concept of an internal law of administration as part of administrative law was developed in one of the earliest treatises on American administrative law. See Bruce Wyman, Administrative Law 1–23 (1903). But the idea of exploring administrative law by looking at administrative practice and decisions seems to have been suppressed by the hegemony of the case method emanating from Wyman’s own school. See generally William C. Chase, The American Law School and the Rise of Administrative Government (1982) (arguing that the attempts of Ernst Freund and others to continue this tradition were overwhelmed by the rise of the case method as the only respectable approach to professional training). 11. See Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (1983) (emphasizing the development of an internal law of administration as the most effective means for assuring accuracy and fairness in administrative adjudication). 12. As Robert Gordon has recently reminded us, even those legal realists concerned with administrative law and the emerging administrative state, whose academic agenda was to try to redirect legal studies away from the study of courts, spent most of their time criticizing how courts reviewed administrative agency action, rather than investigating administrative action itself. Robert W. Gordon, Willis’s American Counterparts: The Legal Realists’ Defence of Administration, 55 U. Toronto L.J. 405, 410– 11 (2005). 13. A.V. Dicey, Introduction to the Study of the Law of the Constitution 330 (9th ed. 1939). 14. Cecil Thomas Carr, Concerning English Administrative Law 22–23 (1941). 15. See Jerry L. Mashaw, Structuring a “Dense Complexity”: Accountability and the Project of Administrative Law, Issues in Legal Scholarship, Mar. 2005, www .bepress.com/ils/iss6/art4. 16. Frank J. Goodnow, The Principles of the Administrative Law of the United States 371– 72 (1905). 17. Goodnow was not wholly oblivious to these overlaps, see id. at 376, but downplayed their importance. 18. For example, my daily New York Times on the morning that these words were first written carried three stories on the protection of the individual rights of foreigners dealing with American administrative institutions. On the Op-Ed page, Bob Herbert’s column called for Congress to create a bipartisan independent commission to investigate the breakdown of command oversight that apparently led to

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the prisoner abuses at Abu Ghraib Prison in Iraq. Bob Herbert, On Abu Ghraib, the Big Shots Walk, N.Y. Times, Apr. 28, 2005, at A25. On the front page, Eric Schmitt reported on the issuance of a new interrogations manual by the Army that specifies in great detail (the manual runs more than two hundred pages and is accompanied by dozens of classified “interrogation scenarios” that contextualize the new rules) what procedures may or may not be used, and in what circumstances. Eric Schmitt, Army, in Manual, Limiting Tactics in Interrogation, N.Y. Times, Apr. 28, 2005, at A1. And somewhat buried on page A16 was the story of a tort settlement against the government in favor of one Rosebell N. Munyua, who sued the United States for its negligent handling of her asylum claim, which resulted in persecution when she was forced to return to her native Kenya. Dean E. Murphy, In Rare Accord, Spurned Asylum Seeker to Get $87,500, N.Y. Times, Apr. 28, 2005, at A16. Almost any day’s newspaper could produce similar examples. The noteworthy thing about them is that they all seek to provide some form of accountability for violations of private rights, but none involves any standard form of judicial review of administrative action. Congress is called upon to protect prisoners’ rights through political oversight, and Ms. Munyua got some form of redress through a tort suit, although judicial review in conventional modern forms is notably absent from much of the administration of immigration law. Perhaps the most effective action described in the Times stories was the Army’s revision of its interrogation manual. Inside the armed forces, manual instructions have the status of military orders, and a violation of military orders carries a host of potential sanctions. 19. The persistence of the belief that administration was almost nonexistent at the national level prior to the late-nineteenth and early-twentieth centuries may also relate to the widespread, and erroneous, belief that the laissez-faire ideology dominated all of the nineteenth century, not just its latter decades. On the latenineteenth- century origins of laissez faire, see Novak, supra note 5, at 84– 88; and Herbert Hovenkamp, The Political Economy of Substantive Due Process, 40 Stan. L. Rev. 379 (1988). 20. The autonomous impact of administrative institutions on social and political development and the critical importance of the Federalist period are themes that animate a number of political and historical studies that carry forward the historical institutionalist project that Skowronek’s Building a New American State began. See supra note 1. Those who focus on administrative institutions and their effects tend to dissent from Skowronek’s view of the relative importance of administrative institutions as shapers of both politics and nationhood in the antebellum era. For an excellent survey of this literature by one of its contributors, see Richard R. John, Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787–1835, 11 Stud. Am. Pol. Dev. 347 (1997). 21. This is not to say that these matters are always ignored. Over the last two decades a considerable literature has addressed the gridlocked or “ossified” processes of federal administrative action, particularly agency rulemaking, and has begun to suggest ameliorative reform programs. For a small sampling see, for example, Jerry L. Mashaw, Reinventing Government and Regulatory Reform: Studies in the

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Neglect and Abuse of Administrative Law, 57 U. Pitt. L. Rev. 405 (1996); Thomas O. McGarity, Some Thoughts on “Deossifying” the Rulemaking Process, 41 Duke L.J. 1385 (1992); and Sidney A. Shapiro, Administrative Law after the Counter-Reformation: Restoring Faith in Pragmatic Government, 48 U. Kan. L. Rev. 689 (2000). And there is much debate about whether contemporary reforms that attempt to make regulation more “responsive,” “collaborative,” or “reflexive” increase agency effectiveness or abandon regulatory missions. Compare Eric W. Orts, Reflexive Environmental Law, 89 Nw. U.L. Rev. 1227 (1995) (providing a very positive view of these practices), and E. Donald Elliott, Environmental TQM: Anatomy of a Pollution Control Program That Works!, 92 Mich. L. Rev. 1840 (1994) (same), with Sidney A. Shapiro & Randy S. Rabinowitz, Punishment versus Cooperation in Regulatory Enforcement: A Case Study of OSHA, 49 Admin. L. Rev. 713 (1997) (suggesting reasons to be skeptical of the “responsiveness” turn), and Sidney A. Shapiro & Randy S. Rabinowitz, Voluntary Regulatory Compliance in Theory and Practice: The Case of OSHA, 52 Admin. L. Rev. 97 (2000) (same). 22. W.F. Willoughby, An Introduction to the Study of the Government of Modern States 242 (1919). 23. Id. 24. 2 W.W. Willoughby, The Constitutional Law of the United States 1156 (1910). 25. Charles C. Thach, Jr., The Creation of the Presidency 1775–1789: A Study in Constitutional History 140 (1969). 26. Julian E. Zelizer, What Political Science Can Learn from the New Political History, 13 Ann. Rev. Pol. Sci. 25 (2010). 27. Ch. 104, 24 Stat. 379. 28. Ch. 27, 22 Stat. 403. 29. Ch. 647, 26 Stat. 209. 30. Ch. 3915, 34 Stat. 768. 31. Ch. 311, 38 Stat. 717 (now codified at 15 U.S.C. §§ 41– 51 (2006)). 32. See Morton Keller, America’s Three Regimes: A New Political History (2007); Theodore J. Lowi, Arenas of Power (Norman K. Nicholson ed., 2009). 33. Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.). 34. Woodrow Wilson, The Study of Administration, 2 Pol. Sci. Q. 197 (1887). 35. For Ernst Freund’s principal works, see Ernst Freund, Administrative Powers over Persons and Property: A Comparative Survey (1928); Ernst Freund, Cases on Administrative Law Selected from Decisions of English and American Courts (2d ed. 1928); and Ernst Freund et al., The Growth of American Administrative Law (1923). For Frank Goodnow’s major works, see Frank J. Goodnow, Comparative Administrative Law: An Analysis of the Administrative Systems National and Local, of the United States, England, France and Germany (photo. reprint 1996) (1893); Frank J. Goodnow, The Principles of the Administrative Law of the United States (1905); and Selected Cases on American Administrative Law: With Particular Reference to the Law of Officers and Extraordinary Legal Remedies (Frank

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J. Goodnow ed., 1906). The one early book that deals most prominently with national administrative law in the United States, Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers (1903), also appears in the early twentieth century. 36. John G. Sproat, “The Best Men”: Liberal Reformers in the Gilded Age (1968). 37. William J. Novak, The Myth of the “Weak” American State, 113 Am. Hist. Rev. 752 (2008). 38. Id. at 753 (quoting Albert Shaw, The American State and the American Man, 51 Contemp. Rev. 695, 696– 97 (1887)). 39. Brian Balogh, A Government Out of Sight: The Mystery of National Authority in 19th Century America (2009). 40. See Keller, supra note 32; Lowi, supra note 32. 41. Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputation, Networks and Policy Innovation in Executive Agencies, 1862–1928 (2001). 42. Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (1995). 43. On the differences between bureaucratic organizations that are state or society centered, see Bernard S. Silberman, Cages of Reason: The Rise of Rational State in France, Japan, the United States, and Great Britain (1993). 44. On this form of legal history, its strengths, weaknesses, and alternatives, one can hardly do better than Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57 (1984). 45. Jerry L. Mashaw, Explaining Administrative Law: Refl ections on Federal Administrative Law in 19th Century America, in Comparative Administrative Law (Peter Lindseth & Susan Rose-Ackerman eds., 2011). 46. The canonical explication of this approach is Karen Orren & Stephen Skowronek, The Search for American Political Development (2004). 47. John A. Rohr, To Run a Constitution: The Legitimacy of the Administrative State (1986). 48. James A. Morone, The Democratic Wish (rev. ed. 1998).

Chapter 2: Pragmatic State-Building 1. John Adams to Benjamin Rush (July 10, 1812), in The Spur of Fame: Dialogues of John Adams and Benjamin Rush 1805–1813, at 231–32 (John A. Schutz & Douglas Adair eds., 1966). 2. John Murrin, A Roof without Walls: The Dilemma of American National Identity, in Beyond Confederation: Origins of the Constitution and American National Identity 334–38 (Richard Beeman et al. eds., 1987). 3. Alexander Hamilton, Federalist No. 27, December 25, 1787. 4. George Washington: Writings 517 (John Rhodehamel ed., 1997). 5. Thomas Jefferson to William Flemming (July 1, 1776), in 1 The Papers of Thomas Jefferson 411– 12 (Julian P. Boyd et al. eds., 1950).

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6. Public administration scholars have never doubted that an administrative system existed from the very beginnings of the Republic, indeed from the very beginnings of anything that looked like human governance. And they have also presumed that that administrative system operates in accordance with law. Leonard White’s foundational history of Federalist administration, Leonard D. White, The Federalists: A Study in Administrative History (1948), is essentially the story of the Federalists’ attempt to establish the civil authority of the U.S. government through the creation and execution of national law. And while White does not go so far, some would claim that the Federalists constructed an administrative state that satisfied in some rudimentary form all the Weberian criteria for a fully functioning bureaucracy based on the rule of law and the equality of persons before the law. See Paul P. Van Riper, The American Administrative State: Wilson and the Founders— An Unorthodox View, 43 Pub. Admin. Rev. 477 (1983). Van Riper’s argument is elaborated and more persuasively argued in Paul P. Van Riper, The American Administrative State: Wilson and the Founders, in A Centennial History of the American Administrative State 3 (Ralph Clark Chandler ed., 1987). 7. Letter from John Adams, Vice President of the United States, to John Trumbull (Jan. 23, 1791), in 9 The Works of John Adams 573 (Charles Francis Adams ed., 1854). 8. Charles C. Thach, Jr., The Creation of the Presidency 1775–1789: A Study in Constitutional History 121 (1969). For a discussion of this so- called MorrisPinckney plan, see id. at 121–23. 9. U.S. Const. art. II, § 3. The drafters’ perspective on the importance of this duty might be gleaned from its location in the text. It is listed immediately following the President’s apparently ceremonial duty to receive foreign ministers. In The Federalist Papers Hamilton described that latter function as one more of “dignity than authority” and explained it as a matter largely of convenience—to avoid having to reassemble the Congress to receive the credentials of every newly arrived foreign minister, even if he arrived merely to replace a departed predecessor. The Federalist No. 69, at 355 (Alexander Hamilton) (Max Beloff ed., 1987). Writing over a century later, Charles Thach agreed with Hamilton. Thach, supra note 8, at 124. Later commentators have viewed the power as considerably more important. David Currie has claimed that the power to receive foreign diplomats “empowers the President to decide with which governments the United States shall have diplomatic relations.” David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801, at 45 (1997). 10. U.S. Const. art. II, § 2. The power to require reports seems to be the only thing left from the Morris-Pinckney plan to specify departments in the Constitution and make them a Council of State to advise the President. Thach, supra note 8, at 119. If so it is surely not there, necessarily, as a means of instantiating “Privy Council” government. Akhil Amar has argued that the Opinion Clause is designed to do almost the opposite: to confirm the President’s hierarchical position in relation to other Executive Branch officers and to ensure that the President re-

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mains ultimately accountable for Executive Branch actions. Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 Va. L. Rev. 647 (1996). 11. The “vesting clause” reads: “The executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. 12. Two of the most complete developments of this position can be found in Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541 (1994); and Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153 (1992). Historical evidence of presidential claims to “unitary executive” powers is detailed in Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive (2008). 13. This too is merely a constitutional convention. At least one member of Congress seems to have believed that congressional establishment of executive departments was an undue intrusion on the President’s powers. Senator William Maclay argued that the President should have the discretion to create whatever administrative apparatus he thought appropriate. William Maclay, Diary Entry (June 18, 1789), in 9 Documentary History of the First Federal Congress 1789–1791, at 81– 83 (Kenneth R. Bowling & Helen E. Viet eds., 1988) [hereinafter Congress Documentary History]. After all, unlike Article III’s provision for the creation of lower federal courts, the Constitution is silent concerning how departments are to be created. Moreover, there is the curious locution of the Necessary and Proper Clause, which speaks of “Powers vested by this Constitution . . . in any Department or Officer.” U.S. Const. art. I, § 8, cl. 18. This textual suggestion that the Constitution confers determinant powers on the departments is almost certainly a drafting error, perhaps a residue of the proposals to include a provision in the constitutional text for specific departments with defined duties. However, since those departments were not included in the Constitution, it surely seems appropriate to presume that the intention was for Congress to shape the executive departments in the exercise of Congress’s powers under the Necessary and Proper Clause. See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 600– 01 (1984). 14. This is not, I hasten to add, an argument that presidents lack inherent powers or were not meant to exercise supervisory controls over executive branch personnel, or that some version of the “unitary executive” theory might best explain constitutional understandings both at the founding and today. For the development of a similar view, see Akhil Reed Amar, The Constitution: A Biography 234–36 (2005). Much of the historical discussion in this chapter bears on what has come to be known as the “unitary executive” controversy and on ways that might be thought to support those who argue that the construction of a broad and exclusive power to administer the law from the text of Article II is an overreading of both the language of the Constitution and the historical context within which Article II was drafted and ratified. But while I am sympathetic to the views on the historical questions advanced in Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725 (1996); and Lawrence Lessig & Cass R. Sunstein, The President and

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the Administration, 94 Colum. L. Rev. 1 (1994), I do not think that either the “unitarians” or the “anti-unitarians” have delivered knockout blows. I find the debate inconclusive because the terms of the debate (“direction,” “control,” even “unitariness” itself) seem to be vague and shifting, in part because the contestants deploy differing conceptions of what counts as evidence (for example, rhetoric, practice, context), and in part because, were there agreement on all of these things, much of the evidence seems to me irreducibly vague or ambiguous. For further development of that point, see Jerry L. Mashaw, Governmental Practice and Presidential Direction: Lessons from the Antebellum Republic?, 45 Willamette L. Rev. 659 (2009). 15. Hamilton was highly selective about the latter. The powers of governors were notoriously weak in most of the new state constitutions other than Massachusetts and New York. And even in New York the governor was saddled with a council having significant control over executive functions. See Thach, supra note 8, at 25– 54. 16. So far as I have been able to determine, Hamilton never gave definitive content to what he meant by “energy.” It seems to have been for him something like the fl ip side of “responsibility.” Responsibility focused on a single individual would engage his reputation and honor and provide powerful motives for action. 17. Hamilton discussed what we would understand as administration— as distinguished from the Executive or Chief Executive— only in passing in his defense of the appointments power. Here he urged that the appointment of capable officers is more likely if it is made the responsibility of a single accountable individual, the President, but subject to ratification, and thus checked, by the Senate. But there is no brief here for presidential control and direction of administration. In one of his few missteps in predicting the interpretation that would subsequently be given to the new Constitution, Hamilton argued that stability in administration will be assured, not just by the fact that the President can be reelected, but also by the requirement that any removal of a presidential nominee be acceded to by the Senate as well. Hamilton’s error is surely excusable given the tenor of the debates about the Senate’s role both in the Constitutional Convention and the ratification debates. John A. Rohr, The Administrative State and Constitutional Principles, in A Centennial History of the American Administrative state 113 (Ralph Clark Chandler ed., 1987). 18. See White, supra note 6, at 13–25. 19. On administration under the Articles of Confederation, see Lloyd Milton Short, The Development of National Administrative Organization in the United States 35– 77 (1923); and Thach, supra note 8, at 55– 75. 20. Calvin Jillson & Rick K. Wilson, Congressional Dynamics: Structure, Coordination, and Choice in the First American Congress, 1774–1789, at 93– 97 (1994). 21. Many of the problems had to do with supply. The desperate situation of Washington’s army at Valley Forge in the winter of 1777– 78 resulted in part from a congressional reorganization of the Commissary Department that removed the authority of the Commissary General to appoint deputies and lodged that power in Congress itself. This destroyed the supervisory power of the Commissary General, and the supply operation fell apart under the combined weight of profiteer-

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ing, graft, and simple inefficiency. For this example and others concerning the internal difficulties of congressional management of the war effort, see Robert Middlekauff, The Glorious Cause: The American Revolution 1763– 1789, at 421, 502–43 (rev. ed. 2005). 22. Hamilton wrote to Robert Morris in 1780: We want a Minister of War, a Minister of Foreign Affairs, a Minister of Finance, and a Minister of Marine. There is always more decision, more dispatch, more secrecy, more responsibility, where single men, than where bodies are concerned. By a plan of this kind, we should blend the advantages of a Monarchy and of a Republic, in a happy and beneficial union. Men will only devote their lives and attentions to the mastering of a profession, on which they can build a reputation and consequence which they do not share with others. Short, supra note 19, at 53 (quoting Letter from Alexander Hamilton to Robert Morris (1780)). 23. Jefferson proposed that the Continental Congress should establish something like an executive committee that would have broad executive powers, including virtually all of those that were subsequently given in the Constitution to the President. While surely also concerned about failures of execution under the confederation arrangements, Jefferson seems to have been motivated more by the concern that the details of execution were bogging down the Continental Congress in trivia and preventing the assembly from transacting its important business. See, e.g., Letter from Thomas Jefferson to Edward Carrington (Aug. 4, 1787), in 4 The Writings of Thomas Jefferson 1784–1787, at 424 (Paul Leicester Ford ed., 1894). Jefferson’s draft report proposing the executive committee can be found at Thomas Jefferson, Draft of Report on a Committee of the States (Jan. 30, 1784), in 3 The Writings of Thomas Jefferson 1781–1784, id., at 388. 24. 19 Journals of the Continental Congress, 1774–1789, at 126–28 (Gaillard Hunt ed., 1912). 25. David B. Mattern, Benjamin Lincoln and the American Revolution 123 (1995). 26. W.F. Willoughby, for example, claimed in his influential treatise on comparative government that the authors of the U.S. Constitution “failed utterly to recognize or to make any direct provision for the exercise of administrative powers.” W.F. Willoughby, An Introduction to the Study of the Government of Modern States 242 (1919). And he went on to say, “In consequence of this failure our entire constitutional history has been marked by a struggle between the legislative and the executive branches as to the relative parts that they should play in the exercise of this power.” Id. His brother, W.W. Willoughby, was similarly unimpressed with the notion that Article II dealt with administration. In his treatise on constitutional law, he argued: [I]t was undoubtedly intended that the President should be little more than a political chief; that is to say, one whose function should, in the main, consist in the per for mance of those political duties which are not subject to judicial

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notes to pages 33–39 control. It is quite clear that it was intended that he should not, except as to these political matters, be the administrative head of the government, with general power of directing and controlling the acts of subordinate federal administrative agents.

2 W.W. Willoughby, The Constitutional Law of the United States 1156 (1910). In this latter sentiment, practice has proved W.W. Willoughby to have overstated his case. Perhaps the sounder judgment was offered twelve years later by Charles Thach when he said, “Again, nothing is more vital than the relations of the executive head to the chief officers of the administrative departments, and the relations of the latter to the legislature. And yet the Constitution furnishes no fi nal and authoritative decision of the question.” Thach, supra note 8, at 140. 27. See supra note 26. 28. For a more extensive development of this idea, see Lessig & Sunstein, supra note 14, at 38– 84. 29. See Short, supra note 19, at 74– 77. 30. An Act for the Government and Regulation of Seamen in the Merchants Ser vice, ch. 29, §§ 1, 3, 8, 1 Stat. 131, 132, 134 (1790). I have chosen to cite statutes from the Federalist Congresses by their descriptive titles (rather than their dates of enactment) to provide a more complete historical picture of administrative activity in the early Republic. I have omitted codification and repeal information because it is not relevant to the historiographic task at hand. 31. An Act Concerning Certain Fisheries of the United States, and for the Regulation and Government of the Fishermen Employed Therein, ch. 6, § 1, 1 Stat. 229, 229– 30 (1792). 32. An Act Relative to Quarantine, ch. 31, 1 Stat. 474 (1796). 33. An Act to Prevent the Exportation of Goods Not Duly Inspected According to the Laws of the Several States, ch. 5, 1 Stat. 106 (1790). 34. An Act Repealing, after the Last Day of June Next, the Duties Heretofore Laid upon Distilled Spirits Imported from Abroad, and Laying Others in Their Stead; and Also upon Spirits Distilled within the United States, and for Appropriating the Same, ch. 15, § 29, 1 Stat. 199, 206 (1791). 35. Ch. 5, 1 Stat. 29 (1789). 36. Id. § 12. 37. An Act Repealing, after the Last Day of June Next, the Duties Heretofore Laid upon Distilled Spirits Imported from Abroad, and Laying Others in Their Stead; and Also upon Spirits Distilled within the United States, and for Appropriating the Same, ch. 15, 1 Stat. 199 (1791). 38. Id. § 43. 39. For an extensive elaboration of this idea based on recently available documents surrounding state ratification of the Constitution, see Max M. Edling, A Revolution in Favor of Government (2003). 40. An extended discussion of the leading congressional debates is provided in Myers v. United States, 272 U.S. 52 (1926). A crisp discussion of the congressional de-

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bates can be found in Short, supra note 19, at 87– 105; and in Thach, supra note 8, at 140– 65. 41. Currie, supra note 9, at 36–40. 42. Id. at 40. 43. An Act to Establish an Executive Department to Be Denominated the Department of War, ch. 7, § 2, 1 Stat. 49, 50 (1789). 44. William Maclay, Diary Entry (July 16, 1789), in 9 Congress Documentary History, supra note 13, at 115. 45. An Act for Establishing an Executive Department to Be Denominated the Department of Foreign Affairs, ch. 4, § 1, 1 Stat. 28, 28–29 (1789); An Act to Establish an Executive Department to Be Denominated the Department of War § 1. 46. An Act to Establish the Treasury Department, ch. 12, 1 Stat. 65 (1789). 47. See Short, supra note 19, at 99– 101; White, supra note 6, at 116–22. 48. An Act to Establish the Treasury Department § 5. 49. 1 Annals of Cong. 611– 12 (Joseph Gales ed., 1834). Although Congress did not provide the Comptroller with a fi xed term of office, it did ultimately specify that his decisions would be “final and conclusive to all concerned.” An Act for the More Effectual Recovery of Debts Due from Individuals to the United States, ch. 48, § 4, 1 Stat. 441, 442 (1795). Although he ultimately withdrew his suggestion, Madison argued that [i]t will be necessary . . . to consider the nature of this office . . . [and] in analyzing its properties, we shall easily discover they are not purely of an Executive nature. It seems to me that they partake of a Judiciary quality as well as Executive. . . . The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and par ticular citizens: this partakes strongly of the judicial character. The independence of Treasury accounting officers from presidential direction and from appeal to the President from their determinations was confirmed in a series of opinions by Attorney General William Wirt. See The President and Accounting Officers, 1 Op. Att’y Gen. 624 (1823); The President and the Comptroller 1 Op. Att’y Gen. 636 (1923); The President and Accounting Officers, 1 Op. Att’y Gen. 678 (1824); The President and Accounting Officers, 1 Op. Att’y Gen. 705 (1825); and The President and Accounting Officers, 1 Op. Att’y Gen. 706 (1825). To be sure William Wirt was a good Republican and no friend to strong presidential authority. But, Wirt’s opinions set a precedent that was followed by later Attorneys General as well. 50. An Act to Establish the Treasury Department § 2. 51. The distinction established here between the President’s power to remove and his power to direct seems to have been well understood in the early years of the Republic. For example, in one of the most famous uses of the presidential removal power, President Jackson was required to replace two Secretaries of the Treasury before he found one who would agree to remove the funds of the United States from the Second National Bank. The two recalcitrant Secretaries resisted Jackson’s instructions on the apparently quite proper understanding that, although

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the President could remove them, they were not legally required to follow the President’s directions when they viewed those directions as contrary to law. See, e.g., Louis Fisher, Presidential Spending Power 16 (1975); Charles Tiefer, The Constitutionality of Independent Offi cers as Checks on Abuses of Executive Power, 63 B.U. L. Rev. 59, 73 (1983). 52. An Act to Establish the Treasury Department § 2. 53. Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211, 241 (1989). The other departments also often functioned in the way we would now expect standing committees to operate—as the investigatory and legislative drafting arms of Congress. See Ralph Volney Harlow, The History of Legislative Methods in the Period before 1825, at 242–44 (1917). The Ways and Means Committee reemerged as a part of Albert Gallatin’s program to bring the Treasury more firmly under congressional control. John Spencer Bassett, The Federalist System: 1789–1801, at 141 (1968). 54. Ardent Republicans objected to the use of the Treasurer’s plans and estimates as a basis of congressional action as this usurped the power and responsibility of the House to originate all money bills. Representatives Gerry and Tucker argued that even secretarial reports with respect to taxation would offend Article I, Section 7. See 11 Congress Documentary History, supra note 13, at 1055– 73. On the other hand, when appropriating money for actions particularly within the President’s constitutional power, Congress was capable of making extraordinarily broad discretionary grants. 55. Henry Barrett Learned, The President’s Cabinet: Studies in the Origin, Formation and Structure of an American Institution 101 (1912) (recognizing that colonial and state practice tended to leave administration of financial matters, not just appropriations, in the hands of legislative committees or officials appointed by the legislature). See also Short, supra note 19 at 99– 101. 56. 2 The Records of the Federal Convention of 1787, at 182, 614 (Max Farrand ed., rev. ed. 1966). 57. An Act for Establishing the Salaries of the Executive Officers of Government, with Their Assistants and Clerks, ch. 13, § 1, 1 Stat. 67, 67– 68 (1789); see also Calabresi & Prakash, supra note 12, at 647–48. 58. Ron Chernow, Alexander Hamilton 455– 57 (2004); Louis Fisher, President and Congress: Power and Policy 86–89 (1972). 59. Chernow, supra note 58, at 288, 295–308, 319–32, 355– 56, 374– 79, 480; see also Harlow, supra note 53, at 140–42. 60. For further details on the Department of the Navy, the Post Office and territorial courts, see Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256 (2006). 61. See Jerry L. Mashaw et al., Administrative Law: The American Public Law System 448–54 (6th ed. 2009). 62. The eclectic manner in which departments were constructed and their ambiguous relationship to presidential direction was lamented by Attorney General Caleb Cushing in an extensive dissertation on the organization of the Executive Branch, which he issued at the expiration of his first year in office. 6 Op. Att’y Gen 326

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(1854). Just as William Wirt may have been motivated in part by Republican principles in his denial of the directive power of the President over accounting officers, Cushing was clearly motivated by his frustrations from serving as an Attorney General without a department and with little or no authority over U.S. Attorneys in the field, or over various department solicitors elsewhere in the government. 63. For a sophisticated elaboration of these points, see Strauss, supra note 13. 64. Moncure Daniel Conway, Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph 135 (1888), quoted in White, supra note 6, at 164– 65. 65. White, supra note 6, at 135. 66. See Julius Goebel, Jr., Antecedents and Beginnings to 1801, at 490, in The Oliver Wendell Holmes Devise, 1 History of the Supreme Court of the United States (1971); Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 108–09 (1923). How or why changes were made in the original draft remains mysterious. There is no record of the relevant debate in either the drafting committee or the Senate as a whole. 67. Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 581– 82. 68. Bassett, supra note 53, at 39. 69. White, supra note 6, at 167– 68, 408. On the other hand, White cited at least one instance in which President Washington ordered a U.S. Attorney to nolle prosequi an indictment. Id. at 31 n.15. The President’s pardon power would certainly have made resistance to this sort of order futile in any event. Nor did the district attorneys have control over all federal litigation. The Comptroller of the Treasury was charged with the power “to institute suit for the recovery of” a “sum or balance reported to be due to the United States, upon the adjustment of [any revenue officer’s account].” An Act to Provide More Effectually for the Settlement of Accounts between the United States, and Receivers of Public Money, ch. 20, § 1, 1 Stat. 512, 512 (1797). That power was later expanded to direct suits and legal proceedings to collect any debt owed to the United States. An Act to Provide for the Prompt Settlement of Public Accounts, ch. 45, § 10, 3 Stat. 366, 367 (1817). 70. There is some question whether a modern court would have approved these statutory designations of new offices for existing officers. The one case that seems to have addressed an attempt by Congress to appoint an existing officer to a new office by name, Olympic Fed. Savings & Loan Ass’n v. Dir., Offi ce of Thrift Supervision, 732 F. Supp. 1183, 1191– 92, dismissed as moot 903 F.2d 837 (D.C. Cir. 1990), viewed that designation as unconstitutional. The Olympic Federal court distinguished an earlier case, Shumaker v. United States, 147 U.S. 282 (1893) in which a commission was manned by five commissioners, two of which were designated as positions to be filled by existing officers in other departments. The Shumaker court analogized this congressional designation to the addition of duties to use of an existing office. It noted, however, that the additional duties that were being assigned to these officers were “germane to the offices already held by them.” Id. at 301. Whether, for example, the Secretary of State and the Secretary of War ruling on the patentability of inventions was a function germane to their respective offices is certainly open to doubt.

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71. An Act to Establish the Post- Office and Post-Roads within the United States, ch. 23, § 4, 1 Stat. 354, 358 (1794). 72. An Act Repealing, After the Last Day of June Next, the Duties Heretofore Laid upon Distilled Spirits Imported from Abroad, and Laying Others in Their Stead; and also upon Spirits Distilled within the United States, and for Appropriating the Same, ch. 15, 1 Stat. 199 (1791). 73. On the politics of imposts and excise taxes, see Edling, supra note 39, at 149–218. 74. White, supra note 6, at 453, 454. 75. For more detail on the Post Office delegation controversy, see Currie, supra note 9, at 146–49, from which the following account is taken. The Post Office Department had a lineage stretching back into the colonial period. It had always been a singleheaded organization and was the only administrative function organized in that fashion throughout the period when the Continental Congress was running everything else by committee. Much of this early history is ably recounted in George L. Priest, The History of the Postal Monopoly in the United States, 18 J.L. & Econ. 33 (1975). After failing to agree to allow the President to designate post roads, the First Congress, in 1789, simply adopted the Post Office as provided for in the resolutions of the Continental Congress, and, in a statute of one paragraph, enacted a breathtaking, but temporary, delegation by ordering the Postmaster General to carry on the business of delivering the mails under such directions as he should receive from the President. An Act for the Temporary Establishment of the Post- Office, ch. 16, § 1, 1 Stat. 70, 70 (1789). This delegation was subsequently supplanted by the provisions discussed here. 76. An Act to Establish the Post- Office and Post-Roads within the United States, ch. 7, § 3, 1 Stat. 232, 234 (1792). 77. Currie, supra note 9, at 149. One might make the same comment about the detail in contemporary appropriations bills related to rivers and harbors, highways, and other public works of local importance. 78. Richard R. John & Christopher J. Young, Rites of Passage: Postal Petitioning as a Tool of Governance in the Age of Federalism, in The House and Senate in 1790s: Petitioning, Lobbying, and Institutional Development 100 (Kennedy R. Bowling & Donald R. Kennon eds., 2002). 79. An Act Providing for the Payment of the Invalid Pensioners of the United States, ch. 24, § 1, 1 Stat. 95, 95 (1789). 80. Kristin A. Collins, Administering Marriage: Marriage-Based Entitlements, Bureaucracy, and the Legal Construction of the Family, 62 Vand. L. Rev. 1085, 1105 (2009). 81. Id. at 1122– 51. 82. An Act to Incorporate the Subscribers to the Bank of the United States, ch. 10, 1 Stat. 191 (1791). 83. Election was by a plurality of the shares voting, and the United States was limited to a subscription equaling one-fifth of the Bank’s capitalization. The statute is silent on who would vote the government’s shares. Id. §§ 4, 11. 84. John & Young, supra note 78, at 107. 85. Letter from John Fenno to Joseph Ward (Dec. 25, 1795), quoted in Christine A. Desan, Contesting the Character of the Political Economy in the Early Republic:

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Rights and Remedies in Chisholm v. Georgia, in The House and the Senate in the 1790s: Petitioning, Lobbying, and Institutional Development 178, 201 (Kennedy R. Bowling & Donald R. Kennon eds., 2002). Petitions to Congress for money relief covered a wide variety of categories. Many involved expenses arising out of the Revolutionary War. These ranged from a claim for room, board, and bribery expenses incurred while spying for the Continental Congress in Britishoccupied New York to Timothy Pickering’s petition for a special appropriation of $40,000 to keep him out of debtor’s prison as the result of private debts he had contracted on behalf of the public as Quartermaster General during the last years of the Revolutionary conflict. Other petitioners asked for the discharge of customs duties paid on goods subsequently destroyed by fire, flood, or seizure by pirates. Impecunious former soldiers, and their widows and orphans, petitioned Congress for support. Persons seeking land grants or to purchase public lands petitioned Congress for special bills authorizing the grant or sale. Inventors and artists petitioned for patents or copyrights before the passage of the first patent and copyright legislation. William C. diGiacomantonio, Petitioners and Their Grievances: A View from the First Federal Congress, in The House and Senate in the 1790s: Petitioning, Lobbying, and Institutional Development 29 (Kennedy R. Bowling & Donald R. Kennon eds., 2002). 86. See Note, Private Bills in Congress, 79 Harv. L. Rev. 1684 (1966). 87. The number of private bills sent to the Treasury for evaluation was so great that Hamilton cited them in a letter to Vice President Adams as one of the burdens of his office that was causing him to work “to the utmost extent of my faculties and to the injury of my health.” Letter from Alexander Hamilton to John Adams (Feb. 22, 1794), quoted in Chernow, supra note 58, at 455– 56. 88. An Act Providing for the Relief of Such of the Inhabitants of Saint Domingo, Resident within the United States, as May Be Found in Want of Support, ch. 2, 6 Stat. 13 (1794). 89. Michele L. Landis, Let Me Next Time Be “Tried by Fire”: Disaster Relief and the Origins of the American Welfare State, 1789– 1874, 92 Nw. U. L. Rev. 967, 983– 85 (1998). 90. See 4 Annals of Cong. 1001 (1794) (statement of Rep. Gilbert); id. at 1002 (amendment of Rep. Boudinot). But we should not imagine that Congress early or easily gave up its desire to retain ultimate control over money claims against the United States. Floyd Shimomura found that an essentially legislative model of claims adjudication persisted from colonial times until the Civil War. While Congress used state authorities, administrative officials, and the federal courts as “commissioners” to find facts and make recommended decisions—and overwhelmingly acceded to the recommendations made—it nevertheless generally maintained final authority to approve or disapprove disbursements. Floyd D. Shimomura, The History of Claims against the United States: The Evolution from a Legislative toward a Judicial Model of Payment, 45 La. L. Rev. 625, 627– 52 (1985). 91. An Act to Regulate Trade and Intercourse with the Indian Tribes, ch. 33, 1 Stat. 137 (1790). Similarly, broad authority was given to the President to set up a system of “factories” for trading with Indian tribes. An Act for Establishing Trading Houses

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with the Indian Tribes, ch. 13, 1 Stat. 452 (1796). These factories were public trading houses that stocked such goods and supplies as the trading agent (a presidential appointee) thought useful. The statute was not, however, so large and loose as some of the other statutes dealing with Indian affairs. The trading houses were severely limited in what they could buy from the Indians, and traders were forbidden to trade on their own account. 92. Perhaps on the belief that it had no authority over ambassadors or other foreign ministers, Congress simply appropriated $40,000 per year that the President could draw upon “for the support of such persons as he shall commission to serve the United States in foreign parts.” An Act Providing the Means of Intercourse between the United States and Foreign Nations, ch. 22, § 1, 1 Stat. 128, 128 (1790). And, when the country was under threat from the French, Congress seemed satisfied to empower the President to do whatever was necessary, including: building whatever fortification the public safety might require, An Act Supplementary to the Act Providing for the Further Defence of the Ports and Harbors of the United States, ch. 37, § 1, 1 Stat. 554, 555 (1798); building ships if he thought them necessary, An Act to Authorize the President of the United States to Cause to Be Purchased, or Built, a Number of Small Vessels to Be Equipped as Gallies, or Otherwise, ch. 39, § 1, 1 Stat. 556, 556 (1798); discontinuing the statutory ban on trade with France if it desisted from violating American neutrality, An Act to Suspend the Commercial Intercourse between the United States and France, and the Dependencies Thereof, ch. 53, § 5, 1 Stat. 565, 566 (1798); or, alternatively, if belligerence continued, authorizing the capture of French warships by licensing privateers, An Act Further to Protect the Commerce of the United States, ch. 68, § 1, 1 Stat. 578, 578 (1798). 93. For elaboration of this idea, see Peter L. Strauss, Overseer or “The Decider”: The President in Administrative Law, 75 Geo. Wash. L. Rev. 696 (2007). 94. Statutes empowered the President to borrow up to $12 million on the account of the United States, An Act Authorizing a Loan of Two Million of Dollars, ch. 4, 1 Stat. 404 (1794); An Act Making Provision for the Reduction of the Public Debt, ch. 47, 1 Stat. 186 (1790); An Act Making Provision for the Debt of the United States, ch. 34, § 2, 1 Stat. 138, 139 (1790); to launch a subscription for the Bank of the United States, An Act to Incorporate the Subscribers to the Bank of the United States, ch. 10, § 11, 1 Stat. 191, 196 (1791); to furnish Native American tribes with domestic animals and farming implements, An Act to Regulate Trade and Intercourse with the Indian Tribes, and to Preserve Peace on the Frontiers, ch. 46, § 13, 1 Stat. 743, 746–47 (1799); An Act to Regulate Trade and Intercourse with the Indian Tribes, ch. 19, § 9, 1 Stat. 329, 331 (1793); to create a government in the Mississippi Territory, An Act for an Amicable Settlement of Limits with the State of Georgia, and Authorizing the Establishment of a Government in the Mississippi Territory, ch. 28, § 3, 1 Stat. 549, 550 (1798); and to determine when and where it was appropriate to build hospitals for sick and disabled seamen, An Act for the Relief of Sick and Disabled Seamen, ch. 77, § 4, 1 Stat. 605, 606 (1798). 95. Brian Balogh, A Government Out of Sight: The Mystery of National Authority in 19th Century America 155– 56 (2009).

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96. Wilcox v. Jackson, 38 U.S. (13 Pet.) 498 (1839), for example, treats it as axiomatic that powers delegated to the President can be exercised by his subordinates without even a showing that the President had subdelegated the authority to act. 97. An Act Establishing a Mint, and Regulating the Coins of the United States, ch. 16, § 18, 1 Stat. 246, 250 (1792). 98. An Act Supplementary to the Act Making Provision for the Debt of the United States, ch. 38, § 6, 1 Stat. 281, 282 (1792). 99. An Act Regulating the Grants of Lands Appropriated for Military Ser vices, and for the Society of United Brethren, for Propagating the Gospel among the Heathen, ch. 46, § 2, 1 Stat. 490, 491 (1796). 100. An Act to Promote the Progress of Useful Arts, ch. 7, 1 Stat. 109 (1790). 101. United States v. Am. Bell Tel. Co., 128 U.S. 315, 363 (1888). 102. “Independence” here signifies that the Patent Office was not in a department and that the ex- officio commissioners were designated by statute. Presumably the Patent Office was also to be free to adopt criteria for evaluating patentability and to exercise its judgment in par ticular cases free from presidential direction. The Patent Office was not, however, independent in some of the senses we often associate with contemporary independent agencies, such as balanced bipartisan representation, fi xed and staggered terms of office, and removal only for cause. 103. An Act to Promote the Progress of Useful Arts § 7. 104. Having fi xed the President’s salary at the princely sum of $25,000, Congress apparently felt that his signature on the patent need not be separately recompensed. The system was changed in 1793 to put the Patent Office in the State Department. The Secretary of State was given a patent clerk who was compensated by a flat fee of thirty dollars for processing each application. An Act to Promote the Progress of Useful Arts; and to Repeal the Act Heretofore Made for That Purpose, ch. 11, § 11, 1 Stat. 318, 323 (1793).

Chapter 3: “To see that the laws are faithfully executed” 1. Letter from President Thomas Jefferson to Governor Charles Pinckney (July 18, 1808), in 12 Writings of Thomas Jefferson 102– 04 (Andrew A. Lipscom & Albert Elliot Bergh eds., 1905). 2. Leonard D. White, The Federalists: A Study in Administrative History 35– 56 (1948) (citing a circular from Thomas Jefferson to the heads of departments explaining Washington’s practices and indicating that he was adopting them as his own). 3. For a further description of Washington’s management style, see Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive during the First Half- Century, 47 Case W. Res. L. Rev. 1451, 1474– 90 (1997), which interprets Washington’s actions as the beginnings of a long history of presidential defense of the chief executive’s prerogative to appoint, remove, and direct all executive personnel. 4. Matthew A. Crenson, The Federal Machine: Beginnings of Bureaucracy in Jacksonian America 88 (1975).

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5. On the Land Office inspection system in the Federalist period, White agreed with Crenson; see Leonard D. White, The Jeffersonians: A Study in Administrative History 1801– 1829, at 523 (1951), as did Malcolm Rohrbough; see Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789– 1837, at 3–25 (1968). But Rohrbough’s account also describes a rapid improvement in internal control mechanisms as the Land Office became a major site of federal activity in the period following the Land Office Act of 1800 and the Louisiana Purchase. Rohrbough, supra, at 26– 70. 6. White, supra note 2, at 199–209. 7. Hamilton’s detailed control of tax collectors charged with collecting the revenue on distilled spirits may have contributed to the Whiskey Rebellion. In a circular issued in May 1791, Hamilton required that inspectors visit all distilleries, inspect them at least twice a day, and file weekly reports with the Treasury containing detailed information on each distillery’s operations. Although Hamilton viewed his inspection requirements as reasonable because the inspectors could not indiscriminately inspect all the houses and buildings owned by people engaged in the liquor business, the distillers—no friends to the tax in the first instance— found inspectors on their doorsteps twice a day more than a little annoying. Ron Chernow, Alexander Hamilton 343 (2004). 8. An Act to Regulate the Collection of Duties on Imports and Tonnage, ch. 22, 1 Stat. 627 (1799). 9. A small sample of Hamilton’s Treasury circulars is included in 3 The Works of Alexander Hamilton 537– 70 (John C. Hamilton ed., 1850) [hereinafter 3 The Works of Alexander Hamilton]. Other examples appear in 5 The Works of Alexander Hamilton 49 (Henry Cabot Lodge ed., 1904); 6 The Works of Alexander Hamilton 340 (Henry Cabot Lodge ed., 1904); and Laurence F. Schmeckebier, The Customs Service: Its History, Activities and Organization 8 (1924). 10. Treasury Circular of July 20, 1792, reprinted in 3 The Works of Alexander Hamilton, supra note 9, at 557; see also Lynton K. Caldwell, The Administrative Theories of Hamilton & Jefferson: Their Contribution to Thought on Public Administration 50 (1944). 11. White, supra note 2, at 204– 05. 12. An Act to Establish the Treasury Department, ch. 12, § 2, 1 Stat. 65, 65– 66 (1789). 13. An Act Laying Duties on Licenses for Selling Wines and Foreign Distilled Spirituous Liquors by Retail, ch. 48, § 4, 1 Stat. 376, 378 (1794). 14. An Act to Establish the Post- Office and Post Roads within the United States, ch. 7, § 3, 1 Stat. 232, 234 (1792). 15. See, e.g., Justice Marshall’s opinion in United States v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823) (No. 15,747). 16. 3 The Works of Alexander Hamilton, supra note 9, at 557– 59 (1850). 17. Congress rarely investigated administrative matters itself. Save in the period 1793– 1797, when Republicans controlled the House and established some standing committees to try to wrest political control of the national agenda from Federalist departmental secretaries, departments were the principal sources of administrative

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and policy information in their respective domains. These Republican attempts at government by the House were generally viewed as inept and unsuccessful. See Ralph V. Harlow, The History of Legislative Methods before 1825, at 148– 64 (1917). 18. An Act to Provide for the Valuation of Lands and Dwelling-Houses, and the Enumeration of Slaves within the United States, ch. 70, §§ 18– 19, 1 Stat. 580, 588 (1798); An Act Laying Duties on Carriages for the Conveyance of Persons; and Repealing the Former Act for That Purpose, ch. 37, § 3, 1 Stat. 478, 479 (1796). 19. 1 Frank J. Goodnow, Comparative Administrative Law 151 (1893). 20. Harold M. Bowman, American Administrative Tribunals, 21 Pol. Sci. Q. 609, 612– 14 (1906). 21. That oath-taking was a serious business is evidenced by the penalties levied on some officers who either failed to take their oath or failed to report to their superiors that they had done so. See, e.g., An Act to Regulate the Collection of Duties on Imports and Tonnage, ch. 22, § 20, 1 Stat. 627, 641–42 (1799); An Act Repealing, after the Last Day of June Next, the Duties Heretofore Laid upon Distilled Spirits Imported from Abroad, and Laying Others in Their Stead; and also upon Spirits Distilled within the United States, and for Appropriating the Same, ch. 15, § 6, 1 Stat. 199, 200 (1791); An Act Making Provision for the Debt of the United States, ch. 34, § 11, 1 Stat. 138, 142 (1790). 22. An Act to Establish the Treasury Department, ch. 12, § 8, 1 Stat. 65, 67 (1789). 23. An Act to Regulate the Collection of Duties on Imports and Tonnage, ch. 22, § 86, 1 Stat. 627, 695 (1799). 24. An Act Making Further Provision for Securing and Collecting the Duties on Foreign and Domestic Distilled Spirits, Stills, Wines and Teas, ch. 49, § 14, 1 Stat. 378, 380 (1794). 25. An Act to Regulate Trade and Intercourse with the Indian Tribes, and to Preserve Peace on the Frontiers, ch. 46, § 11, 1 Stat. 743, 746 (1799); An Act to Regulate Trade and Intercourse with the Indian Tribes, and to Preserve Peace on the Frontiers, ch. 30, § 11, 1 Stat. 469, 471–72 (1796); An Act for Establishing Trading Houses with the Indian Tribes, ch. 8, § 3, 1 Stat. 452, 452– 53 (1796). 26. Alexander Hamilton, Report on the Improvement and Better Management of the Revenue of the United States (Jan. 31, 1795), in 18 Papers of Alexander Hamilton 217, 223–24 (Harold C. Syrett ed., 1973). 27. White, supra note 2, at 258– 59 (describing Washington’s practices, which were carried forward by his Federalist successors). 28. For a study emphasizing the excesses of Federalist office-holders, see Carl E. Prince, The Federalists and the Origins of the U.S. Civil Service (1977). 29. Letter from George Washington to the Postmaster at Alexandria (Aug. 4, 1798), quoted in White, supra note 2, at 192. 30. Letter from George Washington to Alexander Hamilton (Sept. 1, 1796), quoted in White, supra note 2, at 191. 31. Letter from Thomas Jefferson to John Taylor (Nov. 26, 1789), quoted in White, supra note 2, at 191.

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32. Letter from Elbridge Gerry to Thomas Jefferson (n.d.), quoted in White, supra note 2, at 191. 33. See Ann Woolhandler, Judicial Deference to Administrative Action— A Revisionist History, 43 Admin. L. Rev. 197, 206– 09 (1991). 34. See, e.g., An Act for the Relief of Thomas Jenkins and Sons, ch. 3, 6 Stat. 13, 14 (1794). 35. Prince, supra note 28, at 183–207. 36. On the slow and uneven movement from “for profit” to “non-profit” government in the nineteenth century, see Nicholas Parrillo, Against the Profit Motive: The Transformation of American Government, 1780– 1940 (forthcoming 2012). 37. An Act to Regulate and Fix the Compensation of the Clerks in the Different Offices, ch. 87, § 6, 3 Stat. 445, 447 (1818). 38. Karen Orren, The Work of Government: Recovering the Discourse of Office in Marbury v. Madison, 8 Stud. Am. Pol. Dev. 60, 65 (1994). 39. See David H. Rosenbloom, Federal Service and the Constitution: The Development of the Public Employment Relationship 19–20, 52– 53 (1971). 40. Letter from Tench Coxe, U.S. Comm’r of Revenue, to Alexander Hamilton, Sec’y, Dep’t of the Treasury (July 25, 1792), in 12 The Papers of Alexander Hamilton 85, 88 (Harold C. Syrett ed., 1967). 41. For example, in establishing ambassadors to foreign countries Congress simply appropriated $40,000 a year that the President could draw upon “for the support of such persons as he shall commission to serve the United States in foreign parts.” An Act Providing the Means of Intercourse between the United States and Foreign Nations, ch. 22, § 1, 1 Stat. 128, 128 (1790). A similar provision was made with respect to collectors of the Whiskey Tax. The President was simply given the authority to use seven percent of total Whiskey Tax revenues for each year, or $45,000 (whichever was less) to pay the collectors. An Act Repealing, after the Last Day of June Next, the Duties Heretofore Laid upon Distilled Spirits Imported from Abroad, and Laying Others in Their Stead; and Also upon Spirits Distilled within the United States, and for Appropriating the Same, ch. 15 § 58, 1 Stat. 199 (1791). 42. A table of marshals’ fees as of 1799 is reprinted in White, supra note 2, at 412. 43. An Act to Establish the Post- Office and Post-Roads within the United States, ch. 23, § 15, 1 Stat. 354, 360 (1794). 44. Id. These commissions were set by statute with special higher caps for cities like Philadelphia and New York. 45. An Act Concerning the Registering and Recording of Ships or Vessels, ch. 1, § 25, 1 Stat. 287, 297– 98 (1792); An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for Other Purposes, ch. 11, § 31, 1 Stat. 55, 64 (1789). 46. An Act Relative to the Compensations of Certain Officers Employed in the Collection of the Duties of Impost and Tonnage, ch. 23, § 1, 1 Stat. 416, 416 (1795). 47. An Act Making Further Provision for Securing and Collecting the Duties on Foreign and Domestic Distilled Spirits, Stills, Wines and Teas, ch. 49, § 1, 1 Stat. 378, 378– 79 (1794); An Act Repealing, after the Last Day of June Next, the Duties

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Heretofore Laid upon Distilled Spirits Imported from Abroad, and Laying Others in Their Stead; and Also upon Spirits Distilled within the United States, and for Appropriating the Same, ch. 15, § 44, 1 Stat. 199, 209 (1791); An Act to Provide More Effectually for the Collection of the Duties Imposed by Law on Goods, Wares and Merchandise Imported into the United States, and on the Tonnage of Ships or Vessels, ch. 35, § 69, 1 Stat. 145, 177 (1790); An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandises Imported into the United States, ch. 5, § 38, 1 Stat. 29, 48 (1789); An Act Laying Certain Duties upon Snuff and Refined Sugar, ch. 51, § 21, 1 Stat. 384, 389 (1794). 48. An Act in Addition to the Act More Effectually to Protect the Commerce and Coasts of the United States, ch. 62, § 3, 1 Stat. 574, 574 (1798). 49. See, e.g., An Act to Regulate the Collection of Duties on Imports and Tonnage, ch. 22, § 90, 1 Stat. 627, 697 (1799); An Act to Alter and Amend the Act Intituled “An Act Laying Certain Duties upon Snuff and Refined Sugar,” ch. 43, § 14, 1 Stat. 426, 429 (1795); An Act Laying Duties upon Carriages for the Conveyance of Persons, ch. 65, § 10, 1 Stat. 373, 375 (1794); An Act to Regulate Trade and Intercourse with the Indian Tribes, ch. 19, § 12, 1 Stat. 329, 331 (1793); An Act to Provide More Effectually for the Collection of the Duties Imposed by Law on Goods, Wares and Merchandise Imported into the United States, and on the Tonnage of Ships or Vessels § 69; An Act to Regulate Trade and Intercourse with the Indian Tribes, ch. 33, § 3, 1 Stat. 137, 138 (1790); An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandises Imported into the United States § 38. Qui tam actions were a standard feature of English common law, but seemed to have been imported into the United States at the national level only by statutory provision. The standard, almost uniform, reward was onehalf of any recovery to the qui tam litigant or informer. 50. On the system of prizes and its abolition, see Richard Hill, The Prizes of War: The Naval Prize System in the Napoleonic Wars, 1793–1815 (1998); Christopher McKee, A Gentlemanly and Honorable Profession: The Creation of the U.S. Naval Officer Corps, 1794–1815 (1991); Donald A. Petrie, The Prize Game: Lawful Looting on the High Seas in the Days of Fighting Sail (1999); Francis R. Stark, The Abolition of Privateering and the Declaration of Paris (1897); and Nicholas Parrillo, The De-Privatization of American Warfare: How the U.S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century, 19 Yale J. Law & Humanities 1 (2007). 51. See Stark, supra note 50; Note, The History and Development of Qui Tam, 1972 Wash. U.L.Q. 81. Qui tam practice has not died out entirely: it continues under the False Claims Act, and citizen enforcement actions are now a major feature of environmental litigation. On modern uses of qui tam, see Ann M. Lininger, The False Claims Act and Environmental Law Enforcement, 16 Va. Envtl. L.J. 577 (1997); Marianne Lavelle, Congress Gropes with Whistleblower Law, Nat’l. L.J., Apr. 27, 1992, at 7; and Richard B. Schmitt, Honesty Pays Off: John Phillips Fosters a Growing Industry of Whistle-Blowing, Wall. St. J., Jan. 11, 1995, at A1. Citizen enforcement still has its detractors. See Robin Kundis Craig, Will Separation of Powers

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Challenges “Take Care” of Environmental Suits?: Article II, Injury-in-Fact, Private “Enforcers,” and Lessons from Qui Tam Litigation, 72 U. Colo. L. Rev. 93 (2001); Ara Lovitt, Note, Fight for Your Right to Litigate: Qui Tam, Article II, and the President, 49 Stan. L. Rev. 853 (1997). 52. See Parrillo, supra note 36. 53. Although Congress was highly attentive to the punishment of official misbehavior, it neglected to provide penalties for those who attempted to corrupt officials who remained virtuous. That neglect gave rise to the confusing case of United States v. Worrall, 28 F. Cas. 774 (C.C.D. Pa. 1798) (No. 16,766), which is often cited for the proposition that there is no federal common law of crime, but which in fact imposed a fine and incarceration on the defendant, who attempted to bribe a revenue officer. 54. An Act to Establish the Post- Office and Post-Roads within the United States, ch. 23, § 16, 1 Stat. 354, 360– 61 (1794). 55. An Act to Provide for the Valuation of Lands and Dwelling-Houses, and the Enumeration of Slaves within the United States, ch. 70, § 6, 1 Stat. 580, 584 (1798). 56. An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandises Imported into the United States, ch. 5, § 35, 1 Stat. 29, 46 (1789). 57. An Act Providing for the Enumeration of the Inhabitants of the United States, ch. 2, § 3, 1 Stat. 101, 102 (1790). 58. An Act Repealing, after the Last Day of June Next, the Duties Heretofore Laid upon Distilled Spirits Imported from Abroad, and Laying Others in Their Stead; and Also upon Spirits Distilled within the United States, and for Appropriating the Same, ch. 15, § 39, 1 Stat. 199, 208 (1791). 59. An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandises Imported into the United States, § 28. 60. An Act to Incorporate the Subscribers to the Bank of the United States, ch. 10, § 7, 1 Stat. 191, 194 (1791). 61. An Act to Establish the Judicial Courts of the United States, ch. 20, § 27, 1 Stat. 73, 87 (1789). 62. An Act Concerning Consuls and Vice- Consuls, ch. 24, § 6, 1 Stat. 254, 256 (1792). 63. An Act to Provide for the Valuation of Lands and Dwelling-Houses, and the Enumeration of Slaves within the United States, ch. 70, § 24, 1 Stat. 580, 589 (1798). 64. An Act to Establish the Post- Office and Post-Roads within the United States, ch. 23, § 24, 1 Stat. 354, 364– 65 (1794) (authorizing suits by the Postmaster General against deputy postmasters who failed to render account); An Act to Establish the Post- Office and Post Roads within the United States, ch. 7, § 24, 1 Stat. 232, 238–39 (1792) (same); see also An Act to Establish the Post- Office of the United States, ch. 43, § 22, 1 Stat. 733, 739 (1799) (same); An Act to Provide More Effectually for the Settlement of Accounts between the United States and Receivers of Public Money,

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ch. 20, § 1, 1 Stat. 512, 512 (1797) (authorizing suits by the Comptroller of the Treasury against revenue officers who failed to remit receipts). 65. See, e.g., An Act for Establishing Trading Houses with the Indian Tribes, ch. 13, § 3, 1 Stat. 452, 452–53 (1796) (concerning violations of Indian trading laws by Indian agents); An Act to Incorporate the Subscribers to the Bank of the United States § 8 (concerning illegal activities by officials of the Bank of the United States); An Act Providing for the Enumeration of the Inhabitants of the United States, ch. 2, § 3, 1 Stat. 101, 102 (1790) (concerning a marshal’s failure to fi le census returns). 66. See, e.g., the discussion of Worrall, supra note 53. 67. On property in and sale of offices in France and England, see John Brewer, The Sinews of Power: War, Money, and the English State, 1688– 1783, at 16–20 (1988). 68. Martin Shefter, Party, Bureaucracy, and Political Change in the United States, in Political Parties: Development and Decay 211, 213 (Louis Maisel & Joseph Cooper eds., 1978). 69. Luca Mannori & Bernardo Sordi, Science of Administration and Administrative Law, in A History of the Philosophy of the Law in the Civil Law World, 1600– 1900, 225– 61 (Damiano Canale et al. eds., 2009). 70. An Act for Enrolling and Licensing Ships or Vessels to Be Employed in the Coasting Trade and Fisheries, and for Regulating the Same, ch. 8, § 29, 1 Stat. 305, 315 (1793). 71. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1855).

Chapter 4: Legal Accountability 1. Louis L. Jaffe, Judicial Control of Administrative Action 337 (1965). 2. Although rare, provisions for damage actions against administrative officials were sometimes provided by statute. See, e.g., An Act Repealing, after the Last Day of June Next, the Duties Heretofore Laid upon Distilled Spirits Imported from Abroad, and Laying Others in Their Stead; and Also upon Spirits Distilled within the United States, and for Appropriating the Same, ch. 15, § 38, 1 Stat. 199, 208 (1791) (concerning suits for negligence by collectors of excise taxes on spirits); An Act to Provide More Effectually for the Collection of the Duties Imposed by Law on Goods, Wares and Merchandise Imported into the United States, and on the Tonnage of Ships or Vessels, ch. 35, § 49, 1 Stat. 145, 170 (1790) (concerning suits against port officials who improperly seized goods). And, as noted in Chapter 3, Congress provided a statutory remedy when a taxpayer had failed to get relief through the multiple internal appeals in the Treasury under the statute providing for excise taxes on carriages and land. 3. Frederic P. Lee, The Origins of Judicial Control of Federal Executive Action, 36 Geo. L.J. 287, 291 (1948). 4. Many commentators tend to lump the whole of the nineteenth century together as an age of judicial deference to administrative judgment. See, e.g., Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 16 (1983);

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Gordon G. Young, Public Rights and the Federal Judicial Power: From Murray’s Lessee through Crowell to Schor, 35 Buff. L. Rev. 765, 797 (1986). 5. A review and critique of this view appears in Ann Woolhandler, Judicial Deference to Administrative Action—A Revisionist History, 43 Admin. L. Rev. 197 (1991). 6. See id. at 216–21. 7. 31 Journals of the Continental Congress, 1774– 1789, at 497 (John C. Fitzpatrick ed., 2005). 8. See Dwight F. Henderson, Courts for a New Nation 10– 19 (1971). 9. Letter from “A Democratic Federalist,” Pa. Packet, Oct. 23, 1787, reprinted in Pennsylvania and the Federal Constitution: 1787– 1788, at 154 (John Bach McMaster & Frederick D. Stone eds., 1888). 10. Federalist No. 45 (James Madison). 11. An Act to Establish the Judicial Courts of the United States, ch. 20, § 34, 1 Stat. 73, 92 (1789). 12. Id. § 29. 13. Id. § 25. 14. Id. § 34. 15. Id. § 11. 16. Numerous federal statutes confirmed the jurisdiction of state and local courts. See, e.g., An Act to Establish the Post- Office of the United States, ch. 43, § 28, 1 Stat. 733, 740–41 (1799) (authorizing suits for violation of the postal laws to be brought in any state or territorial court or before justices of the peace). 17. Id. § 25 18. See, e.g., Case of Fries, 9 F. Cas. 826 (C.C.D. Pa. 1799) (No. 5126). 19. Henderson, supra note 8, at 55– 63, 100– 03. 20. In debates on the Federal Judiciary Act, South Carolina Congressman William L. Smith asserted that it “would be felo da se to trust the collection of the revenue of the United States to the state judicatures.” 1 Annals of Cong. 830 (Joseph Gales ed., 1834); see also id. at 844 (statement of Rep. Madison) (arguing that state courts “are so dependent on State Legislatures, that to make the Federal laws dependent on them, would throw us back into all the embarrassments which characterized our former situation”). 21. See, e.g., Kathryn Preyer, United States v. Callender, Judge and Jury in a Republican Society, in Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, at 173 (Maeva Marcus ed., 1992). 22. See Carl E. Prince, The Federalists and the Origins of the Federal Civil Service 238– 67 (1977). 23. Robert C. Alberts, The Golden Voyage: The Life and Times of William Bingham, 1752– 1804, at 11, 16– 17, 19, 21–24 (1969). 24. Letter from William Bingham to Comm. for Foreign Affairs, Cont’l. Cong. (Feb. 2, 1779), quoted in 6 The Documentary History of the Supreme Court of the United States, 1789– 1800, at 555 (Maeva Marcus ed., 1998) [hereinafter Court Documentary History]. 25. The foregoing account is drawn from 6 Court Documentary History, supra note 24, at 554.

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26. The volume of the Court Documentary History that would cover this case has not yet been published. 27. See Bingham v. Cabot (Bingham II), 3 U.S. (3 Dall.) 382 (1798). 28. Alberts, supra note 23, at 366. 29. Id. at 366– 67. 30. Id. at 418. 31. Apparently the actions in state and federal court were considered sufficiently distinct that one did not preclude the other. The Cabots were careful both to sue separately for the ship and the cargo and to change the form of action from trover to assumpsit in later litigation. See Bingham v. Cabot (Bingham I), 3 U.S. (3 Dall.) 19, 24, 38, 40–42 (1794). How the Cabots managed to pursue three cases in the Massachusetts courts nevertheless remains obscure. 32. Alberts, supra note 23, at 365– 67. 33. 3 U.S. (3 Dall.) 308 (1798). 34. William Bradford, Jr., Notes for Argument in the Supreme Court (Feb. 4, 1794), in 6 Court Documentary History, supra note 24, at 158– 61. 35. Olney was also a solid Federalist from an old Rhode Island family, connected to Washington via military ser vice, and President of the Rhode Island Society of the Cincinnati. See Leonard D. White, The Federalists: A Study in Administrative History 305– 08 (1948). 36. Letter from Alexander Hamilton to Jeremiah Olney (Sept. 19, 1792), in 7 Court Documentary History, supra note 24, at 567– 68. 37. See 7 Court Documentary History, supra note 24, at 570 n.28 (quoting Letter from Alexander Hamilton to Jeremiah Olney (Nov. 27, 1792); Letters from Jeremiah Olney to William Channing (Nov. 28, 30, Dec. 6, 8, 1792); Letter from William Channing to Jeremiah Olney (Dec. 3, 1792)). 38. An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandises Imported into the United States, ch. 5, § 36, 1 Stat. 29, 47–48 (1789). 39. An Act to Regulate the Collection of Duties on Imports and Tonnage, ch. 22, 1 Stat. 627 (1799). 40. An Act for Regulating Processes in the Courts of the United States, and Providing Compensations for the Officers of the Said Courts, and for Jurors and Witnesses, ch. 36, § 5, 1 Stat. 275, 277– 78 (1792). 41. There was some reporting of state supreme court (Pennsylvania and North Carolina) and Virginia High Court of Chancery decisions in the Federalist period. But reports of even the highest court of a state in major commercial jurisdictions like New York, Massachusetts, New Jersey, Maryland, and South Carolina post- date 1801. Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 118– 19 (1971). 42. An Act for the Government and Regulation of Seamen in the Merchant Ser vice, ch. 29, 1 Stat. 131 (1790). 43. The varied duties of federal marshals, including taking the census, have already been mentioned. Clerks of the district court were also the copyright office. An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and

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Books, to the Authors and Proprietors of Such Copies, during the Times Therein Mentioned, ch. 15, § 3, 1 Stat. 124, 125 (1790). 44. An Act to Establish an Uniform Rule of Naturalization, ch. 3, 1 Stat. 103 (1790). 45. An Act to Provide for Calling Forth the Militia to Execute the Laws of the Union, Suppress Insurrections and Repel Invasions, ch. 28, §§ 2–3, 1 Stat. 264, 264 (1792). 46. An Act to Provide for Mitigating or Remitting the Forfeitures and Penalties Accruing under the Revenue Laws, in Certain Cases Therein Mentioned, ch. 12, § 1, 1 Stat. 123, 123 (1790). 47. An Act to Provide for the Settlement of the Claims of Widows and Orphans Barred by the Limitations Heretofore Established, and to Regulate the Claims to Invalid Pensions, ch. 11, § 4, 1 Stat. 243, 244 (1792). 48. Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n.† (1792) (reprinting objections to the law stated by the circuit courts for the districts of Pennsylvania, New York, and North Carolina); see also Hayburn’s Case, in 6 Court Documentary History, supra note 24, at 34–36. The concerns of five of the six Supreme Court justices were also expressed in letters to President Washington. 1 American State Papers: Miscellaneous 49– 53 (1792) (collecting these letters, and others, expressing objections to the Pension Act). 49. Hayburn’s Case, in 6 Court Documentary History, supra note 24, at 33, tells a story of Congress responding to judicial concerns in changing the process for getting on the pension list. However, the title of the new law—An Act to Provide for the Settlement of the Claims of Widows and Orphans Barred by the Limitations Heretofore Established, and to Regulate the Claims to Invalid Pensions—suggests a rather different purpose. 50. An Act to Regulate the Claims to Invalid Pensions, ch. 17, 1 Stat. 324 (1793). 51. 5 U.S.C. § 702 (2000). 52. For a similar account of the legal position of officers in the early Republic, see Frank J. Goodnow, The Principles of the Administrative Law of the United States 396– 98 (1905). 53. The September 11th Victim Compensation Fund of 2001 is part of the Air Transportation Safety and System Stabilization Act of 2001, Pub. L. No. 107–42, 115 Stat. 230 (codified at 49 U.S.C. § 40, 101 note (Supp. I 2001)). A written finding by the Special Master administering the fund is “final and not subject to judicial review.” Id. § 405(b)(3). 54. An Act to Regulate Trade and Intercourse with the Indian Tribes, ch. 33, 1 Stat. 137 (1790). 55. Peter H. Schuck, Suing Government: Citizen Remedies for Official Wrongs 59– 81 (1983). 56. Woolhandler, supra note 5, at 226–27. Indeed, Frederic Lee’s complaint about inadequate remedies is based on one par ticular Supreme Court decision in a California land dispute. United States v. Ritchie, 58 U.S. (17 How.) 525 (1854). 57. 5 U.S. 137 (1803). 58. Id. at 170.

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Chapter 5: Federalist State-Building Meets Republican Small-State Ideology 1. Gordon S. Wood, Framing the Republic, 1760–1820, in 1 The Great Republic: A History of the American People 229, 341 (Bernard Bailyn et al. eds., 1977). 2. Richard R. John & Christopher J. Young, Rights of Passage: Postal Petitioning as a Tool of Governance in the Age of Federalism, in The House and Senate in the 1790s: Petitioning, Lobbying, and Institutional Development 101– 02 (Kenneth R. Bowling & Donald R. Kennon eds., 2002). For a more extensive discussion of the modern institutionalist literature that features governmental institutions as explanatory in their own right, see Richard R. John, Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787–1835, 11 Stud. Am. Pol. Dev. 347 (1997). 3. Leonard White, The Federalists: A Study in Administrative History 187 (1948). 4. See Allan Nevins, The American States during and after the Revolution: 1775–1789 (1924); see also Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress 120–23 (1979); Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 127– 96 (1969). 5. Letter from President Thomas Jefferson to Judge Spencer Roane (Sept. 6, 1819), in 15 Writings of Thomas Jefferson 212 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905). 6. 1 Henry Adams, History of the United States 208 (1890). 7. For a description of Jefferson’s hopes at the beginning of his first term for both the substance and style of government, see Joseph Ellis, American Sphinx: The Character of Thomas Jefferson 169–228 (1996). 8. President Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), reprinted in 1 James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789–1897, at 321, 323 (1911). 9. For example, the elimination of internal taxes— alluded to obliquely in Jefferson’s message as taking bread “from the mouth of labor”—was motivated in substantial part by the reduction in federal offices that repeal promised. See Charlotte Crane, Pennington v. Coxe: A Glimpse of the Federal Government at the End of the Federalist Era, 23 Va. Tax. Rev. 417, 419–22 (2003). 10. The most illuminating general history is probably still 1–4 Adams, supra note 6. 11. An Act to Amend the Judicial System of the United States, ch. 31, 2 Stat. 156 (1802) (repealing An Act to Provide for the More Convenient Organization of the Courts of the United States, ch. 4, 2 Stat. 89 (1801)). 12. On Jefferson’s doubts, see The Louisiana Purchase and American Expansion, 1803–1898, at 8–10 (Sanford Levinson & Bartholomew Sparrow eds., 2005). 13. See John Gorham Pelfrey, The Growth of the Idea of Annexation, and Its Bearing upon Constitutional Law. A Study among the Records of Congress, 13 Harv. L. Rev. 371, 378 (1900) (noting that some Jeffersonian Republicans did not challenge the constitutionality of the government’s authority to annex foreign lands).

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notes to pages 87–89

14. See Sedition Act, ch. 74, 1 Stat. 596 (1798) (expired 1801); Alien Act, ch. 58, 1 Stat. 570 (1798) (expired 1800); Naturalization Act, ch. 54, 1 Stat. 566 (1798), repealed by Act of Apr. 14, 1802, ch. 28, § 5, 2 Stat. 153, 155. 15. These reorganizations are described in some detail in Leonard D. White, The Jeffersonians: A Study in Administrative History 1801–1829, at 211– 98 (1951). 16. President Thomas Jefferson, Second Inaugural Address (Mar. 4, 1805), reprinted in 1 Richardson, supra note 8, at 378, 379. 17. The story of the internal improvements controversy has been told in a number of places. The most extensive account is perhaps Joseph Hibson Harrison, Jr., The Internal Improvements Issue and the Politics of the Union, 1783– 1825 (May 1954) (unpublished Ph.D. dissertation, University of Virginia) (on file with author). For other useful accounts, see David P. Currie, The Constitution in Congress: The Jeffersonians, 1801–1829, at 258– 83 (2001); and White, supra note 16, at 474– 95. Developments in the states, where most of the action was, are discussed in George Rogers Taylor, The Transportation Revolution: 1815–1860 (Econ. History of the U.S. Vol. 4, 1951) (describing the development of turnpikes and canals between 1815 and 1860). 18. For descriptions of structural and procedural changes that increased congressional oversight, see Ralph Volney Harlow, The History of Legislative Methods in the Period before 1825 (1917); and White, supra note 15, at 89– 107. 19. On the extension and reform of the Federalist system of administration, see White, supra note 15, at 546– 59. 20. Bureau of the Census, Historical Statistics of the United States, H.R. Doc. No. 93– 78, pt. 1, at 8 (1975). 21. White, supra note 15, at 255. 22. H.R. Doc. No. 93– 78, pt. 2, at 1103. A large amount of this growth was in the Post Office. The 903 post offices in 1800 had metastasized into 8004 by 1829. White, supra note 15, at 303. These figures do not include contractors, but, as in the Federalist period, many officials remained part-timers paid by fees and commissions. 23. Garry Wills, James Madison 159 (Am. Presidents Ser. Vol. 4, 2002). 24. Id. at 151. 25. See Gary Hart, James Monroe 57– 82 (Am. Presidents Ser. Vol. 5, 2005). 26. See Robert V. Remini, John Quincy Adams 78 (Am. Presidents Ser. Vol. 6, 2002). 27. An Act for the Government and Regulation of Seamen in the Merchants Ser vice, ch. 29, 1 Stat. 131 (1790); see Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale. L. J. 1256, 1277–78. 28. An Act for the Government of Persons in Certain Fisheries, ch. 2, 3 Stat. 2 (1813). 29. An Act Regulating Passenger Ships and Vessels, ch. 46, 3 Stat. 488 (1819). 30. H.R. Rep. No. 18– 125, at 1– 8 (1824). 31. An Act to Abolish the United States’ Trading Establishment with the Indian Tribes, ch. 54, 3 Stat. 679 (1822). 32. An Act to Repeal an Act, Intituled “An Act to Establish an Uniform System of Bankruptcy throughout the United States,” ch. 6, 2 Stat. 248 (1803).

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33. See Currie, supra note 17, at 295–301. 34. Remini, supra note 26, at 78– 87. 35. Which is not to say that the rhetoric had the same meaning. On the relationship of small-government ideology to the idea of “systematic corruption” in early American politics, see John Joseph Wallis, The Concept of Systematic Corruption in American History, in Corruption and Reform: Lessons from America’s Economic History 23 (Edward L. Glaeser & Claudia Goldin eds., 2006). 36. Congressional control and localism were particularly evident in the development of the Post Office, notwithstanding the considerable degree of administrative autonomy achieved by certain strong-willed postmasters general. For general treatments of the development of the postal ser vice and its relation to Congress, see Dorothy Ganfield Fowler, Unmailable: Congress and the Post Office (1977); and Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (1995).

Chapter 6: Administering the Embargo 1. Ch. 104, 24 Stat. 379 (repealed 1978). 2. Classic treatments include Walter Wilson Jennings, The American Embargo 1807–1809 (1921), and Louis Martin Sears, Jefferson and the Embargo (1927). 3. The major exception, as usual, is Leonard D. White, The Jeffersonians: A Study in Administrative History 1801–1829, at 423– 73 (1951). 4. On the run-up to the embargo, see Thorp Lanier Wolford, Democratic-Republican Reaction in Massachusetts to the Embargo of 1807, 15 New Eng. Q. 35, 37–40 (1942). 5. In early 1802, Congress fi xed the strength of the Army at about 3350 officers and men, see White, supra note 3, at 213, and discharged the remainder with a modest bonus, see An Act Fixing the Military Peace Establishment of the United States, ch. 9, 2 Stat. 132 (1802). The Republicans’ fear of a standing army led to a reluctance to fund the military establishment, which fell particularly heavily on the Navy. See Garry Wills, James Madison 51, 53, 61–62, 99, 123–24 (Am. Presidents Ser. Vol. 4, 2002). 6. Although Jefferson’s name is forever associated with the embargo policy, Wills has argued that Madison, Jefferson’s great friend, may have seized on the idea earlier, and he certainly supported it as tenaciously as did Jefferson. See Wills, supra note 5 at 51, 53, 61– 62, 99, 123–24. 7. This is not to say that embargoes and nonimportation acts did not have a venerable history in pre-Revolutionary America. Limited embargoes had been used against the Stamp Act and the English Revenue Acts. Moreover, nonimportation followed by nonexportation was the crucial weapon used by the First Continental Congress in its attempt to shift British public opinion in favor of repealing the “insufferable acts” that led eventually to the American Revolution. See Paul Leicester Ford, The Association of the First Congress, 6 Pol. Sci. Q. 613 (1891). These colonial embargoes were, of course, directed only at Great Britain, not at all foreign commerce.

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notes to pages 92–93

8. Letter from President Thomas Jefferson to Albert Gallatin, Sec’y of the Treasury (Apr. 8, 1808), in 12 Writings of Thomas Jefferson, 27 (Andrew A. Lipscom & Albert E. Bergh eds., 1905). 9. This was the only purpose mentioned in Jefferson’s message to Congress proposing the first embargo statute. Robert M. Johnstone, Jr., Jefferson and the Presidency: Leadership in the Young Republic 268 (1978). 10. For one account of the extent and content of trade between New England and the Caribbean, see Richard Pares, Yankees and Creoles (1956). Canadian exports could, and did, fi ll some of the gap created by the embargo, but not all of it. See James Duncan Phillips, Jefferson’s “Wicked Tyrannical Embargo,” 18 New Eng. Q. 466, 471– 72 (1945). 11. Many commentators, perhaps Henry Adams chief among them, viewed the embargo as doomed from the start by the improbability that it would seriously coerce the continental powers. See 4 Henry Adams, History of the United States 288, 344 (1890). Careful examination of the effects on British manufacturers, however, suggests that the embargo was economically significant, if not politically efficacious. See Sears, supra note 2, at 277–301. 12. This argument is developed in substantial detail by Jeff rey A. Frankel, The 1807– 1809 Embargo against Great Britain, 42 J. Econ. Hist. 291 (1982). 13. See Sears, supra note 2, at 73– 142. 14. See generally William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996). 15. See An Act Relative to Quarantine, ch. 31, 1 Stat. 474 (1796); An Act to Prevent the Exportation of Goods Not Duly Inspected According to the Laws of the Several States, ch. 5, 1 Stat. 106 (1790). 16. See An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandises Imported into the United States, ch. 5, 1 Stat. 29 (1789). 17. See An Act Concerning Certain Fisheries of the United States, and for the Regulation and Government of the Fishermen Employed Therein, ch. 6, 1 Stat. 229 (1792). 18. For an excellent, brief description of the association embargoes, see David Ammerman, In the Common Cause: American Response to the Coercive Acts of 1774, at 73– 87, 103–24 (1974). 19. For a detailed account of the embargo’s drastic effects on one important port, Salem, Massachusetts, see Phillips, supra note 10. 20. An Act Laying an Embargo on All Ships and Vessels in the Ports and Harbors of the United States (Embargo Act), ch. 5, 2 Stat. 451 (1807). The embargo policy was drafted in the White House and passed in extraordinary haste. Jefferson forwarded his message to Congress on December 18, 1807, and the Senate, suspending its rules, passed the embargo the same day. The House followed suit three days later. See Burton Spivak, Jefferson’s English Crisis: Commerce, Embargo, and the Republican Revolution 102– 04 (1979). 21. 2 Stat. at 452. 22. Id. at 453.

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23. Spivak, supra note 20, at 163. 24. See An Act Supplementary to the Act, Intituled “An Act Laying an Embargo on All Ships and Vessels in the Ports and Harbors of the United States,” ch. 8, 2 Stat. 453 (1808) [hereinafter First Supplementary Act]. 25. An Act in Addition to the Act, Intituled “An Act Supplementary to the Act, Intituled an Act Laying an Embargo on All Ships and Vessels in the Ports and Harbors of the United States,” ch. 33, §§ 1–4, 2 Stat. 473, 473– 74 (1808) [hereinafter Second Supplementary Act]. 26. Id. § 7. 27. An Act to Authorize the President of the United States, under Certain Conditions, to Suspend the Operation of the Act Laying an Embargo on All Ships and Vessels in the Ports and Harbors of the United States, and the Several Acts Supplementary Thereto, ch. 52, 2 Stat. 490, 490 (1808). 28. An Act in Addition to the Act Intituled “An Act Laying an Embargo on All Ships and Vessels in the Ports and Harbors of the United States” and the Several Acts Supplementary Thereto, and for Other Purposes, ch. 66, 2 Stat. 499 (1808) [hereinafter Third Supplementary Act]. 29. Id. § 7. 30. Id. § 11 (emphasis added). 31. Id. § 12. 32. An Act to Enforce and Make More Effectual an Act Intituled “An Act Laying an Embargo on All Ships and Vessels in the Ports and Harbors of the United States,” and the Several Acts Supplementary Thereto (Enforcement Act), ch. 5, 2 Stat. 506 (1809). 33. Id. § 2. 34. Id. § 7. 35. Id. § 9. 36. Id. § 10. 37. Id. § 11. 38. Id. § 14. 39. See An Act to Interdict the Commercial Intercourse between the United States and Great Britain and France, and Their Dependencies; and for Other Purposes, ch. 24, 2 Stat. 528 (1809). 40. Adams, supra note 11, at 273– 74. 41. For a general discussion, including extensive citation of the newspaper commentary at the time, see 1 Charles Warren, The Supreme Court in United States History, 1789–1835, at 316– 65 (1928). 42. Id. at 342. 43. 1 William W. Story, Life and Letters of Joseph Story 185 (1851). 44. 28 F. Cas. 614 (D. Mass. 1808) (No. 16,700). 45. See id. at 616–23. 46. See Bruce Ackerman, The Failure of the Founding Fathers 111–266 (2005); Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Early Republic 3– 107 (1971). 47. See 1 Warren, supra note 41, at 316– 65.

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notes to pages 98–102

48. See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001) (providing a description and defense of this form of administration in the modern administrative state). 49. Henry Adams described the Republicans in Congress as almost in a panic as they abandoned Jefferson’s scheme and made him suffer the indignity of signing the repeal statute. 4 Adams, supra note 11, at 272– 89. 50. See Spivak, supra note 20, at 139–42; White, supra note 3, at 423– 73. Letter from President Thomas Jefferson to Albert Gallatin, Sec’y of the Treasury (Nov. 13, 1808), in 12 Writings of Thomas Jefferson, supra note 8, at 193, 194. Letter from President Thomas Jefferson to Albert Gallatin, Sec’y of the Treasury (Sept. 9, 1808), in 12 Writings of Thomas Jefferson, supra note 8, at 60. 51. David P. Currie, The Constitution in Congress: The Jeffersonians, 1801– 1829, at 148–50 (2001). 52. See generally, The Brig Aurora v. United States, 11 U.S. (7 Cranch), 382 (1813). 53. Ch. 5, 2 Stat. 451, 452 (1807). 54. See Spivak, supra note 20, at 160. 55. For a description of Astor’s political connections and influence, see John Denis Haeger, John Jacob Astor: Business and Finance in the Early Republic (1991). 56. See White, supra note 3, at 429 n.24 (citing Robert Greenhalgh Albion, The Rise of New York Port, 1815–1860, at 197 (1939)). 57. Second Supplementary Act, supra note 25, § 7, 2 Stat. at 475. 58. Merrill D. Peterson, Thomas Jefferson and the New Nation 888 (1970). 59. White, supra note 3, at 430. 60. See Sears, supra note 2, at 66– 67. 61. Noble E. Cunningham, Jr., The Process of Government under Jefferson 119 (1978). Gallatin’s circulars and instructions are collected in a manuscript volume in the National Archives entitled Circulars, Office, Secretary of the Treasury, September 14, 1789, to February 21, 1828, “T.” 62. Albert Gallatin, Circular of Apr. 28, 1808 (on fi le with author) [hereinafter Gallatin, Circular of Apr. 28, 1808]; see also White, supra note 3, at 435. 63. Id. 64. See Third Supplementary Act, supra note 28, § 11, 2 Stat. at 501. 65. See Sears, supra note 2, at 143– 96. 66. Spivak, supra note 20, at 173. 67. See White, supra note 3, at 443– 56. 68. 1 Warren, supra note 41, at 358. 69. See Letter from Albert Gallatin, Sec’y of the Treasury, to President Thomas Jefferson (May 23, 1808) (on fi le with author). In any event, most governors behaved responsibly. Only Governor Sullivan of Massachusetts issued permits for the transport of flour to all comers, to merchants both inside Massachusetts and in other states. Sullivan did not break the embargo himself, but his activities created a scandal that hampered compliance everywhere. 70. See Albert Gallatin, Circular of May 6, 1808 (on fi le with author) (“[The President] perceives no necessity at present for the transportation of flour and similar arti-

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cles from one port of the Chesapeake and its waters to another port on the waters of the same bay; or from any port whatever to ports in the Chesapeake; Delaware or Hudson; or to any other places which export such articles.”). 71. Compare Letter from Albert Gallatin, Sec’y of the Treasury, to John Shee, Collector of Phila. (May 17, 1808) (on fi le with author), with Letter from Albert Gallatin, Sec’y of the Treasury, to Charles Simons, Collector of Alexandria (May 12, 1808) (on fi le with author). 72. Albert Gallatin, Circular of May 20, 1808 (transcription on fi le with author). 73. See Letter from President Thomas Jefferson to Governor Charles Pinckney (July 18, 1808), in 12 Writings of Thomas Jefferson, supra note 8, at 102, 102– 03. 74. Enforcement Act, ch. 5, § 11, 2 Stat. 506, 510 (1809). 75. Leonard W. Levy, Jefferson and Civil Liberties: The Darker Side 119, 137 (1962). 76. Act of May 2, 1792, ch. 28, § 2, 1 Stat. 264, 264. 77. White, supra note 3, at 466 (quoting Jefferson’s letter to the governors via the Secretary of War). 78. For discussion of the Connecticut and Massachusetts responses to the Enforcement Act, see Dumas Malone, Jefferson the President: Second Term, 1805– 1809, at 651– 55 (Jefferson & His Time Vol. 5, 1974). 79. White, supra note 3, at 472. 80. 4 Adams, supra note 11, at 251. 81. See Letter from President Thomas Jefferson to Albert Gallatin, Sec’y of the Treasury (Apr. 19, 1808), in 12 Writings of Thomas Jefferson, supra note 8, at 29, 29–30 (delegating authority to Gallatin to develop enforcement rules); Letter from President Thomas Jefferson to Albert Gallatin, Sec’y of the Treasury (Aug. 11, 1808), in 12 Writings of Thomas Jefferson, supra note 8, at 121–22 [hereinafter Letter of Aug. 11, 1808] (same). 82. See generally Albert Gallatin, Circular of Dec. 31, 1807 (on file with author) [hereinafter Gallatin, Circular of Dec. 31, 1807] (creating interim rules after the ambiguity of the initial 1807 Embargo Act); Albert Gallatin, Circular of Mar. 21, 1808 (on file with author) [hereinafter Gallatin, Circular of Mar. 21, 1808] (creating rules for and transmitting specific instructions with respect to section 7 of the second supplementary act); Gallatin, Circular of Apr. 28, 1808, supra note 62 (providing detailed instructions and detention procedures for the supplementary act of April 25, 1808); Albert Gallatin, Circular of Jan. 16, 1809 (on file with author) (providing formal instructions for the Enforcement Act). 83. Compare, e.g., Gallatin, Circular of Dec. 31, 1807, supra note 82 (“You are instructed by the President. . . .”), Albert Gallatin, Circular of Mar. 12, 1808 (on fi le with author) [hereinafter Gallatin, Circular of Mar. 12, 1808] (“The President of the United States will immediately take into consideration the seventh section of the act in order that some general rules may be adopted for its execution.”), Gallatin, supra note 70 (“[T]he President considered ‘unusual shipments,’ par ticular of flour & other provisions, of lumber and of Naval Stores, as sufficient cause for detention of the vessel.”), and Albert Gallatin, Circular of Jan. 14, 1809 (on fi le with author) [hereinafter Gallatin, Circular of Jan. 14, 1809] (“The President

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notes to pages 104–108

gives the following instructions. . . .”), with Gallatin, Circular of Apr. 28, 1808, supra note 62 (“I now proceed to give some additional instructions. . . .”), Albert Gallatin, Circular of May 18, 1808 (on file with author) (using similar language), and Albert Gallatin, Circular of Nov. 15, 1808 (on file with author) (“It appears to me. . . .”). Indeed, Jefferson instructed Gallatin several times that he was in the best position to make decisions and should proceed without consultation. See, e.g., Letter from President Thomas Jefferson to Albert Gallatin, Sec’y of the Treasury (May 6, 1808), in 12 Writings of Thomas Jefferson, supra note 8, at 52, 53; Letter from President Thomas Jefferson to Albert Gallatin, Sec’y of the Treasury (May 27, 1808), in 12 Writings of Thomas Jefferson, supra note 8, at 66; Letter of Aug. 11, 1808, supra note 81, at 122. 84. See Letter from Albert Gallatin, Sec’y of the Treasury, to Enoch Sawyer, Collector of Camden (Feb. 26, 1808) (on fi le with author) (“I have deemed it proper to furnish you with copies of those letters, and at the same time to request that you will consider them as intended for your government.”). 85. For a more detailed description of Gallatin’s administrative system, see Jerry L. Mashaw, Reluctant Nationalists: Federal Administrative and Administrative Law in the Republican Era, 1801–1829, 116 Yale L.J. 1636, 1660– 74 (2007). See, e.g., Letter from Albert Gallatin, Sec’y of the Treasury, to Gabriel Christie, Collector, & John Brice, Deputy Collector (Apr. 1, 1808) (on file with author) (answering a question in correspondence by referencing an earlier circular); Letter from Albert Gallatin, Sec’y of the Treasury, to Charles Simms, Collector of Alexandria (May 23, 1808) (on file with author) (same); Letter from Albert Gallatin, Sec’y of the Treasury, to Jas Gibbon, Collector of Richmond (May 30, 1808) (on file with author) (correcting the collector’s interpretation of a circular letter). 86. See Ackerman, supra note 46, at 111–268 and sources cited therein. 87. See 1 Warren, supra note 41, at 325–38. 88. 10 U.S. (6 Cranch) 307 (1810). 89. Accord United States v. Hall, 10 U.S. (6 Cranch) 171 (1810). 90. The Sloop Active v. United States, 11 U.S. (7 Cranch) 100 (1812); Otis v. Bacon, 11 U.S. (7 Cranch 22 (1813). 91. See, e.g., The Brig James Wells v. United States, 11 U.S. (7 Cranch) 22 (1812) (taking a dim view of a “perils of the sea” claim). 92. 12 U.S. (8 Cranch) 94 (1814). 93. 13 U.S. (9 Cranch) 339 (1815). 94. Id. at 355– 56. 95. See 1 Warren, supra note 41, at 341–42. 96. See Otis v. Walter, 24 U.S. (11 Wheat.) 192 (1826) (constituting the third round in the imbroglio). 97. Watkins, 13 U.S. (9 Cranch) at 356 (opinion of Marshall, C.J.). 98. Id. at 358. 99. Id. 100. 10 F. Cas. 355 (C.C.D.S.C. 1808) (No. 5420). 101. 2 Stat. 506, 507 (1809). 102. Gilchrist, 10 F. Cas. at 356.

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103. 343 U.S. 579 (1952). 104. For discussion of Gilchrist and the reactions to it, see 1 Warren, supra note 41, at 324–38. 105. Jefferson’s consistent position was not that the judiciary had no final authority to determine the meaning of laws, including the Constitution, for purposes of deciding par ticular cases, but that this power was shared equally with the other branches of government when they were carrying out their constitutional functions. See Dumas Malone, Jefferson the President: First Term, 1801– 1805, at 151– 52 (Jefferson & His Time Vol. 4, 1970); 1 Warren, supra note 41, at 264– 67. 106. See Letter from C.A. Rodney, Attorney Gen., to President Thomas Jefferson (July 15, 1808), reprinted in 1 Am. L.J. 429, 433–39 (1808). 107. 1 Warren, supra note 41, at 338 (quoting Gallatin). 108. See White, supra note 3, at 458– 59. 109. 3 Worthington Chauncey Ford, Writings of John Quincy Adams 287– 88 (1809). 110. See Douglas Lamar Jones, “The Caprice of Juries”: The Enforcement of the Jeffersonian Embargo in Massachusetts, 24 Am. J. Legal Hist. 307 (1980). 111. Id. at 326 n.68; see also 3 Ford, supra note 109, at 287 (noting that there were no jury convictions in 1808). 112. An Act to Establish the Judicial Courts of the United Sates, ch. 20, § 9, 1 Stat. 73, 77 (1789). 113. See United States v. The Schooner Betsey and Charlotte, 8 U.S. (4 Cranch) 443 (1808); United States v. La Vengeance, 3 U.S. (3 Dall.) 297 (1796); see also United States v. Schooner Sally, 6 U.S. (2 Cranch) 406 (1804). 114. 1 James Kent, Commentaries on American Law 349–50 (photo. reprint 1970) (N.Y., O. Halsted 1826). 115. See Mark DeWolfe Howe, Juries as Judges of the Criminal Law, 52 Harv. L. Rev. 582, 605– 06 (1939); see also William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760– 1830, at 3–4 (1975) (describing juries as deciding law); Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 Hastings L.J. 579, 592 (1993) (noting that juries in the colonies were “the chief assessors of legal claims and the primary enforcers of legal rights for their communities”). As John Adams put it, “It is not only [a juror’s] right but his Duty . . . to find the Verdict according to his own best Understanding, Judgment and Conscience, tho in Direct opposition to the Direction of the Court.” John Adams, Adams’ Diary Notes on the Right of Juries (Feb. 12, 1771), in 1 Legal Papers of John Adams 228, 230 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965). 116. An important case to this effect was decided in Massachusetts in 1808. See Coffin v. Coffin, 4 Mass. (3 Tyng) 1 (1808); see also Morton J. Horwitz, The Transformation of American Law, 1780–1860, at 141–43 (1977). 117. See 1 Warren, supra note 41, at 345 n.2. Warren had the legal context wrong, but the basic story is apparently correct. See Jones, supra note 110, at 321 n.49. 118. The one exception during the Jeffersonian period was a provision in the 1815 Non-Intercourse Act permitting removal to federal court of suits against revenue

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notes to pages 110–116

officers for conduct involving the enforcement of that statute. An Act to Prohibit Intercourse with the Enemy, and for Other Purposes, ch. 31, § 8, 3 Stat. 195, 198 (1815). 119. See 10 F. Cas. 355 (C.C.D.S.C. 1808) (No. 5420). In this, Johnson was following recent Supreme Court precedent, see Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), a circumstance that may partially explain Jefferson’s appeal to his Attorney General, rather than to the Supreme Court, for an opinion. 120. Otis was so harassed that at one point he fled the country. See White, supra note 3, at 156 n.31. 121. Id. at 153– 56. 122. H.R. Doc. No. 169-1, at 1 (1818). 123. H.R. Rep. No. 23-276, at 2 (1834), quoted in White, supra note 3, at 155. 124. See White, supra note 3, at 155 & n.29. 125. Oliver M. Dickerson, The Navigation Acts and the American Revolution 212 (1951). 126. See Spivak, supra note 20, at 175– 76. Protection from state courts, but not from juries, was provided for customs collectors in 1817. See An Act to Continue in Force an Act, Entitled “An Act Further to Provide for the Collection of Duties on Imports and Tonnage,” ch. 109, 3 Stat. 396 (1817). 127. In sharply limiting the scope of a recently passed statute by news release, Jefferson perhaps initiated the practice of presidential “signing statements” that has been credited to his protégé James Monroe. See Task Force on Presidential Signing Statements & the Separation of Powers Doctrine, Am. Bar Ass’n, Report 7 (2006). 128. Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1676 (1975). 129. James E. Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic (unpublished manuscript on fi le with the author). 130. See Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 272– 80 (1855). 131. See, e.g., G.M. Leasing Corp. v. United States, 429 U.S. 338, 350 (1978) (describing the power to collect taxes by levy as “essential” to the tax system). 132. Cass Sunstein’s quip that the nondelegation doctrine has had only one good year in the Supreme Court and over two hundred bad ones is surely apt. Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 322 (2000) (“We might say that the conventional doctrine has had one good year, and 211 bad ones (and counting).”). 133. See Yakus v. United States, 321 U.S. 414 (1944). 134. See Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737 (D.D.C. 1971). 135. See, e.g., The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382 (1813), and Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825). 136. See Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263 (2006), and sources cited therein. 137. See id. at 316–22.

notes to pages 116–120

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138. See 1 Warren, supra note 41, at 331–33. 139. See 5 U.S. (1 Cranch) 137, 168– 71 (1803). 140. 10 F. Cas. 355 (C.C.D.S.C. 1808) (No. 5420). 141. 1 Warren, supra note 41, at 330; Letter from C.A. Rodney to President Thomas Jefferson, reprinted in 1 Am. L.J. 429, 435 (1808). 142. 1 Warren, supra note 41, at 335. 143. Letter from President Thomas Jefferson to Governor Charles Pinckney, supra note 73, at 102– 04. 144. See, e.g., Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679 (1989); Matthew Diller & Nancy Morawetz, Intracircuit Nonacquiescence and the Breakdown of the Rule of Law: A Response to Estreicher and Revesz, 99 Yale L.J. 801 (1990); Samuel Estreicher & Richard L. Revesz, The Uneasy Case against Intracircuit Nonacquiescence: A Reply, 99 Yale L.J. 831 (1990); see also Dan T. Coenen, The Constitutional Case against Intracircuit Nonacquiescence, 75 Minn. L. Rev. 1339 (1991). 145. 6 U.S. (2 Cranch) 170 (1804). 146. See id. at 178– 79. 147. The dynamics of power in Congress and in the executive branch during the Jeffersonian-Republican period are ably dissected in James Sterling Young, The Washington Community, 1800–1828, at 213–49 (1966).

Chapter 7: Bureaucratizing Land 1. Leonard White discusses numerous examples of the administrative problems created by Republican congressional parsimony. See Leonard D. White, The Jeffersonians: A Study in Administrative History 1801–1829, at 188– 89, 204– 05, 235–36, 294, 400 (1951). 2. Alexander Hamilton, Plan for Disposing of the Public Lands (July 20, 1790), in 1 American State Papers, Public Lands 4 (Walter Lowrie ed., 1834), available at http://memory.loc.gov/ammem/amlaw/lwsp.html. 3. In 1800, for example, the last year of Federalist administration, only 67,800 acres of public lands were sold. U.S. Bureau of the Census, Historical Statistics of the United States, H.R. Doc. No. 93-78, pt. 1, at 430 (1975). 4. There is some question whether the policies adopted for the sale of the public domain primarily benefited small landholders rather than speculators who wanted to assemble larger tracts for investment. For an analysis of the role of speculation in the Midwest and the South, see Paul W. Gates, Landlords and Tenants on the Prairie Frontier (1973) [hereinafter Gates, Landlords]; and Paul Wallace Gates, Private Land Claims in the South, 22 J. S. Hist. 183 (1956) [hereinafter Gates, Land Claims]. 5. See An Act to Revive and Continue in Force, an Act in Addition to an Act Intituled “An Act in Addition to an Act Regulating the Grants of Land Appropriated for Military Ser vices and for the Society of the United Brethren for Propagating the Gospel among the Heathen,” and for Other Purposes, ch. 30, § 4, 2 Stat. 236 (1803); An Act in Addition to an Act Intituled “An Act Regulating the Grants of

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notes to pages 120–122

Land Appropriated for Military Ser vices, and for the Society of the United Brethren for Propagating the Gospel among the Heathen,” ch. 13, § 5, 2 Stat. 14 (1800) [hereinafter 1800 Land Grant Act]. 6. Henry Adams, The Life of Albert Gallatin 299 (1879). 7. Very early in the administration of the land office business as established by Congress in 1800, Gallatin complained that the necessity to give opinions to field officers and to “examine and correctly to decide every doubtful case which may occur in the execution of the land law” was making it impossible for him to carry out his other duties as Secretary. But he did so for twelve years before Congress saw fit to provide any relief. Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789–1837, at 48–49 (1968). 8. Louis Pelzer, The Public Domain as a Field for Historical Study, 12 Iowa J. Hist. & Pol. 568, 575 (1914), quoted in Rohrbough, supra note 7, at x. 9. For a description of the development of the 1785 ordinance, see Payson Jackson Treat, The National Land System 1785–1820, at 41– 65 (1910). 10. Edward Everett, The Uses of Astronomy, Address on the Occasion of the Inauguration of the Dudley Astronomical Observatory (Aug. 28, 1856), in The Uses of Astronomy 1, 25 (1856), available at www.hti.umich.edu/cgi/t/text/text-idx?c= moa;idno =AAN1277.0001.001. 11. See Treat, supra note 9, at 46, 372– 74. 12. An Act Providing for the Sale of the Lands of the United States, in the Territory Northwest of the River Ohio, and above the Mouth of Kentucky River, ch. 29, 1 Stat. 464 (1796) [hereinafter 1796 Northwest Act]. 13. See An Act to Amend the Act Intituled “An Act Providing for the Sale of the Lands of the United States, in the Territory Northwest of the Ohio, and above the Mouth of Kentucky River,” ch. 55, 2 Stat. 73 (1800) [hereinafter 1800 Northwest Amendments]. 14. See An Act Regulating the Grants of Land, and Providing for the Disposal of the Lands of the United States, South of the State of Tennessee, ch. 27, 2 Stat. 229 (1803) [hereinafter 1803 Land Act]. 15. See Benjamin Horace Hibbard, A History of the Public Land Policies 82– 100 (1924). 16. See Albert Gallatin, Alterations of the Laws for the Sale of Public Lands (Jan. 2, 1804), in 1 American State Papers, Public Lands (Walter Lowrie ed., 1834), available at http://memory.loc.gov./ammem/am.law/lwsp.html. 17. See Report of the House Committee on Public Lands, Credit on Public Lands (Apr. 5, 1806), in 1 American State Papers, Public Lands 265, 266 (Walter Lowrie ed., 1834). A similar recommendation was made by a special Senate committee at the time of the adoption of the 1812 statute, which established the General Land Office and reorganized the land office business. See Revision of the Laws for the Sale of Public Lands (Feb. 19, 1812), in 2 American State Papers, Public Lands 367, 367– 69 (Walter Lowrie ed., 1834). 18. For an example, see An Act to Suspend the Sale of Certain Lands in the State of Ohio, and the Indiana Territory, ch. 28, 2 Stat. 378 (1806).

notes to pages 122–125

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19. On the history and actions of claims clubs, see Everett Dick, The Lure of the Land 59– 67 (1970). 20. For further treatment of the history of the credit system, see Treat, supra note 9, at 125–42. 21. See An Act to Extend the Time for Making Payment for the Public Lands of the United States in Certain Cases, ch. 36, 2 Stat. 591 (1810). 22. See Rohrbough, supra note 7, at 31. 23. See An Act for the Establishment of a General Land Office in the Department of the Treasury, ch. 68, 2 Stat. 716 (1812). 24. See Rohrbough, supra note 7, at 137– 56. 25. See An Act Respecting Claims to Land in the Territories of Orleans and Louisiana, ch. 36, 2 Stat. 440 (1807). Most of the relevant treaties and acts of cession relevant to private land claims in the Republican period and earlier are collected in E.J. Baldwin, Laws of the United States, Resolutions of Congress under the Confederation, Treaties, Proclamations, Spanish Regulations, and Other Documents Respecting the Public Lands (1828). 26. See Treat, supra note 9, at 198–229 (describing, among many other things, the forty-year history of the settlement of the claims of “a few settlers” in Illinois and Michigan). 27. On the widespread frauds employed in making private land claims, see Dick, supra note 19, at 13– 17. 28. R.S. Cotterill, The National Land System in the South: 1803–1812, 16 Miss. Valley Hist. Rev. 495, 496 (1930). 29. See Rohrbough, supra note 7, at 200– 05. 30. On the system of military bounty lands, see Hibbard, supra note 15, at 116–35; and Treat, supra note 9, at 230– 62, from which this description is taken. 31. See Treat, supra note 9, at 247. 32. See 29 Annals of Cong. 846 (1816). 33. See An Act in Addition to Certain Acts Granting Bounty Land to Certain Officers and Soldiers Who Have Been Engaged in the Military Ser vice of the United States, ch. 207, 10 Stat. 701 (1855). 34. See Compensation of Registers and Receivers of the Public Lands (Feb. 24, 1824), in 4 American State Papers, Public Lands 7 (Asbury Dickins & James C. Allen eds., 1859); Compensation of the Surveyors General and Their Clerks (Jan. 16, 1827), in 4 American State Papers, Public Lands 874, 874– 76 (Asbury Dickins & James C. Allen eds. 1859). 35. See generally Dick, supra note 19, at 1– 69 (providing a splendid account of the very human side of the survey and sale of the public lands in the pre-Jacksonian period). 36. See, e.g., Frauds in Land Warrants (Apr. 12, 1808), in 18 Annals of Cong. 2080 (1808). 37. 1796 Northwest Act, supra note 12, 1 Stat. 464. 38. See An Act Concerning the Mode of Surveying the Public Lands of the United States, ch. 14, 2 Stat. 313 (1805).

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notes to pages 125–128

39. See An Act Making Provision for the Disposal of the Public Lands in the Indiana Territory, and for Other Purposes, ch. 35, 2 Stat. 277 (1804) [hereinafter Indiana Territory Land Act]. 40. Congress later declared by statute that inaccurate surveys would be considered accurate. See An Act Concerning the Mode of Surveying the Public Lands of the United States, ch. 14, 2 Stat. 313 (1805). 41. See 1800 Northwest Amendments, supra note 13, §§ 4– 5, 7, 2 Stat. at 74– 76. 42. Id. § 8. 43. Id. § 11. 44. Congress seems belatedly to have recognized this truism when it stated that “[i]n all legislation, much must necessarily be left to construction, and the sound discretion of those charged with the administration of the laws.” H.R. Rep. No. 18130, at 1 (1824). 45. For a description of surveying difficulties, see Dick, supra note 19, at 21–23. 46. Some of these regulations are collected in W.W. Lester, Decisions of the Interior Department in Public Land Cases and Land Laws Passed by the Congress of the United States Together with the Regulations of the General Land Office (1860). Lester reproduced, for example, the Manual of Instructions for surveyors as revised through 1855. See id. at 703–24. 47. The tale of the matchsticks is from Gifford Pinchot, Breaking New Ground 81 (1947). Other examples are from Dick, supra note 19. 48. See Dick, supra note 19, at 24–30. 49. See Rohrbough, supra note 7. 50. Paul Gates has reported Humphrey Marshall’s estimate that all the lands in Kentucky had been granted at least four times as well as his concern that sorting out the “infi nitude of confl icting claims” had “retarded [Kentucky’s] population— obstructed her improvement— distracted her people—impaired her morals— and depreciated the value of her rich soil, throughout the country.” Gates, Landlords, supra note 4 at 14 (quoting 1 H. Marshall, History of Kentucky 152– 53 (1824)). 51. See G. Edward White with the Aid of Gerald Gunther, The Marshall Court and Cultural Change, 1815–35, at 753– 78 (History of the Supreme Court of the U.S. Nos. 3–4, 1988). 52. See id. For a discussion of several such cases, see George L. Haskins & Herbert A. Johnson, Foundations of Power: John Marshall, 1801–15, at 590– 603 (History of the Supreme Court of the U.S. No. 2, 1981). 53. Harry L. Coles, Jr., Applicability of the Public Land System to Louisiana, 43 Miss. Valley Hist. Rev. 39, 51 (1956). 54. Gates, Land Claims, supra note 4, at 203. 55. For these materials, see 1–3 American State Papers, Public Lands; 4 American State Papers, Public Lands (Asbury Dickins & James C. Allen eds., 1859); and 5 American State Papers, Public Lands (Asbury Dickins & John W. Forney eds., 1860). 56. For an example of one of the many special statutes granting relief to individuals, see An Act in Addition to the Act Intituled “An Act Regulating the Grants of Land

notes to pages 128–129

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Appropriated for the Refugees from the British Provinces of Canada and Nova Scotia,” ch. 35, 2 Stat. 242 (1801). 57. Appeals to Congress persisted long after the claims commissions had completed their work. A House committee in 1836 complained that [e]very succeeding year brings forth new and additional applicants, produced by the circumstances of speculators and companies, in various States of the Union, becoming interested by purchase in those grants, as well as by the multiplication of heirs of some of the original grantees. By these and other causes, the claimants are becoming more imposing from their wealth, numbers, and influence, yearly. Gates, Land Claims, supra note 4, at 191. 58. The elaborate history of the resolution of these French settlement claims in the Northwest Territory, described below, is set out in some detail in Treat, supra note 9, at 198–229. Other claims were based on questionable grants from Virginia and illegal purchases from Indian tribes. Only the sovereign could extinguish Indian title by purchase or treaty, and in many places it was a criminal offense to accept such transfers. See Marshall Harris, Origin of the Land Tenure System in the United States 155– 78 (1953). Congress passed a host of statutes authorizing purchases or gifts to extinguish Indian claims. See, e.g., An Act to Make Further Appropriations for the Purpose of Extinguishing the Indian Claims, ch. 43, 2 Stat. 291 (1804). These treaty negotiations often involved high politics and serious issues of war or peace. See, e.g., Robert V. Remini, John Quincy Adams 88– 100 (Am. Presidents Ser. Vol. 6, 2002). 59. Indiana Territory Land Act, supra note 39, § 4, 2 Stat. at 278– 79. 60. See 1803 Land Act, supra note 14, 2 Stat. 229. 61. Gates, Land Claims, supra note 4, at 190. 62. For the major variations on the private claims process, see An Act for Ascertaining Claims and Titles to Land within the Territory of Florida, ch. 129, 3 Stat. 709 (1822); An Act for Ascertaining the Titles and Claims to Lands in that Part of the Louisiana [Territory] Which Lies East of the River Mississippi and Island of New Orleans, ch. 67, 2 Stat. 713 (1812); Indiana Territory Land Act, supra note 39; and 1803 Land Act, supra note 14. 63. Issuance of fraudulent French and Spanish titles was a par ticular problem in the Louisiana and Florida Territories. See Dick, supra note 19, at 15– 16. A local commentator in 1850 had this to say about the scramble for property in Louisiana after its transfer to the United States: Claims and evidences of title were to be raked up from old records, musty documents, antiquated titles, concessions, settlement-rights, transfers, entails, and every species of oral and written evidence of title, real and factitious. Claims of this character were eagerly sought by the land speculator, and as freely produced by the needy creole, and the avaricious fabricator. An active commerce sprung up between the artful land-jobbers and the docile, unlettered settler; titles, complete and incomplete, were multiplied in endless variety.

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notes to pages 129–131

Gates, Land Claims, supra note 4, at 185 (quoting J.W. Monette, Early Spirit of the West (pt. 2), 8 Debow’s Rev. 407, 409 (1850)). Apparently, the commissioners were appropriately skeptical because Congress passed a special statute permitting suits in the territorial courts to establish claims rejected for fraud or forgery. See An Act for the Disposal of Certain Tracts of Land in the Mississippi Territory, Claimed under Spanish Grants, Reported by the Land Commissioners as Antedated, and to Confirm the Claims of Abraham Ellis and Daniel Harregal, ch. 22, 2 Stat. 526 (1809). 64. Congress occasionally adopted special state rules explicitly. See An Act Authorizing Patents to Issue for Lands Located and Surveyed by Virtue of Certain Virginia Resolution Warrants, ch. 31, 2 Stat. 437 (1807). 65. George Graham, Causes of the Delay in Adjusting the Land Claims in the District of St. Helena in Louisiana (Dec. 22, 1823), in 3 American State Papers, Public Lands 550, 551 (Walter Lowrie & Walter S. Franklin eds., 1834). 66. See An Act Supplementary to an Act Intituled “An Act for Ascertaining and Adjusting the Titles and Claims to Land, within the Territory of Orleans, and the District of Louisiana,” ch. 39, § 4, 2 Stat. 391, 392 (1806). 67. See An Act Regulating the Grants of Land in the Territory of Michigan, ch. 34, § 2, 2 Stat. 437, 438 (1807). 68. See An Act Providing for the Printing and Distributing of Such Laws of the United States, as Respect the Public Lands, ch. 33, 2 Stat. 589 (1810). 69. An Act Respecting Claims to Land in the Territories of Orleans and Louisiana, ch. 36, § 4, 2 Stat. 440, 441 (1807). 70. Coles, supra note 53, at 52 n.46. 71. See Report of the Register and Receiver of the Land District South of Red River in Louisiana, upon the Land Claims Situated between the Rio Hondo and the Sabine, H.R. Doc. No. 19-50, at 3– 7 (1826). 72. See Letter from Joseph M. White to Henry Clay, Sec’y of State (Feb. 4, 1829), in 5 American State Papers: Public Lands 631 (Asbury Dickins & John W. Forney eds., 1860). 73. See An Act to Prevent Settlements Being Made on Lands Ceded to the United States, until Authorized by Law, ch. 46, 2 Stat. 445 (1807). 74. See Dick, supra note 19, at 50– 69. 75. See Lester, supra note 46, at 64– 65. 76. See Rohrbough, supra note 7, at 200–20. 77. See Dick, supra note 19, at 5. 78. See id. at 50– 69. 79. When adverse claimants appeared brandishing Spanish papers on one side and British documents on the other, commissioners were sometimes instructed to await judicial resolution, 1803 Land Act, supra note 14, § 6, 2 Stat. at 232, or to refer the matter to the Secretary of the Treasury, An Act for Ascertaining Claims and Titles to Land within the Territory of Florida, ch. 129, § 4, 3 Stat. 709, 717 (1822). 80. An Act in Addition to an Act, Intituled “An Act Regulating the Grants of Land and Providing for the Disposal of the Lands of the United States, South of the State of Tennessee,” ch. 46, § 1, 2 Stat. 400, 400 (1806).

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81. See, e.g., An Act to Confirm Certain Claims to Lands in the District of Jackson Court house, in the State of Mississippi, ch. 146, 4 Stat. 408 (1830); see also Harry L. Coles, Jr., The Confirmation of Foreign Land Titles in Louisiana, La. Hist. Q., Oct. 1955, at 1. 82. Nicholas Parrillo, Against the Profit Motive: The Transformation of American Government, 1780–1940 (forthcoming 2012). 83. 1803 Land Act, supra note 14, § 5, 2 Stat. at 230. 84. Id. § 6. 85. See, e.g., An Act Supplementary to the Act Intituled “An Act Regulating the Grants of Land, and Providing for the Disposal of the Lands of the United States, South of the State of Tennessee,” ch. 61, § 4, 2 Stat. 303 (1804). 86. Indiana Territory Land Act, supra note 39, § 4, 2 Stat. at 279. 87. Id. 88. See Baldwin, supra note 25, at 986– 88. 89. Letter from Albert Gallatin, Sec’y of the Treasury, to Parke Alton (Aug. 9, 1810) (on fi le with author). 90. See, e.g., 1800 Northwest Amendments, supra note 13, § 9, 2 Stat. at 77. 91. See White, supra note 1, at 523–27. 92. Examination of the Several Land Offices (Jan. 28, 1822), in 3 American State Papers, Public Lands 452 (Walter Lowrie & Walter S. Franklin eds., 1834) (internal quotation marks omitted). 93. Letter from Joseph Anderson, Comptroller of the Treasury, to Benjamin Huger, Chairman of the Comm. of Unsettled Balances (Mar. 14, 1816), in 3 American State Papers, Finance 125, 127 (Walter Lowrie & Walter S. Franklin eds., 1834) (“The accounts of the General Land Office are greatly in arrears; some of them remain unsettled from seven to ten years. These accounts are intricate, and generally very large; from ten to fifteen days is required for the best accounting clerks to examine one of them.”). 94. Letter from Albert Gallatin, Sec’y of the Treasury, to President Thomas Jefferson (Nov. 1801), in 1 Albert Gallatin, The Writings of Albert Gallatin 63, 68 (Henry Adams ed., 1879). 95. See An Act to Provide for the Prompt Settlement of Public Accounts, ch. 45, 3 Stat. 366 (1817). 96. See An Act Providing for the Better Organization of the Treasury Department, ch. 107, 3 Stat. 592 (1820). 97. See An Act to Prevent Defalcations on the Part of the Disbursing Agents of the Government, and for Other Purposes, ch. 2, 4 Stat. 246 (1828); An Act Concerning the Disbursement of Public Money, ch. 9, 3 Stat. 723 (1823). 98. Because there were few available banks in the western territories, the United States also used land offices, and other offices that received funds, as disbursing agents by drawing drafts upon their accumulated funds to pay the country’s debts. For general discussion of the accounting system and its reform, see White, supra note 1, at 162– 82. 99. On similar attempts to increase fiscal control by more specific appropriations, and on the partial success of those efforts, see id. at 108– 16.

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notes to pages 135–137

100. Indiana Territory Land Act, supra note 39, § 4, 2 Stat. at 278. 101. See, e.g., An Act to Prescribe the Mode in Which Application Shall Be Made for the Purchase of Land at the Several Land- Offices; and for the Relief of Joab Garret, ch. 11, 2 Stat. 556 (1810). 102. In part because of the highly specific way in which it legislated, Congress had to return again and again to the issue of the survey and sale of the public lands. The lists of the public acts of Congress contained in the second, third, and fourth volumes of the Statutes at Large reveal that Congress passed over 250 public lands statutes between 1800 and the close of the second session of the twenty-second Congress in 1833. See 2 Stat. at iii–xxxviii; 3 Stat. at iii–xxxix; 4 Stat. at iii–xxxix. 103. An Act Providing for the Correction of Errors in Making Entries of Land at the Land Offices, ch. 98, 3 Stat. 526, 526 (1819). 104. See, e.g., Amount of Emoluments and Allowances to the Registers and Recievers of Land Offices, Exclusive of Salary (May 1, 1826), in 4 American State Papers, Public Lands 773 (Asbury Dickins & James C. Allen eds., 1859); Compensation of Registers and Receivers of the Public Lands, in 4 American State Papers, Public Lands 8 (Asbury Dickins & James C. Allen eds., 1859); Compensation of the Surveyors General and Their Clerks, in 4 American State Papers, Public Lands 874 (Asbury Dickins & James C. Allen eds., 1859). 105. One example of an exception was President Monroe’s refusal to send certain papers to the House concerning charges against a naval officer and a political operative stationed in Peru. See President James Monroe, Message to the House of Representatives (Jan. 10, 1825), in 2 James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789–1897, at 278 (1911). 106. Ralph Volney Harlow, The History of Legislative Methods in the Period Before 1825, at 216 (1917). While internal congressional and party politics were also involved here as elsewhere, congressional structure responded to the need to monitor administrative action. See Keith E. Whittington & Daniel P. Carpenter, Executive Power in American Institutional Development, 1 Persp. on Pol. 495 (2003), available at http://journals. cambridge.org/article_S1537592703000367. 107. See White, supra note 1, at 105 & n.62. 108. See Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public-Lands Cases, 68 Mich. L. Rev. 867, 882– 909 (1970). 109. Id. at 885. 110. Ann Woolhandler, Judicial Deference to Administrative Action— A Revisionist History, 43 Admin. L. Rev. 197, 226 (1991). 111. See Tameling v. U.S. Freehold & Emigration Co., 93 U.S. 644, 663 (1876). 112. See, e.g., Matthews v. Zane’s Lessee, 9 U.S. (5 Cranch) 92 (1809) (concerning a contest between two buyers who purchased the same parcel from two different land offices). Matthews might be considered an example of either or both. 113. See Woolhandler, supra note 110, at 216– 19. 114. Id. at 219. 115. Johnson v. Towsley, 80 U.S. (13 Wall.) 72, 84 (1871).

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116. Indeed, by their sheer bulk, land office decisions were probably the most common subject of judicial review proceedings in the federal courts by the end of the nineteenth century. Scalia has remarked that they attained a volume that in 1970 might have been described as “habeas corpus proportions.” Scalia, supra note 108, at 884. 117. See Woolhandler, supra note 110, at 197– 98. 118. See Thomas Jefferson, Notes on the State of Virginia query 19 (Paris, 1784), reprinted in The Life and Selected Writings of Thomas Jefferson 187, 280 (Adrienne Koch & William Peden eds., 1944); see also Letter from Thomas Jefferson to Governor John Tyler (May 26, 1810), reprinted in The Life and Selected Writings of Thomas Jefferson, supra, at 604, 604–05; Letter from Thomas Jefferson to Joseph C. Cabell (Feb. 2, 1816), reprinted in The Life and Selected Writings of Thomas Jefferson, supra, at 661, 662. 119. Calculated from Bureau of the Census, supra note 3, Part I at 8 & Part II at 1105. 120. Even with the establishment of a committee to deal only with private land claims, Congress simply could not keep up with the land office business. As early as 1828, recommendations were being made to create an administrative tribunal to take over the work of the Committee on Private Land Claims. See S. Doc. No. 20-22, at 5 (1828). 121. This is not to say that these internal efforts at legality and consistency were uniformly successful. The problem of inconsistent valuation and classification of goods in the customs houses was a constant complaint in later periods and produced a series of reforms and reconstituted appeals processes in the Jacksonian era. See Leonard D. White, The Jacksonians: A Study in Administrative History, 1829–1861, at 178– 81 (1954). 122. Edward Rubin has argued, for example, that internal or bureaucratic accountability is the only “accountability” worthy of the name. Edward Rubin, The Myth of Non-Bureaucratic Accountability and the Anti-Administrative Impulse, in Public Accountability: Designs, Dilemmas and Experiences 52 (Michael W. Dowdle ed., 2006). 123. This understanding continued during the Jeffersonian period, see White, supra note 1, at 164, and was forcefully confirmed early in Martin Van Buren’s tenure as President, see S. Doc. No. 25-265, at 8– 9 (1837) (presenting a correspondence between the Auditor and Secretary of the Treasury, in which the Secretary acknowledged that he had no power to reverse the Auditor or Controller on matters of accounts). 124. See An Act for Changing the Compensation of Receivers and Registers of the Land Offices, ch. 123, 3 Stat. 466 (1818); An Act for Transferring the Claims in the Office of the Commissioner to the Third Auditor of the Treasury Department, ch. 124, 3 Stat. 466 (1818). On the improvement in internal control mechanisms in the General Land Office, see Rohrbough, supra note 7, at 26– 70. 125. For a discussion of the new Jacksonian approach to bureaucratic responsibility through organizational design, see Matthew A. Crenson, The Federal Machine: Beginnings of Bureaucracy in Jacksonian America 104–39 (1975).

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126. For a brief recent discussion of this point, see Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2356– 64 (2006).

Chapter 8: Democracy and Administration 1. Letter from Daniel Webster to Ezekiel Webster (Jan. 17, 1829), in 17 The Writings and Speeches of Daniel Webster 467 (Fletcher Webster ed., 1903). 2. And change is unsettling. Leonard White characterizes the Jacksonian era as “years of almost uninterrupted excitement, tension, crisis, and apprehension.” Leonard D. White, The Jacksonians: A Study in Administrative History 1829–1861, at 18 (1954). 3. Steamboats had begun to ply the waters of the United States in the early nineteenth century. By the time Jackson took office, they dominated river transportation in the United States and were the most important agencies of internal transportation in the country for the next two decades. Even toward the close of the Jacksonian period, steamship tonnage grew phenomenally—from 5631 registered tons in 1847 to 97,296 by 1860. 4 George Rogers Taylor, The Economic History of the United States: The Transportation Revolution 1815– 1860, at 58, 116 (1951). 4. The railroad had a similar and ultimately more profound impact. The Baltimore and Ohio Railroad Company laid the cornerstone for the first commercial railroad on July 4, 1828. From that standing start, railway trackage grew to cover thirty thousand miles by 1860. Albert Fishlow, American Railroads and the Transformation of the Ante-Bellum Economy 3– 8 (1965). 5. Morse’s telegraph had an even more rapid diff usion than the railroad. The first line from Washington to Baltimore was completed in 1844. By 1861, fifty thousand miles of telegraph wires spanned the continent. In an astonishing display of entrepreneurial daring, a transatlantic cable was completed in 1858. That cable parted after a few weeks of operation, and the line was not relaid until after the Civil War. On the development of the telegraph system generally, see Robert Luther Thompson, Wiring a Continent: The History of the Telegraph Industry in the United States, 1832–1866 (1947). Daniel Howe argues that the communications revolution was the single most transformative cause of change. See Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815–1848, at 5– 7 (2007). 6. See Taylor, supra note 3, at 229–49. 7. For an excellent brief description of the social changes generated by the market revolution of the early to mid-nineteenth century, see Harry L. Watson, Andrew Jackson vs. Henry Clay: Democracy and Development in Antebellum America 6– 13 (1998). For a more extensive discussion reaching back into pre-Jacksonian roots of economic change, see Charles Sellers, The Market Revolution: Jacksonian America 1815–1846 (1991), which provides a substantial bibliographic essay on further sources at 429–47. 8. The rise of the corporation symbolized this shift from the personal to the impersonal and was understood primarily in ethical terms. A contemporary observer

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lamented, in words that seem almost timeless, “As directors of a company . . . men will sanction actions of which they would scorn to be guilty in their private capacity.” Arthur M. Schlesinger, Jr., The Age of Jackson 335 (1945) (quoting William M. Gouge). 9. For an extensive treatment, see Taylor, supra note 3, at 250–300, and sources cited therein. On the development of working class consciousness in New York, see Sean Wilentz, Chants Democratic: New York City and the Rise of the American Working Class, 1788–1850 (1984). At least one of America’s largest antebellum employers, the ready-made clothing industry, managed to contract for home production by the seamstresses who made up the largest segment of its workforce. For a general history of the industry, see Michael Zakim, ReadyMade Democracy: A History of Men’s Dress in the American Republic, 1760–1860 (2003). 10. Within a few years of the building of the Erie Canal, for example, New York City became the leading population and commercial center of the nation. See Robert G. Albion, New York Port and Its Disappointed Rivals, 1815–1860, 3 J. Econ. & Bus. Hist. 602 (1931). Whereas only 61 towns or cities had 2500 or more inhabitants in 1820, there were 392 such places by 1860. See U.S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970, at 11 tbl. A43– 56 (1975). 11. Calculated from U.S. Bureau of the Census, supra note 10, at 14– 15. 12. See Norma Lois Peterson, The Presidencies of William Henry Harrison and John Tyler 2–3, 243–44 (1989). These changes, while apparently perceived as massive, should not mask the fact that America remained very much an agricultural economy. Nonfarm employment shifted from twenty- eight percent of workers in 1820 to forty- one percent in 1860, but that still left sixty percent of workers in the agricultural sector. See U.S. Bureau of the Census, supra note 10, at 134. 13. Frederick Jackson Turner, The Significance of Sections in American History 23–24 (1932). 14. Both Whigs and Democrats struggled, unsuccessfully, to keep the slavery issue off the national agenda, sometimes at considerable cost. For example, knowing that the Whig platform would oppose annexation of Texas and that a proannexation position would inflame the slavery controversy, Martin Van Buren publicly stated his opposition to the annexation of Texas and thereby cost himself the Democratic nomination and almost certainly the Presidency in the election of 1844. See Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln 566– 71, 613 (2005). The potential for sectional conflict could invade almost any issue. For example, when Abel Upshur was Secretary of the Navy, he proposed reforms that included increasing the number of naval ranks above captain to make naval ranks comparable to those in the Army. Because Upshur was a Virginian, and a sometimes Southern apologist, his plans were resisted in Congress on the ground that he had secret plans to put the Navy under the command of officers from slave states. See Peterson, supra note 12, at 152– 54. Indeed, by the time of Buchanan’s presidency, the slavery issue poisoned virtually every political

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discussion. See generally Elbert P. Smith, The Presidency of James Buchanan (1975). Political conflicts were often articulated in the language of constitutional argument. See generally David P. Currie, The Constitution in Congress: Descent into the Maelstrom, 1829–1861 (2005). On the way in which territorial expansion inflamed the slavery debate and contributed to the demise of the Whig party, see Elbert B. Smith, The Presidencies of Zachary Taylor and Millard Fillmore 13–23, 91– 194, 235–49 (1988). 15. The shifts in political ideology and political practice of the Jacksonian era are perhaps the most studied aspects of that period. Important general studies include: Donald B. Cole, Martin Van Buren and the American Political System (1984); Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840 (1969); Richard P. McCormick, The Second American Party System: Party Formation in the Jacksonian Era (1966); Robert V. Remini, Martin Van Buren and the Making of the Democratic Party (1959); Schlesinger, supra note 8; and Sean Wilentz, Andrew Jackson (Arthur M. Schlesinger ed., 2005). 16. On the changes to state suffrage rules, see Wilentz, supra note 14, at 181–217. 17. Calculated from U.S. Bureau of the Census, supra note 10, at 1072. 18. These shifting ideas of democracy and executive power are nicely developed in Robert V. Remini, Andrew Jackson and the Bank War: A Study in the Growth of Presidential Power (1967). 19. Carl Russell Fish, The Civil Service and the Patronage 173– 85 (1905). 20. Standard accounts of the Jacksonian era include Robert V. Remini, The Legacy of Andrew Jackson: Democracy, Indian Removal and Slavery (1988); Schlesinger, supra note 8; and Wilentz, supra note 15. The Jacksonian commitments to popular democracy, small government, and state and local authority are often viewed as a continuation of a Jeffersonian legacy that stretched from the end of the Federalist period until the New Deal. See, e.g., Richard Hofstadter, The Age of Reform 303– 05 (1955); Morton Keller, America’s Three Regimes 67–200 (2007). Antebellum America is frequently characterized in Stephen Skowronek’s terms as a state of courts and parties. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877– 1920 (1982). 21. Major L. Wilson argues that the Jacksonians saw American national identity in the commitment to individual freedom and states’ rights established at the founding. They envisioned progress as the spread of this freedom across the continent. National growth and the nation’s destiny were conceived in spatial terms. The Whigs, by contrast, saw freedom as an evolving set of capacities that was tied to the development of the nation through time. They wanted to speed that development by public works, protective tariffs, and the liquidity and monetary stability provided by the Bank of the United States. See Major L. Wilson, Space, Time, and Freedom: The Quest for Nationality and the Irrepressible Conflict, 1815–1861, at 11–12, 94–119 (1974). On the intimate relationship between Jacksonian ideas of democracy and federalism, see generally Gerald Leonard, The Invention of Party Politics: Federalism, Popular Sovereignty and Consti-

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tutional Development in Jacksonian Illinois (2002), which details the transition from “anti-party” constitutional thought to the idea of party as the bulwark of popular sovereignty. 22. Between 1828 and 1860, the Whigs won only two presidential elections, and, in fact, controlled the presidency for only four years. One victorious Whig, William Henry Harrison, died a month into his first term, yielding the presidency to John Tyler, a Jeffersonian Republican in recently acquired Whig clothing. And while the Whigs had some greater success in maintaining control of one or both houses of Congress, their majorities were seldom sufficient to override presidential vetoes. Indeed, the Whigs controlled both houses only in the 27th Congress during William Henry Harrison’s brief tenure and the first two years of Tyler’s presidency. Watson, supra note 7, at 1– 118, provides an excellent brief history of the DemocratWhig conflicts as exemplified by the competition between Andrew Jackson and his Democratic successors in the Presidency and Henry Clay as the longtime Whig leader in Congress. 23. The so-called “Tariff of Abominations,” passed in the John Quincy Adams administration, was gradually dismantled. See Act of Mar. 2, 1833, ch. 55, 4 Stat. 629. The controversy over the protective tariff was, of course, much more than a mere policy dispute. It motivated South Carolina’s attempt to nullify federal law through state interpretation of the Constitution. That attempt provoked a constitutional crisis of major proportions that resulted in an ambiguous constitutional settlement. For details of the nullification crisis concerning the tariff, see Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 72– 112 (1999). Jackson vetoed the recharter of the Bank of the United States, and the Bank’s defenders could not muster the votes for an override. The Bank (the “Monster Bank” to the Jacksonians) lost its power over monetary policy and retreated to state incorporation in Pennsylvania. For a synoptic treatment of the bank controversy, see Wilentz, supra note 15, at 74–88. For a more extensive treatment of the banking controversy and its legislative politics, see John M. McFaul, The Politics of Jacksonian Finance (1972). Direct funding of internal improvements by the national government virtually disappeared, save for the federal government’s historic responsibility for navigational aids and the short-lived subterfuge of redistributing excess federal funds to the states on the basis of population. On the other hand, the federal government made extensive grants of public lands to promote the construction of both roads and railroads. The constitutional and political controversies over internal improvements in the Jacksonian era are ably chronicled in David P. Currie, The Constitution in Congress: Democrats and Whigs 1829– 1861, at 9–34 (2005). 24. For a description of Jefferson’s hopes at the beginning of his first term for both the substance and style of government, see Joseph J. Ellis, American Sphinx: The Character of Thomas Jefferson 169– 90 (1996); and Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), reprinted in 1 James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789–1897, at 323 (1911). 25. Alexis de Tocqueville, Democracy in America 108 (Henry Steele Commager ed., Henry Reeve trans., Oxford Univ. Press 1946). Indeed, as the extent of the

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country grew, de Tocqueville famously believed that “the continuance of the Federal Government can only be a fortunate accident.” Id. at 268. 26. See U.S. Bureau of the Census, supra note 10, at 8 ser.A 6– 8, 1104 ser.Y 335–38. 27. There were 0.86 federal civilian employees per thousand Americans in 1831. By 1861 the ratio had risen to 1.1 per thousand. Calculated from id. at 8 ser.A 6– 8, 1103 ser.Y 308– 17. 28. See White, supra note 2, at 9. For example, throughout the period the Post Office accounted for the vast majority of federal civilian employees. See U.S. Bureau of the Census, supra note 10, at 1103 ser.Y 308– 17. 29. See White, supra note 2, at 9– 10. 30. Id. at 7. 31. One nineteenth- century historian could do no better than to label it the “middle period” of American history. John W. Burgess, The Middle Period, 1817–1858 (1897). For a good brief description of the difficulties in capturing the meaning of “Jacksonian democracy,” see Matthew A. Crenson, The Federal Machine: Beginnings of Bureaucracy in Jacksonian America 17–22 (1975). 32. The increases in the business and the size of preexisting national administrative organizations during the Jacksonian era were both substantial and rapid. For example, a General Land Office that sold 2623 acres of public land in 1829 sold 20,074,871 in 1836. Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789–1837, at 210, 234 (1968). The panic of 1837 burst the land office bubble, but even in that year sales were over 5 million acres, 2000 percent of those in 1829. Id. at 234. The number of local land offices grew from thirty-six in 1831 to sixty-two at the time of the economic panic of 1837. Id. at 250. And as Chapter 7 revealed, disposing of the public domain was a daunting administrative task even before the demand for public land reached the frenzied proportions of the 1830s. For details of land claims adjudication in the Jacksonian period and beyond, see Paul W. Gates, Public Land Law Review Comm’n, History of Public Land Law Development 87– 119 (1968). By 1836, scale and complexity had forced a reluctant Congress both to increase funding and to authorize a functional reorganization of the Land Office business. A bucolic system presuming that the President would personally sign every land patent gave way to functionally differentiated, bureaucratic administration. For an extended discussion, see Rohrbough, supra, at 280– 94. The Post Office also grew exponentially, and it too was reorganized along functional lines. These developments are detailed in White, supra note 2, at 279– 83; and Crenson, supra note 31, at 104– 11. 33. The scale of government business also explains the establishment of America’s first continuous Article I court, the Court of Claims. On the slow progress from legislative to judicial settlement of claims against the United States, see Floyd D. Shimomura, The History of Claims against the United States: The Evolution from a Legislative toward a Judicial Model of Payment, 45 La. L. Rev. 625 (1985). 34. See Marvin Meyers, The Jacksonian Persuasion: Politics and Belief (1957). 35. Crenson, supra note 31, at 22–30.

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36. On the idea of systematic corruption in early American politics, see John Joseph Wallis, The Concept of Systematic Corruption in American History, in Corruption and Reform: Lessons from America’s Economic History 23 (Edward L. Glaeser & Claudia Goldin eds., 2006). 37. McFaul, supra note 23, at 14. McFaul’s conclusion concerning the “Bank War” anticipates in microcosm the theory of the growth of American government as a whole articulated by James A. Morone, The Democratic Wish: Popular Participation and the Limits of American Government (Yale Univ. Press 1998) (1990). 38. For a detailed analysis, see Ronald N. Satz, American Indian Policy in the Jacksonian Era (2002). 39. The constitutional controversy over the protective tariff is chronicled in Whittington, supra note 23, at 93– 106. 40. On the political fallout of the war with Mexico, see Wilentz, supra note 14, at 581– 86, 594– 614. For a more in- depth treatment, see John S.D. Eisenhower, So Far from God: The U.S. War with Mexico 1846– 1848 (1989). 41. See Patent Act of 1836, ch. 357, 5 Stat. 117. 42. Although the Patent Act of 1793, ch. 11, 1 Stat. 318, did not expressly require that the Secretary of State issue letters of patent to all comers, it omitted earlier language in the first patent statute that gave the Patent Board the discretion to issue a patent “if they shall deem the invention or discovery sufficiently useful and important,” Act of Apr. 10, 1790, ch. 7, 1 Stat. 109, 110. Both the courts and the Executive Branch subsequently treated the Secretary as having no discretion. See Grant v. Raymond, 31 U.S. 218, 241 (1832); 2 Op. Att’y Gen. 454 (1831). 43. Patent Act of 1836, ch. 357, § 7, 5 Stat. 117, 119–20 (1836). 44. Applicants disappointed by the Commissioner’s determination were given an administrative appeal to a three-person board appointed by the Secretary of State for that purpose. Based on the reasons provided by the Commissioner of Patents and a presentation of interested parties of “such facts and evidence as they may deem necessary to a just decision,” the Board was authorized to reverse the decision of the Commissioner either in whole or in part. Id. 45. See id. § 16. 46. For a general discussion of the 1836 Act and its effects, see John F. Duff y, The FCC and the Patent System: Progressive Ideals, Jacksonian Realism, and the Technology of Regulation, 71 U. Colo. L. Rev. 1071, 1125–40 (2000). The statutes governing the issuance of patents were amended again in 1839, 1849, and 1861. Act of Mar. 2, 1861, ch. 88, § 16, 12 Stat. 246, 249; Act of Mar. 3, 1849, ch. 108, § 2, 9 Stat. 395, 395; Act of Mar. 3, 1839, ch. 88, § 7, 5 Stat. 353, 354 (1839). In the last amending statute, determinations of patentability were put on a more “scientific” basis by creation of an Office of Examiners-in- Chief that was to be composed of persons having competent legal knowledge and scientific ability. Act of Mar. 2, 1861, ch. 88, § 2, 12 Stat. 246. For a description of the post-1836 amendments, see Butterworth v. United States, 112 U.S. 50, 65– 66 (1884). 47. Act of Mar. 3, 1849, ch. 108, 9 Stat. 395 (codified at 43 U.S.C. § 1451 (2000)); for a  description of the opposition to this move on the grounds that to establish a

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Department of the Interior was the first step toward displacing the whole of the domestic authority of the states, see White, supra note 2, at 507– 08. 48. The tortuous history of reform of the Office of the Attorney General from 1789 to 1861 is economically recounted in Lloyd Milton Short, The Development of National Administrative Organization in the United States 184– 95 (1923). One should not overstate the gains made during the Jacksonian era in the Attorney General’s authority to direct the activities of U.S. District Attorneys and Marshals. President Jackson called for the consolidation of authority over the U.S. Marshals and U.S. Attorneys in the Attorney General. See 2 Richardson, supra note 24, at 1016– 17. Congress responded not by giving the Attorney General more authority, but by reorganizing the Treasury Department to provide for a Solicitor of the Treasury who was to have authority over U.S. Attorneys and Marshals with respect to the collection of debts owed to the United States and who was to be advised by the Attorney General. See Act of May 29, 1830, ch. 153, 4 Stat. 414, 414– 16. A similar authority of direction was given to the Auditor of the Post Office Department. See Act of July 2, 1836, ch. 270, § 16, 5 Stat. 80, 83. Indeed, prior to 1870, Congress was as likely to give the Attorney General additional responsibilities as to give him additional authority. See, e.g., Act of Aug. 31, 1852, ch. 108, § 12, 10 Stat. 76, 99. And the 1861 statute that purported to give the Attorney General direct authority over all U.S. Attorneys and Marshals, Act of Aug. 2, 1861, ch. 37, 12 Stat. 285, failed to clarify matters completely. The statute did not repeal the previous authority granted to the Solicitor of the Treasury and the Auditor of the Post Office, and U.S. Attorneys and Marshals remained lodged in the Department of the Interior. Moreover, other departments of the government continued to request and be given their own law offices. See Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive 219–21 (1937). Supervising authority was not unified in the Attorney General until the establishment of the Department of Justice in 1870. See Act of June 22, 1870, ch. 150, § 16, 16 Stat. 162, 164 (1870). 49. Substantial reorganization of administrative affairs took place during just Jackson’s two terms in the White House. Both the Land Office and the Post Office were significantly reorganized late in his presidency. See Act of July 4, 1836, ch. 352, 5 Stat. 107 (Land Office); Act of July 2, 1836, ch. 270, 5 Stat. 80 (Post Office). Other specialized offices were also created. Pension adjudication was transferred from the Treasury Department to the War Department, see Resolution of June 28, 1832, ch. 46, 4 Stat. 605; and a Commissioner of Pensions was provided to exercise the authority transferred, see Act of Mar. 3, 1835, ch. 4, 4 Stat. 779. Additional specialized offices were created from time to time, for example, a Commissioner of Indian Affairs. See Act of July 9, 1832, ch. 174, 4 Stat. 564. For a general discussion of the relations between Congress and executive agencies in the Jacksonian era, see White, supra note 2, at 143– 62. 50. Some appreciation of the importance of these matters of internal control can be gleaned from the extended essay submitted by Attorney General Caleb Cushing to President Pierce in 1854. See Office and Duties of Attorney General, 6 Op. Att’y Gen. 326 (1854), reprinted in H. Jefferson Powell, The Constitution and the

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Attorneys General 78– 95 (1999). Although Cushing’s opinion was designed to reinforce the need for reform in the control of the Attorney General over subordinate law officers, the opinion ranged across all departments and emphasized over and over again the necessity for hierarchical control running from the President to the lowliest official of the government. Cushing described this system as “the rule of administrative law recognized by successive Attorneys Generals.” 51. For a brief summary of the arenas in which the Civil War mobilized the postwar exercise of national power, see Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 22–24 (1988). A more extensive treatment of postwar growth of government, and resistance to that growth, can be found in Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America 1– 196 (1977). 52. For an excellent discussion, see William E. Nelson, The Roots of American Bureaucracy, 1830–1900 (1982). See also Richard Franklin Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 (1990) (arguing that it was only after the Civil War and the collapse of Reconstruction that the administration of central government affairs became sufficiently separated from political party control that national state-building really began).

Chapter 9: The Bank War and Sub-Treasury System 1. The classic exposition of the conventional story is Bray Hammond, Banks and Politics in America from the Revolution to the Civil War (1957), which owes a significant debt to the earlier study, Ralph C.H. Catterall, The Second Bank of the United States (1902). 2. This sketch of the traditional or conventional history is based on the account by Peter Temin, The Jacksonian Economy 17–22 (1969). Specific documentation for the conventional story can be found in Temin’s citations to the standard histories of the period, both economic and noneconomic. 3. In Temin’s version the cycle of boom and bust is explained primarily by changes in foreign capital flows, not domestic monetary arrangements. As might be expected, Temin’s account is also contested. See, e.g., Peter L. Rousseau, Jacksonian Monetary Policy, Specie Flows, and the Panic of 1837, 62 J. Econ. Hist. 457, 457 (2002) (arguing that “a series of interbank transfers of government balances and a policy-induced increase in the demand for coin in the Western states drained the largest New York City banks of their specie reserves and rendered the panic inevitable”). 4. For representative accounts, see Catteral, supra note 1, at 285–358; and Hammond, supra note 1, at 369–499. 5. Jackson’s war with the Bank is treated in virtually every secondary source relevant to Jackson’s life, his Presidency, the period of the 1830s, or any of its prominent actors. The account that follows is based importantly on Robert V. Remini, Andrew Jackson and the Bank War: A Study in the Growth of Presidential Power (1967).

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6. Indeed, the politics of banking and finance in the Jacksonian era is enormously complicated, and its interpretation is a source of continuing historiographical conflict. Ideology, self-interest, partisan competition, and internal party divisions all played a role. See generally John M. McFaul, The Politics of Jacksonian Finance (1972). 7. There were also those like Henry Clay who believed that the bill to recharter the bank would cause Jackson difficulty whether he signed it or vetoed it. See Norma Lois Peterson, The Presidencies of William Henry Harrison and John Tyler 12– 13 (1989). 8. 17 U.S. (4 Wheat.) 316 (1819). 9. The constitutional questions surrounding the Bank War are treated ably and with merciful brevity in David P. Currie, The Constitution in Congress: Democrats and Whigs 1829–1861, at 58–87. 10. James Madison, Veto Message (Jan. 30, 1815), reprinted in 1 James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789–1897, at 540–42 (1911). 11. Both Daniel Webster and Henry Clay argued that the President was claiming a power to determine which laws to enforce. 8 Reg. Deb. 1232 (1832) (Webster); id. at 1273 (Clay). 12. Andrew Jackson, Veto Message (July 10, 1832), reprinted in 2 Richardson, supra note 10, at 1139, 1146. 13. Id. at 1145. 14. Id. (emphasis added). 15. Our contemporary controversy is, of course, over the use of so-called signing statements in which the President fails to veto the bill but puts an interpretive gloss on it that seems to promise a refusal to enforce some portion of the statute. For a general discussion of presidential signing statements, see Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (2002). 16. See, e.g., Free Enterprise Fund v. Public Co. Accounting Oversight Bd., U.S. (2010). For a thoughtful discussion of these issues in contemporary administrative law and citations to the large and growing literature, see Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696 (2007). 17. For the Whig position see 10 Reg. Deb. 51 (1833) (Clay); id. at 206– 07 (1834) (Calhoun); Cong. Deb. App. 148–50, 23d Cong. (1st Sess. 1834) (Webster). For Taney’s response, see Cong. Deb. App. 59, 23d Cong. (1st Sess. 1833). 18. See 10 Reg. Deb. 58, 64– 65 (1833). 19. Myers v. United States, 272 U.S. 52, 114–25 (1926). 20. See Harold H. Bruff, The Incompatibility Principle, 59 Admin. L. Rev. 225, 257 (2007) (“The only position . . . that had been definitively rejected was . . . that Congress could always participate in par ticular removals by refusing to consent to them.”). 21. S. Journal, 23rd Cong., 1st Sess. 197 (1833).

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22. Andrew Jackson, Protest (Apr. 15, 1834), reprinted in 2 Richardson, supra note 10, at 1288. 23. See S. Journal, 24th Cong., 2d Sess. 123–24 (1836). 24. See S. Doc. No. 23-155 (1st Sess. 1834); S. 41, 24th Cong. (1st Sess. 1835) (enacted); 11 Reg. Deb. 575– 76 (1835). 25. John Tyler, Inaugural Address (Apr. 9, 1841), reprinted in 3 Richardson, supra note 10, at 1889, 1890. See also H.R. Doc. No. 27-20, at 6, 13– 14 (2d Sess. 1841). 26. “[B]y 1825, unless the trend were checked, the presidency bade fair to represent, in time, not much more than a chairmanship of a group of permanent secretaries of the executive departments to which Congress . . . paid more attention than to the President.” Wilfred E. Binkley, President and Congress 64 (1947). 27. 37 U.S. (12 Pet.) 524 (1838). 28. Circular from the Treasury, No. 24-1548 (July 11, 1836), reprinted in 8 American State Papers, Public Lands 910 (Asbury Dickinson & John W. Forney eds., 1861). 29. Jackson noted this in his final State of the Union report to the Congress on December 5, 1836. See Andrew Jackson, Eighth Annual Message to Congress (Dec. 5, 1836), in 2 Richardson, supra note 10, at 1455, 1468. 30. See generally Cooper, supra note 15, at 81– 116. 31. 2 Op. Att’y Gen. 482, 489– 93 (1831); 2 Op. Att’y Gen. 507 (1832). 32. Leonard D. White, The Jacksonians: A Study in Administrative History 1829–1861, at 124 (1954). 33. Joseph P. Harris, The Advice and Consent of the Senate 55– 71 (1953). 34. While Woodrow Wilson clearly overstated the case in 1885, he had this to say about the Presidency: The business of the President, occasionally great, is usually not much above routine. Most of the time it is mere administration, mere obedience of directions from the masters of policy, the Standing Committees. Except in so far as his power of veto constitutes him a part of the legislature, the President might, not inconveniently, be a permanent officer; the first official of a carefully-graded and impartially-regulated civil ser vice system, through whose sure series of merit-promotions the youn gest clerk might rise even to the chief magistracy. Woodrow Wilson, Congressional Government 170 (World Publishing Co. ed., 1973) (1885). 35. Leonard D. White, The Federalists: A Study in Administrative History 223 (1961). 36. Similar, but not identical. While Jeffersonians objected to the way in which the Bank tended to favor commercial and financial interests over agrarian pursuits and the Bank’s influence on the government, Jefferson himself seems not to have believed that the Bank’s political influence was entirely independent of the government. It was, instead, one of the means by which Hamilton, as Secretary of the Treasury, influenced members of Congress and controlled economic policy. Jefferson’s objections are quoted in D.S. Dickinson, Address to the Democratic Republican

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Electors of the State of N. York, Ohio Statesmen, June 2, 1840, at 2, available at http://docs .newsbank .com/s/HistArchive/ahnpdoc/EANX/113207D3DD166b28 /0D0CB59DC0938355. 37. See Statement of the Several Banks in Which the Public Money Is Deposited (Dec. 30, 1811), reprinted in 2 American State Papers, Finance 517 (Walter Lowrie & Matthew St. Clair Clarke eds., 1850). 38. The agreement entered into by the Treasury and the Bank of Washington provides a standard example. See Letter from Albert Gallatin, Sec’y of the Treasury, to Daniel Carroll, President of the Bank of Wash. (Mar. 28, 1811), id. at 520. 39. On the events surrounding the fiscal crisis following the lapse of the First Bank charter, see John Burton Phillips, Methods of Keeping the Public Money of the United States 11–24 (1900). 40. For further description, see, for example, William M. Gouge, A Short History of Paper Money and Banking in the United States 64–94 (1st ed. 1833). 41. Act of Apr. 10, 1816, ch. 44, 3 Stat. 266. 42. Id. § 8, 3 Stat. at 269. 43. Id. § 11, 3 Stat. at 273– 74. 44. Id. § 15, 3 Stat. at 274. 45. Id. § 16, 3 Stat. at 274. 46. Id. § 21, 3 Stat. at 276. 47. Id. § 23, 3 Stat. at 276. 48. Id. § 10, 3 Stat. at 270– 71. 49. Id. § 11, 3 Stat. at 273. 50. White, supra note 32, at 471– 75. 51. Act of Apr. 10, 1816, § 11, at 271. 52. There is considerable dispute about whether the Second Bank acted, or was expected to act, like a true central bank. Fritz Redlich, in 1 Fritz Redlich, The Molding of American Banking 135–36 (1968), thinks that it was performing true central banking functions, while Temin, supra note 2, at 44– 58, thinks not. But as Temin recognizes, this is probably the wrong question. The idea of a central bank was a late nineteenth- or early twentieth- century development. 53. On the difficulties of this period, see Phillips, supra note 39, at 33–45. 54. A few state banks were used in the East as well. See Banks in Which the Receipts from the Public Lands Are Deposited (Feb. 14, 1822), reprinted in 3 American State Papers, Finance, supra note 37, at 718, 720; S. Doc. No. 21-40 (1st Sess. 1830); H.R. Rep. No. 23-312, vol. 2, at 46 (1st Sess. 1834); S. Doc. No. 21-84, at 4 (1st Sess. 1830); H.R. Doc. No. 23-27, at 47–48 (2d Sess. 1834); S. Doc. No. 23-13, at 45–46 (2d Sess. 1834). 55. 5 American State Papers, Finance, supra note 37, at 522. 56. S. Rep. No. 21-104, at 2–3 (1st Sess. 1830). 57. There is other evidence that during this period losses to the government through this system had exceeded $3 million. S. Exec. Doc. No. 26-10 (1st Sess. 1840). 58. The original proposal for the Deposit Bank Act of 1836 had included a requirement that state depositary banks maintain specie reserves of at least twenty percent of all their “responsibilities and notes.” That provision was replaced with a clause that explicitly provided regulatory authority to the Secretary of the Trea-

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sury. Richard H. Timberlake, Jr., The Independent Treasury and Monetary Policy before the Civil War, 27 S. Econ. J. 92, 92– 93 (1960). 59. On the use of these techniques prior to 1836, see McFaul, supra note 6, at 150– 59. 60. Phillips, supra note 39, at 65– 70. 61. Act of June 23, 1836, ch. 115, 5 Stat. 52. 62. See id. § 1, 5 Stat. at 52. 63. See id. § 5, 5 Stat. at 53; Phillips, supra note 39, at 63– 64. 64. § 13, 5 Stat. at 55. 65. Edward G. Bourne, The History of the Surplus Revenue of 1837, at 36–37 (1968) (quoting 1 Hazard 328 (1885). 66. Phillips, supra note 39, at 80 (quoting Max Wirth, Geschichte der Handelskrisen 211– 12 (1858)). 67. See 3 Sec’y of the Treas., Annual Report of the Secretary of the Treasury on the State of the Finances, in Reports of the Secretary of the Treasury 3, 10, 56– 59 (1837); S. Exec. Doc. No. 25-29, vol. IV (1st Sess. 1837). 68. Van Buren was not the first to propose the sub-Treasury system: Thomas Hart Benton claimed to have recommended it to Andrew Jackson early in the Bank War. See 1 Thomas Hart Benton, Thirty Years’ View; or, the History of the Working of the American Government for Thirty Years, from 1820–1850, at 158 (1854). Like much of Benton’s self-serving memoir, that claim is suspect, but something like the independent Treasury system was proposed in Congress as early as 1834 and again in 1835. See Timberlake, supra note 58, at 92. 69. On Van Buren’s presidency and its relationship to the development of the independent Treasury system, see generally Major L. Wilson, The Presidency of Martin Van Buren 123–46 (1984). 70. Similar proposals had been made earlier, perhaps as early as 1803. See Phillips, supra note 39, at 57. 71. See Act of July 4, 1840, ch. 41, 5 Stat. 385 (providing for “the collection, safe keeping, transfer, and disbursement of the public revenue”). 72. Wilson, supra note 69, at 123. 73. See §§ 2–4, 5 Stat. at 386. 74. See id. § 5, 5 Stat. at 386. 75. Similar powers were given to the Postmaster General with respect to those funds that would be lodged in the Post Office. See id. § 10, 5 Stat. at 388. 76. Id. §§ 14, 23, 5 Stat. at 389, 391. 77. See id. § 13, 5 Stat. at 388. 78. See Act of Aug. 13, 1841, ch. 7, 5 Stat. 439. 79. See generally Peterson, supra note 7, at 57– 93. 80. See Charles Sellers, James K. Polk, Continentalist: 1843– 1846, at 213 (1966). 81. See Act of Aug. 6, 1846, ch. 40, 9 Stat. 59 (providing for “better Organization of the Treasury, and for the Collection, Safe-Keeping, Transfer, and Disbursement of the public Revenue”). 82. Id. § 3, 9 Stat. at 59. 83. Indeed, the sub-Treasuries continued as depositaries of government reserve and trust funds of gold and silver after the federal reserve banks were created. See

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Sec’y of the Treasury, Report of the Secretary of the Treasury Relative to the United States Subtreasuries and Their Relation to the Federal Reserve Banks, H.R. Doc. No. 64-1777 (1916). 84. William M. Gouge was no mere Treasury functionary. He was a newspaper and journal editor and author of a short history of money and banking in the United States, see Gouge, supra note 40, and a number of other works on fiscal and monetary policy. Gouge was a hard-money advocate and an early supporter of the independent Treasury system. See Dictionary of American Biography Base Set, American Council of Learned Societies, 1928– 1936, available at http:// galenet.gale.com. 85. William M. Gouge et al., Report of the Secretary of the Treasury on the State of the Finances, S. Exec. Doc. No. 33-2, at 256 (1854). 86. See id. at 257. 87. See David Kinley, The History, Organization and Influence of the Independent Treasury of the United States 60 (1893). 88. Id. at 61– 63 (quoting Sec’y of the Treasury Howell Cobb). President Buchanan also credited the Independent Treasury system with saving the government from suspending payments, as it had been compelled to do by the bank failures of 1837. See The Banking System and the Sub-Treasury: Views of President Buchanan, Bankers’ Mag. & Stat. Reg., Jan. 1858, at 530, 533. 89. A commentator in 1852 complained, “The scheme of a Sub-treasury, too, one of the greatest follies of the age, has had its effect in obstructing the free intercourse between the government and the people, and has rendered troublesome and difficult that which would otherwise be harmonious and easy.” Government Finances, Bankers’ Mag. & Stat. Reg., Sept. 1852, at 169, 169. 90. In Timberlake’s opinion, “the institution of the Independent Treasury as it developed prior to the Civil War anticipated most of the monetary policies more lately practiced by the Federal Reserve System,” supra note 58, at 92. 91. Negatives are difficult to demonstrate, but Congress passed no new legislation during this period that sought to control the discretion of the Secretary of the Treasury in operating the Independent Treasury system. A review of the materials in the U.S. Congressional Serial Set, including all reports from the Treasury from the years 1846 through 1861, the Congressional Globe, Hunt’s Merchants’ Magazine and Review, the Bankers’ Magazine and Statistical Register and secondary literature from the period failed to unearth evidence of congressional intrusion into the Treasury’s independence. 92. For a skeptical treatment of the effectiveness of the sub-Treasury system, see Richard F. Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 at 240, 244 (1977). By the 1870s the Treasury’s regulation of the money markets came in for constant criticism, with the spoils system often blamed for its incompetence. See id. at 275– 81. 93. Steven Davidoff & David Zaring, Regulation by Deal: The Government’s Response to the Financial Crisis, 61 Admin. L. Rev. 463 (2009).

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Chapter 10: Democracy, Office, and the Reform of Administrative Organization 1. See Carl Russell Fish, The Civil Service and the Patronage 75– 78 (1905); Leonard D. White, The Jacksonians: A Study in Administrative History 1829–1861 at 300– 01. 2. Andrew Jackson, First Annual Message (Dec. 8, 1829), in 2 James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789– 1897 at 1005, 1011– 12. 3. Fish, supra note 1, at 52– 104. 4. The Dutch system of partial retirement was adapted for use in the colony of New York under the laws of the Duke of York: four of the eight overseers (selectmen) in each town would retire each year, and one of these retiring overseers would be selected to assume the job of constable for that year. See Albert E. McKinley, The Transition from Dutch to English Rule in New York: A Study in Political Imitation, 6 Am. Hist. Rev. 693, 712 (1901). Systems of rotation also appeared in New England states during the same period. See Fish, supra note 1, at 80. 5. See Fish, supra note 1, at 81 (explaining how Elbridge Gerry adapted Jackson’s argument into a broader argument about the merits of educating officers in the virtues of the people). 6. Of course, Jackson’s controversial removal of Treasury Secretary William Duane in 1833 fits in this category. See Paul P. Van Riper, History of the United States Civil Service 39 (1958). 7. Fish attributes this rationale to the adoption of term limits for governor and a variety of other officers by the majority of states by 1830. See Fish, supra note 1, at 81– 82. 8. White, supra note 1, at 325–43. In exchange for the opportunities afforded by public office to attain wealth and political power, voting allegiance was expected of public servants under the system of rotation, as was the provision of considerable resources to their political party in the form of time, energy, and money. See Van Riper, supra note 6, at 46. Additionally, newspaper editors were appointed to public office with increasing frequency during the Jacksonian Period with the expectation of sympathetic partisan news coverage. See Van Riper, supra, at 47–48. 9. White, supra note 1, at 335. 10. This nomenclature is credited to Senator M.L. Marcy, who praised the system on the Senate floor in these words: It may be, sir, that the politicians of the United States are not so fastidious as some gentlemen are, as to disclosing the principles on which they act. They boldly preach what they practise. When they are contending for victory, they avow their intention of enjoying the fruits of it. If they are defeated, they expect to retire from office. If they are successful, they claim, as a matter of right, the advantages of success. They see nothing wrong in the rule, that to the victor belong the spoils of the enemy. 8 Reg. Deb. 1325 (1832).

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11. Of course, they sometimes did. The poster child for thievery was one Samuel Swarthout, Collector of Customs for the Port of New York. Swarthout served from 1830 to 1838, after which he decamped for England having pillaged the Treasury of over $1.25 million— a sum equal to approximately one-fifth of the government’s annual budget. See H.R. Doc. No. 25-13, at 25 (1838). 12. Nathaniel Hawthorne, The Custom-House: Introductory to “The Scarlet Letter,” in The Scarlet Letter 12, 23–24 (Washington Square Press 1955) (1850). Hawthorne’s anecdotal account represented a general practice. Senior personnel were often retained to provide continuity and expertise. Bernard S. Silberman, Cages of Reason: The Rise of the Rational State in France, Japan, the United States and Great Britain 244 (1993). 13. Martin Van Buren, Inquiry into the Origins and Course of Political Parties in the United States (1867). 14. See Fish, supra note 1, at 156– 57. 15. Id. at 157. Gerald Leonard’s more recent account, Gerald Leonard, The Invention of Party Politics: Federalism, Popular Sovereignty and Constitutional Development in Jacksonian Illinois (2002), similarly links the acceptance of parties as an essential element in America’s originally anti-party constitutional ideology to the recognition of how party organization promoted both electoral democracy and government that was close to the people. 16. See Max Weber, The Presuppositions and Causes of Bureaucracy, in Robert K. Merton et al., Reader in Bureaucracy 60, 64 (1952) (“The purely impersonal character of office work, with its principal separation of the private sphere of the official from that of the office, facilitates the official’s integration into the given functional conditions of a fi xed mechanism based upon discipline.”). 17. On Weber’s views, see Talcott Parsons, Introduction to Max Weber, The Theory of Social and Economic Organization 3, 73– 74 (A.M. Henderson & Talcott Parsons trans., 1947); and Weber, supra note 16. 18. William E. Nelson, The Roots of American Bureaucracy, 1830–1900 at 4– 5 (1982). 19. Matthew A Crenson, The Federal Machine: Beginnings of Bureaucracy in Jacksonian America 4 (1975). 20. Id. at 3–4. 21. Id. 22. S. Doc. No. 23-422 (1834); S. Doc. No. 23- 86 (1835); H.R. Rep. No. 23-103 (1835). 23. According to the House Report, the General Post Office had a positive available balance of $329,723.51 on December 31, 1829. H.R. Rep. No. 23-103, at 9 (1835). 24. See Crenson, supra note 19 at 94. 25. H.R. Rep. No. 23-103, at 14– 15 (1835). Crenson describes how in one particularly egregious example, the postal entrepreneur James Reeside submitted a bid of $40 for postal ser vice between Hagerstown, Md., and McConnellstown, Pa., and a $99 bid for “improved ser vice” for this route. After being awarded the contract, he claimed that the figures submitted were the product of clerical errors and that the intended figures were $1400 and $1999—the contract was eventually kept at

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the “improved” rate of $1900. See Crenson, supra note 19, at 94– 95; see also S. Doc. No. 23-422, at 11– 12 (1834). 26. H.R. Rep. No. 23-103, at 14. 27. See id. at 12– 13. James Reeside was apparently particularly adept at extracting money from the Post Office, as evidenced by his increasing compensation for running the mails between Bedford and Blair’s Gap and Cumberland: without any additional bidding process he was able to increase his payment for these routes from $275 annually in 1831 to $7411.72 in 1834. See Crenson, supra note 19, at 97. 28. H.R. Rep. No. 23-103, at 42–43. 29. White, supra note 1, at 260– 67. 30. H.R. Rep. No. 23-103, at 50. 31. On Kendall’s career generally, see Donald B. Cole, A Jackson Man: Amos Kendall and the Rise of American Democracy (2004). On his functions as the chief strategist and patronage dispenser of the Democratic Party while serving as Postmaster General, see Dorothy Ganfield Fowler, The Cabinet Politician: The Postmasters General: 1829– 1909, at 21–39 (1943). 32. See Crenson, supra note 19, at 104– 11; White, supra note 1, at 270– 83. 33. Amos Kendall, Autobiography of Amos Kendall 341 (William Stickney ed., 1872). 34. Crenson, supra note 19, at 108. 35. See Act of July 2, 1836, ch. 270, 5 Stat. 80 (intending “to change the organization of the Post Office Department and to provide more effectually for the settlement of the accounts thereof”). 36. Id. §§ 4, 8, 5 Stat. at 80, 81. Kendall was not the principal author of the 1836 Reorganization Act, which also explicitly prohibited many of the contracting practices that had led to the waste of government funds. See id. §§ 25–29, 5 Stat. at 86, 87. But the statute followed, in part, his announced reorganization designs, and he assisted in drafting the bill. See Richard R. John, Spreading the News: The American Postal System from Franklin to Morse 247–48 (1995). 37. White, supra note 1, at 280. 38. Crenson, supra note 19, at 110. 39. See White, supra note 1, at 278. 40. For discussion of the development of the bureau system and its consequences, see White supra note 1, at 534–40. The creation of bureaus within departments while leaving existing hierarchies in place elevated principal clerks to the title of bureau chief or commissioner, granting them greater autonomy and making room for additional levels of bureaucracy beneath them. See id. at 534–35. Such developments were not always initiated by Congress. The War Department internally created a “pension office” in 1826, with a nominal clerk serving as its commissioner. Despite the clerk’s elevated responsibilities including the disbursement of nearly $2.5 million, the pension office was not officially recognized by Congress as a permanent office until 1849. Id. at 536; see H.R. Doc. No. 22-34, at 1–3 (1833). 41. See White, supra note 1, at 540–48. For example, the Chief Clerk of the General Land Office recommended to Congress that the Surveying Bureau be charged

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with superintending the arrangement of field notes and reviving the book of quantities, which recorded the quantities of land surveyed for each township. See S. Doc. No. 24-216, at 10 (1836). And the Supervisor of the Bureau of Private Land Claims in the Land Office, citing a lack of indexing and disorganization of documents, encouraged Congress to authorize the transcription of all reports to Congress adjudicating private land claims. See S. Doc. No. 24-216, supra, at 12– 13. 42. Indeed, strong bureaucratic organization had long been the tradition in the War Department, particularly in the bureau that expended the lion’s share of funds, the Quartermaster’s Department. For extended discussion, see Mark R. Wilson, The Business of Civil War 34– 65 (2006). 43. Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputation, Networks and Policy Innovation in Executive Departments 1862–1928, at 37– 64 (2001). 44. For a synopsis of these developments and an outline of administrative organization in the federal government in 1860, see Lloyd Milton Short, The Development of National Administrative Organization in the United States 219–222 (1923). 45. Examinations for the military academies originated in 1818 (West Point) and 1819 (midshipmen) and for army and navy surgeons in 1814 and 1824. See Van Riper, supra note 6, at 52. 46. Wilson, supra note 42, at 40, following Leonard White, describes this as a “dual system” of appointments and tenure. 47. On the difficulties of centralized control in the Land Office, see generally Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789–1837, at 200– 70 (1968). 48. On the land clubs, see also Crenson, supra note 19, at 152– 56. 49. Id. at 155– 56. 50. See W. Sherman Savage, The Controversy over the Distribution of Abolition Literature, 1830– 1860 (1938), for a much fuller description. 51. Amos Kendall, The Incendiaries, Niles’ Wkly. Reg., Aug. 22, 1835, at 448. 52. Whether the President’s suggestion was technically within the law is itself doubtful. The Postal Reorganization Act of 1836 contained a prohibition on detaining any matter in the mails with the intent “to prevent the arrival and delivery of the same to the person or persons to whom [it] . . . may be addressed or directed.” Postal Reorganization Act of 1836, ch. 270, § 32, 5 Stat. 80, 87. The statute did not presume that recipients of mailable matter needed to subscribe to a specific publication to have it directed to them. Nevertheless, as late as 1857 the Attorney General took the position that a principle of maintaining the public peace could override the rule that the mail must be delivered. Responding to a complaint concerning the failure of the Deputy Postmaster at Yazoo City, Mississippi, to deliver a copy of a Cincinnati newspaper, Caleb Cushing wrote: On the whole, then, it seems clear to me that a deputy post-master, or other officer of the United States, is not required by law to become, knowingly, the enforced agent or instrument of enemies of the public peace, to disseminate, in their behalf, within the limits of any one of the States of the Union, printed

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matter, the design and tendency of which are to promote insurrections in such State. 8 Op. Att’y. Gen. 489, 501 (1857). 53. Ch. 7, 1 Stat. 302. 54. Cong. Globe, 31st Cong., 1st Sess. 234 (1850). 55. Act of Feb. 12, 1850, ch. 60, 9 Stat. 462. 56. See Bernard Schwartz, From Confederation to Nation: The American Constitution, 1835–1877, at 105– 06 (1973). 57. See Rohrbough, supra note 47, at 258– 63; see also White, supra note 1, at 143– 62. (“On the whole, however, the record of Congress in the field of administration was a record characterized by delay, indifference, partisanship, and reluctance to provide the resources for effective work.”)

Chapter 11: Regulating Steamboats 1. The steamboat inspection ser vice, as it came to be called, was one of the fifty or so most important organizations of the federal government selected for monographic study by the Institute for Government Research (now the Brookings Institution) in the early 1920s. See Lloyd M. Short, Steamboat-Inspection Service: Its History, Activities and Organization (1922). 2. John G. Burke, Bursting Boilers and the Federal Power, 7 Tech. & Culture 1 (1966). 3. Steam boilers were also used, of course, in factories and in railroad locomotives. However, in neither of these contexts was the loss of life from a single explosion so dramatic as when a boiler burst on a steamship. The high stakes in individual steamship explosions excited public concern and generated the first large-scale government effort to compile accident statistics in the United States. Arwen Mohun, On the Frontier of The Empire of Chance: Statistics, Accidents, and Risk in Industrializing America, 18 Sci. in Context 337, 342 (2005). 4. 42 Annals of Cong. 2694, 2707, 2708, 2765 (1824). 5. For example, explaining his opposition to the continued operations of the Second Bank of the United States, Congressman Ebenezar Sage of New York said, “It is capable of raising too high a pressure for the safety of those who may come within the sphere of its action.” See Robert Remini, Andrew Jackson and the Bank War: A Study in the Growth of Presidential Power 65 (1967) (quoting Sage). 6. Cong. Globe, 23d Cong., 1st Sess. 7 (1833). 7. Cong. Globe, 24th Cong., 2d Sess. 29 (1836); Cong. Globe, 25th Cong., 2d Sess. 7– 9 (1837). 8. See Act of July 7, 1838, ch. 191, 5 Stat. 304; Burke, supra note 2, at 15. 9. David P. Currie, The Constitution in Congress: Democrats and Whigs 1829–1861, at 124–25 (2005). 10. See Carl B. Swisher, The Taney Period: 1836– 64, in 5 History of the Supreme Court of the United States 357–422 (1974). 11. 22 U.S. (9 Wheat.) 1 (1824). 12. See Swisher, supra note 10, at 403– 04.

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13. Several states had passed steamboat safety legislation, beginning with Alabama in 1826. See Act of Jan. 12, 1826, 1826 Ala. Laws 5. Louisiana followed suit eight years later, see Act of Mar. 6, 1834, 1834 La. Acts 55, and Kentucky enacted legislation a year before the 1838 federal statute, see Act of Feb. 23, 1837, 1837 Ky. Acts 348. But these statutes were ineffec tive, either because they contained little of substance or because they were inapplicable to most steamboat traffic, which traveled interstate. See Louis C. Hunter, Steamboats on the Western Rivers: An Economic and Technological History 523– 24 (1949). The Louisiana statute was the most sophisticated of the state legislative efforts. But attempts to apply it to steamboats whose journeys took them beyond the state’s boundaries were rejected by the federal courts. See, e.g., Halderman v. Beckwith, 11 F. Cas. 172, 174– 75 (D. Ohio 1847) (No. S. 907) (McLean, Circuit Justice) (holding that the Louisiana regulations could not be applied to a boat on a trip between New Orleans and Pittsburgh in which it would pass through the waters of ten states). 14. Select Comm. on Transp.-Routes to the Seaboard, Report, S. Rep. No. 43307, at 79– 92 (1874). 15. Act of July 7, 1838, ch. 191, 5 Stat. 304. 16. Act of Feb. 18, 1793, ch. 8, 1 Stat. 305. Chief Justice John Marshall relied on this statute in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), to demonstrate that congressional legislation would invalidate New York’s grant of a steamboat monopoly even were it not the case that the Congress had exclusive jurisdiction over interstate commerce. See id. at 51– 65. Marshall’s reading of that early licensing statute seems extravagant. While the statute did require enrollment of vessels, and provided for forfeiture of the vessel and for other penalties were a license not obtained, a reading of the whole statute suggests that its only significant purpose was to ease the collection of duties and prevent avoidance of taxes. 17. Act of July 7, 1838, ch. 191, § 6, 5 Stat. 304, 305. 18. Id. § 2, 5 Stat. at 304. 19. Report of the Commissioner of Patents to the Senate of the United States, on the Subject of Steamboiler Explosions, S. Exec. Doc. No. 30-18 (1848) [hereinafter Burke’s Report]. Because his information on railroads was too scanty to provide any reliable conclusion, Burke limited his report to steamboat accidents. 20. A similar recommendation for improvement of the 1838 legislation had been made four years earlier by an association of steamboat engineers. A Supplement to the Petition to the Practical Steam Engineers and Others of the City of Cincinnati, to the Congress of the United States, H.R. Doc. No. 28- 68, at 9– 10 (1844). 21. Steamboat owners and operators were outraged that they were being regulated when the safety of steamboats was constantly improving and the loss of life and property from the wreckage or sinking of sailing vessels was incomparably greater than that involved in the steamboat traffic. Memorial of Sundry Proprietors and Managers of American Steam Vessels on the Impolicy and Injustice of Certain Enactments in the Law Relating to Steamboats, and Asking to Be

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Restored to the Rights and Privileges Which Belong to Other Citizens Engaged in Navigation, H.R. Doc. No. 26-158, at 26 (1840). 22. According to Patent Commissioner Burke, only eighteen federal prosecutions were brought under the 1838 Act during its first decade. Of these, eight resulted in acquittals or dismissals, one was undecided, and of the nine that resulted in convictions, six defendants had their penalties remitted in whole or in part. Burke’s Report, supra note 19, at 52– 53. 23. Id. at 29. 24. Congress had made at least one other boner in the 1838 statute: it had required that iron rods or chains be used to link the rudders of steamboats to their tillers or wheels. The idea was to avoid the loss of control from the breakage or burning of the usual attachment material, hemp rope. However, the rod or chain system proved to be so detrimental to the maneuverability of the vessels that Congress removed this requirement in 1843 and authorized courts before whom prosecutions had been begun to dismiss the indictments if the defendants had failed to comply because of an honest apprehension that rod or chain systems could not be used safely. See Act of Mar. 3, 1843, ch. 191, § 4, 5 Stat. 626. 25. Burke’s reliance on insurance regulation may have been misplaced. According to Hunter, by 1842 insurance underwriters had ceased writing insurance for steamboats where the cause of the loss was a boiler explosion. Hunter, supra note 13, at 365. 26. Burke, supra note 2, at 19. 27. See Act of Aug. 30, 1852, ch. 106, 10 Stat. 61. 28. Many of the technological provisions of the 1852 statute had been recommended by the Senate Commerce Committee twelve years before the passage of the 1852 statute. Comm. on Commerce, Report to Accompany Bill S. No. 247, S. Rep. No. 26-241, at 6– 12 (1st Sess. 1840). As that Committee stated: The only practicable mode of reaching these causes of disaster, is by means of a compulsory, rigid, scrutinizing inspection of the hull, boiler, engine, and all the equipments [sic] of steamvessels, made by competent and sworn officers; not nominal and formal merely, as it too often the case under the present law, but an actual and faithful inspection. Id. at 6. 29. Act of Aug. 30, 1852, ch. 106, § 9, 10 Stat. 61, 64. 30. Id. § 9, 10 Stat. at 64. 31. Id. § 9, 10 Stat. at 67. 32. Id. § 18, 10 Stat. at 70. 33. The current rules can be viewed at www.navcen.uscg.gov/mwv/navrules /navulres.htm. 34. § 29, 10 Stat. at 72. 35. Id. § 40, 10 Stat. at 75. 36. The need for approval of the Secretary of the Treasury may have been inserted because of constitutional scruples. Customs collectors and supervising inspectors are not the “heads of Departments” contemplated to have appointing power with respect to “inferior officers” pursuant to U.S. Const. art. II, § 2.

382

notes to pages 195–197

37. Administrative appeals were also a prominent feature of the reform of the patent system in 1836. See Act of July 4, 1836, ch. 357, 5 Stat. 117. But rather than having hierarchical appeals within the same agency, appeals from the Commissioner of Patents were to be made to a board composed of three outsiders appointed for that purpose by the Secretary of State. See id. § 7, 5 Stat. at 119– 120. 38. Id. § 9, 10 Stat. at 63– 64. 39. Information concerning some of the original supervising inspectors of steamboats can be found in old newspaper accounts and the Congressional Globe. John Shallcross, for example, the Supervising Inspector for Louisville and first president of the board of Supervising Inspectors, was a steamboat captain and former inspector of hulls for the Board of Underwriters in Memphis, Tennessee. Memphis Daily Avalanche, Feb. 26, 1869, at 3. On other inspectors, see Daily Globe (Wash., D.C.), Mar. 8, 1854, at Supp. 1; New Albany Daily Ledger (Ind.), July 19, 1858, at 3; and S. Misc. Doc. No. 32-84 (1852). 40. Act of Aug. 30, 1852, ch. 106, § 22, 10 Stat. 61, 71. 41. The first seven members of the Board of Supervising Inspectors of Steamboats were confirmed by the Senate on September 4, 1852. See Confirmation of Steamboat Inspectors, State Gazette (Trenton), Sept. 6, 1852, at 2. 42. Bureau Marine Insp. & Navig., 1 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 4 (Oct. 27, 1852) (Baltimore, James Lucas 1853) [hereinafter Washington Special Meeting]. 43. Id. at 5, 8– 11. 44. Act of Aug. 30, 1852, ch. 106, § 18, 10 Stat. 61, 70. 45. Washington Special Meeting, supra note 42, at 5– 7. 46. Id. at 12. 47. Id. at 14. The Secretary of the Treasury had other duties as well. On November 4, the Board instructed its secretary to call the attention of the Secretary of the Treasury to his other duties under the statute, including the crucial matter of adopting rules for the mode of stamping boiler plates. It was the Board’s view that information on that matter should be “given to the manufacturers at as early a date as practicable.” Id. at 14– 15. 48. Bureau Marine Insp. & Navig., 1 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 18–20 (Dec. 8, 1852) (Baltimore, James Lucas 1853) [hereinafter New York Special Meeting]. 49. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 26–27 (Aug. 2, 1853) (Washington, Gideon & Co. 1859). 50. For example, consider the rules on space requirements for passengers. As the “Report of Committee in regard to Space for Passengers on Steam Vessels” makes clear, New York Special Meeting, supra note 48, at 22–23, these rules were not simply a specification of the numbers of passengers to be carried. Instead, they detailed the amount of square footage to be allowed to each passenger on different types of vessels and in different types of cabins or on deck, the size of berths, and the way “passengers” should be computed. Local inspectors were also enjoined “to examine and

notes to pages 197–201

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see that proper means for ventilation are provided in all those parts of steamers occupied by passengers.” Id. at 23. 51. Act of Jan. 7, 1853, ch. 106, 10 Stat. 261. 52. Hunter, supra note 13, at 539. 53. Bureau Marine Insp. & Navig., 1 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 36 (Nov. 5, 1853) (Baltimore, James Lucas) [hereinafter 1853 Annual Report]. 54. Id. at 53. 55. Id. at 64. 56. Id. 57. Id. at 57– 63. 58. Id. at 64. 59. Id. 60. Id. at 71– 72. There is some question whether the Supervising Inspectors managed to prevent the capture of the licensing scheme by some of those who were required to be licensed. In his Life on the Mississippi, Mark Twain describes how the Pilots’ Benevolent Association managed over time to monopolize the pilotage trade for its membership. Moreover, when all licensed pilots were members of the Association, it had effective control over the licensing of new pilots. In Twain’s words: “By the United States law no man could become a pilot unless two duly licensed pilots signed his application, and now there was nobody outside of the association competent to sign. Consequently the making of pilots was at an end.” Mark Twain, Life on the Mississippi 118 (Dillon Press 1967) (1883). 61. The pilot regulations, for example, were reported in the Baltimore Sun. See Regulations for Steamboat Navigation, 31 Balt. Sun, Nov. 17, 1852, at 1. 62. These newspapers are made available online at http://infoweb.newsbank.com/ iw-search/we/HISTARCHIVE. See e.g., Important to the Owners of Steamboats, Milwaukee Sentinel, Jan. 9, 1857, at 2 (“The attention of the owners of Steam Passenger Vessels is called to the following resolution, adopted by the Board of Supervising Inspectors. . . .”); Steamboat Inspection, Trenton State Gazette, Jan. 31, 1854, at 2 (“The Supervising Inspectors of Steamboats have made a report of their doings. . . . ). 63. See 1853 Annual Report, supra note 53, at 55. 64. Id. 65. Bureau Marine Insp. & Navig., 2 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 78 (Apr. 7, 1854) (1854). 66. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852–1899, at 98 (Oct. 6, 1854) (Washington, Gideon & Co. 1859); id. at 4 (Oct. 10, 1855). 67. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852–1899, at 73– 77 (Oct. 14, 1858) (Washington, Gideon & Co. 1859). 68. Bureau Marine Insp. & Navig., 4 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852–1899, at 12– 14 (Oct. 15, 1860) (Baltimore, James Lucas & S. 1860).

384

notes to pages 201–204

69. Bureau Marine Insp. & Navig., 2 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 78 (Apr. 7, 1854) (1854). 70. Id. at 95. 71. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852–1899, at 27–36 (Apr. 1, 1856) (Baltimore, James Lucas & Son 1859). 72. Id. at 12– 13. 73. Id. at 19–25. 74. Some of the Board’s recommendations seem to have passed the House in 1860, but were not taken up by the Senate. Cong. Globe, 36th Cong., 1st Sess. 2177– 79 (1860). 75. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 4– 5 (Oct. 14, 1858) (Washington, Gideon & Co. 1859). 76. Id. at 37. 77. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 34 (Oct. 14, 1858) (Washington, Gideon & Co. 1859). 78. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 37 (Oct. 15, 1857) (Baltimore, James Lucas & Son 1859). 79. See, e.g., Bureau Marine Insp. & Navig., 2 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 85– 90 (Apr. 7, 1854) (1854) (considering the problem of the protection of safety valves from the effect of rust on iron, based on studies and conversations with one Professor Smith). 80. See, e.g., Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 15 (Oct. 14, 1858) (Washington, Gideon & Co. 1859). 81. 5 U.S.C. § 553 (2000). 82. Bureau Marine Insp. & Navig., 2 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 81, 85 (Apr. 7, 1854) (1854). 83. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 8– 10 (Oct. 10, 1855) (Washington, Gideon & Co. 1859). 84. Id. at 20–21, 27–29 (Oct. 15, 1857). 85. Id. at 14 (Oct. 14, 1858). 86. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 29 (Oct. 15, 1857) (Washington, Gideon & Co. 1859). 87. Bureau Marine Insp. & Navig., 2 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 85– 90 (Apr. 7, 1854) (1854). 88. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852–1899, at 13 (Oct. 10, 1855). Unfortunately the Report provides no details or even identification of the judicial decisions it praises.

notes to pages 204–206

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89. See, e.g., United States v. Bougher, 24 F. Cas. 1205 (C.C.D. Ohio 1854) (No. 14,627) (holding that no expressed statutory authorization was required for the United States to bring an action in debt to recover fines under the statute even though the statute did not explicitly authorize this form of enforcement); United States v. The Thomas Swan, 28 F. Cas. 86 (D.C.S.C. 1856) (No. 16,480) (holding that a local inspector would not be barred from testifying in an enforcement action as an “interested person” merely because he was a named party in the enforcement action). 90. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 67 (Nov. 7, 1859) (Washington, Gideon & Co. 1859). 91. Congress printed ten thousand copies of its 1838 report on the causes of steamboat accidents, obviously anticipating significant interest in the public at large. Mohun, supra note 3, at 343. The congressional report was U.S. Congress, SteamEngines: Letter from the Secretary of the Treasury, H.R. Doc. No. 25-21 (1838). 92. The accident statistics, which included the Supervising Inspectors’ reports for 1853– 1863, are summarized in Hunter, supra note 13, at 541. 93. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 32–33 (Nov. 7, 1859) (Washington, Gideon & Co. 1859). 94. Sec’y of the Treasury, Annual Report of the Secretary of the Treasury, on the State of the Finances, S. Exec. Doc. No. 35-1 (1st Sess. 1857); see also Interesting Statistics, 42 Balt. Sun, Dec. 30, 1857, at 4. 95. Hunter, supra note 13, at 540. 96. This begins as early as Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 13 (Oct. 10, 1855) (Washington, Gideon & Co. 1859). See also Bureau Marine Insp. & Navig., 4 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899 at 15– 16 (Oct. 15, 1860) (Baltimore, James Lucas 1860). 97. Bureau Marine Insp. & Navig., 3 Steamboat Insp. Serv., Proc. Bd. Supervising Insp. Steam Vessels 1852– 1899, at 32 (Oct. 10, 1855) (Washington, Gideon & Co. 1859). 98. A recent paper finds, using sophisticated econometric methods and a new data set on steamboat travel, that the 1852 act improved safety. Richard N. Langlois, David J. Denault, & Samson M. Kimenyi, Bursting Boilers and the Federal Power Redux: The Evolution of Safety on the Western Rivers (May 1994) (unpublished manuscript), available at http://econpapers.repec.org/paper/wpawuwpeh/9503002 .htm. But all credit should not be assigned to the new regulatory regime. The new data suggest that the Act merely accelerated a safety trend that was fairly constant throughout the period 1830– 1869. 99. A discussion of this problem and citation to some of the more prominent literature can be found in Jerry L. Mashaw, Law and Engineering: In Search of the LawScience Problem, Law & Contemp. Probs. 135 (Autumn 2003).

386

notes to pages 206–207

100. For a general review of science in this period, see George H. Daniels, American Science in the Age of Jackson (1968). An increasing reliance on scientific expertise is also evidenced in the reforms in the Patent Office and its procedures during the Jacksonian period. Prior to 1836 the Patent Office was a mere registration ser vice. The Patent Clerk in the State Department had no authority to deny a patent on any ground other than failure to meet the formal requirements of registration. The question of whether the patent owner should have been granted an exclusive right to exploit his invention would be determined in a subsequent action in the courts for patent infringement. After 1836, however, a new patent office was established with a Commissioner of Patents who was authorized to issue patents only on a fi nding that a new invention or discovery was actually new and was “sufficiently useful and important” to be issued a patent. Act of July 4, 1836, ch. 357, § 7, 5 Stat. 117, 119– 20. It is perhaps not surprising that it was this new Commissioner of Patents who was charged with the task of evaluating the effectiveness of the 1838 steamboat legislation. 101. 2 Louis C. Hunter, A History of Industrial Power in the United States, 1780–1930: Steam Power (1985). 102. Robert V. Bruce, The Launching of Modern American Science, 1846–1876, at 155 (1987). In this regard they were no different from their predecessors. The Archimedes Project at the Max Planck Institute for the History of Science in Berlin has found that in the ancient and medieval worlds as well, where mechanical devices are involved, “The practical use comes first, theory second.” Guy Gugliotta, The Ancient Mechanics and How They Thought, N.Y. Times, Apr. 1, 2008, at F1. 103. On Explosions in Steam Boilers, 3 J. Franklin Inst. 70, 70 (1829). 104. Benjamin Silliman, Safety of Steam Boats, 6 J. Franklin Inst. 323, 353 (1830). 105. Alexander Dallas Bache was one of the leading scientific lights of the Jacksonian era. He was a professor at the University of Pennsylvania, the editor of the Journal of the Franklin Institute, a pioneering head of the U.S. Coast Survey, and the leader of the movement to establish the National Academy of Sciences. On Bache’s career, see Hugh Richard Slotten, Patronage, Practice, and the Culture of American Science: Alexander Dallas Bache and the U.S. Coast Survey (1994). 106. A.D. Bache, Safety Apparatus for Steam Boats, Being a Combination of the Fusible Metal Disk with the Common Safety Valve, 7 J. Franklin Inst. 217, 217 (1831). 107. This theory is described in Alfred Guthrie, Memorial of Alfred Guthrie, A Practical Engineer, S. Misc. Doc. No. 32-32, at 9 (1852). 108. The initial aims of the Franklin Institute, founded in 1824, were (1) to provide instruction to working men in the principles of science, and (2) to improve the status of artisans in a democratic society. Membership was open to all, and the early members included a broad group of professionals, from ale brewers to plasterers to plumbers to blacksmiths and druggists. The Institute provided lectures for its members and the general public, held exhibitions on new inventions, reported grants of new invention patents, and created a library of books related to

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science and the useful arts. It also founded, in 1837, the Journal of the Franklin Institute to diff use information on any subject connected with the useful arts. For a brief history of the early years of the Franklin Institute, see Sydney L. Wright, The Story of the Franklin Institute (1938). 109. Board of Managers, Proceedings Relating to the Explosion of Steam Boilers, 10 J. Franklin Inst. 33 (1830). 110. H.R. 14, 21st Cong. (1st Sess. 1829). 111. On the events leading up to the joint government/Institute project, see Bruce Sinclair, Philadelphia’s Philosopher Mechanics: A History of the Franklin Institute, 1824–1865, at 176– 77 (1974). 112. The federal government had, of course, supported substantial cartographic and natural history projects. Thomas Jefferson’s support of the Lewis and Clark Expedition, and the naval cruise that mapped the South Pacific and discovered Antarctica during the Van Buren Administration, are major examples. But these enterprises were not aimed at policy development. 113. Report of Experiments Made by the Committee of the Franklin Institute of Pennsylvania, on the Explosions of Steam-Boilers, at the Request of the Treasury Department of the United States, 17 J. Franklin Inst. 1 (1836). 114. The report was published serially in the January–May issues of the Franklin Institute. See 17 J. Franklin Inst. 1, 73, 145, 217, 289 (1836). 115. Id. at 225. To make its report more useful for Congress, Bache wrote a general report of forty-eight pages that translated the scientific findings into policy recommendations. This was followed by a more technical 247-page report that contained all of the Committee’s specific findings, equations, and calculations. See R. John Brockmann, Exploding Steamboats, Senate Debates and Technical Reports 62 tbl. 1 (2002). 116. Although the managers of the Institute believed that “there must be a power in the community lodged somewhere to protect the people at large against any evil of serious and frequent recurrence,” they also believed “that such power is to be used with extreme caution, and only when the evil is great, and the remedy certain of success.” Board of Managers, Proceedings Relating to the Explosion of Steam Boilers, 10 J. Franklin Inst. 33, 34 (1830). 117. See A Bill for the Regulation of the Boilers and Engines of Vessels Propelled in the Whole or in Part by Steam, 18 J. Franklin Inst. 369 (1836). 118. Brockmann, supra note 115, at 81, 84, denies that the influence was at all substantial. But Patent Commissioner Burke’s report to Congress in 1848 recognized that the institute’s 1836 report had answered many of the important questions necessary to understand the causes of boiler explosions. Burke’s Report, supra note 19, at 5– 7. 119. The important French ordinances, and the circulars and instruction that implemented them, were all translated and reprinted in the Journal of the Franklin Institute. See 7 J. Franklin Inst. 272, 323, 399 (1831); 8 J. Franklin Inst. 33 (1831); 10 J. Franklin Inst. 105, 181 (1832). And the Dutch and Belgian regulations, along with the French, were before the Senate Commerce Committee in 1840. S. Doc. No. 26-241, at 1 (1840).

388

notes to pages 210–215 Chapter 12: The Administrative Constitution of “The Democracy”

1. See the discussion in Jed Sugarman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 Harv. L. Rev. 1061 (2010). 2. For quite different perspectives on the development of judicial review in this period, see Ann Woolhandler, Judicial Deference to Administrative Action— A Revisionist History, 43 Admin. L. Rev. 197 (1991); Frederick P. Lee, The Origins of Judicial Control of Federal Executive Action, 36 Geo. L.J. 287 (1948); and Nathan Isaacs, Judicial Review of Administrative Findings” 30 Yale L.J. 781 (1921). 3. Kendall was also outraged when an intermediary for the firm promised a carriage and a pair of horses to his wife if a claim were allowed. Amos Kendall, Autobiography of Amos Kendall 351– 52 (William Stickney ed., 1872). 4. Carl B. Swisher, The Taney Period: 1836–64, in 5 History of the Supreme Court of the United States 160 (1974). 5. Kendall v. United States, 37 U.S. (12 Pet.) 524, 600 (1838). 6. Id. at 525. 7. King v. Young & Pitts, 1 Burr. 557 (Kings Bench, 1758). 8. See, e.g., King v. Justices of Wiltshire, 10 East 403 (Kings Bench 1808); King v. Justices of Lancaster, 7 V.C. 690 (Kings Bench 1828); and King v. Bishop of London, 134 East. 419 (Kings Bench, 1811). 9. 41 Mo. 221, 226 (Mo. 1867). 10. Zanone v. Mound City, 103 Ill. 552 (Ill. 1882); Potter v. Common Council of Homer, 59 Mich. 8 (Mich. 1886). 11. 39 U.S. (14 Pet.) 497 (1840). 12. Id. at 515– 16. 13. Id. at 498. 14. Wash. Nat’l. Intelligencer, Mar. 13, 1838. 15. Kendall, supra note 3, at 355. 16. On Kendall’s difficulties and the political machinations to keep him out of prison, see Swisher, supra note 4, at 165– 66. 17. Kendall v. Stokes, 44 U.S. (3 How.) 87 (1845). 18. Id. at 97– 98. 19. Elliot v. Swartwout, 35 U.S. (10 Pet.) 137 (1836), for example, clearly stated that a Treasury official is personally liable in an action to recover excess duties paid, even if acting in good faith and under instructions from the Treasury, provided the taxpayer has informed him at the time of payment that he is paying under protest. 20. 2 Frank J. Goodnow, Comparative Administrative Law: An Analysis of the Administrative Systems National and Local, of the United States, England, France and Germany 165– 66 (1897). 21. 44 U.S. (3 How.) 236 (1845). 22. Id. at 242–46. 23. Id. at 252– 54. 24. Act of Feb. 26, 1845, ch. 22, 5 Stat. 727.

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25. 45 U.S. (4 How.) 327 (1846). 26. 57 U.S. (16 How.) 263 (1853). 27. Id. at 263, 272 (citing Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 522 (1840)). 28. 54 U.S. (13 How.) 40 (1851). 29. 58 U.S. (17 How.) 425 (1854). 30. Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers 75– 80 (1903). 31. 172 U.S. 576 (1899). 32. 59 U.S. (18 How.) 272 (1855). 33. Act of May 15, 1820, ch. 107, § 33, 3 Stat. 592. 34. 59 U.S. at 275 (internal quotation marks omitted). 35. Id. at 276. 36. Id. at 277. 37. Id. 38. Id. at 277– 80. 39. Id. at 283. 40. Id. at 284. 41. See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001) (providing a description and defense of this form of administration in the contemporary administrative state). 42. De Tocqueville, Democracy in America 143 (Henry Steele Commager ed., Henry Reeve transl., Oxford Univ. Press, 1946). 43. Cong. Globe, 30th Cong., 2d Sess. 671 (1849). 44. The list of reports made to the Congress as of 1834 appears at H.R. Doc. No. 23-1 (1834). Additional reports were added by Act of Aug. 26, 1842, ch. 202, § 20, 5 Stat. 523, 527; Act of July 21, 1840, ch. 99, § 9, 6 Stat. 813, 815; Act of Mar. 3, 1849, ch. 110, § 6, 9 Stat. 398, 399; and Act of Mar. 3, 1858, ch. 97, § 2, 10 Stat. 189, 209. 45. XLVII Niles Wkly Reg., Dec. 13, 1834, at 233. 46. 2 Jefferson Davis, His Letters, Papers and Speeches (Dunbar Rowland, ed., 1923). 47. S. Doc. No. 24-216, at 1–2 (1836). 48. H.R. Doc. No. 27-167, at 1–2 (1842). 49. Cong. Globe, 30th Cong., 2d Sess. 514 (1849) 50. H.R. Rep. No. 25-313, at 121 (1839). 51. Act of Aug. 30, 1842, ch. 270, § 24, 5 Stat. 548, 566. 52. It is not clear what else Cushing considered a part of “administrative law.” He clearly was an early proponent of a version of the “unitary executive,” a position he derived from his reading of the Constitution. He also viewed the queries of the Attorney General expounding the law to the President or heads of departments as a set of quasi-judicial pronouncements that should guide those officers save in extraordinary circumstances. And he urged the departments themselves to treat their settled practices as precedents that should be reconsidered only in the most exigent circumstances. On Cushing’s career as Attorney General and his exposition of the position of the executive departments and their relations to the President,

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notes to pages 223–228

Congress, and the judiciary, see Sister M. Michael Catherine Hodgson, Caleb Cushing: Attorney General of the United States, 1853–1857, at 101–40 (1955). 53. 5 Op. Att’y Gen. 562, 563 (1852). Prior Attorneys General had taken a similar view. See, e.g., 2 Op. Att’y Gen. 220 (1829); 2 Op. Att’y Gen. 8 (1825).

Chapter 13: Nation, State, and Administration in the Gilded Age 1. The historical literature on this period is truly massive. Three early works in the History of American Life series provide a stimulating overview of historical developments along with bibliographical essays: Allan Nevins, The Emergence of Modern America 1865–1878 (1927); Arthur Meier Schlesinger, The Rise of the City 1878–1898 (1933); and Ida M. Tarbell, The Nationalizing of Business 1878–1898 (1936). 2. The classic modern treatment is Eric Foner, Reconstruction: America’s Unfinished Revolution 1863–1877 (1988). See also Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction 1863–1869 (1974) (arguing that the limitations of Reconstruction were attributable to divisions in the Republican Party, not just resistance by Southerners, Democrats, and President Andrew Johnson). 3. See, e.g., Jack Beatty, Age of Betrayal: The Triumph of Money in America, 1865–1900, at 109– 91 (2007). 4. Richard Franklin Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 (1990); Leonard P. Curry, Blueprint for Modern America: Nonmilitary Legislation of the First Civil War Congress (1968) (arguing that national policy moved in this direction even as the war was being fought). 5. See Thomas C. Cochran & William Miller, The Age of Enterprise: A Social History of Industrial America (1942); Carl N. Degler, The Age of the Economic Revolution, 1876–1900 (David M. Potter & Carl N. Degler eds., 1967); Robert Higgs, The Transformation of the American Economy, 1865–1914: An Essay in Interpretation (Ralph L. Andreano ed., 1971). 6. For standard biographies, see Robert V. Bruce, Bell: Alexander Graham Bell and the Conquest of Solitude (1973); and Robert Conot, A Streak of Luck (1979). 7. See, e.g., Siegfried Giedion, Mechanization Takes Command: A Contribution to Anonymous History (1948); John W. Oliver, History of American Technology (1956). 8. W.D. Howells, A Sennight of the Centennial, Atlantic Monthly, July 1876, at 92, 96. 9. On railroad development in this period, see Robert William Fogel, Railroads and American Economic Growth: Essays in Econometric History (1964); The Railroads: Pioneers in Modern Management (Alfred D. Chandler ed., 1979); and George Rogers Taylor & Irene D. Neu, The American Railroad Network, 1861–1890 (1956).

notes to pages 228–229

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10. See, e.g., Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815–1848 (2007); Charles Sellers, The Market Revolution: Jacksonian America, 1815–1846 (1991). Richard Hofstadter argues that the notion of the self-sufficient farm family as the backbone of the nation was a myth by the time of Tocqueville’s travels. Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. 23–93 (1955). 11. On these general developments, see Alfred D. Chandler, Jr., The Visible Hand: The Managerial Revolution in American Business (1977); George Heberton Evans, Jr., Business Incorporation in the United States, 1800– 1943 (1948); and Edward C. Kirkland, Industry Comes of Age: Business, Labor, and Public Policy, 1860–1897 (1961). 12. On the careers of these titans of industry, see, for example, Cass Canfield, The Incredible Pierpont Morgan: Financier and Art Collector (1974); Louis M. Hacker, The World of Andrew Carnegie: 1865–1901 (1968); Allan Nevins, Study in Power: John D. Rockefeller, Industrialist and Philanthropist (1953); and John K. Winkler, Tobacco Tycoon: The Story of James Buchanan Duke (1942). 13. Sidney Ratner, American Taxation: Its History as a Social Force in Democracy 136, 275 (1942); C.L. Merwin, Jr., American Studies of the Distribution of Wealth and Income by Size, in 3 Conference on Research in Nat’l Income & Wealth, Nat’l Bureau of Econ. Research, Studies in Income and Wealth 3, 6 (1939). 14. See, e.g., Stewart H. Holbrook, The Age of the Moguls (Lewis Gannett ed., 1953); Matthew Josephson, The Robber Barons: The Great American Capitalists, 1861–1901 (1934). 15. The classic treatment is Hofstadter, supra note 10. Accord Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877–1917 (Benjamin I. Page ed., 1999). 16. For a multidisciplinary treatment of how the changes in the basic ideas and ideals by which Americans lived were reshaped in this period, see Alan Trachtenberg, The Incorporation of America: Culture and Society in the Gilded Age (1982). 17. On the course of immigration and assimilation in postbellum America, see Thomas J. Archdeacon, Becoming American: An Ethnic History (1983); Jack Chen, The Chinese of America (1980); Oscar Handlin, Race and Nationality in American Life (1957); John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925 (1955); Stuart Creighton Miller, The Unwelcome Immigrant: The American Image of the Chinese, 1785–1882 (1969); and Philip Taylor, The Distant Magnet: European Emigration to the U.S.A. (1971). Notwithstanding the lack of national immigration legislation, state regulation had persisted since the early days of the Republic. For a discussion of this early history, see Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 19–43 (1996). Moreover, early congressional practice tended to equate immigration and naturalization, and the latter had been regulated since 1790. For a reinterpretation of

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immigration law that includes this earlier period, see James Pfander & Theresa Wardon, Reclaiming the Immigration Constitution of the Early Republic, 96 Va. L. Rev. 359 (2010). 18. For a conventional starting point, see 4 Philip S. Foner, History of the Labor Movement in the United States (1965). Some other useful works include Robert V. Bruce, 1877: Year of Violence (1959); Jerry M. Cooper, The Army and Civil Disorder: Federal Military Intervention in Labor Disputes, 1877– 1900 (1980); Henry David, The History of the Haymarket Affair: A Study in the American Social-Revolutionary and Labor Movements (2d ed. 1958); Gerald N. Grob, Workers and Utopia: A Study of Ideological Conflict in the American Labor Movement 1865–1900 (1961); Stuart Bruce Kaufman, Samuel Gompers and the Origins of the American Federation of Labor 1848–1896 (1973); David Montgomery, The Fall of the House of Labor: The Workplace, the State, and American Labor Activism, 1865– 1925 (1987); Michael Nash, Conflict and Accommodation: Coal Miners, Steel Workers, and Socialism, 1890–1920 (1982); Norman J. Ware, The Labor Movement in the United States 1860–1895: A Study in Democracy (1929); and Irwin Yellowitz, The Position of the Worker in American Society, 1865–1896 (1969). 19. Charles Loring Brace, The Dangerous Classes of New York, and Twenty Years’ Work among Them (1872). 20. On the rise of the city and its problem and politics, see William A. Bullough, Cities and Schools in the Gilded Age: The Evolution of an Urban Institution (1974); The City Boss in America: An Interpretive Reader (Alexander B. Callow, Jr., ed., 1976); Leo Hershkowitz, Tweed’s New York: Another Look (1977); Roy Lubove, The Progressives and the Slums: Tenement House Reform in New York City, 1890–1917 (1962); Blake McKelvey, The Urbanization of America, 1860–1915 (1963); and Arthur Meier Schlesinger, The Rise of the City, 1878–1898, (1933). 21. E.L. Godkin, Commercial Immorality and Political Corruption, 107 N. Am. Rev. 248 (1868). 22. John G. Sproat, “The Best Men”: Liberal Reformers in the Gilded Age (1968). 23. 1 George Frisbie Hoar, Autobiography of Seventy Years 308 (1903). 24. Dorman B. Eaton, Parties and Independents, 144 N. Am. Rev. 549, 550 (1887). 25. Sean Dennis Cashman, America in the Gilded Age: From the Death of Lincoln to the Rise of Theodore Roosevelt 214 (1984). 26. See Richard Guy Wilson, Architecture, Landscape, and City Planning, in The American Renaissance 1876– 1917, at 74 (Brooklyn Institute of Arts & Sciences ed., 1979). 27. Theodore J. Lowi, Arenas of Power 78 (2009). 28. For some revisionist history of the period, see The Gilded Age: A Reappraisal (H. Wayne Morgan ed., 1963). 29. George M. Fredrickson, The Inner-Civil War: Northern Intellectuals and the Crisis of the Union (1965).

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30. See, e.g., 2 Francis Lieber, Amendments of the Constitution, Submitted to the Consideration of the American People, in Miscellaneous Writings of Francis Lieber: Contributions to Political Science 137 (Daniel C. Gilman ed., 1881). 31. See Samuel Fowler, The Political Opinions of Jefferson, 101 N. Am. Rev. 313 (1865). 32. This figure was calculated from estimated population totals in 1 Bureau of the Census, U.S. Dep’t of Commerce, Historical Statistics of the United States: Colonial Times to 1970, tbl.A6– 8, at 8 (1975). 33. This figure was calculated from 2 Bureau of the Census, supra note 32, tbl. Y308– 17, at 1103. As in prior periods the largest numbers of new employees were in the Post Office Department, but other parts of the executive establishment grew at a comparable rate. 34. Leonard D. White, The Republican Era: 1869–1901: A Study in Administrative History 387 (1958). 35. Steven Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920, 82 (1982). 36. Id. at 149. 37. Lowi, supra note 27, at 78. 38. On the signal success of the Department of Agricultural in building a bureaucratic system largely immune from political control, see Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputation, Networks, and Policy Innovation in Executive Agencies, 1862–1928, at 179–325 (2001). 39. See Lloyd Milton Short, The Development of National Administrative Organization in the United States (1923). White, supra note 34. 40. These views are common both to some political scientists, see, for example, Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States (2d ed. 1979), and to constitutional and administrative lawyers, see, for example, John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980); David Schoenbrod, Power without Responsibility: How Congress Abuses the People through Delegation (1993) (arguing for the resuscitation of the moribund nondelegation doctrine). 41. The classic statement is in William A. Niskanen, Jr., Bureaucracy and Representative Government (1971). 42. The literature on the “unitary executive” debate is enormous. For an extended argument that the President has always had, and the Constitution demands, an unimpaired power of appointment, removal, and direction over federal officers, see Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2008). For classic critiques of the unitarian approach, see Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725 (1996); and Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994). 43. Act of Mar. 2, 1867, ch. 170, 14 Stat. 485. 44. Act of Mar. 23, 1867, ch. 6, 15 Stat. 2. 45. Act of Mar. 2, 1867, ch. 154, 14 Stat. 430. 46. Letter from Andrew Johnson, President of the United States, to the Senate (Dec. 12, 1867), reprinted in 8 A Compilation of the Messages and Papers of the

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Presidents 3781 (James D. Richardson ed., 1897) [hereinafter Messages and Papers]. 47. For a brief but more complete description of the contest, see Calabresi & Yoo, supra note 42, at 179– 87. 48. Letter from Edwin M. Stanton to Andrew Johnson, reprinted in 8 A Compilation of the Messages and Papers of the President 3782 (James D. Richardson ed., 1925). 49. Cong. Globe, 39th Cong., 2d Sess. 1516 (1867). 50. Saikrishna Prakash, Removal and Tenure of Office, 92 Va. L. Rev. 1779 (2006). 51. 272 U.S. 52 (1926). 52. Calabresi & Yoo, supra note 42, at 189, 218. 53. See id. at 189–216. 54. For standard accounts, see Wilfred E. Binkley, President and Congress (1947); Joseph P. Harris, The Advice and Consent of the Senate: A Study of the Confirmation of Appointments by the United States Senate (1953); and Woodrow Wilson, Congressional Government: A Study in American Politics (1885). 55. 1 John Sherman, Recollections of Forty Years in the House, Senate and Cabinet: An Autobiography 447 (1895). 56. 2 John Russell Young, Around the World with General Grant: A Narrative of the Visit of General U.S. Grant, Ex-President of the United States, to Various Countries in Europe, Asia, and Africa, in 1877, 1878, 1879, at 265 (1879). 57. Exec. Order (June 22, 1877), in 9 Messages and Papers, supra note 46, at 4402– 03 (1877); Exec. Order (May 26, 1877), in 9 Messages and Papers, supra note 46, at 4402 (1877). 58. The standard history is Paul P. Van Riper, History of the United States Civil Service (1958). Further general histories include Ari Hoogenboom, Outlawing the Spoils: A History of the Civil Service Reform Movement, 1865–1883 (1961); and U.S. Office of Pers. Mgmt., U.S. Civil Serv. Comm’n, Biography of an Ideal: A History of the Federal Civil Service (2003). 59. This is not to say that the latter demand was unimportant. Industrial and mercantile interests needed a post office and customs houses that functioned efficiently. Indeed, one area in which the reform of the civil ser vice may have followed the “rational” format described in the text involved the application of merit principles in the Patent Office. As the ownership of patents migrated from individual inventors to corporate enterprises, American business demanded a more stable basis for investing in the development of products ostensibly protected by patent. This could not be accomplished unless the Patent Office were put on a more regular and scientific basis so that patents, once issued, gave reasonable certainty that they would hold up in court. Hence, while early proposals for general civil ser vice reform languished in the Congress, the Patent Office began merit-based hiring and promotion in 1869. The process of patent examination rapidly became professionalized and bureaucratized and the accomplishments of the Office were presented to the Congress and the public as a triumph of the bureaucratic system

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that protected both the inventor’s property rights and the access of the public to the commercialization of useful technological advances. These developments are chronicled in Kara W. Swanson, The Bureaucracy of Genius: Striking the Patent Bargain in the Nineteenth-Century United States (Aug. 2008) (unpublished manuscript, on file with author). 60. For a discussion of the Grant Civil Ser vice Commission and its demise, see White, supra note 34, at 281– 87. 61. Act of Mar. 3, 1871, ch. 114, 16 Stat. 495 (1871). 62. Van Riper, supra note 58, at 81– 82. Added to this high moral tone was a more complex analysis included in the Commission’s final report in 1874. Following the introduction there appears a section entitled “The Evils to be Remedied” that begins: There had been developed, mainly within a single generation, and was existing with fearful powers of expansion and reproduction an aggressive and unscrupulous spirit of mercenary partisanship, which, promoting and dominating the pursuit of politics as a trade, and seeking public office and party and caucus leadership principally for the spoils of money and patronage they could command, was degrading all party action and popular estimation and impairing alike official integrity, political honor, and private morality. This spirit developed and animated all over the country large numbers of little and great partisan combinations, faithful to no party principles, inspired by no patriotic sentiments, conducting no useful debates, contributing nothing to public intelligence or public virtue, but mettlesome and insatiable, everywhere, whenever any official selection was to be made, or any official authority was to be exercised. Id. at 82. 63. While a moral rather than a technocratic crusade, the scope of the reform movement was limited. Civil ser vice reform was not a prelude to some grander program of social and economic reform designed to cure the social evils of industrialization. On the ideology and practice of social ser vices for the lower classes, see George M. Fredrickson, The Inner Civil War: Northern Intellectuals and the Crisis of the Union 111– 12 (1965). On the classical liberal ideology of reform leaders, see Sproat, supra note 22. 64. The Merit System and the Parties, N.Y. Times, June 24, 1904, at 8 (stating that Garfield was shot by a “crazy, disappointed office seeker”). 65. Act of Jan. 16, 1883, ch. 27, 22 Stat. 403. On the reform period leading to the Pendleton Act, see Carl Russell Fish, The Civil Service and the Patronage (1905). 66. Ronald N. Johnson & Gary D. Leibcap, The Federal Civil Service System and the Problem of Bureaucracy: The Economics and Politics of Institutional Change (1994). 67. In prescribing examinations for the competitive ser vice, the Civil Ser vice Commission was, of course, not itself making appointments. And, the Constitution allows the placement of appointments for “inferior officers” elsewhere than in the President. Nevertheless, as Attorney General A.T. Akerman opined at the time of the creation of the Grant Civil Ser vice Commission, the Congress “has no power

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notes to pages 239–242

to vest appointments elsewhere, directly or indirectly.” 13 Op. Att’y Gen. 516, 521 (1871). By “elsewhere” Akerman meant elsewhere than in the constitutionally named places. And at some point restrictiveness in the requirements for qualifications would at least “indirectly” invade the appointments power. Much better, therefore, that if any invading of the President’s power were to be done, the President would do it himself. Hence, the Civil Ser vice Commission’s functions were largely technical and advisory. The Commission proposed; the President disposed. 68. Skowronek, supra note 35, at 73. For a more detailed discussion of the enactment and consolidation of the Pendleton Act reforms, see White, supra note 34, at 278–364. 69. White, supra note 34, at 109. In the same vein, White argues that bureaus often eluded effective departmental control, and hence, indirectly, presidential control as well. Officers dealing with public lands, patents, military pensions, and Indian affairs were all nominally in the Interior Department, but their strong supportive networks outside of government allowed them to operate semiautonomously. Id. at 175– 81. 70. Id. at 68– 92. 71. Act of May 15, 1862, ch. 72, 12 Stat. 387. 72. Act of Feb. 9, 1889, ch. 122, 25 Stat. 659. 73. Act of Mar. 2, 1867, ch. 158, 14 Stat. 434. 74. Act of July 12, 1870, ch. 251, 16 Stat. 230, 242; Act of July 30, 1869, ch. 176, 15 Stat. 92, 106. 75. Act of June 22, 1870, ch. 150, 16 Stat. 162. 76. Act of June 13, 1888, ch. 389, 25 Stat. 182. This department received cabinet status as a part of the new Department of Commerce and Labor in 1903, and was finally established as a separate department in 1913. Act of Mar. 4, 1913, ch. 141, 37 Stat. 736. 77. Lowi, supra note 27, at 77. By constituent policy, Lowi means to include acts that create a new agency or department or reorganize the government, that is, that are constitutive of governmental organization. 78. Id. at 76 (quoting Woodrow Wilson, Congressional Government: A Study in American Politics (1885)). 79. Short, supra note 39, at 220. 80. Williamjames Hull Hoffer, To Enlarge the Machinery of Government: Congressional Debates and the Growth of the American State, 1858–1891 (2007). Hoffer’s analysis is based on a comprehensive review of congressional debates surrounding the Morrill Land Grant Colleges legislation; the statutes creating the Department of Agriculture, the Freedman’s Bureau, the Department of Education, and the Bureau of Labor; plus the debates over the Pendleton Civil Ser vice Reform Act, judicial or circuit court reform, and the Blair proposals for federal support of common schooling. 81. Id. at 171. 82. Id. at 197. 83. Act of Feb. 25, 1863, ch. 58, 12 Stat. 665. 84. Albert S. Bolles, The Financial History of the United States, from 1861 to 1885, at 43 (1886).

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85. Act of Feb. 25, 1863, ch. 58, 12 Stat. 665. 86. Act of June 3, 1864, ch. 106, 13 Stat. 109. 87. Act of Feb. 28, 1871, ch. 100, 16 Stat. 440. 88. See, e.g., Cong. Globe, 41st Cong., 3d Sess. at 1321 (remarks of the floor manager Representative Conger). 89. Id. at 1327. 90. And even where not self-financing, protection of steamboat travelers from the other great threat to life and limb— snags and other hazards to navigation— gained vastly increased congressional support in the immediate postbellum period. See Paul A. Paskoff, Troubled Waters: Steamboat Disasters, River Improvements and American Public Policy, 1821–1860, at 195– 99 (2007). 91. Act of Feb. 28, 1871, §§ 12– 17, 16 Stat. at 445–47. 92. Id. §§ 24–30, 16 Stat. at 449– 50. 93. An Act to provide for the better security of life on board of vessels powered in whole or in part by steam, ch. 99, 16 Stat. 440, 458 (Feb. 28, 1871). 94. On congressional control, or lack of control, over appropriations, see White, supra note 34, at 54– 67. 95. The basic argument for agency control through monopolization of information is from Niskanen, supra note 41. For a sympathetic revision of Niskanen’s model, which finds his strongest claims overstated, see Gary J. Miller & Terry M. Moe, Bureaucrats, Legislators, and the Size of Government, 77 Am. Pol. Sci. Rev. 297 (1983). 96. Act of Feb. 15, 1893, ch. 114, § 3, 27 Stat. 449, 451 (granting additional quarantine powers and imposing additional duties upon the Marine Hospital Ser vice). On the development of federal quarantine laws in the nineteenth century, see Edwin Maxey, Federal Quarantine Laws, 23 Pol. Sci. Q. 617 (1908). 97. Act of May 29, 1884, ch. 60, § 3, 23 Stat. 31, 32 (establishing a Bureau of Animal Industry). 98. This system was similar to the regulatory scheme pioneered by Charles Francis Adams in Massachusetts. On the Massachusetts system, see Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis Brandeis, James M. Landis, Alfred E. Kahn 1–56 (1984). 99. Act of June 19, 1878, ch. 316, § 3, 20 Stat. 169, 170. The auditor was upgraded to the title of “Commissioner of Railroads” in the General Appropriations Act of 1882, ch. 130, 21 Stat. 385, 409 (1881). These powers of investigation and required reports are very similar to those provided to the ICC, and after judicial construction of the ICC’s other powers, about all that it wielded. Skowronek, supra note 35, at 151. 100. Act of June 19, 1878, § 3, 20 Stat. 170. 101. See, e.g., Rogers v. Marshal, 68 U.S. (1 Wall) 644 (1863) and Buck v. Colbath, 70 U.S. (3 Wall) 334 (1865). 102. See, e.g., United States v. Comm’r, 72 U.S. (5 Wall.) 563 (1866) (denying mandamus to compel the issuance of a patent by the Commissioner of the General Land Office); Comm’r of Patents v. Whiteley, 71 U.S. (5 Wall.) 552 (1866) (denying mandamus to compel the Commissioner of Patents to reexamine a patent application).

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notes to pages 245–247

103. 74 U.S. (5 Wall.) 347 (1868). 104. 74 U.S. at 352. For this last bit of reasoning, the Supreme Court cited its decision in Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866), the case in which the State of Mississippi sought to enjoin Andrew Johnson from carrying out the Reconstruction statutes. Mississippi v. Johnson was, indeed, an injunction case, and part of the Court’s reasoning in that case relied on the obvious proposition that President Johnson’s activities under the Reconstruction Acts were hardly ministerial, nondiscretionary duties. But, Mississippi v. Johnson was, in essence, a political question case. Indeed, the Court imagined that action of the sort requested would involve it in a political imbroglio. What, the Court asked, was it to do if the President complied with an injunction forbidding execution of the Reconstruction Acts and Congress attempted to impeach him for his failure to implement those same statutes? Was the Court then supposed to enjoin Congress from engaging in impeachment? Id. at 500– 01. This political question approach was carried further in Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867), where Georgia sought to restrain the Secretary of War and the general in command of the military district comprising Georgia, Florida, and Alabama from enforcing the Reconstruction Acts. Instead of rehearsing the mandamus jurisprudence and the usual distinctions between discretionary and ministerial functions, the Court simply concluded that it lacked jurisdiction. In the words of the opinion, this was because “a case must be presented appropriate for the exercise of judicial power; the rights in danger, as we have seen, must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity.” Id. at 76. 105. Gaines, 74 U.S. at 352. 106. 76 U.S. (9 Wall.) 298 (1869). 107. The decision is somewhat confusing because the Court combined this dictum with concerns about finality. The predecessor could no longer carry out the duty and the current officeholder had never been given an opportunity to act on the matter. Id. at 303, 313. 108. 84 U.S. (17 Wall.) 604 (1873). 109. 86 U.S. (19 Wall.) 107 (1873). 110. Id. at 116. 111. Id. at 117– 18. 112. See, e.g., Commissioners v. Sellew, 99 U.S. 624 (1878); Thompson v. United States, 103 U.S. 480 (1880); and United States ex rel. Dunlap v. Black, 128 U.S. 40 (1888). 113. United States ex rel. Angarica de la Rua v. Bayard, 15 D.C. (4 Mackey) 310 (1885), and United States ex rel. White v. Bayard, 16 D.C. (5 Mackey) 428 (1887). 114. Bayard v. United States ex rel. White, 127 U.S. 246 (1888). 115. Ann Woolhandler, Judicial Deference to Administrative Action: A Revisionist History, 43 Admin. L. Rev. 197, 216– 19 (1991). 116. 67 U.S. (2 Black) 554 (1862). 117. Id. at 563. 118. 80 U.S. (13 Wall.) 72 (1871).

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119. Id. at 81. 120. Id. at 83. 121. Id. at 84. 122. Id. at 84– 85. 123. Id. at 86. 124. Id. 125. See, e.g., Marques v. Frisbie, 101 U.S. 473 (1879). 126. For the view that the divergent practices of nineteenth-century courts hinge crucially on the understanding of the concept of “public rights” in that period, see Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559 (2007). 127. See, e.g., Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986) (holding that the Commodity Futures Trading Commission could decide a limited class of private rights claims). 128. See Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915 (1988). 129. Land Office decisions were probably the most common subject of judicial review proceedings in the federal courts during the second half of the nineteenth century. Justice (then Professor) Scalia in 1970 described the proceedings as having reached “habeas corpus proportions.” Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public-Lands Cases, 68 Mich. L. Rev. 867, 884 (1970). 130. Louis L. Jaffe, Judicial Control of Administrative Action 327– 53 (1965). 131. 187 U.S. 94 (1902). 132. Id. at 108. And this was in a case directly reviewing the legality of a fraud order by the Post Office Department. 133. See Jaffe, supra note 130. Moreover, judicial review remained highly deferential. According to Reuel E. Schiller, By the 1920s, courts consistently deferred to agency actions with respect to public health, customs and postal regulations, the administration of veterans’ pensions, and various licensing regimes. The same was true of the actions of taxing agencies, the Patent and Trademark Office, the Federal Land Office, and the Bureau of Immigration. Reuel E. Schiller, The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 Mich. L. Rev. 399, 408 (2007) (internal footnotes omitted). 134. 187 U.S. at 108 (citing Gardner v. Bonestell, 180 U.S. 362 (1901); Johnson v. Drew, 171 U.S. 93, 99 (1898); and Burfenning v. Chi. Ry. Co., 163 U.S. 321 (1896)). 135. My personal favorite modern example of this is Justice Douglas’s startling and ahistorical reading of the standing provisions of the APA in Association of Data Processing Organizations v. Camp, 397 U.S. 150 (1970). For a recent detailed account, see Elizabeth Magill, Standing for the Public: A Lost History, 95 Va. L. Rev. 1131 (2009). 136. 194 U.S. 497 (1904). 137. Id. at 508– 09.

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138. 96 U.S. 97 (1877). 139. Id. at 103– 04.

Chapter 14: Mass Administrative Adjudication 1. An Act to Provide for the Better Security of Life on Board of Vessels Propelled in Whole or in Part by Steam and for Other Purposes, ch. 99, 16 Stat. 440, §§ 11, 13, 15–20 (Feb. 28, 1871). Other examples of congressional interest in procedure date back at least to the Customs Administration Act discussed in Chapter 2. 2. House of Representatives Security of Life on Steam Vessels, Exec. Doc. No. 175, 41st Cong. 2d Sess. at 24 (Report of the Chief of the Steamboat Inspection Division, Treasury Dept., Mar. 1, 1870). 3. By 1893, for example, the number of pensioners had reached 1 million, and pension expenditures consumed forty-two percent of the federal government’s income. Peter Blanck, Civil War Pensions and Disability, 62 Ohio St. L.J. 109, 126 (2001). 4. Hereafter Wyman. 5. Id. at 75– 85 (discussing United States v. Duell ex rel. Bernardin, 172 U.S. 576 (1899); United States v. Ritchie, 58 U.S. (17 How.) 525 (1854); and United States v. Ferreira, 54 U.S. (13 How.) 40 (1851)). Wyman approves of the decisions in Ferreira and Richie, which construe congressional appeal statutes to avoid the unconstitutional conferral of judicial power to review administrative discretion, and condemns Duell, which upholds the patent statute permitting appeals of patent decisions to the Court of Appeals of the District of Columbia. 6. Wyman, supra note 4, at 321. 7. Thomas W. Merrill, The Origins of the Appellate Review Model of Administrative Law, in Peter Lindseth & Susan Rose Ackerman, eds., Comparative Administrative Law 389 (2011). 8. See, e.g., Act of June 10, 1890, ch. 407, § 12, 26 Stat. 131, 136. This statute established a nine-member board of general appraisers in the customs ser vice of the Treasury Department. The members were appointed by the President and subject to Senate confirmation. They served without a specified term and could be removed only for cause. 9. See William E. Nelson, The Roots of American Bureaucracy, 1830–1900, at 124–25 (1982). 10. Annual Report of the Commissioner of the General Land Office 11 (1880). 11. See generally Milton Conover, The General Land Office: Its History, Activities and Organizations (1923); and Jerry O’Callaghan, The War Veteran and the Public Lands, 28 Agricultural History 163 (1954). 12. See generally Senate Report 47–362 (1881). 13. Inst. for Gov’t Research, The General Land Office: Its History, Activities and Organization 29 (1923). 14. Senate Report 47–362 at 103– 05. 15. Senate Report 47–362 at vi. 16. Act of Mar. 23, 1792, ch. 11, 1 Stat. 243.

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17. The Pension Office had been given important legislative status in 1833 with the creation of the Office of Commissioner of Pensions in the War Department. Act of Mar. 2, 1833, ch. 54, 4 Stat. 619, 622. That Office was periodically continued for two-year terms in appropriations legislation, until made permanent in 1849 and relocated in the Interior Department. Act of Mar. 3, 1849, ch. 108, 9 Stat. 395. 18. An Act to Grant Pensions, ch. 166, 12 Stat. 566 (1862). 19. Claudia Linares, The Civil War Pension Law 2 (Univ. of Chi. Ctr. for Population Econ., Working Paper No. 2001- 6, 2001). The standard treatment of the political and social origins of the post- Civil War military pension system is Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992). 20. William H. Glasson, Federal Military Pensions in the United States 113 (1918). 21. Act of Mar. 19, 1886, ch. 22, 24 Stat. 5. 22. See Act of Mar. 3, 1873, § 15, 17 Stat. at 572; Act of July 27, 1868, ch. 264, § 6, 15 Stat. 235, 236. 23. Glasson, supra note 20, at 165– 66. 24. Act of Jan. 25, 1879, ch. 23, § 3, 20 Stat. 265, 265. 25. President Cleveland’s unpopularity with the Grand Army of the Republic, the chief lobbying group for increased pension coverage and rates, is often credited with causing his defeat by Benjamin Harrison in the 1888 election. Stuart McConnell, Glorious Contentment: The Grand Army of the Republic, 1865– 1900, at 149 (1992). 26. Act of June 27, 1890, ch. 634, 26 Stat. 182. 27. Glasson, supra note 20, at 236. 28. An Act to Grant Pensions, ch. 166, 12 Stat. 566, 566 (1862). 29. H.R. Exec. Doc. No. 38-1, at 657– 58 (1864). 30. An Act to Grant Pensions, 12 Stat. at 566. 31. This description is based upon Instructions and Forms to Be Observed in Applying for Pensions under the Act of July 14, 1862, reprinted in Robert Sewell, Practice in the Executive Departments of the Government under the Pension, Bounty, and Prize Laws of the United States 260 (1865). Accord Calvin B. Walker, Treatise on Practice of Pension Bureau, Governing Adjudication of Army and Navy Pensions, Being Unwritten Practice Formulated (1882). 32. Sewell, supra note 31, at 81– 119. 33. Walker, supra note 31, at 44. 34. Richardson v. Perales, 402 U.S. 389 (1971). 35. Comm’r of Pensions, Order No. 59 (Aug. 20, 1881), reprinted in Frank B. Curtis & William H. Webster, A Digest of the Laws of the United States Governing the Granting of Army and Navy Pensions and Bounty-Land Warrants; Decisions of the Secretary of the Interior, and Rulings and Orders of the Commissioner of Pensions Thereunder 350, 350 (1885) (“Matters of fact . . . as well as the ascertainment of the character and reliability of testimony and

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notes to pages 260–263

credibility of witnesses, are questions solely for the adjudicating divisions. . . . The sole function of the Review Board is to treat cases judicially, upon the papers.”). 36. The annual reports of the Pension Bureau provide statistics on applications and awards, but the lag between application and award meant that an application in 1871 might well have been decided in 1872 or even later. Hence, awards as a percentage of annual application does not reflect the true award rate with complete accuracy. 37. See Heywood T. Sanders, Paying for the “Bloody Shirt”: The Politics of Civil War Pensions, in Political Benefits: Empirical Studies of American Public Programs 137, 148– 50 (Barry S. Rundquist ed., 1980) (computing the award rates for the period 1878 to 1899). 38. See 1883 Pension Office, U.S. Dep’t of the Interior, Report of the Commissioner of Pensions 325 [hereinafter Pension Office Report]. 39. General Instructions to Special Examiners of the United States Pension Office 7 (1881). 40. See generally Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (1983) (describing the process of Social Security disability claims adjudication). 41. 1 Decisions of the Department of the Interior in Cases Relating to Pension Claims and the Laws of the United States Granting and Covering Pensions 5 (1887) [hereinafter Pension Claims]. 42. Id. 43. 3 Pension Claims, supra note 41, at 1 (1890). 44. Bidding for Popularity: All Sorts of Pension Claims Now Passed, N.Y. Times, May 27, 1889, at 5 (discussing, in addition to Ammerman’s case, Assistant Secretary Cyrus Bussey’s decision to award a pension to William Jones of the Ohio Volunteers). Jones was injured, according to the article, while “standing on a portico in front of his quarters at dinner time, eating his rations, when two of his comrades, who were scuffling . . . , pushed him backward over the balustrade. The act was intentional on the part of his comrades, and was unsuccessfully resisted by Jones.” Id. 45. M.M. Trumbull, Pensions for All, 35 Popular Sci. Monthly 721, 724 (1880). 46. Glasson, supra note 20, at 238. 47. See Blanck, supra note 3, at 129–48. 48. Morton Keller, Affairs of State 311 (1977). 49. Robert M. La Follette, Sr., La Follette’s Autobiography: A Personal Narrative of Political Experiences 84 (3d ed. 1919). 50. 4 Pension Claims, supra note 41, at iii (1891) (stating in the preface that it is intended to highlight “a spirit of larger liberality exercised by the present administration in applying the pension system to those entitled to its benefits”). 51. See Theda Skocpol, America’s First Social Security System: The Expansion of Benefits for Civil War Veterans, 108 Pol. Sci. Q. 85, 109– 10 (1993). 52. Id. 53. Blanck, supra note 3, at 148– 71. 54. An Act to Grant Pensions, ch. 166, § 8, 12 Stat. 566, 568– 69 (1862). 55. Pension Office Report, supra note 38, at 581– 82 (1862).

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56. Id. at 582– 86; id. at 639–48 (1863). 57. Sewell, supra note 31, at 262– 63. Initially, nonappointed civil surgeons could also perform these examinations upon a showing of the impracticability of obtaining an examination from appointed surgeons. But a claimant was required to supplement the nonappointed surgeons’ certificates with affidavits establishing their competence and impartiality, an added expense that many invalids doubtless preferred not to incur. Moreover, the Bureau would not reimburse invalids for examinations conducted by nonappointed surgeons. Henry C. Harmon, A Manual of the Pension Laws of the United States of America 249– 50 (1867). 58. U.S. Pension Bureau Instructions to Examining Surgeons for Pensions [hereinafter Pension Bureau Instructions], reprinted in Pension Office Report, supra note 38, at 437–38 (1870). 59. Id. at 8– 9 (1884); id. at 6 (1877). For the fractional rates corresponding to the degrees of deafness, see Comm’r of Pensions, Ruling No. 136 (Oct. 7, 1885), reprinted in Curtis & Webster, supra note 35, at 397; and Comm’r of Pensions, Ruling No. 80 (Apr. 3, 1884), reprinted in Curtis & Webster, supra note 35, at 395. 60. Pension Office Report, supra note 38, at 313 (1883). 61. Sec’y of the Interior, Report of the Secretary of the Interior 388. 62. Pension Office Report, supra note 38, at 388 (1871). 63. See Comm’r of Pension, Ruling No. 136 (Oct. 7, 1885) (defining fractional ratings for forty subdivisions of $18 third-grade disability), reprinted in Curtis & Webster, supra note 35, at 397; Comm’r of Pension, Ruling No. 80 (Apr. 3, 1884) (same), reprinted in Curtis & Webster, supra note 35, at 395; Comm’r of Pension, Ruling No. 57 (n.d.) (defining fractional ratings for subdivisions of $8 “total disability”), reprinted in Curtis & Webster, supra note 35, at 394; U.S. Pension Bureau, Bureau of Pensions, Its Officers and Their Duties: The Manner in Which the Work of Adjudicating Claims Is Performed 88– 91 (1893). 64. Act of July 25, 1882, ch. 349, § 4, 22 Stat. 174, 175 (“[A]ll examinations, so far as practicable, shall be made by the boards, and no examination shall be made by one surgeon excepting under such circumstances as make it impracticable for a claimant to present himself before a board.”). 65. Pension Office Report, supra note 38, at 324 (1883). 66. Pension Bureau Instructions, supra note 58, at 13 (1884). 67. Id. at 18; see also Walker, supra note 31, at 52. 68. Report of N.F. Graham, Acting Med. Referee, to W.W. Dudley, Comm’r of Pensions (Sept. 21, 1883), reprinted in Pension Office Report, supra note 38, at 337– 39 (1883). 69. For a breakdown of the clerical force at the Bureau between July 1882 and June 1883, see Pension Office Report, supra note 38, at 329 (1883). 70. Id. at 330. 71. Id. 72. Id. at 330–31. 73. Appeals in rejected cases were numerous but small in relation to the total caseload. In 1883, for example, the Commissioner reported that 746 rejected applicants had appealed their cases to the Secretary. Id. at 322. But, in that same year,

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the Bureau disposed of over 104,000 cases, rejecting nearly 43,000 of them. Id. tbl.6, at 387. It should be noted that this was eighteen years after the war had ended, and allowance rates tended to decline as claims came to be more and more based on allegations that some injury or disease incurred during the war had produced a disability that manifested itself only two decades later. In the early years (up to 1870), allowance rates were above eighty percent. Id. at 307. 74. This is nothing more than the received wisdom that surrounds Goldberg v. Kelly, 397 U.S. 254 (1970) and its progeny. Before he became widely known for his popular book, The Greening of America, Charles Reich was famous in legal circles for his pathbreaking articles lamenting the poor state of the protection of economic interests based on government beneficence. Those articles, Charles Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965); and Charles Reich, The New Property, 73 Yale L.J. 733 (1964), were cited by the Court in Goldberg’s footnote 8. 397 U.S. at 263 n.8. By 1975, the development of due process protections for governmentally conferred interests was being characterized variously as “a due process explosion” or a “due process revolution.” See Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1268 (1975); Doug Rendleman, The New Due Process: Rights and Remedies, 63 Ky. L.J. 531 (1975). 75. For many years, judicial review of veterans’ claims was precluded by 38 U.S.C. § 211(a) (1970), which provided: “[T]he decisions of the Administrator on any question of law or fact [concerning a claim for benefits] . . . shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.” This, and subsequent amendments to § 211, were held not to preclude constitutional claims, Johnson v. Robison, 415 U.S. 361 (1974), but most other types of legal challenge remained immune from judicial review. This situation changed with the adoption of the Veterans Judicial Review Act, Pub. L. No. 100- 687, 102 Stat. 4105 (1988), which converted the Veterans Administration into a cabinet-level department and created a new Article I court, the U.S. Court of Veterans Appeals. 76. Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (1995). 77. Nelson, supra note 9, at 122–23. 78. For a detailed, if somewhat glorified, description of the training and testing of clerks and Railway Mail Ser vice employees in the Post Office, see Marshall Cushing, The Story of Our Post Office: The Greatest Government Department in All Its Phases, 68– 100, 163– 91 (1893). 79. Act of May 8, 1794, ch. 23, § 16, 1 Stat. 354, 360– 61. 80. On the growth of letter writing as a general social practice, see David M. Henkin, The Postal Age: The Emergence of Modern Communications in Nineteenth-Century America (2006). 81. Id. at 93– 118. 82. Francis W. Kellogg, Postmaster General’s Authority over Mailable Matter, H.R. Misc. Doc. No. 37-16, at 8 (1863) [hereinafter Mailable Matter Report] (featuring the testimony of the Postmaster General).

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83. Cong. Globe, 38th Cong., 2d Sess. 661 (1865) (containing the debate on the Committee’s report); see Mailable Matter Report, supra note 82, at 8; Dorothy Ganfield Fowler, Unmailable: Congress and the Post Office 51 (1977); Wayne E. Fuller, Morality and the Mail in Nineteenth-Century America 100 (2003). 84. Act of Mar. 3, 1865, ch. 89, 13 Stat. 504, 507. 85. Cong. Globe, 38th Cong., 2d Sess. 661. 86. 1 Op. Assistant Att’y Gen. P.O. Dep’t 41, 42–43 (1873). 87. Fuller, supra note 83, at 252. 88. Act of July 27, 1868, ch. 246, 15 Stat. 194, 196 (1868); see 12 Op. Att’y Gen. 538 (1868). 89. Those statutes include: Act of Sept. 19, 1890, ch. 908, 26 Stat. 465 (strengthening the anti-lottery statutes, including banning second-class periodicals from the mails if they merely contained lottery-related advertisements); Act of Mar. 2, 1889, ch. 393, 25 Stat. 873 (providing a list of par ticular schemes that were forbidden to be promoted by the use of the mail); Act of Sept. 26, 1888, ch. 1039, 25 Stat. 496 (providing for the first-time explicit congressional authorization for the Post Office to confiscate obscene material “under such regulations as the Postmaster General shall prescribe”); Act of June 18, 1888, ch. 394, 25 Stat. 187 (expanding the provisions of the Comstock Law to cover any matter that exhibited “libelous, scurrilous, or threatening” language on the wrapping); Act of July 12, 1876, ch. 186, 19 Stat. 90 (strengthening further the anti-lottery and obscenity statutes); and Act of Mar. 3, 1873, ch. 258, 17 Stat. 598 (strengthening the obscenity provisions of prior law and promoting Anthony Comstock’s campaign against sexual immorality). 90. Act of June 8, 1872, ch. 335, 17 Stat. 283. 91. Similar explicit authority was provided for the removal of obscene material in an 1888 statute providing that obscene matter “shall be withdrawn from the mails under such regulations as the Postmaster- General shall prescribe.” Act of Sept. 26, 1888, 25 Stat. at 496. 92. 96 U.S. at 735. 93. See, e.g., Nicola Beisel, Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America (1997) (describing Comstock’s campaign to stamp out abortion and contraception). 94. Act of Mar. 3, 1873, ch. 258, 17 Stat. 598. 95. James R. Petersen, The Century of Sex: Playboy’s History of the Sexual Revolution: 1900–1999, at 11 (1999). 96. Durland v. United States, 161 U.S. 306 (1896). 97. Id. at 313. 98. See Hearings on H.R. Res. 109 to Investigate the Post Office Department before the House Committee on Expenditures in the Post Office Department, 62d Cong. 2013 (1911). 99. Fuller, supra note 83, at 240. 100. See Act of July 2, 1836, ch. 270, § 9, 5 Stat. 80, 81. 101. See Report of the Postmaster- General, H.R. Exec. Doc. No. 41-1, at 10 (1869); Fuller, supra note 83, at 273.

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notes to pages 272–275

102. Fowler, supra note 83, at 258. 103. Report of the Postmaster- General, H.R. Exec. Doc. 46-1, pt. 4, at 18 (2d Sess. 1879). 104. Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputation, Networks and Policy Innovation in Executive Agencies, 1862–1928, at 70– 77 (2001). 105. Id. at 94– 116. On the crucial role of the emergence of rural free delivery in curbing the power of local postmasters, see id. at 123–43. 106. Id. at 70. For a flavor of the tales of the special agents, see Cushing, supra note 78, at 320– 71. 107. Carpenter, supra note 104, at 83– 84. 108. Cushing, supra note 78, at 192. 109. Id. 110. 1 Op. Assistant Att’y Gen. P.O. Dep’t 41, 43 (1873). 111. 1 Op. Assistant Att’y Gen. P.O. Dep’t 866, 866– 67 (1883). 112. 1 Op. Assistant Att’y Gen. P.O. Dep’t 898, 899 (1884). 113. Postal Laws and Regulations of the United States of America § 228, at 80 (Arthur H. Bissell & Thomas B. Kirby eds., 1879). 114. Id. § 227, at 80. 115. Id. § 434, at 112. 116. Id. § 436, at 112, 113. 117. An early opinion of the Justice Department suggested that any communication addressed to a lottery company could be seized as unmailable. 1 Op. Assistant Att’y Gen. P.O. Dep’t 455 (1879). But this position was rebuffed by the judiciary, Commerford v. Thompson, 1 F. 417 (C.C.D. Ky. 1880), and later regulations of the Post Office Department instructed local postmasters that they could not assume that letters addressed to lottery companies or their agents contained material concerning lotteries. H.R. Misc. Doc. No. 50-63, § 379, at 159 (1887). 118. See 1 Op. Assistant Att’y Gen. P.O. Dep’t 816 (1874); 1 Op. Assistant Att’y Gen. P.O. Dep’t 78 (1882). 119. 1 Op. Assistant Att’y Gen. P.O. Dep’t 796, 799 (1883); accord 1 Op. Assistant Att’y Gen. P.O. Dep’t 816, 823 (1883). 120. See 1 Op. Assistant Att’y Gen P.O. Dep’t 95, 96 (1885) (“[T]he argument urged in a petition . . . by Mr. Dawson, his counsel, who personally appeared before me and made an argument on behalf of the petitioner, is that as the business is now conducted it involves no fraudulent use of the mails.”). 121. 1 Op. Assistant Att’y Gen P.O. Dep’t 796 (1883). 122. H.R. Rep. No. 59-4919, at 2 (1906). 123. Public Clearing House v. Coyne, 194 U.S. 497 (1904). 124. Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902). 125. H.R. Rep. No. 59-4919, at 2 (quoting People’s U.S. Bank v. Gilson, 140 F. 1 (E.D. Mo. 1905)). 126. 1 Op. Assistant Att’y Gen. P.O. Dep’t. 816, 819 (1883). 127. 2 Op. Assistant Att’y Gen. P.O. Dep’t. 247, 248 (1886).

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128. U.S. Post Office Dep’t, Instructions to Post Office Inspectors Concerning Their Conduct, Powers, and Duties § 11, at 9 (1899) [hereinafter 1899 Instructions]. 129. Id. at 94. 130. Id. at 95. 131. Id. at 57. 132. Later editions of the instructions (which reach beyond the scope of this study) provided greater detail concerning fraudulent investment schemes. See U.S. Post Office Dep’t, Instructions to Post Office Inspectors Concerning Their Conduct, Powers and Duties § 53, at 63 (1905). 133. George B. Cortelyou, Frauds in the Mail: Fraud Orders and Their Purposes, 184 N. Am. Rev. 808 (1907). 134. Id. at 815. 135. Id. at 812. 136. Id. at 809– 10. 137. Id. at 810. 138. See Merrill, supra note 7, at 27–33. 139. Committee on Administrative Procedure, Administrative Procedure in Government Agencies, S.Dr. No. 77- 8, at 154– 55 (1941). 140. Opinions of the Attorneys General first became generally available in 1840. On the development of the advisory functions of the Attorney General, see Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive 78– 92 (1937). 141. See Jerry L. Mashaw et al., Administrative Law: The American Public Law System 150– 168 (6th ed. 2009). 142. See Wyman, supra note 4, at 342– 56. 143. Letter from President Thomas Jefferson to Governor Charles Pinckney (July 18, 1808), in 12 Writings of Thomas Jefferson 102– 04 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905). 144. See, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976); Richardson v. Perales, 402 U.S. 389 (1971). 145. For conspicuous exceptions, see Dorit Reiss, Administrative Agencies as Creators of Administrative Law Norms,” in Comparative Administrative Law 373 (Susan Rose Ackerman & Peter Lindseth eds., 2011), and Elizabeth Magill, Agency SelfRegulation, 77 Geo. Wash. L. Rev. 859– 902 (2009). 146. Final Report of the Attorney General’s Committee on Administrative Procedure (1941). 147. For a flavor of the global administrative law scholarship referred to here, see Sabino Cassese, Administrative Law without the State: The Challenge of Global Regulation, 37 N.Y.U. J. Int’l L. & Pol. 663 (2005); Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 114 Yale L.J. 1490 (2006); Benedict Kingsbury, The Administrative Law Frontier in Global Governance, 99 Am. Soc’y Int’l L. Proc. 143 (2005); Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, Law & Contemp. Probs. 15 (Summer/Autumn 2005).

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notes to pages 279–287

148. 397 U.S. 254 (1970). 149. See generally Jerry L. Mashaw, Due Process in the Administrative State (1985) (arguing for a “dignitary theory” of due process.) 150. 424 U.S. 319 (1976). 151. Id. at 349. 152. For a similar lament, see Elizabeth Magill, Foreword: Agency Self-Regulation, 77 Geo. Wash. L. Rev. 859, 861 (2009) (“[T]he aim of this Article is to create the category of self-regulation and to persuade students of the administrative state that it has been a mistake to ignore it . . .”). 153. Benedict Kingsbury, The Concept of “Law” in Global Administrative Law, 20 Eur. J. Int’l L. 23 (2009). 154. Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791 (2009). 155. For an elaboration of this idea in different contexts, see Gilliam E. Metzger, The Interdependent Relationship between Internal and External Separation of Powers, 59 Emory L.J. 423 (2009).

Chapter 15: The Administrative Constitution 1. For commentary lamenting the failure of Congress to adopt more specific legislation see, for example, David Schoenbrod, Power without Responsibility: How Congress Abuses the People through Delegation (1993); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980); and Theodore J. Lowi, The End of Liberalism: Ideology, Policy, and a Crisis of Public Authority (1969). The notion that Congress has abdicated its legislative responsibilities is also a topic for general political commentary. For example, in March 2009 George Will wrote a column arguing that the Emergency Economic Stabilization Act of 2008 is unconstitutional because it violates the nondelegation doctrine. George Will, Bailout Boundary Dispute, available at http://townhall .com/columnists/georgewill/2009/03/29bailout _boundary_dispute. The legal literature continues to grow notwithstanding attempts to bury the Nondelegation Doctrine, a doctrine long thought to be among the walking dead. See Adrian Vermeule & Eric Posner, Interring the Non-Delegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002). 2. For the view that the Constitution prohibits anything such as an independent agency, see Geoffrey T. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41. The most recent round on this multi- century legal saga is Free Enterprise Fund v. Public Co. Accounting Oversight Bd., U.S. (2010). 3. The Independent Counsel Statute has now lapsed. For a sampling of the literature concerning whether the Independent Counsel was a good or even a constitutional idea, see Symposium, The Independent Counsel Statute: Reform or Repeal, 62 Law & Contemp. Probs. 1 (1999). 4. See generally the materials in Jerry L. Mashaw, Richard A. Merrill & Peter Shane, Administrative Law: The American Public Law System 269– 75 (6th ed. 2009). Commentators alternatively applaud and decry presidential control or

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its limitations; compare Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001), with Peter L. Strauss, Presidential Rulemaking, 72 Chi.-Kent L. Rev. 965 (1997). The Unitary Executive Debate continues. For a recent series of papers that provide a flavor of the controversy and citations to much of the prior literature, see Symposium: Presidential Power and Historical Perspective: Reflections on Calabresi and Yoo’s The Unitary Executive, 12 U. Pa. J. Constl. L. 241 (2010). 5. For a brief description of these pervasive instruments of legislative control, see Mashaw et al., supra note 4, at 150– 76. 6. For an empirical evaluation of the capacity of the Office of Management and Budget to oversee agency rulemaking and its effects, see Stephen P. Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. Chi. L. Rev. 821 (2003). 7. Indeed, one subbranch of political science, generally denominated positive political theory, views administrative law as a whole primarily as a device for congressional control of administration. See Matthew McCubbins, Roger Noll & Barry Weingast, Administrative Procedures as Instruments of Political Control, 3 J. L. Econ. & Org. 243 (1987); and Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431 (1989). 8. For a description of the developments leading up to the Administrative Procedure Act, see Reuele Schiller, The Era of Deference, Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 Mich. L. Rev. 399 (2007). 9. Codified in various sections of Title V of the U.S. Code, particularly 5 U.S.C. §§ 51– 558, 701– 06, 1305, 3105, and 7521. 10. 5 U.S.C. § 553. 11. 5 U.S.C. § 554– 57. 12. 5 U.S.C. § 554(d). 13. 5 U.S.C. § 556(b)(3). 14. On the “revolution” of the mid-1970s, see, for example, Henry Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975); and Doug Rendleman, The New Due Process: Rights and Remedies, 63 Ky. L. J. 532 (1975). 15. For a description of these developments, see for example, James V. DeLong, Informal Rulemaking and the Integration of Law and Policy, 65 Va. L. Rev. 257 (1979); and William F. Pedersen, Formal Records and Informal Rulemaking, 85 Yale L.J. 38 (1975). 16. 5 U.S.C. § 552(b). 17. 5 U.S.C. Appendix 2. 18. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). 19. Abbott Labs. v. Gardner, 387 U.S. 136 (1967). 20. Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970). 21. For a description of this approach to judicial review and its basis in American legal culture, see Jerry L. Mashaw & David L. Harfst, The Struggle for Auto Safety 156– 63 (1990). 22. For the classic statement of the twentieth century re-imagination of administrative law, see Richard Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1988). For reflections on an updating of this classic analysis,

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see Symposium: The Reformation of American Administrative Law, Issues in Legal Scholarship, Berkeley Electronic Press, available at www.bpress.con/ils/ administrativelaw. 23. An Act to Establish an Executive Department to Be Denominated the Department of War, ch. 7, 1 Stat. 49 (1789); An Act for Establishing an Executive Department to Be Denominated the Department of Foreign Affairs, ch. 4, 1 Stat. 28 (1789). 24. An Act Providing for the Payment of the Invalid Pensioners of the United States, ch. 24, 1 Stat. 95 (1789). 25. An Act Making Provision for the Disposal of the Public Lands in the Indiana Territory and for Other Purposes, ch. 35, 2 Stat. 277, 278– 79 (1804). 26. An Act in Addition to the Act Entitled “An Act Laying an Embargo on All Ships and Vessels in the Ports and Harbors of the United States” and Several Acts Supplementary Thereto, and for Other Purposes, ch. 66, § 11, 2 Stat. 499 (1808). 27. For a discussion of congressional attempts to oversee administration during the nineteenth century, see Leonard D. White, The Jeffersonians: A Study in Administrative History 1801–1829, at 89– 133 (1951); Leonard D. White, The Jacksonians: A Study in Administrative History 1829–1861, at 143– 62 (1954); and Leonard D. White, The Republican Era: A Study in Administrative History 1869–1901, at 68– 92 (1958). 28. For example, the statute reorganizing the general Land Office was drafted by Land Office Commissioner Ethan Brown. S. Doc. No. 24-216, at 1–2 (1836). Similarly the Bill reorganizing the Navy Department was written by Navy Secretary Upschur. H.R. Doc. No. 27-167, at 102 (1842). And when Congress wanted to know how to reform the 1838 Steamboat Safety Act, it turned to one of its few scientific officers, the Commissioner of Patents. Report of the Commissioner of Patents to the Senate of the United States on the Subject of Steam Boiler Explosions, S. Exec. Doc. No. 30-18 (1848). 29. William N. Eskridge & John Ferejohn, Republic of Statutes: The New American Constitution (2010). 30. See, e.g., The President and Accounting Officers, 1 Op. Att’y. Gen. 624 (1823); The President and the Controller, 1 Op. Att’y. Gen. 636 (1823); The President and Accounting Officers, 1 Op. Att’y. Gen 678 (1824); The President and Accounting Officers, 1 Op. Att’y. Gen. 705 (1825); The President and Accounting Officers, 1 Op. Att’y. Gen. 706 (1825). And, of course, in the early case of Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), it was determined that a presidential instruction would not protect an officer from a damage action where the President’s instruction, even as Commander in Chief, was contrary to the language of the statute. For an argument that Congress fully understood from the beginning of the Republic the difference between giving powers to the President and to subordinate officers, see Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263 (2006). 31. For example, the Attorney General was required to be “a meet person, learned in the law.” An Act to Establish the Judicial Courts of the United States, ch. 20, § 35, 1 Stat. 73, 93 (1789). Similarly the statute providing for the appointment of inspectors of steam vessels and their boilers required that the inspectors be persons

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who were qualified by training and experience to make the inspections. Act of August 30, 1852, ch. 106, 10 Stat. 61. 32. An Act to Establish the Post- Office and Post-Roads within the United States, ch. 7, §§ 2–3, 1 Stat. 232, 233–34 (1792). 33. See generally on the development of the Justice Department, Homer Cummings & Carl McFarland, Federal Justice (1937). For a more detailed look at the very early days of the Republic, see Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561. 34. The activities of these officers were in many ways quasi-judicial. Requests for payment from the Treasury were sent to the Auditor, who examined and certified the amount due and then transmitted accounts to the Controller for a final decision. Dissatisfied parties could appeal the Auditor’s findings to the Controller. An Act to Establish the Treasury Department, ch. 12, § 2, 1 Stat. 65 (1789). 35. Statutes dealing with land claims in the territories varied, but virtually all used the commissioner system for deciding private claims. For the major variations on the private claims process, see An Act for Ascertaining Claims and Titles to Land within the Territory of Florida, ch. 129, 3 Stat. 709 (1822); An Act for Ascertaining the Titles and Claims to Lands in That Part of the Louisiana [Territory] Which Lies East of the River of Mississippi and Isle of New Orleans, ch. 67, 2 Stat. 713 (1812); An Act Making Provision for the Disposal of Public Lands in the Indiana Territory, and for Other Purposes, ch. 35, 2 Stat. 277 (1804); and An Act Regulating the Grants of Land, and Providing for the Disposal of the Lands of the United States, South of the State of Tennessee, ch. 27, 2 Stat. 229 (1803). 36. W.F. Willoughby, An Introduction to the Study of the Government of Modern States 242 (1919). 37. See discussion at note 9 in Chapter 2. 38. A recent study fi nds that of the 1.65 million lawsuits brought to enforce federal law over the past decade, only three percent were prosecuted by the federal government. Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010). 39. Gautham Rau, The Creation of the American State: Customhouses, Law and Commerce in the Age of Revolution (Ph.D. dissertation, University of Chicago, 2008, on file with the author). 40. See, e.g., Mark Seidenfeld, A Civil Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511 (1992); Lisa S. Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U.L. Rev. 4– 61 (2003). 41. The brief summary provided in the next three paragraphs is based on the much more extensive descriptions and analyses of judicial review in Recovering at 1319– 37; Reluctant Nationalists at 1674– 84, 1725–27; Administration and the Democracy at 1685– 89; and Gilded Age at 1399– 1412. 42. See, e.g., Douglas Lamar Jones, “The Caprice of Juries”: The Enforcement of the Jeffersonian Embargo in Massachusetts, 24 Am. J. Leg. Hist. 307 (1980) (describing the reluctance, indeed refusal, of juries in Massachusetts to convict those who violated the embargo laws).

412

notes to pages 303–309

43. Patricia M. Wald, Judicial Review in Mid Passage: The Uneasy Partnership between Courts and Agencies Plays On, 32 Tulsa L.J. 231, 258 (1996). 44. Thomas W. Merrill, The Origins of America-Styled Judicial Review, in Comparative Administrative Law 389 (Peter Lindseth & Susan Rose Ackerman eds., 2011). 45. NLRB v. Hearst Publ’ns, 322 U.S. 111 (1944). 46. Chevron, USA, Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). 47. David Zaring, Reasonable Agencies, 96 Va. L. Rev. 135 (2010). 48. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). 49. Motor Vehicle Manuf. Assoc. Inc. v. State Farm Mut. Ins. Co., 463 U.S. 29 (1983). 50. Indus. Union Dep’t, AFL- CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980). 51. William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdam, 96 Geo. L. J. 1083 (2008). 52. Paul Verkuil, An Outcomes Analysis of Judicial Review Standards, 68 Wm. & Mary L. Rev. 679 (2002). 53. The Supreme Court of the District of Columbia was at times sympathetic to the extension of mandamus jurisdiction, but in case after case the U.S. Supreme Court reaffirmed the narrowness of the writ. See, e.g., United States v. Comm’r, 72 U.S. (5 Wall.) 563 (1866) (denying mandamus to compel the issuance of a patent by the Commissioner of the General Land Office); Comm’r of Patents v. Whiteley, 71 U.S. (5 Wall.) 552 (1866) (denying mandamus to compel the Commissioner of Patents to reexamine the patent application). 54. In Cary v. Curtis, 44 U.S. (3 How.) 236 (1845) Justice Daniel interpreted a statute requiring that customs collectors immediately pay over all funds received to the Treasury of the United States as intending to eliminate a collector’s liability for funds improperly collected. Congress responded almost immediately, reaffirming both the availability of common law actions against collectors and the right to trial by jury in those proceedings. Act of Feb. 26, 1845, ch. 22, 5 Stat. 727. 55. See, e.g., William F. Pedersen, Jr., Formal Records and Informal Rulemaking, 85 Yale L.J. 38 (1975); and James V. DeLong, Informal Rulemaking and the Integration of Law and Policy, 65 Va. L. Rev. 257 (1979). 56. An Act Repealing, after the Last Day of June Next, the Duties Heretofore Laid upon Distilled Spirits Imported from Abroad, and Laying Others in Their Stead; and Also upon Spirits Distilled within the United States, and for Appropriating the Same, ch. 15, § 43, 1 Stat. 199 (1791). 57. 58 U.S. (17 How.) 525 (1854). 58. 91 U.S. 343 (1875). 59. Id. at 354. 60. Id. at 355. 61. See Louis L. Jaffe, Standing to Secure a Judicial Review: Public Actions, 74 Harv. L. Rev. 1265 (1961). 62. Elizabeth Magill, Standing for the Public: A Lost History, 95 Va. L. Rev. 1131 (2009). 63. See the description in William E. Nelson, The Roots of American Bureaucracy, 1830–1900, at 124–25 (1982). 64. Elizabeth Magill, Agency Self-Regulation, 77 Geo. Wash. L. Rev. 859 (2009).

notes to pages 310–311

413

65. Matthews v. Eldridge, 424 U.S. 319 (1976). 66. Final Report of the Attorney General’s Committee on Administrative Procedure (1941). 67. The phrase “administrative law” appears as early as an 1835 book review in the American Jurist and Law Magazine. The review, written by a German law professor on Justice Story’s Commentaries on the Constitution, criticizes Story for neglecting to include the administrative law of the United States in his book. The unnamed editors of the magazine, coming to Story’s defense, explain to their readers that “It would not be sufficient for us to say that in our country the phrase ‘administrative law’ is unknown, provided the subject itself exists” but that “If we should express the impression which we have formed, we should call it that part of the law, by which the established principles of the government are put into action and applied to the business of life.” 14 Am. Jurist & L. Mag. 330, 338, n.1 (1835). The phrase appears again in a few isolated incidents in the late 1830s and 1840s, but generally in reports on legal education abroad or foreign law. 68. See, e.g., 1 John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law 73 (1869) (defining administrative law as the field that “determines the ends and modes to and in which the sovereign powers shall be exercised directly by the monarch or sovereign number, or shall be exercised directly by the subordinate political superiors to whom portions of those powers are delegated or committed in trust” ); Thomas Erskine Holland, The Elements of Jurisprudence 251– 54 (1880) (defining administrative law as “the exercise of political powers within the limits of the constitution” and the “functions, or the activity, of the sovereign powers,” but admitting that “[a]dministrative law, as thus conceived of, is not a coherent body of doctrine”); 1 James Paterson, Commentaries on the Liberty of the Subject & the Laws of England 67 (1877) (describing administrative law as “resolved into three parts: the judicature, the legislative, and the executive government,” which “are called administrative law, because they have the relation to the substantive law of means to the end— of machinery to the result achieved” ); Ernest Chester Thomas, Leading Cases in Constitutional Law 2 (1876) (“Administrative law determines the mode in which the sovereign power is to be exercised, either by the sovereign power itself, or the subordinate political officers to whom portions of the sovereign power may be delegated.” ). 69. Cushing may have picked up the term in foreign travels. Before becoming Attorney General, Cushing had traveled extensively throughout Europe, even writing two books while abroad. See Caleb Cushing, Reminiscences of Spain (1833); Caleb Cushing, Review, Historical and Political, of the Late Political Revolution in France (1833). Cushing’s use of “administrative law” was fairly similar to the modern understandings of the term. While not always consistent, Cushing generally meant the body of law that guided and constrained executive agency actions, whether based on the agency’s prior regulations or interpretation of the agency’s authorizing statutes. Cushing may not have been the first to use the term “administrative law” in the United States, but he influenced later legal writers, including subsequent Attorneys General who used the phrase in a similar fashion before 1880.

414

notes to pages 311–314

70. 6 Op. Att’y Gen. 326, 343 (Office and Duties of Attorney General, Mar. 8, 1854). 71. 6 Op. Att’y Gen. 99, 100 (Case of Spratt’s hemp contract, Sept. 5, 1853). See also 7 Op. Att’y Gen. 1, 3 (unexpended balances of appropriations, Oct. 9, 1854); 7 Op. Att’y Gen. 482, 483 (Passmore Williamson’s case, Sept. 7, 1855); 7 Op. Att’y Gen. 657, 659 (Spurious Land Warrants, Mar. 15, 1856). 72. 7 Op. Att’y Gen. 523 (payment of interest by the United States, Sept. 20, 1855). 73. Id. at 524. 74. 13 Op. Att’y Gen. 457 (Case of R.H. Mcgoon, June 20, 1871). 75. For a good summary of the problems, but a more hopeful view of congressional reform, see Stephen Legonsky, Restructuring Immigration Administration, 59 Duke L.J. 1635 (2010). In perhaps an even more dramatic example of the significance of “internal law,” David Zaring has recently described how much of the Treasury’s administrative jurisdiction is controlled by its own rules and practices, not by standard requirements of the APA or judicial review. David Zaring, Administration by the Treasury, 95 Minn. L. Rev. 101 (2010).

INDEX

1906 Pure Food and Drug Act, 13, 23 Adams, Henry, 96, 104, 120, 138, 230 Adams, John, 19, 29, 30, 49, 54, 59, 63 Adams, John Quincy, 88, 89, 108 Administrative law: 245–48l; common law remedies, 66– 73; conventional conception of, 3, 4, 5, 12; internal law of administration as, 140–43, 221–23, 277– 82; Jeffersonian Embargo and, 112– 18; mandamus, 3, 18, 24, 77– 78, 210– 18; as a term of art, 311– 12. See also Internal administrative law Administrative rulemaking: in banking regulations, 167, 169, 171; by Board of Supervising Inspectors of Steamboats, 193– 94, 196–200, 202– 03; circulars and instructions during the Embargo, 100– 101, 112; concerning public land sales, 125–27; internal law as, 310; by Pension Office, 257– 58, 263– 64; by Post Office, 46, 273, 275; to settle construction of the laws, 57 Agency adjudication: internal administrative law and, 252– 54, 277– 82; at

Post Office, 274– 77; respecting military pensions, 258– 67; as specialized task, 255– 56; statutory provision, 251 American School of Magnetic Healing v. McAnnulty, 248, 249 Bache, Alexander Dallas, 207, 208 Baer, Lauren, 304 Balogh, Brian, 14, 16, 49 Bancroft, George, 172 Barry, William T., 179, 180 Bartlett v. Kane, 215 Benton, Thomas Hart, 162 Biddle, Nicholas, 157, 166 Bingham, William, 69, 73, 77 Blair, Montgomery, 268, 269 Burke, Edmund, 190, 191, 193 Burke, John G., 188, 189 Calhoun, John C., 185 Carpenter, Daniel, 15, 16, 183 Cary v. Curtis, 214 Chevron v. Natural Resource Defense Council, 303, 304, 305 Civil Ser vice Commission, 15, 23, 183 Civil Ser vice System, 22, 236–40

416

index

Civil War, 21, 22, 103 Clay, Henry, 100, 135, 161– 62, 170– 71 Cleveland, Grover, 257, 261 Clinton, George, 164 Collins, Kristin, 47 Comstock, Anthony, 270 Cortelyou, George B., 276– 77 Crenson, Matthew, 55, 151, 179, 181, 182, 185 Currie, David, 46, 188 Cushing, Caleb, 22, 311 Cushing, Marshall, 272 Dallas, Alexander J., 133 Davidson v. New Orleans, 249 Davis, Judge John, 97, 105, 109, 110 De Tocqueville, Alexis, 149, 219 Decatur v. Paulding, 212, 213 Decatur, Commodore Steven, 212 Delegation of Authority, 44–47, 90, 99, 115 Dicey, A. V., 7, 8, 84, 114, 308 Dorousseau v. United States, 105 Duane, William, 159, 162, 163 Dudley, Colonel W. W., 262, 264 Embargo of 1807– 1809: constitutional principles and, 96– 98; hierarchical control of administration during, 99– 104; judicial review and, 104– 08; jury system and, 108– 12; meaning for administrative law, 112, 118; statutory history, 93– 96 Eskridge, William N., 304 Ex parte Gilchrist, 107, 110, 116 Ex parte Jackson, 270 Federal Trade Commission, 4, 23 Federal Trade Commission Act, 13 Field, Justice Stephen, 270 First Bank of the United States, 33, 34, 41, 43, 47, 51, 122, 157 Fish, Carl Russell, 176, 177

Freund, Ernst, 13 Friedman, Lawrence M., 3 Gaines v. Thompson, 245 Gallatin, Albert: administration of the Embargo and, 98– 104; banking system and, 164; and hierarchical control of administration, 132–34, 41–42; and sale of public lands, 120, 122; and statutory interpretation, 130 Garfield, James A., 238, 262 Gelston, Davis, 110, 111 Gerry, Elbridge, 59 Gibbons v. Ogden, 189 Glasson, William, 261 Godkin, Edwin L., 230 Goldberg v. Kelly, 266, 279, 280 Goldsmith, Jack, 281 Goodnow, Frank, 8, 9, 10, 13, 57, 311 Gouge, William M., 172, 200 Grant, Ulysses, 23, 235, 237 Hamilton, Alexander: and administrative theory, 29–32; and Bank of the United States, 164; and hierarchical control of administration 57, 112; and public land policy, 119; and tenure in office, 154 Harrison, Benjamin, 257, 261 Hawthorne, Nathaniel, 176 Hayes, Rutherford B., 236 Henderson, Dwight, F., 68 Hierarchical control of administration: administrative law as, 221–23; by contract, 167– 68; via forfeiture and penalties, 62; via inspection, audit and supervision, 54– 57, 133–34; local resistance and, 183– 86; via loyalty, 58– 60; via pecuniary benefits, 60– 62; via rules and instructions, 100– 103, 125–27, 196–200; spoils system and, 175– 86 Hoyt, Jesse, 221, 222

index Hull Hofer, Williamjames, 241 Hunter, Louis C., 197 In re Ammerman, 261, 262 Internal administrative law: administering public lands policy, 143; administrative due process, 27, 254, 279– 81; as building culture of legality, 223; as characterized by Bruce Wyman, 252– 54, 279; and Embargo, 19; as law 181– 82 Interstate Commerce Act, 13, 91, 229, 232 Interstate Commerce Commission, 3, 4, 5, 15, 23, 189 Jackson, Andrew: administration and, 151– 55, 218–21; Bank War and, 158– 62; Jacksonian Democracy, 149– 51; and presidential power, 162– 64; and rotation in office, 175– 77, 221–23 Jacksonian Democrats, 20, 22, 147, 148, 149, 150– 55 Jaffe, Louis, 65, 248 Jefferson, Thomas: and Embargo of 1807– 1809, 91– 104, 115– 19; Jeffersonian Republicans, 18–20, 22, 85– 88; at Patent Office, 50; on presidential discretion, 54, 278; and public lands policy, 120; and “Revolution of 1800,” 218– 19; and state building, 137–39; and Virginia Republican tradition, 30, 85– 90 John, Richard, 15, 16, 82 Johnson, Andrew, 234, 235 Johnson v. Towsley, 247, 248 Judicial control of administration: administrative procedure, 249– 50; by common law action, 66– 73; courts as administrative tribunals, 73– 75; executive nonacquiescence, 115– 17; involving land claims, 136–37; during the Jeffersonian Embargo, 105– 08; jury system and, 108– 12; by mandamus,

417

77– 78, 210– 18, 245–48; nineteenth century model, 301– 08 Judicial review of administrative action. See Judicial control of administration Keller, Morton, 15, 262 Kendall, Amos, 180– 84, 210– 14, 223, 268 Kendall v. Stokes, 211, 212, 213, 214, 215 Kendall v. United States, 162, 214, 216 Kingsbury, Benedict, 281 La Follete, Robert M., 262 Landis, Michele L., 48 Lee, Frederic P., 65, 66, 76 Leibcap, Gary, 238 Levinson, Daryl, 281 Lincoln, Abraham, 153, 163, 234 Lincoln, Levi, 103 Lindsey v. Hawes, 246 Little v. Barreme, 117 Lord Bryce, 4, 34, 82 Lord Ellenborough, 211 Lord Mansfield, 211 Louisiana Purchase, 19, 86, 97, 119 Lowi, Theodore, 4, 15, 35, 82, 230, 232, 240 Madison, James, 40, 68, 88, 92, 160, 295 Magill, Elizabeth, 309 Marbury v. Madison, 78, 112, 116, 211, 216 Marshall, John, 78, 97, 107, 112, 113, 114, 116, 216 Matthews v. Eldridge, 280, 310 McClane, John, 179 McCulloch v. Maryland, 160, 161 McFaul, John M., 151, 173 McLane, Louis, 159, 207 Merrill, Thomas, 303, 304 Meyers, Marvin, 150 Military pensions. See Veterans’ pensions Monroe, James, 21, 81, 100, 137

418

index

Motor Vehicle Manuf. Association v. State Farm, 304 Murray’s Lessee v. Hoboken Land and Improvement Co., 217, 218 Myers v. United States, 235 Nelson, William, 178 New Deal, 13, 15, 17, 25 NLRB v. Hearst Publications, 303, 304, 305 Novak, William, 14, 16 Olney v. Arnold, 71 Olney, Jeremiah, 71, 72, 73, 77 Otis, William, 110, 111 Otis v. Watkins, 106 Overton Park v. Volpe, 304 Parrillo, Nicholas, 61, 62 Patent Office, 5 Peckham, Justice Rufus Wheeler, 249 Pendleton, George H., 238 Pendleton Civil Ser vice Act, 13, 22, 229, 231, 232 Pfander, James, 113 Pinckney, Charles, 54, 67, 102, 117 Political control of administration: administrative structure and, 40-44, 179– 83, 220–21, 240–42; civil ser vice reform and 236–40; congressional oversight and, 134–36; through decentralization, 298– 99; delegated administrative discretion and, 45–48, 242–44, 257– 58; idea of office and, 177– 79, 219; macropolitics of, 29– 94; micropolitics of, 294– 98; popular control as, 299–301; presidential authority and, 48–49, 218– 19; removals and, 38–40, 158– 59, 161– 63, 234–36 Polk, James K., 163, 172 Post Office: adjudicatory process in, 274– 77; administrative efficiency in, 59; administrative organization of, 44,

51, 83, 179– 82; administrative regulation by, 268– 70; congressional delegation to, 45–46; regulation of fraud by, 271– 77; and state building, 82, 267– 68 Prakash, Saikrishna, 235 Public Clearing House v. Coyne, 249 Public lands: administration, 124–34; congressional oversight, 134–36; judicial review and, 136–37; policy, 121–24 Randolph, Edmund, 42, 43, 54, 70 Randolph, John, 88 Rankin v. Hoyt, 215 Rau, Gautham, 296 Reconstruction, 21, 22 Rees v. Watertown, 245 Removal of officers, 38–40, 159, 161– 63, 234–36, 239 Rodney, Caesar A., 108, 116– 17 Rohr, John, 17 Rohrbough, Malcolm, 126, 127 Roosevelt, Theodore, 239 Rush, Benjamin, 29 Schuck, Peter, 77 Schurz, Carl, 237 Second Bank of the United States, 20, 151, 153, 154, 156– 74 Secretary of the Treasury, 19, 20, 40, 41, 42, 51, 83, 84 Sherman Antitrust Act, 13, 229 Skocpol, Theda, 262 Skowronek, Stephen, 12, 13, 231, 232 Spivak, Burton, 98 Spoils system, 20, 22, 176, 177, 178, 185 Standing doctrine, 306; under the APA, 289; in nineteenth- century judicial review, 306– 07 Steamboat Regulation: administration of, 196–200; and administrative process, 202– 04; national constitu-

index tional authority for, 188– 89; and political control of administration, 200–202; relation to scientific knowledge, 206– 08 Stewart, Richard, 113 Story, Justice Joseph, 97, 214 Swartwout, Samuel, 214, 217, 221 Swisher, Carl, 189 Taney, Roger, 159, 161, 163, 212– 15 Tax collection, 34–37, 44–45, 82– 83 Temin, Peter, 158 Thach, Charles, 12 Twain, Mark, 227 Union Pacific Railroad Company v. Hall, 307 United States v. Boutwell, 245, 246 United States v. Buell, 216 United States v. Ferreira, 215 United States v. Ritchie, 215, 306 Upshur, Abel, 221 Van Buren, Martin, 170, 171, 172, 177, 188 Van Riper, Paul P., 237 Veterans’ pensions: and administrative adjudication, 258– 63; and administrative discretion, 257– 58; development of statutory policies for, 256– 57; and hierarchical control of administration, 263– 67

419

Wald, Judge Patricia, 303 Washington, George: administrative style, 54– 55; on America’s promise, 30; and “fitness of character” in appointments, 58, 63, 294; frustrations with Continental Congress, 32; frustrations with Post Office, 59; and legal advice, 43; and need for directive authority, 292; Weber, Max, 23, 177, 178 Webster, Daniel, 147, 162 White, Leonard: on administration of the Embargo, 101, 103– 04; on administrative development, 150; on administrative efficiency, 231, on hierarchical control of administration, 55, 83; on Post Office reform, 181; on presidential control of administration, 163, 240; on spoils system, 176 Willoughby, W. F., 11, 293 Willoughby, W. W., 11, 33 Wills, Garry, 88 Wilson, Woodrow, 4, 13, 240, 244 Wirt, William, 311 Wood, Gordon S., 82 Woolhandler, Ann, 77, 137 Wyman, Bruce, 215, 216, 252, 253, 279 Youngstown Sheet & Tube Co. v. Sawyer, 108 Zaring, David, 304