Engineering the Modern Administrative State, Part I: Political Accommodation and Legal Strategy in the New Deal Era

Abstract

Administrative constitutionalism in the United States has been characterized by tension and accommodation. The tension reflects the unsettled nature of our constitutional scheme, especially with regard to separation of powers, and also the concern with agency discretion and performance. Still and all, we have accommodated administrative constitutionalism in fundamental ways, through a constitutional jurisprudence that, in the main, accepts broad delegations of regulatory power to the bureaucracy and an administrative law that oversees agency actions under procedural and substantive guidelines. This was not always the case. In this paper, part one of a larger project, we revisit the critical New Deal period to look at the strategies the Congress and the Supreme Court used to resolve controversies over the emerging administrative state. We see the political and legal accommodation as a product of a (mostly) coherent interbranch dialogue, iterative and fueled by strategy. Having surmounted some important roadblocks in the first New Deal, this effort ultimately resulted in a scheme that enabled the federal government to accomplish their three critical objectives: to deploy national power to solve new economic problems, to create delegations appropriate to modern needs, and to craft novel administrative instruments to carry out legislative aims – all of which required a due amount of legal accommodation, given extant legal doctrine and the interests of the courts.