From the time of the "Pound Report" until the passage of the APA six years later, disputes over questions of administrative law became thoroughly intertwined with raging political struggles over the legitimacy of the regulatory state. When Congress enacted the APA, the terms of the struggle had already been transformed, and a truce had been finally negotiated.
Fashioned amid a surge of conservative post-war hostility to the New Deal as well as bewilderment over the horrors inflicted by totalitarian regimes, the terms of the truce were extremely favorable to the critics of administrative regulation. Even if many of their specific proposals were ignored, the triumph of their legalist mindset successfully reversed the New Deal vision of the appropriate relationship between courts and administrative agencies.
In order to understand the ideological significance of the APA, we must first recapture the bitterness of the preceding struggle. The "Pound Report" directly spawned the Walter-Logan Bill of 1940, which was passed by both houses of Congress but was vetoed, amid intense controversy, by President Franklin D. Roosevelt. Pro-New Deal lawyers widely denounced the bill for forcing administrative agencies, in the words of the Association of the Bar of the City of New York, "into a single mold which is so rigid, so needlessly interfering, as to bring about a widespread crippling of the administrative process." 135
For a time, the battle over administrative procedure was nothing less than a struggle over the legitimating premises of the New Deal.
Nothing better captures the gulf that existed between the proponents and opponents of this "high water mark of judicialization" 136 of the administrative process than President Roosevelt's powerful veto message of the Walter-Logan Bill in 1940. Roosevelt wrote:
[A] large part of the legal profession has never reconciled itself to the existence of the administrative tribunal. Many of them prefer the stately ritual of the courts, in which lawyers play all the speaking parts, to the simple procedure of administrative hearings which a client can understand and even participate in. Many of the lawyers prefer that decision be influenced by a shrewd play upon technical rules of evidence in which the lawyers are the only experts, although they always disagree. Many of the lawyers still prefer to distinguish precedent and to juggle leading cases rather than to get down to the merits of the efforts in which their clients are engaged. For years, such lawyers have led a persistent fight against the administrative tribunal. 117
Only three years after his own bitter struggle with the Supreme Court, Roosevelt's message not only reiterated the traditional Progressive suspicion of the efficiency of the courts, but also powerfully restated Landis's identification of administrative regulation with social reform. Roosevelt continued:
In addition to the lawyers who see the administrative tribunal encroaching upon their exclusive prerogatives there are powerful interests which are opposed to reforms that can only be made effective through the use of the administrative tribunal. Wherever a continuing series of controversies exist between a powerful and concentrated interest on one side and a diversified mass of individuals, each of whose separate interests may be small, on the other side, the only means of obtaining equality before the law has been to place the controversy in an administrative tribunal. . . . Great interests, therefore, which desire to escape regulation rightly see that if they can strike at the heart of modern reform by sterilizing the administrative tribunal which administers them, they will have effectively destroyed the reform itself.1"
One of Roosevelt's stated reasons for vetoing the Walter-Logan Bill was that his Attorney General's Committee on Administrative Procedure was about to issue its own report, one that was "more eagerly awaited by the administration that commissioned it" than any other on administrative law had ever been. 139 Roosevelt applauded its vindication of New Deal administrative procedure, declaring that it "confirmed my belief that the Walter-Logan Bill was an abortive attempt to hamstring many progressive administrative agencies." 140
Yet, it was the minority report of the Attorney General's Committee, quite critical of existing administrative forms, that was to have greater influence on the underlying assumptions of the APA. The most significant structural difference between the majority and the minority was over the question of whether a general code of administrative procedure would straitjacket the agencies. The majority report is remembered, above all, for rejecting any general code as an unnecessary interference with agency flexibility and creativity. By contrast, it seems clear that the APA "reflectf ed] the minority position" on questions of structure. 141 Indeed, at a still deeper ideological level, the divisions within the Attorney General's Committee were basically a repeat performance of the original split between Landis and Pound.
In light of this history, it is difficult to accept Verkuil's conclusion that the APA represented "compromise without retrenchment" or, even more extravagantly, that it moved administrative law permanently away from "automatic and unexamined reliance upon the judicial model" and into a "third and mature phase" of "concern with administrative procedure as an independent model." 142 However, Vcrkuil's observation that, "[o]n the face of it, [the APA] looked like a victory for the old Walter-Logan forces" 143 continues to ring true. "Since some had considered the 1941 minority report an extension of Walter-Logan," Verkuil acknowledged, "it was not difficult to view the APA, which reflected the minority position, as a code inspired by Walter-Logan." 144
Not only did the minority's conception of a general code prevail in the APA. More basically, the legalist mentality that Pound had effectively revived became the accepted framework for drafting the APA.
The Re-emergence of Proceduralism
The APA is a prominent example of the dialectical relationship between expertise theory and proceduralism in twentieth-century American legal thought. In the period of its greatest strength, between 1910 and 1940, the expertise justification of authority resulted in the elimination of elaborate procedural protections in judicial proceedings. A declining faith in the ability of experts to produce scientific, neutral, and apolitical solutions to social and legal questions led in turn to a reemergence of proceduralism.
One of the best examples of this shift away from confidence in experts is the dramatic reversal of the premises that have governed juvenile delinquency proceedings. Separate juvenile courts were created during the Progressive era out of a conviction that the adversary system prevailing in regular criminal cases, with its elaborate procedural protections against a hostile state, were inappropriate to juvenile proceedings. Juvenile delinquency was often spoken of as a "social disease," requiring experts such as social workers and criminologists to advise judges on the appropriate individual cure. 145 The state was viewed as benevolent and paternalistic, and professional advisors as capable of providing the best solution to the juvenile's problems. 146 Elaborate procedures, by contrast, presupposed the gamesmanship of the adversary system, not the scientific deliberation of the trained professional. What was needed was the flexibility of the social engineer, not the rigidity of legal procedures that inevitably distorted the complexities of life. As the U.S. Supreme Court declared in 1967:
The early reformers were appalled by adult procedures and penalties and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. They were profoundly convinced that society's duty to the child could not be confined by the concept of justice alone. They believed that society's role was not to ascertain whether the child was "guilty" or "innocent," but "What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career." The child---essentially good, as they saw it-was to be made "to feel that he is the object of [the state's] care and solicitude," not that he was under arrest or on trial. The rules of criminal procedure were therefore altogether inapplicable. The apparent rigidities, technicalities, and harshness which they observed in both substantive and procedural criminal law were therefore to be discarded. The idea of crime and
punishment was to be abandoned. The child was to be "treated" and "rehabilitated" and the procedures, from apprehension through institutionalization, were to be "clinical" rather than punitive. 147
Dominant for half a century, this vision was abruptly rejected by the U.S. Supreme Court in In re Gault (1967), which insisted that juveniles be accorded the same procedural protections as adults in criminal proceedings. 148 The decision reflected almost a generation of growing disillusionment with expertise, particularly with the professional claims of social scientists. 149 Without the legitimacy of science, the state's apparatus was no longer experienced as benevolent but once more as potentially oppressive. As claims of professionalism to scientific legitimacy grew weaker, as their ability to provide objective solutions was increasingly called into question, courts reverted to traditional legalist protections against arbitrari- ness.150 As the Supreme Court declared:
It is these instruments of due process which enhance the possibility that truth will emerge from the confrontation of opposing versions and conflicting data. "Procedure is to law what scientific method is to science."...
A similar shift away from expertise occurred much more rapidly in the realm of judicial definitions of insanity. The monumentally important 1954 opinion by Judge David Bazelon in United States v. Durham 152 is a clear example of the influence on our law of a generation of Legal Realist claims for the social sciences, especially for the scientific status of psychiatry. Eighteen years later, however, in the face of mounting attacks on the neutrality and scientific status of psychiatry, Bazelon's own court reversed the Durham rule.
The original opinion, filled with appeals to the "modern science of psychology" 153 and "scientific knowledge," 154 rejected the traditional M'Naghten Rule, which determined whether a criminal defendant was insane by whether he or she could distinguish right from wrong. Supplemented by the "irresistible impulse" test, the M'Naghten Rule had been almost universally adopted by American courts at the time Durham was decided. 155
Using advances in science as justification, the Durham court developed a new test: whether the "unlawful act was the product of mental disease or mental defect." Indeed, Judge Bazelon's opinion characterized the earlier history of the insanity defense as an initial refusal to change "[d]espite demands in the name of scientific advances," 156 followed by a late addition of the irresistible impulse test "in response to `the cry of scientific experts.' " 157
Eighteen years later, recognizing the accumulated scholarly and judicial criticism of the Durham rule, the full bench of the U.S. Court of Appeals for the District of Columbia, including judge Bazelon, unanimously voted to overrule Durham and substitute still another formulation proposed by the American Law Institute. 158 "A principal reason" for the change, the court declared, was "undue dominance by the experts giving testimony" 159 on the issue of insanity, especially on the twin questions of whether there was a "mental disease or defect" 160 and whether the crime was the "product" 161 of that disease. The Durham rule, the court declared, had "opened the door to `trial by label.' ,162
In a defensive partial concurrence, judge Bazelon conceded that Durham relied too heavily on expert opinion. He took pains to emphasize the Durham left ultimate decisions as to criminal responsibility in the jury's hands. He maintained that Durham itself was originally promulgated "largely in response to the plea of behavioral scientists that they did not want to decide ultimate questions of law and morality, but wanted only an opportunity to report their findings as scientific investigators without the need to force those findings through the prism of M'Naghten." 163 From the beginning, he argued,
Durham challenged the experts to provide the information they had long promised. We expected, perhaps naively, that the presentation of this new information would permit-indeed require-the jury to undertake a much broader inquiry and to rely less on the ultimate conclusions of the experts. But it quickly became apparent that . . . it did not do nearly enough to eliminate the experts' stranglehold on the process. 164
Frankfurter and the Changed "Mood" in Congress
The erosion of the legitimating power of expertise theory, and the consequent reemergence of legalism and proceduralism, best explain the significance of the APA of 1946.
After 1946, political attacks on the regulatory state and intellectual challenges to social science claims of objectivity marched hand in hand. Every triumph of proceduralism occurred at the expense of professionalism.
In the immediate post-World War II period, it was conservatives who challenged expertise theory, not only through the APA but, even more dramatically, in legal attacks on the authority of the National Labor Relations Board as a result of the passage of the Taft-Hartley Act (1947)•
In the Universal Camera case (1951),165 the Supreme Court was asked to decide whether the Taft-Hartley Act had expanded the scope of judicial review of Labor Board decisions, thus reversing traditional judicial deference to administrative findings based on "substantial evidence." The Act, passed over President Harry S. Truman's veto by the first Republican-controlled Congress since the New Deal, was the product of a decade of conservative attacks on the pro-labor ideology of the Labor Board. More than any other New Deal administrative agency, the Labor Board had become a lightning rod for conservative skepticism about claims to administrative expertise.166 By expanding the scope of review of Labor Board decisions, conservatives hoped both to reduce judicial deference to claims of agency expertise and to re-legalize the process of administrative regulation.
In NLRB v. Universal Camera, the Court of Appeals, per judge Learned Hand, held that the Taft-Hartley Act had not expanded the scope of review, but had simply codified the traditional relationship between courts and administrative agencies.167 But the Supreme Court, in an opinion by justice Felix Frankfurter, reversed, asserting that the Taft-Hartley Act actually reflected a changed "mood" in Congress concerning the appropriate relationship between courts and administrative agencies. 168
Frankfurter maintained that the act's new language-"substantial evidence on the record considered as a whole"-was in fact a new formula, meant to expand the scope of judicial review. But he conceded that he was hardly compelled to reach that conclusion, since, as he pointed out, the congressional committee reports seemed only to wish to make the statute "conform" to the established "substantial evidence" test. 169
Frankfurter chose to give the new language a broad reading based on his observation that under the Wagner Act, courts had "by imperceptible steps" come to defer to Labor Board fact finding where any evidence in the record, even "when viewed in isolation, substantiated the Board's findings." 170 Thus, "the belief justifiably arose" that the Court had "so contracted [its] reviewing power" 171 as to lead, in effect, to "an abdication of any power of review." 172
Frankfurter pointed out that the new formula "ma[de] its first appearance" 173 in the minority report of the Attorney General's Committee of 1941, and that it was rejected by the New Deal majority on the ground that "[i]t would destroy the values of adjudication of fact by experts or specialists in the field involved." 174 Thus, despite a lack of "clarity of purpose" in the congressional changes, 175 Frankfurter correctly identified the change in mood as a decisive shift away from those presuppositions about agency expertise that had been central to the pre-APA conception of the administrative process.
The more general significance of the question before the Court lay in the fact that the APA had also used the "substantial evidence . . . [on] the whole record" formula. 176 Therefore, the Court was, in effect, deciding that the APA itself had significantly expanded the scope of judicial review of all administrative determinations.
Frankfurter's opinion is filled with historical ironies. As a law professor before his appointment to the Court, his influence on legal thought and on the Harvard curriculum had been to move the center of intellectual gravity away from an exclusive emphasis on nineteenth-century private law subjects toward a twentiethcentury public law focus. In addition to being trained in the
common law, students, he wrote in 1927, "must have a sympathetic understanding of the major causes which have led to the emergence of modern administrative law, and must be able to move freely in the world of social and economic facts with which administrative law is largely concerned."177 The administrative state needed both "a highly professionalized civil service" and "a flexible, appropriate and economic procedure." 178 Caught up in Progressive hopes for social reform through law, he was the first person to teach administrative law at Harvard. After Frankfurter's departure for Washington, two of his students, James M. Landis and Louis L. Jaffe, continued the close connection between the New Deal and public law scholarship at Harvard. 179
Before his appointment to the Court, Frankfurter was one of the most vocal advocates of administrative solutions to social problems. A prominent proponent of expertise theory, he expressed his faith in administrative expertise most directly as the hope that America would develop a group of professional administrators modeled on the English civil service. In The Public and Its Government (1930) Frankfurter emphasized, as his biographer put it, "the crucial role that could be played in modern government by trained experts recruited from the nation's universities and professional schools.""' While the political conflicts of the nineteenth century "thrived in the main, on the levels of feeling and rhetoric," Frankfurter maintained, the critical problems of modern industrial society remained "deeply enmeshed in intricate and technical facts" that had to be freed from "presupposition and partisanship." It was thus necessary "to contract the areas of conflict and passion" and to expand "the areas of accredited knowledge as the basis of action." 181 Thus Frankfurter issued the call for rational, neutral inquiry by experts into the proper course of rational affairs.
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