Frankfurter acknowledged that many policy questions went "beyond the authority of engineer or economist" into "the realm of judgment regarding values as to which there is as yet no voice of science " And he denied that he was advocating "a new type of oligarchy, namely, government by experts." "The expert should be on tap, but not on top," he concluded. 182
Yet, as Michael Parrish perceptively observed, "[a] certain insouciance . . . characterized [Frankfurter's] belief that these intellectual mandarins would remain subject to popular, democratic controls. In a decade that produced the first edition of the Encyclopedia of the Social Sciences, however, his confidence and myopia were hardly unusual." 183
Thus, when twenty years later Frankfurter confronted a vehement congressional attack on the expertise of the Labor Board, whose own roots go back to Frankfurter's involvement during World War I in the problems of labor unrest, 184 he must have been struck by the erosion of faith in expertise and the return to "presupposition and partisanship" that it represented.
For those who had carefully followed the views on administrative law of Professor and then Justice Frankfurter, his shift to a legalized and judicialized approach in the late 194os and early 1950s came as quite a surprise. Two years before Universal Camera, his former student, Professor Louis L. Jaffe, noted "a strange and unexpected hyperbolism" that had appeared in a dissenting opinion Frankfurter had joined. 185 Its Poundian rhetoric and its invocation of administrative lawlessness startled Jaffe. "One remembers Mr. Justice Frankfurter's respect for 'expertise,' his reluctance even to review the agencies, and his assertion that they as well as the courts must be trusted to observe the law. It is as if here he had become momentarily seized with the chilling thought that he had been coddling a monster." 186
Louis Jaffe's Pilgrimage
Perhaps it was Jaffe himself who began to fear he had been "coddling a monster," for his own general disillusionment with the New Deal's administrative law vision began to emerge at about this same time. A former law clerk to Justice Louis Brandeis and an ardent New Dealer, he became, surprisingly, one of the most prominent scholars to cast doubt on wide-ranging expertise justifications for ad ministrative action. He began to embark on what he was later to call his own intellectual "pilgrimage" away from a strong attachment to the Landis model of his youth and back to Pound's more legalistic and proceduralized vision of the administrative process.
Rooted in a strong commitment to the New Deal, Jaffe's earliest writings were careful but powerful defenses of the administrative state. "The social legislation" of the New Deal, he wrote in 1941, had "brought to the boiling-point the longsimmering agitation" over the administrative process. 187 Earlier, he had lamented the absence of serious factual investigation of the charges of administrative arbitrariness and injustice, noting that "invective" had drowned out "ingenuity and goodwill" in recent studies.188 In particular, Pound's 1938 American Bar Association report had gone on a "spree" that Jaffe termed "the most unfortunate event" in the Association's series of studies of administrative law. 189 The Walter-Logan Bill, inspired by the "Pound Report" and later vetoed by President Roosevelt, Jaffe mocked as "A Bill to Remove the Seat of Government to the Court of Appeals for the District of Columbia." 190 Another report critical of New Deal agencies he found "unwise and irresponsible" 191 and filled with "violent, unmeasured condemnation of the independent commissions." 192
The pro-New Deal 1941 "Report of the Attorney General's Committee on Administrative Procedure" was, for Jaffe, "a heartening document." 193 He could find "nothing [in the "Report"] to justify the fears of Dean Pound" 194 of "administrative absolutism." Rather, it was simply the extension of administration "into fields of hotly-contested measures of economic control" that had "intensified . . . objections" to administrative procedures. 195 "The attack pressed by those hostile to the legislative purposes . . . was usually indiscriminate and argued for a wholesale condemnation of the entire corpus [of regulation] based on its departure from the assumed norm of a common law litigation." 196
Yet now, for the first time, Jaffe struck an unexpected note of impartiality.
[T]hose jealous for the preservation and extension of the new reforms [were] apt to be nearly as indiscriminate in [their] suggestion either that there were no grounds whatsoever common to administrative and judicial procedure, or that in any case there were no abuses or no abuses other than were likely to occur in any system of administration. In response to this somewhat unyielding attitude the conservative forces and their lawyers devised [the Walter-Logan bill, which sought] to reform the entire system of administration . . . by hasty and ill-digested generalizations. 117
Still the New Dealer, however, Jaffe also observed that the "Attorney General's Committee Report" "issues out of a caldron of hot controversy, a controversy that has its roots deep in class struggle, a controversy which is concerned with the basic direction and purposes of government." 198 It was amid these circumstances that the "Report," "balanced and firmly reasoned," was viewed as a "heartening document."
By 1942, in a review of Pound's book on administrative law, Jaffe declared that "[i]t is time to shrink the proportions of this controversy." 199 "The depth of controversy is attested by the violence and distortion which it generates."200 If since 1938 "invective" had come to prevail in administrative law debate, "[n]ot the least offender, both by reason of intellectual eminence and the extent of his transgression, is Dean Pound . . . [who] might well deflate the substance and the form of his attack."201 For the first time, however, Jaffe perceived a "sound kernel" in Pound's criticism and found himself "essentially in agreement," despite Pound's "immoderate and unprofessional manner."202
Judges, despite the growing number of liberal men who have been elevated to the bench, are still regarded as a hostile conspiracy against administration. A judge bold enough to reverse an administrative determination is presumptively either stupid or reactionary. The related assumption is that the administrator is invariably right because he is an "expert" and "makes policy."203
By 1943, Jaffe emphasized that
[t]here is no longer need for violent recrimination; those who still decry the administrative process are relics of a battle now being conceded by their more sensible fellows. Nor is there [any] longer need of overlabored, ultradefensive justifications of the administrative process in which its expertness and capacity is given credit beyond its claim on our common and individual humanity. It is time for at least a truce. 204
By 1949, Jaffe had clearly joined the legalist camp. In that year, he published a comprehensive appraisal of justice Frankfurter's judicial opinions in which he stated a number of propositions to which he repeatedly returned in later articles. Two of the most important were that administrative agencies must be governed by an overarching "rule of law" rather than their own "expertise," and that "rationalism" stripped of custom jeopardizes the fragile bonds of society. 205
Amid "the disintegration of faiths" and "the great social turmoil of the times," Jaffe had "come to doubt that rationalism can forge the bonds of society or endow it with energy." A stable society "derives its coherence from its history, its customs and its symbols."20' Echoing Edmund Burke's denunciation of the French Revolution, Jaffe now observed that "rationalisms take as many forms as the selfinterest which they so often mask." And echoing the many contemporaneous associations of rationalism with totalitarianism, he declared: "[T]he truth that prevails in the market place may rest on a pedestal of corpses. 'Appetite, a universal wolf' may 'make perforce a universal prey, and last eat up himself.' "207
By the time he wrote "The Effective Limits of the Administrative Process" in 1954,208 Jaffe's pilgrimage away from the Landis model was essentially complete. He now observed that a "Great Disillusion" with the administrative state had begun to develop.209 His own critique combined earlier Poundian pessimism with a new conviction that a regulatory bureaucracy inevitably developed "arterioscle- rosis."210
Meanwhile, his faith in the judiciary gradually became u
nqualified. Judicial review, he wrote as early as 1949, `protects the agencies themselves against the temptation of absolutism.""' Now he also disagreed even more broadly with Lan dis's objection to judicialized procedures in the administrative process.212 A new dimension of Jaffe's critique questioned the capacity of regulation to remain innovative and energetic. Indeed, he was perhaps the first New Dealer to identify a tendency toward "industry-orientation" as "a condition endemic in any agency" that attempted industrial planning and supervision. 213
"[O]ur generation-that of Landis and myself-" he wrote in his memorial to James Landis in 1964, "judged the administrative process in terms of its stunning performance under the New Deal."214 But they had failed to take account of "the dynamic of history,"215 "the unique concatenation of circumstances" that gave encouragement to the "galvanic forces" unleashed by the Great Depression.216 History had left the New Deal era behind and made the Landis model obsolete.
In a later, still more disillusioned article, Jaffe explained that he had first come to doubt the Landis model because it was established on the foundation of two crucial assumptions: "the existence in each case of relevant, value-free concepts, and an administration located at any given moment of time outside the political process, that is to say, outside or insulated from the power structure."217 The dynamism and autonomy of the model, he saw, derived from a conception of scientific method operating on neutral principles and from the presumption that teams of specialists could implement a comprehensive body of expert knowledge to forge solutions to economic and social ills. Because no "autonomy of systems of expert judgment" exists, Jaffe wrote in 1955, Justice Jackson's "warning . . . against the loose application of the concept of expertness was warranted and timely. " 218
"One Man's Delay Is Another Man's Due Process"
The cold war marked a new era in attitudes toward the deference due agencies and the value of procedures. In 1956, Walter Gellhorn, former research director of the Attorney General's Committee, noted the sudden reversal of liberal and conservative positions on questions of judicial and procedural restraints. With deliberate irony, he observed that the staunchest supporters of restraints during the APA debates began arguing for unrestrained agency powers in the interest of national security. The former advocates of individual rights and due process suddenly became enthusiasts for vesting administrative agencies with discretionary authority to censor publications, ban foreign periodicals, supervise and register private organizations, deport legally resident aliens after denying them formal hearings, and adjudicate in less formal, administrative tribunals the loyalty and dangerousness of U.S. citizens.
During the period in which these and other new powers have been granted or old ones fortified, the former friends and the former detractors of the administrative process have been circumnavigating the globe of government, traveling in opposite directions. The friends, starting from a point on the globe that might be labeled extreme support, have now traveled all the way to the station of extreme fear. The detractors, starting from extreme fear, have seemingly reached the point from which the friends had so recently departed.2i9
Formerly, Gellhorn observed, liberals and conservatives could be charted in terms of their attitudes toward administrative bodies. "By and large the liberals believed that administrators could be relied upon for wise and just decisions, and that, as a corollary, they should as far as possible be free from judicial supervision that might rigidify administrative procedures or supplant the informed administrative conclusions."220 In the midst of McCarthyism, however, liberals "now feel that what were mainly imaginary dangers have become real-and frightening,"221 that is, a "real danger exists that an entirely fictitious expertness may limit the review of administrative rulings in a way that to all intents and purposes gives sanction to administrative fiat."222
If McCarthyism had begun to undermine the New Dealers' cavalier attitude toward the rule of law in the administrative state, it took some time before it produced a generalized distrust of expertise among liberals, who had devoted several decades to cementing the connection between social science and social reform. During the 1g6os and 1970s, criticism of administrative expertise continued to shift leftward on the political spectrum, fueled by political and scholarly claims that, during the Eisenhower administration, administrative agencies had been "captured" by the very interests they had been expected to regulate. In fact, the charge of agency capture was first given public prominence by a remarkable spokesman, none other than James M. Landis himself.
In a 196o report commissioned by President-elect John F. Kennedy, Landis expressed the disillusionment of even ardent New Dealers with administrative regulation. "A common criticism" of administrative agencies, Landis wrote, was that they had developed a tendency toward "industry orientation . . . frequently expressed in terms that the regulatees have become the regulators.""' The Civil Aeronautics Board had consistently sided with the established commercial airlines against both unscheduled airlines and ail-cargo air carriers. "[T]he Interstate Commerce Commission has frequently been characterized as railroad-minded, the Federal Communications Commission as dominated by the networks, while the actions of the Federal Power Commission speak for themselves."224 Landis had already described how "ineffective administration" and a pro-industry orientation had made the Federal Power Commission "the most dismal failure in our time of the administrative process."225
The theme of agency capture produced an extensive body of scholarly literature during the rg6os and 1970s that contributed to still further delegitimation of the expertise theory, if not of the administrative state itself.226 By the late rg6os and early 1970s, the war in Vietnam had produced still deeper cultural changes that undermined the expertise theory from the left.227 For the first time since the turn of the century, the party of reform had turned against science and technological rationality as instruments of humanitarian change. Books such as Thomas Kuhn's enormously influential The Structure of Scientific Revolutions (1962) gave credence to claims that science itself was political and that even scientific systems required "subjective" starting points or first principles. But above all, disillusionment with the "best and brightest," those arrogant technocrats who had confidently predicted a quick victory in Vietnam, produced a deep reaction against claims of expertise.
One can see this shift in attitude most dramatically in the environmental law decisions of the Court of Appeals for the District of Columbia, which because of its special jurisdiction has been the paramount administrative law tribunal in the United States for the past half century. Dominated by New Deal liberals until the mid-198os, its decisions during the 196os and 197os express a change in attitude regarding the benevolence of many kinds of regulation. In 1974, Harold Leventhal, one of those New Deal judges, emphasized the activist role that the courts had begun to play in "environmental decisionmaking."
Judicial review . . . is not to be denied or tightly confined by the doctrine of deference to executive officials. That deference is appropriately generous under the rule of administrative law when there is a technical matter within the special competence of the official or agency. But when an essentially nonenvironmental agency has made a determination downplaying the environmental consequences of its action, the court may cock a skeptical eye and insist on [a special] kind of justification. . . . 228
Leventhal spoke of "[t]he solicitude which has generally characterized judicial review of environmental issues" and pointed to the leading D.C. Circuit Court opinion in Environmental Defense Fund Inc. v. Ruckelshaus as the decision where that solicitude "was perhaps most openly expressed."229 Chief Judge Bazelon's declaration in that case that "[w]e stand on the threshold of a new era in the history of . . . administrative agencies and reviewing courts"230 was, for the less lyrical Leventhal, an example of the fact "that in the environmental field the courts so far have been, if anything, fully vigilant to exercise rather than abdicate their supervisory role."23' During this period, one sympathetic scholar noted, "[t]he environmen
talists' crusade had the courts as its gods and agencies such as the Federal Power Commission and the Atomic Energy Commission as its devils."232 Writing in 1977, he remarked that "in much of the important environmental litigation [of the previous decade] the courts exercised special solicitude in behalf of environmental interests."233 But with the creation of the Environmental Protection Agency and its special stake in environmental issues, he observed a return to "a more traditional, limited role of judicial review"234 and a "narrowing gap between the standards of judicial review of environmental decisionmaking and other forms of agency decisionmaking."235
The Supreme Court's 1978 decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council236 decisively marked such a return to "a more traditional, limited role of judicial review." There the Court dealt a sharp and contemptuous rebuke to a decade of D.C. Circuit Court decisions that had forged procedural restraints on agency rule-making powers, primarily in the envi ronmental field. The decision was heralded by conservatives such as then Professor Antonin Scalia as no less "than a major watershed" 237 in freeing agency policymaking from judicially created constraints. Since the Court of Appeals "was in the process of replacing the rudimentary procedural mandates of the Act . . . with a much more elaborate, 'evolving,' court-made scheme," Scalia wrote, Vermont Yankee constituted a welcome reversal of the D.C. Circuit Court's "progressive evisceration of the APA."239
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