I very much enjoyed Michael Greve's discussion of the Chenery case. As I am also a teacher of Administrative Law, having taught it for 20 years (and having the distinction of taking it over at USD from Administrative Law founder Ken Davis), I was pleased to learn some new details about that old chestnut, the Chenery case. Yes, as Michael mentions, the SEC behaved as a lawless bureaucracy -- but all for the public good, no doubt. And yes, as Michael mentions, the courts have constrained the SEC and other agencies a bit as to their lawlessness, including through administrative common…
Sort of—but not quite. In coming months I’ll devote a number of posts to the pathologies of our administrative law. To avoid further misunderstanding and to keep me gainfully employed, let’s take this from the top.
A recent book review by Joseph Postell discusses the new book by Jerry Mashaw entitled Creating the Administrative Constitution. Mashaw’s book is an attempt to rebut the common claim that the United States initially did not have an administrative state, but only developed one much later, especially during the 20th century. Postell does a good job of questioning Mashaw’s premise that if the United States employed some agencies early on that had some of the powers of latter day administrative agencies that means that the United States had an administrative state from the beginning.
Mashaw taught me Administrative Law in law school. As a teacher of Administrative Law, I am sorry to admit that I never really “got” Mashaw’s course. Some of the time I was not really sure what exactly he was claiming. At other times, I was not sure why he wanted to make a certain claim. And at other times, I just couldn’t understand why he thought that something he recommended was actually good.
Mashaw lives in a different world than me. He thinks that markets have very serious limitations and that elections are also very imperfect. Instead, he thinks bureaucracy provides a significant solution to problems of governance in modern society. I have very little sympathy for this arrangement, as I think that government bureaucracy has limited checks on it and does not really work terribly well.