Congress And The Rise Of The Progressive Administrative State – Guest Essayist: Marc Clauson

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No one would argue that in the last hundred years or so, legislation on all sorts of matters by Congress has increased tremendously.  The question for this essay is why?  The answer has to do with an ideological change in American political thought and the practical outworkings of it in Congress and the agencies created by Congress and controlled by the president.  The ideological shift was to Progressivism or modern liberalism.  The practical outworking is the so-named “administrative state,” otherwise known as bureaucracy, or rather large bureaucratic organizations designed to implement legislation.  First however, definitions are in order.

The term “administrative state” refers, in the words of one scholar, to “our contemporary situation, in which the authority to make public policy is unlimited, centralized, and delegated to unelected bureaucrats.”[1]  It encompasses three related elements: (1) the propensity of Congress and agencies to promulgate much more frequent legislation and to issue expansive regulations respectively; (2) the idea that bureaucratic agencies ought to be populated by experts who are unbiased and public-minded; and (3) the massive growth of the size and power of those agencies since the New Deal era.

Progressivism is generally a uniquely American ideological term that is more or less equivalent to modern liberalism and similar to the European social democracy.[2]  It is associated with the period from roughly 1880 to 1925 and is defined as “a total rejection in theory, and a partial rejection in practice, of the principles and policies on which America had been founded and on the basis of which the Civil War had been fought and won only a few years earlier.”  Another definition: “Progressivism was the reform movement that ran from the late 19th century through the first decades of the 20th century, during which leading intellectuals and social reformers in the United States sought to address the economic, political, and cultural questions that had arisen in the context of the rapid changes brought with the Industrial Revolution and the growth of modern capitalism in America. The Progressives believed that these changes marked the end of the old order and required the creation of a new order appropriate for the new industrial age.”[3]

Progressivism was more or less equivalent to modern liberalism, the term used in Europe, particularly the United Kingdom in the 1880s and onward.  In addition, it was inspired to an extent by socialism in certain of its aspects. The Industrial Revolution seems to have been the main force in the origin of the movement, but the other side of that same coin was a skepticism of capitalism.  It is easy to see how Progressivism would challenge the constitutional principles of the American Constitution.

But the other element of the movement included a new-found appreciation for big government, and, particularly governmental services provided through a centralized bureaucratic organizational form employing experts who were considered both efficient and non-political.  This public administration aspect was especially advocated by Woodrow Wilson.  Wilson argued first that “Government does now whatever experience permits or the times demand.”[4]  The best means or state action was the most efficient and the most efficient was a bureaucratic and centralized government that could then bypass the inefficiencies of the separation of powers and a deliberative Congress.  The single chief executive then was the ideal for Wilson.[5]  At the same time, administration was separated from politics in the Progressive vision.[6]  This “administrative state” is described: “[T]o varying degrees, the fathers of progressive liberalism envisioned a delegation of rulemaking, or regulatory, power from congressional lawmakers to an enlarged national administrative apparatus, which would be much more capable of managing the intricacies of a modern, complex economy because of its expertise and its ability to specialize. And because of the complexities involved with regulating a modern economy, it would be much more efficient for a single agency, with its expertise, to be made responsible within its area of competence for setting specific policies, investigating violations of those policies, and adjudicating disputes.”[7]

The Progressive Era as a movement ended around 1925, but its ideas persisted and the ideology gained adherents both among academics and politicians and government officials.  As a body, Congress came to be more swayed by Progressive ideas once it was made up of a Democratic majority during the presidency of Franklin Roosevelt.  In fact, it attempted to pass much legislation that had a Progressive cast.  However until around 1937, the Supreme Court consistently struck down many Congressional efforts.  But after the court-packing scheme, the Court began to uphold legislation on a regular basis, and this expansion has never abated.  In the meantime, Congress itself moved increasingly toward increasing intervention in social and economic issues.  So while one may place some blame on the Court, an equal blame falls on Congress itself.  It has delegated power to non-elected and unaccountable agencies while at the same time passing incredibly lengthy and complex legislation, thus justifying (it argues) such delegation.  The Court has of course come to allow delegation as it has eviscerated the non-delegation doctrine, an outcome the fathers of Progressivism embraced.[8]  At present, Congress routinely passes very large pieces of legislation and simply delegates rule-making power to the agencies, as the Progressives envisioned.

In summary, the Progressive movement provided the intellectual stimulus for the expansion of the administrative state.  But Congress over time was increasingly willing to put into practice the ideas of that movement, both procedurally (by creating large, centralized and unaccountable agencies and delegating extensive power to them) and issuing the kind of legislation (in terms of its content) that can only be characterized as interventionist in markets and private activities.  One possible solution, apart from the courts, is the Article I Project, seeking to urge Congress to take back its law making power and eliminate or reduce delegation.  How well this movement fares is still an open question.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

[1]   Joseph Postell, “What is the Administrative State”? in From Administrative State to Constitutional Government, at Heritage Foundation website, https://www.heritage.org/political-process/report/administrative-state-constitutional-government#Part1, 2012, retrieved February 11, 2018.

[2]   On these other terms, see James Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870-1920.  Oxford University Press, 1986.

[3]   William Schambra and Thomas G. West, “The Progressive Movement and the Transformation of American Politics,” The Heritage Foundation, at https://www.heritage.org/political-process/report/the-progressive-movement-and-the-transformation-american-politics, 2007, retrieved February 12, 2018.

[4]   The State.  Heath, 1889, p. 651.

[5]   See Ronald Pestritto, Woodrow Wilson and the Roots of Modern Liberalism.  Rowman and Littlefield, 2005 and Vincent Ostrom, The Intellectual Crisis of American Public Administration, Third edition.  University of Alabama, 2007.

[6]   See Vincent Ostrom, Ibid.

[7]   Ronald Pestritto, “The Birth of the Administrative State: Where It Came From and What It Means for Limited Government,” The Heritage Foundation, at https://www.heritage.org/political-process/report/the-birth-the-administrative-state-where-it-came-and-what-it-means-limited, retrieved February 12, 2018.

[8]   See Pestritto, Ibid., “[T]he fathers of progressive liberalism envisioned a delegation of rulemaking, or regulatory, power from congressional lawmakers to an enlarged national administrative apparatus, which would be much more capable of managing the intricacies of a modern, complex economy.” because of its expertise and its ability to specialize.

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