Guest Essayist: Professor Joerg Knipprath


Franklin Delano Roosevelt, running for re-election in 1936, received 60.8% of the popular vote, second-highest popular vote percentage since that method of selecting presidential electors became dominant in the 1830s. Only Lyndon Johnson’s 61.1% over Barry Goldwater in 1964, Richard Nixon’s 60.7% over George McGovern in 1972, and Warren Harding’s 60.3% over James Cox in 1920 are on a similar scale. The electoral vote was even more lopsided, as Roosevelt defeated Kansas Governor Alf Landon 523 votes to 8 (46 states to 2). Only Ronald Reagan in 1984 (525 votes to 13; 49 states to 1 plus D.C.) and Richard Nixon in 1972 (520 votes to 17; 49 states to 1 plus D.C.) enjoyed similarly impressive margins since the modern two-party system emerged.

The historic 1936 election was a “confirming” election in the parlance of students of politics. The election of 1932 had been a re-alignment election that shifted the coalitions within the parties and toppled the Republican Party dominance that had existed since the Civil War. That shift was successfully cemented by the administration’s “New Deal” that led to Roosevelt’s victory in 1936 and to Democratic Party dominance of American politics for the next generation.

The Republican defeat in 1936 was so crushing that it conferred not only a mandate for a set of particular policy proposals that the President had pursued in his first term and, based on his campaign and the party’s platform, expected to continue and expand in his second. That is a common result of elections. More profound, it was a validation of a constitutional revolution and of a fundamental alteration of the system of republican government. The election was the final victory of the Progressive vision of society over the Old Order and legitimized an important part of that vision, the creation and rapid expansion of a centralized bureaucratic welfare state.

A generation earlier, Progressive writers and intellectuals had enthusiastically promoted the emergence of what Herbert Croly in The Promise of American Life (1909) described as a “welfare state,” with its contours established by Congress, but its administration in the hands of intelligent and dedicated bureaucrats removed from the corroding influence of particular self-interests. Croly and other Progressives had an almost incredibly naïve faith in these bureaucrats as objective, technically skilled, and informed experts who would carry out general legislative directives in flexible, discretionary, and non-political ways. Without noting the contradiction, these writers also assumed that “objective” administrators would be steeped in proper progressive ideas in the definition and application of administrative rules. On the Republican side, Theodore Roosevelt championed this position as the only proper one for a progressive. More immediately influential was his Democratic counterpart, Woodrow Wilson, who, as a professor and writer, nourished similar views, and who, as President, made them concrete.

The constitutional flaws of the bureaucratic state arise out of the functional separation of powers and the protection of rights established in the Constitution. Under that charter, the people have delegated their law-making power to the Congress. At least theoretically, Congress may only legislate towards expressly delegated objectives, either directly or as is necessary and proper to accomplish them. If they fail to do so, they are subject to the voters’ judgments at the next election. The president has an independent power to execute the laws, and the judiciary has an independent power to interpret and apply the law in disputes brought before them. As well, when litigation arises between the government and an individual in a civil or a criminal proceeding, the Constitution requires certain procedures to promote a fair process to seek that justice be done and appear to be done.

Administrative agencies are not subject to the same traditional constitutional parameters. For one, Congress often delegates legislative functions to agencies. The Supreme Court as early as 1825, in Wayman v. Southard, declared that Congress cannot re-delegate to other institutions of government that which is strictly legislative and delegated to Congress itself. However, Chief Justice John Marshall also acknowledged that Congress might delegate to other governmental officials less important matters by providing a general provision in the form of an enabling law and letting the delegate provide the details. Marshall conceded the difficulty of drawing the line “which separates those important subjects…from those of less interest.”

Thus, delegation to the President, cabinet officers, or courts long has been an accepted constitutional device. What has changed is the frequency and scope of delegation. By the early 20th century, several Supreme Court decisions technically maintained Marshall’s distinction between constitutional delegation of mere administrative discretion and unconstitutional outright delegation of legislative power, but effectively moved the line toward vastly broader legislative delegations than earlier courts had. The Court’s acceptance of the Interstate Commerce Act and similar laws caused the political scientist Frank Goodnow to predict that administrators in effect would become a fourth branch of government.

In both peace and war, President Wilson strove greatly to expand the administrative state, consistent with his long-held view of presidential leadership in the forming of policy. The president proposes, Congress disposes. By far not the only example, the 1917 Lever Act was a particularly breathtaking instance of delegation to Wilson to control potentially the entire economy of the nation in whatever manner and to whatever extent Wilson deemed necessary for the war effort. Of similarly stunning breadth was the Overman Act of 1918, which triggered a satirical proposed amendment during the Senate debate that “if any power, constitutional or not, has been inadvertently omitted from this bill, it is hereby granted in full [to the president].” The reason Wilson relied less on his own constitutional powers to direct the war effort than Abraham Lincoln had done half a century earlier was that Congress delegated their legislative authority to him on such an unprecedented scale. Mainly through such delegations, the Wilson administration established scores of boards, commissions, bureaus, and government corporations to control the economy during the war.

In addition, Congress continued creating what came to be called “independent” administrative agencies. Those agencies, such as the FTC and the Federal Reserve Board, were even more beyond the control of politically accountable branches because the president could not remove their controlling officers at will, a constitutional mutation that the Supreme Court upheld years later in Humphrey’s Executor v. U.S. (1935).

The return to normalcy in the 1920s ended the Lever Act, the Overman Act and other measures passed under Congress’s war powers. Businesses and assets that had been placed under government control were returned to private ownership. However, the broader trend towards bureaucratization and government regulation of economic life continued, albeit in subtler and more cooperative forms. Even President Calvin Coolidge’s vetoes based on his hostility to such interventionism did not entirely stop the tide. The advent of the progressive Herbert Hoover and the effect of the economic collapse of 1929 invigorated the impetus to government meddling in economic and social life. Faithful to the progressive ideology rooted in the Idea of progress and change, Hoover proposed the “New Individualism,” a theory of voluntary cooperative arrangements between government and business associations that would work for the benefit of those private groups as well as the community-at-large. In mute symbolism to Hoover’s approach, the new Commerce Department building was the largest in Washington.

It was under Franklin Roosevelt that the administrative welfare state blossomed and bureaucratization and government intervention in the economy and personal life began its metastasis into its current form. The growth of “alphabet soup agencies,” many under the National Industrial Recovery Act, typified the era. Under that act alone, Congress delegated to FDR over $3 billion to spend by executive order, an extraordinary sum, given that the entire federal budget the year Roosevelt took office was about $4.5 billion. Channeling his experience in the Wilson administration during World War 1, Roosevelt sought equally vast powers for himself. To make his point, in his first inaugural address, he declared, “If we are to go forward, we must move as a trained and loyal army willing to sacrifice for the good of a common discipline…. I shall ask the Congress for the one remaining instrument to meet the crisis — broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” While Roosevelt soothingly assured his listeners that the Constitution was so simple, practical, and flexible that it could accommodate his proposals easily, he also warned that he was ready to act unilaterally should Congress not accommodate him by passing his program.

The first “Hundred Days” produced numerous initiatives. Two of the most significant were the National Industrial Recovery Act and the first Agricultural Adjustment Act. Essentially, they cartelized industry and agriculture, respectively. The NIRA resulted in vast, detailed, and—fortunately—generally unworkable “codes of fair competition” for virtually all economic enterprises. In progressive-speak, “fair” means the opposite of “free,” and the goal was industrial cooperation, not market competition. While the president or his designee retained power to approve or reject these codes, the act provided that the codes would be produced by relevant trade or industrial associations or groups. These groups were controlled by major players in their respective industries, and they used the virtually unrestricted delegation by Congress under the NIRA to harm smaller rivals. In Schechter Poultry Co. v. U.S. (1935), a unanimous Supreme Court struck down the NIRA as an unconstitutional cession of legislative power to the executive. The liberal Justice Benjamin Cardozo, concurring, branded the program “delegation run riot.” A year later, the Court also invalidated the first AAA in Butler v. U.S.

In short order, Congress enacted a revised AAA, having already replaced the invalidated labor organizing sections of the invalidated NIRA with the National Labor Relations Act in 1935. Thus continued the close interaction among Big Labor, Big Business, and Big Government that characterized corporatist political economy of the New Deal here and more extreme, fascist systems abroad.

Roosevelt ran the 1936 campaign as a referendum on his New Deal. Receiving what he saw as an overwhelming mandate, he used these and similar blows by the Court to launch his “court-packing” program in 1937. After 1936, judicial interference with the New Deal transfer of legislative power to the executive through unbounded delegation ceased, and no Supreme Court decision since then has invalidated a federal program on that ground. The difficult line drawing that Marshall acknowledged in 1825 had moved the line in the direction of broader legislative delegation—and would continue to do so in the future.

The New Deal produced a tremendous increase in governmental power, both for the federal government as a whole at the expense of the states and the private citizen, and to the executive branch and the administrative bureaucracy at the expense of legislative authority. It definitively supplanted the decentralized classic liberalism of the received constitutional order with the regulatory welfare state and its still-expanding administrative bureaucracy controlled by a self-regarding elite leading the masses. Policy decided after proper deliberation and debate by representatives selected at the ballot box today has been replaced by “We have to pass the bill so that you can find out what is in it” legislative impotence and “I’ve got a pen and I’ve got a phone” executive unilateralism.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at:

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    I continue to be impressed and educated. Thank you.

    The expanding seeming independent, unaccountable bureaucratic state has always bother me. I had not considered that administrative bureaucracies fundamentally violate separation of powers and are cannot be held accountable by the people the Legislative and sometimes the Executive branches.

    This explains why I see a Director of X agency sit before Congress and thumb their noses as they refuse to answer questions, subpoenas, etc. Ironically a private citizen doing the same thing would be cited with contempt of court and face punishment. It reminds that the Praetorian guards eventually became the power brokers of Rome. Caesars would wear the crown, the PG decided how long they wore it.

    The other notable point was that the bureaucrats would be “intelligent and dedicated bureaucrats removed from the corroding influence of particular self-interests. … objective, technically skilled, and informed experts who would carry out general legislative directives in flexible, discretionary, and non-political ways.” The progressive writers could have avoided this trap had they believed in fundamental truths and read the Founding Fathers. “A fondness for power is implanted, in most men, and it is natural to abuse it, when acquired.” T. Jefferson

    “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.” Patrick Henry

    “I believe there are more instances of the abridgment of the freedom of the people by the gradual and silent encroachment of those in power, than by violent and sudden usurpation.”

    “Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” T.J.

    All people want/need to be control. This is artfully and poignantly shown in the film, Illusions starring Anthony Hopkins & Cuba Gooding Jr. Same for bureaucrats.



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