The Administrative State

Mike Konczal has a really smart essay in the Boston Review about the history of the administrative state that you all should read. Basically, unlike modern conservative mythology that states that the rise of Big Government is something that comes out of the Progressive Era and New Deal that undermined traditional American small government, in fact the administrative state has existed in the United States since almost the beginning. The real question has been what that administrative state should do, who it should benefit, and what realms of society should be affected. But there is no pre-administrative state for us to return to. That would be uncharted territory and a complete disaster, if such an attempt was ever implemented. It wouldn’t be though, since even modern conservatives just want to eliminate the parts of the state they don’t like, such as programs that help black people or women. Just an excerpt here:

Take the settlement of the West. The surveying, sale, and settlement of the new public lands was the largest administrative challenge facing the early federal government. People moving westward, especially after the Louisiana Purchase, didn’t form the bargaining, enclosing paradise of libertarian lore. Settlements involved endless fighting in courts over who owned what under a mix of state, federal, and international law. Courts were ill equipped to handle these cases and quickly buckled under the endless, costly claims, some of which would take decades to negotiate. The time and energy absorbed by the legal process slowed the work of making new land available for settlement. Dysfunction fed back on dysfunction, with lawsuits provoking further lawsuits and uncertainty.

In order to deal with this chaotic situation, Congress created the General Land Office in 1812. It was not without controversy of the sort we might recognize today: during the republican era, Congress wanted to explicitly control every aspect of policy. But rules drafted in Washington D.C., no matter how meticulous, required expert implementation on the ground. The process of surveying, recording, and selling land had to be subject to uniform rules, but the land itself was not uniform, and the rules weren’t easy to apply. Congressional strictures originally prevented Land Office administrators from correcting record-keeping errors resulting from the disconnect between the law and facts on the ground. Eventually, though, Congress realized the need to tolerate some administrative discretion. So, for example, while the law required planting trees to demarcate townships, where trees could not be planted, administrators might fix stones. Land Office agents, newly empowered to make at least some decisions, filed reports with Congress to ensure accountability.

Mashaw extends a project of finding the state in the nineteenth century, which historians have undertaken since the 1990s. Books such as William J. Novak’s The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996) have documented the extensive state regulation of behavior that characterized the time period. Mashaw shows that the government not only regulated through law, but also expanded its capacity to enforce those laws by means of the administrative state.

All of this helped to build the republic that we live in today. If we want a functional state, the principle of big government is something we should embrace, not apologize away.