 The Continuing Task
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by Stephen T.
Maher [1]
From the Administrative Law Section Newsletter, Volume XVII, No. 3, March, 1996 at
1-3, published by the Administrative Law Section of The Florida Bar.
I. Introduction
Columbus discovered America, but it was sitting here a long time before he found it. The
same is true of the recent discovery of administrative law. Even though many politicians
have only discovered it in the last few years, administrative law has been around a long
time.
The landscape of America has changed quite substantially since Columbus' time. But the
central problems in administrative law have not changed that much over the years. That is
clear from the following description of the task of administrative law, written by Justice
Felix Frankfurter in 1927. It is as valid today as when it was written almost seventy
years ago. That longevity is remarkable given the dramatic increase in both scope and
complexity of government regulation of American life since that time.
The continued viability of Frankfurter's analysis is a testament to his grasp of the
essence of administrative law. He was an accomplished administrative law professor and
scholar before he ascended to the Court. But it also tells us something about
administrative law. Since Frankfurter wrote this piece, we have seen earth-shaking changes
in American administrative law, including the New Deal in the 1930s, the adoption of the
federal Administrative Procedure Act in the 1940s and the Great Society in the 1960s. We
have also seen a revolution in the way we regulate the environment, manage growth and
regulate many other aspects of our lives in the last thirty years. Nevertheless, the
central issues in administrative process have remained remarkably constant during that
time. The following section was written by Felix Frankfurter almost seventy years ago.
II. The Task of Administrative Law[2]
"...[T]he range of control conferred by Congress and the State legislatures upon
subsidiary law-making bodies, variously denominated as heads of departments, commissions
and boards, penetrates the whole gamut of human affairs. Hardly a measure passes Congress
the effective execution of which is not conditioned upon rules and regulations emanating
from the enforcing authorities. These administrative complements are euphemistically
called 'filing in the details' of a policy set forth in statutes. But the 'details' are of
the essence; they give meaning and content to vague contours. The control of banking,
insurance, public utilities, finance, industry, the professions, health and morals, in
sum, the manifold response of government to the forces and needs of modern society, is
building up a body of laws not written by legislatures, and of adjudications not made by
courts and not subject to their revision. These powers are lodged in a vast congeries of
agencies. We are in the midst of a process, largely unconscious and certainly unscientific
of adjusting the exercise of these powers to the traditional system of Anglo-American law
and courts. A systematic scrutiny of these issues and a conscious effort towards their
wise solution are the concerns of administrative law. The broad boundaries and
far-reaching implications of these problems may be indicate by saying that administrative
law deals with the field of legal control exercised by law-administering agencies other
than courts, and the field of control exercised by courts over such agencies.
"It is idle to feel either blind resentment against 'government by commission' or
sterile longing for a golden past that never was. Profound new forces call for new social
inventions, or fresh adaptations of old experience. The 'great society,' with its
permeating influence of technology, large-scale industry, and progressive urbanization,
presses its problems; the history of political and social liberty admonishes us of its
lessons. Nothing less is our task than fashioning instruments and processes at once
adequate for social needs and the protection of individual freedom. The vast changes
wrought by industry during the nineteenth century inevitably gave rise to a steady
extension of legal control over economic and social interests. At first, state
intervention manifested itself largely through specific legislative directions, depending
for enforcement generally upon the rigid, cumbersome and ineffective machinery of the
criminal law. By the pressure of experience, legislative regulation of economic and social
activities has turned to administrative instruments. Inevitably this has greatly widened
the field of discretion and thus opened the door to its potential abuse, arbitrariness. In
an acute form and along a wide range of action, we are confronted with new aspects of
familiar conflicts in the law between rule and discretion.
* * *
"Because of the danger of arbitrary conduct in the administrative application of
legal standards (such as 'unreasonable rates' 'unfair methods of competition,'
'undesirable residents of the United States'), our administrative law is inextricably
bound up with constitutional law. But after all, the Constitution is a Constitution, and
not merely a detailed code of prophetic restrictions against the ineptitude and
inadequacies of legislatures and administrators. Ultimate protection is to be found in the
people themselves, their zeal for liberty, their respect for one another and for the
common good--a truth so obviously accepted that its demands in practice are usually
overlooked. But safeguards must also be institutionalized through machinery and processes.
These safeguards largely depend on a highly professionalized civil service, and adequate
technique of administrative application of legal standards, a flexible, appropriate and
economical procedure (always remembering that 'in the development of our liberty
insistence upon procedural regularity has been a large factor'[3]), easy access to public scrutiny, and a constant play of criticism
by an informed and spirited bar. The are still to be achieved, for we have hardly begun to
realize deeply their need.
* * *
"But we must be on our guard against an undue quest for certainty, born of an eager
desire to curb the dangers of discretionary power. For the problem of rule versus
discretion is far broader than its manifestations in administrative law. There are fields
of legal control where certainty -- mechanical application of fixed rules -- is
attainable; there are other fields where law necessarily means the application of
standards -- a formulated measure of conduct to be applied by a tribunal to the unlimited
versatility of circumstance.[4] To be sure, the
application of a standard to individual cases opens the door to those abuses of
carelessness and caprice and oppression against which we cannot be too alert. But resort
to standards avoids the oppression and injustice due to abstractions whereby individual
instances are tortured into universal molds which do not fit the infinite variety of life.
* * *
"In administrative law we are dealing pre-eminently with law in the making; with
fluid tendencies and tentative traditions. Here we must be especially wary against the
danger of premature synthesis, of sterile generalization unnourished by the realities of
'law in action.' Administrative law is also markedly influenced by the specific interests
entrusted to a particular administrative organ, and by the characteristics -- the history,
the structure, the enveloping environment -- of the administrative to which these
interests are entrusted. Thus, 'judicial review' and 'administrative discretion' cannot be
studied in isolation.
* * *
"What we need, above all else, is to know what is happening by objective
demonstration of intensive scientific studies, instead of merely speculating, even wisely
speculating, or depending on partisan claims of one sort or another. Research to no small
measure is a painful means of proving what the insight of a few suspects or feels. There
is need also for a technique of appraising the work of administrative agencies and of
establishing the utility of such scientific appraisals. The generalizations, the
philosophizing will gradually emerge from specific studies. Intensive studies of the
administrative law of the States and the Nation in practice will furnish the necessary
prerequisite to an understanding of what administrative law is really doing, so that we
may have an adequate guide for what ought to be done. Here, as in other branches of public
law, only here probably more so, we must travel outside the covers of lawbooks to
understand law.
"Only a physiological study of administrative law in action will disclose the
processes, the practices, the determining factors of administrative decisions, and
illumine the relation between commissions and courts, now left obscure by the printed
pages of court opinions. The shaping of our administrative law thus calls for students
trained in the common law and familiar with its history. But in addition the inquirer must
have a sympathetic understanding of the major causes which have led to the emergence of
modern administrative law, and must be able to move freely in the world of social and
economic facts with which administrative law is largely concerned. Above all, he must have
a rigorously scientific temper of mind."
III. The Focus Today
As a state, we have not studied law in action as Frankfurter suggested. Instead, over the
last few years we have been busy inventing "solutions" to problems with the
Florida APA that have never been demonstrated to exist, while exhibiting a rigorously
political, rather than scientific, state of mind. The goal of recent administrative
procedure "reform" efforts that I have witnessed has had nothing to do with
improving administrative procedure. The most common theme has been to use administrative
law "reform" for political purposes, sometimes as a way to run against
government while running it, sometimes to advance unpopular political agendas indirectly,
through changes in procedure, rather than face opposition to those agendas head on, and
sometimes because being against "big government" is trendy today.
Perhaps reading what Frankfurter had to say about administrative law so many years ago can
give us some perspective, and help us understand two important points more clearly. First,
that there are no magic bullet solutions to problems of administrative law, and second,
that only by studying the process itself can we truly understand administrative law
problems and propose effective administrative law solutions.
Footnotes
[1] STEPHEN T. MAHER is a lawyer and legal educator. He has written
extensively on the Florida Administrative Procedure Act. His latest law review article on
the subject, Getting Into The Act, 22 Fla. St. U. Law Rev. 277 (1994), is part of a five
article Symposium he organized in the Florida State University Law Review to discuss
efforts to amend the Florida APA during the 1994 Legislative Session. Return
to [1]
[2] The entire text in this section of the article is an edited
version of Felix Frankfurter, The Task of Administrative Law, 75 U. Pa. L. Rev. 614
(1927), and is reprinted with permission. [Footnotes have been omitted and footnote
numbering has been changed]. Return to [2]
[3] Brandeis, J., dissenting in Burdeau v. McDowell, 256 U.S. 465, 477
(1921). Return to [3]
[4] See Roscoe Pound, Administrative Application of Legal Standards,
44 A.B.A. Rep. (1919) 445. Return to [4]
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