Knowledge And Decisions

Along with the expansion of traditional legal institutions, operating under traditional constitutional constraints, has come the emergence and proliferation of a new hybrid institution — the administrative commission, combining legislative, judicial, and executive functions, in defiance of the separation-of-powers principle, and constrained in its exercise of power only by sporadic reversals of its decisions by appellate courts or even more rare congressional legislation. These institutions are a development within the past century — the first, the Interstate Commerce Commission, was founded in 1887 — but their rapid proliferation began with the New Deal of the 1930s which created many so-called “alphabet agencies”: the SEC, NLRB, FPC, etc. These administrative commissions are headed by presidential appointees with fixed and staggered terms which overlap one another and also overlap the term of office of any given administration, in order to promote independent decision making. Members of the commissions or boards heading these agencies are removable only by impeachment, and their regulations, which have the force of law, require neither presidential nor congressional approval, but go into effect automatically after having been published in the Federal Register. In addition to making law in this way, the same administrative commissions also act as judge and jury for anyone accused of violating their regulations. They also administer staffs and bureaus which research, advise, and generally patrol their domain. Some of their economic effects have been noted in Chapter 8. Here the concern is with the broader legal and social questions they raise.

The importance of these regulatory commissions is out of all proportion to their public visibility or political accountability. They create more law than Congress. Each year federal administrative agencies issue ten thousand or more new regulations.⁹ By contrast, it is rare for Congress to pass a thousand bills in one session.¹⁰ Until recent years, administrative agency regulations were directed largely toward limited segments of the economy or society. But while the scope of earlier administrative commissions was generally limited to particular industries such as railroads (ICC), merchant shipping (NMC), or broadcasting (FCC), the newer commissions regulate activities which cut across industry lines and reach directly into virtually every business, school, farm, or other social institution. They prescribe employment procedures and results under “affirmative action” policies, set and administer “environmental” standards, issue occupational health and safety regulations, define the racial distribution of schools’ pupil populations, teachers, and administrators — all largely as they see fit, limited only by such attention as appellate courts can give them amid the courts’ many other concerns.

Sometimes called a “fourth branch of government,” the administrative commissions from the outset faced grave challenges to their legality under a constitution that prescribed only three branches of government — and which carefully separated powers at that. The constitutional issue was settled in favor of the agencies, at a time when they were a peripheral factor in government decision making and national life, but that categorical decision remained in effect as the number and scope of such agencies expanded enormously over the decades. This is hardly a criticism of the Supreme Court, for once the incremental growth of regulatory commissions passed a certain point, any reconsideration or reversal of their constitutionality would have undermined a major part of the existing legal system of the country and whole sections of the economy and society dependent upon that set of regulatory “laws.” This does, however, once more illustrate the momentous impact of categorical decision making — in this case a stark dichotomy between “constitutional” and “unconstitutional” — and the high costs of subsequently attempting to bring to bear effective knowledge of its consequences.