Federal administration and administrative law in the gilded age

Yale Law Journal

Volumn 119, Issue 7, 2010, Pages 1362-1472

  Mashaw, Jerry L ^a  

^a YALE UNIVERSITY   (United States)

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EID: 77953091328     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (413)

1. LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 439 (2d ed. 1985) ("In hindsight, the development of administrative law seems mostly a contribution of the 20th century. The creation of the Interstate Commerce Commission, in 1887, has been taken to be a kind of genesis.").
2. Ch. 104, 24 Stat. 379.
3. Ch. 27, 22 Stat. 403.
4. Ch. 647, 26 Stat. 209.
5. Ch. 3915, 34 Stat. 768.
6. Ch. 311, 38 Stat. 717 (now codified at 15 U.S.C. §§ 41-51 (2006).
7. See MORTON KELLER, AMERICA'S THREE REGIMES: A NEW POLITICAL HISTORY (2007); THEODORE J. LOWI, ARENAS OF POWER (Norman K. Nicholson ed., 2009).
8. Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).
9. Jerry L. Mashaw, Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861, 117 YALE L.J. 1568 (2008) [hereinafter Mashaw, Administration and the Democracy]; Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 YALE L.J. 1256 (2006) hereinafter Mashaw, Recovering]; Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 YALE L.J. 1636 (2007) [hereinafter Mashaw, Reluctant Nationalists].
10. Mashaw, Recovering, supra note 9, at 1276-1304.
11. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED STATES: COLONIAL TIMES TO 1970 (1975).
12. On the changes in the administrative organization of the United States Government in the nineteenth and early twentieth centuries, see LLOYD MILTON SHORT, THE DEVELOPMENT OF NATIONAL ADMINISTRATIVE ORGANIZATION IN THE UNITED STATES (1923).
13. ATT'Y GEN.'S COMM. ON ADMIN. PROCEDURE, ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, S. DOC. NO. 77-10 (1941).
14. The historical literature on this period is truly massive. Three early works in the History of American Life series provide a stimulating overview of historical developments along with bibliographical essays. ALLAN NEVINS, THE EMERGENCE OF MODERN AMERICA 1865-1878 (1927); ARTHUR MEIER SCHLESINGER, THE RISE OF THE CITY 1878-1898 (1933); IDA M. TARBELL, THE NATIONALIZING OF BUSINESS 1878-1898 (1936).
15. The classic modern treatment is ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 1863-1877 (1988). See also MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION 1863-1869 (1974) (arguing that the limitations of Reconstruction were attributable to divisions in the Republican Party, not just resistance by Southerners, Democrats, and President Andrew Johnson).
16. See, e.g., JACK BEATTY, AGE OF BETRAYAL: THE TRIUMPH OF MONEY IN AMERICA, 1865-1900, at 109-91 (2007).
17. RICHARD FRANKLIN BENSEL, YANKEE LEVIATHAN: THE ORIGINS OF CENTRAL STATE AUTHORITY IN AMERICA, 1859-1877 (1990); LEONARD P. CURRY, BLUEPRINT FOR MODERN AMERICA: NONMILITARY LEGISLATION OF THE FIRST CIVIL WAR CONGRESS (1968) (arguing that national policy moved in this direction even as the war was being fought).
18. See THOMAS C. COCHRAN & WILLIAM MILLER, THE AGE OF ENTERPRISE: A SOCIAL HISTORY OF INDUSTRIAL AMERICA (1942); CARL N. DEGLER, THE AGE OF THE ECONOMIC REVOLUTION, 1876-1900 (David M. Potter & Carl N. Degler eds., 1967); ROBERT HIGGS, THE TRANSFORMATION OF THE AMERICAN ECONOMY, 1865-1914: AN ESSAY IN INTERPRETATION (Ralph L. Andreano ed., 1971).
19. For standard biographies, see ROBERT V. BRUCE, BELL: ALEXANDER GRAHAM BELL AND THE CONQUEST OF SOLITUDE (1973); and ROBERT CONOT, A STREAK OF LUCK (1979).
20. See, e.g., SIEGFRIED GIEDION, MECHANIZATION TAKES COMMAND: A CONTRIBUTION TO ANONYMOUS HISTORY (1948); JOHN W. OLIVER, HISTORY OF AMERICAN TECHNOLOGY (1956).
21. W.D. Howells, A Sennight of the Centennial, ATLANTIC MONTHLY, July 1876, at 92, 96.
22. On railroad development in this period, see ROBERT WILLIAM FOGEL, RAILROADS AND AMERICAN ECONOMIC GROWTH: ESSAYS IN ECONOMETRIC HISTORY (1964); THE RAILROADS: PIONEERS IN MODERN MANAGEMENT (Alfred D. Chandler ed., 1979); and GEORGE ROGERS TAYLOR & IRENE D. NEU, THE AMERICAN RAILROAD NETWORK, 1861-1890 (1956).
23. See, e.g., DANIEL WALKER HOWE, WHAT HATH GOD WROUGHT: THE TRANSFORMATION OF AMERICA, 1815-1848 (2007); CHARLES SELLERS, THE MARKET REVOLUTION: JACKSONIAN AMERICA, 1815-1846 (1991). Richard Hofstadter argues that the notion of the self-sufficient farm family as the backbone of the nation was a myth by the time of Tocqueville's travels. RICHARD HOFSTADTER, THE AGE OF REFORM: FROM BRYAN TO F.D.R. 23-93 (1955). Farmers grew cash crops and speculated in farm land; they were in commerce as much as in agriculture, and by 1840 the mass exodus of young men from the farm to urban areas had already begun. Id. According to Hofstadter, Populism in what he calls "The Age of Reform" was spurred more by the collapse of a speculative bubble in farm lands than by the plight of farmers. Id. Populism's vision of an agrarian America was completely out of date before the movement began. Id.
24. On these general developments, see ALFRED D. CHANDLER, JR., THE VISIBLE HAND: THE MANAGERIAL REVOLUTION IN AMERICAN BUSINESS (1977); GEORGE HEBERTON EVANS, JR., BUSINESS INCORPORATION IN THE UNITED STATES, 1800-1943 (1948); and EDWARD C. KIRKLAND, INDUSTRY COMES OF AGE: BUSINESS, LABOR, AND PUBLIC POLICY, 1860-1897 (1961).
25. On the careers of these titans of industry, see, for example, CASS CANFIELD, THE INCREDIBLE PIERPONT MORGAN: FINANCIER AND ART COLLECTOR (1974); LOUIS M. HACKER, THE WORLD OF ANDREW CARNEGIE: 1865-1901 (1968); ALLAN NEVINS, STUDY IN POWER: JOHN D. ROCKEFELLER, INDUSTRIALIST AND PHILANTHROPIST (1953); and JOHN K. WINKLER, TOBACCO TYCOON: THE STORY OF JAMES BUCHANAN DUKE (1942).
26. SIDNEY RATNER, AMERICAN TAXATION: ITS HISTORY AS A SOCIAL FORCE IN DEMOCRACY 136, 275 (1942); C.L. Merwin, Jr., American Studies of the Distribution of Wealth and Income by Size, in 3 CONFERENCE ON RESEARCH IN NAT'L INCOME & WEALTH, NAT'L BUREAU OF ECON. RESEARCH, STUDIES IN INCOME AND WEALTH 3, 6 (1939).
27. See, e.g., STEWART H. HOLBROOK, THE AGE OF THE MOGULS (Lewis Gannett ed., 1953); MATTHEW JOSEPHSON, THE ROBBER BARONS: THE GREAT AMERICAN CAPITALISTS, 1861-1901 (1934).
28. The classic treatment is HOFSTADTER, supra note 23. Accord ELIZABETH SANDERS, ROOTS OF REFORM: FARMERS, WORKERS, AND THE AMERICAN STATE, 1877-1917 (Benjamin I. Page ed., 1999).
29. For a multidisciplinary treatment of how the changes in the basic ideas and ideals by which Americans lived were reshaped in this period, see ALAN TRACHTENBERG, THE INCORPORATION OF AMERICA: CULTURE AND SOCIETY IN THE GILDED AGE (1982).
30. On the course of immigration and assimilation in postbellum America, see THOMAS J. ARCHDEACON, BECOMING AMERICAN: AN ETHNIC HISTORY (1983); JACK CHEN, THE CHINESE OF AMERICA (1980); OSCAR HANDLIN, RACE AND NATIONALITY IN AMERICAN LIFE (1957); JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925 (1955); STUART CREIGHTON MILLER, THE UNWELCOME IMMIGRANT: THE AMERICAN IMAGE OF THE CHINESE, 1785-1882 (1969); and PHILIP TAYLOR, THE DISTANT MAGNET: EUROPEAN EMIGRATION TO THE U.S.A. (1971). Notwithstanding the lack of national immigration legislation, state regulation had persisted since the early days of the Republic. For a discussion of this early history, see GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW 19-43 (1996).
31. For a conventional starting point, see 4 PHILIP S. FONER, HISTORY OF THE LABOR MOVEMENT IN THE UNITED STATES (1965). Some other useful works include ROBERT V. BRUCE, 1877: YEAR OF VIOLENCE (1959); JERRY M. COOPER, THE ARMY AND CIVIL DISORDER: FEDERAL MILITARY INTERVENTION IN LABOR DISPUTES, 1877-1900 (1980); HENRY DAVID, THE HISTORY OF THE HAYMARKET AFFAIR: A STUDY IN THE AMERICAN SOCIAL-REVOLUTIONARY AND LABOR MOVEMENTS (2d ed. 1958); GERALD N. GROB, WORKERS AND UTOPIA: A STUDY OF IDEOLOGICAL CONFLICT IN THE AMERICAN LABOR MOVEMENT 1865-1900 (1961); HERBERT G. GUTMAN, WORK, CULTURE, AND SOCIETY IN INDUSTRIALIZING AMERICA: ESSAYS IN AMERICAN WORKING-CLASS AND SOCIAL HISTORY (1976); STUART BRUCE KAUFMAN, SAMUEL GOMPERS AND THE ORIGINS OF THE AMERICAN FEDERATION OF LABOR 1848-1896 (1973); DAVID MONTGOMERY, THE FALL OF THE HOUSE OF LABOR: THE WORKPLACE, THE STATE, AND AMERICAN LABOR ACTIVISM, 1865-1925 (1987); MICHAEL NASH, CONFLICT AND ACCOMMODATION: COAL MINERS, STEEL WORKERS, AND SOCIALISM, 1890-1920 (1982); PHILIP TAFT, ORGANIZED LABOR IN AMERICAN HISTORY (1964); LLOYD ULMAN, THE RISE OF THE NATIONAL TRADE UNION: THE DEVELOPMENT AND SIGNIFICANCE OF ITS STRUCTURE, GOVERNING INSTITUTIONS, AND ECONOMIC POLICIES (1955); NORMAN J. WARE, THE LABOR MOVEMENT IN THE UNITED STATES 1860-1895: A STUDY IN DEMOCRACY (1929); SAMUEL YELLEN, AMERICAN LABOR STRUGGLES (1969); and IRWIN YELLOWITZ, THE POSITION OF THE WORKER IN AMERICAN SOCIETY, 1865-1896 (1969).
32. CHARLES LORING BRACE, THE DANGEROUS CLASSES OF NEW YORK, AND TWENTY YEARS' WORK AMONG THEM (1872).
33. On the rise of the city and its problem and politics, see WILLIAM A. BULLOUGH, CITIES AND SCHOOLS IN THE GILDED AGE: THE EVOLUTION OF AN URBAN INSTITUTION (1974); THE CITY BOSS IN AMERICA: AN INTERPRETIVE READER (Alexander B. Callow, Jr. ed., 1976); ALLEN F. DAVIS, SPEARHEADS FOR REFORM: THE SOCIAL SETTLEMENTS AND THE PROGRESSIVE MOVEMENT, 1890-1914 (1967); LEO HERSHKOWITZ, TWEED'S NEW YORK: ANOTHER LOOK (1977); ROY LUBOVE, THE PROGRESSIVES AND THE SLUMS: TENEMENT HOUSE REFORM IN NEW YORK CITY, 1890-1917 (1962); BLAKE MCKELVEY, THE URBANIZATION OF AMERICA, 1860-1915 (1963); ARTHUR MEIER SCHLESINGER, THE RISE OF THE CITY, 1878-1898, (1933); VINCENT SCULLY, AMERICAN ARCHITECTURE AND URBANISM (1969); and SAM BASS WARNER, JR., THE URBAN WILDERNESS: A HISTORY OF THE AMERICAN CITY (1972).
34. E.L. Godkin, Commercial Immorality and Political Corruption, 107 N. AM. REV. 248 (1868).
35. JOHN G. SPROAT, "THE BEST MEN": LIBERAL REFORMERS IN THE GILDED AGE (1968).
36. 1 GEORGE FRISBIE HOAR, AUTOBIOGRAPHY OF SEVENTY YEARS 308 (1903).
37. Dorman B. Eaton, Parties and Independents, 144 N. AM. REV. 549, 550 (1887).
38. SEAN DENNIS CASHMAN, AMERICA IN THE GILDED AGE: FROM THE DEATH OF LINCOLN TO THE RISE OF THEODORE ROOSEVELT 214 (1984).
39. See Richard Guy Wilson, Architecture, Landscape, and City Planning, in BROOKLYN MUSEUM, BROOKLYN INST. OF ARTS & SCIS., THE AMERICAN RENAISSANCE 1876-1917, at 74 (Brooklyn Inst. of Arts & Scis. ed., 1979).
40. LOWI, supra note 7, at 78.
41. See RICHARD FRANKLIN BENSEL, YANKEE LEVIATHAN: THE ORIGINS OF CENTRAL STATE AUTHORITY IN AMERICA, 1859-1877 (1990).
42. For analyses dating American administrative law and the American administrative state roughly to the ICC or the beginning of the twentieth century, see FRIEDMAN, supra note 1, at 439-66; HOFSTADTER, supra note 23, at 164; LOWI, supra note 7, at 77-78; STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982); CAMILLA STIVERS, BUREAU MEN, SETTLEMENT WOMEN: CONSTRUCTING PUBLIC ADMINISTRATION IN THE PROGRESSIVE ERA (2000); and DWIGHT WALDO, THE ADMINISTRATIVE STATE: A STUDY OF THE POLITICAL THEORY OF AMERICAN PUBLIC ADMINISTRATION (1st ed. 1948). Alternatively, one might begin with the Civil War and Reconstruction eras that this Article largely omits. While worthy of its own separate treatment, the extensive military administration of that period makes it a misleading guide to the development of American domestic governance.
43. Woodrow Wilson, The Study of Administration, 2 POL. SCI. Q. 197 (1887).
44. For Ernst Freund's principal works, see ERNST FREUND, ADMINISTRATIVE POWERS OVER PERSONS AND PROPERTY: A COMPARATIVE SURVEY (1928); ERNST FREUND, CASES ON ADMINISTRATIVE LAW SELECTED FROM DECISIONS OF ENGLISH AND AMERICAN COURTS (2d ed. 1928); and ERNST FREUND ET AL., THE GROWTH OF AMERICAN ADMINISTRATIVE LAW (1923). For Frank Goodnow's major works, see FRANK J. GOODNOW, COMPARATIVE ADMINISTRATIVE LAW: AN ANALYSIS OF THE ADMINISTRATIVE SYSTEMS NATIONAL AND LOCAL, OF THE UNITED STATES, ENGLAND, FRANCE AND GERMANY (photo. reprint 1996) (1893) [hereinafter GOODNOW, COMPARATIVE ADMINISTRATIVE LAW]; FRANK J. GOODNOW, THE PRINCIPLES OF THE ADMINISTRATIVE LAW OF THE UNITED STATES (1905) [hereinafter GOODNOW, PRINCIPLES OF ADMINISTRATIVE LAW]; and SELECTED CASES ON AMERICAN ADMINISTRATIVE LAW: WITH PARTICULAR REFERENCE TO THE LAW OF OFFICERS AND EXTRAORDINARY LEGAL REMEDIES (Frank J. Goodnow ed., 1906). The one early book that deals most prominently with national administrative law in the United States, BRUCE WYMAN, THE PRINCIPLES OF THE ADMINISTRATIVE LAW GOVERNING THE RELATIONS OF PUBLIC OFFICERS (1903), also appears in the early twentieth century.
45. See SPROAT, supra note 35.
46. William J. Novak, The Myth of the "Weak" American State, 113 AM. HIST. REV. 752 (2008).
47. Id. at 753 (quoting Albert Shaw, The American State and the American Man, 51 CONTEMP. REV. 695, 696-97 (1887).
48. See KELLER, supra note 7; LOWI, supra note 7.
49. DANIEL P. CARPENTER, THE FORGING OF BUREAUCRATIC AUTONOMY: REPUTATION, NETWORKS AND POLICY INNOVATION IN EXECUTIVE AGENCIES, 1862-1928 (2001).
50. On the differences between bureaucratic organizations that are state or society centered, see BERNARD S. SILBERMAN, CAGES OF REASON: THE RISE OF RATIONAL STATE IN FRANCE, JAPAN, THE UNITED STATES, AND GREAT BRITAIN (1993).
51. See GOODNOW, PRINCIPLES OF ADMINISTRATIVE LAW, supra note 44, at 371-72.
52. For further elaboration, see Mashaw, Administration and the Democracy, supra note 9, at 1669-84.
53. On the development of the "appellate model" of judicial review in the early twentieth century, see Thomas W. Merrill, The Origins of the Appellate Review Model of Administrative Law (forthcoming), http://www.law.yale.edu/documents/pdf/CompAdminLaw/Thomas _Merrill_compAdLaw_paper.pdf.
54. For a description of the steamship travel issue, see Mashaw, Administration and the Democracy, supra note 9, at 1628-66.
55. See Mashaw, Recovering, supra note 9, at 1277; Mashaw, Reluctant Nationalists, supra note 9, at 1647-96.
56. These views are common both to some political scientists, see, e.g., THEODORE J. LOWI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES (2d ed. 1979), and to constitutional and administrative lawyers, see, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993) (arguing for the resuscitation of the moribund nondelegation doctrine).
57. The classic statement is in WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971).
58. The literature on the "unitary executive" debate is enormous. For an extended argument that the President has always had, and the Constitution demands, an unimpaired power of appointment, removal, and direction over federal officers, see STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH (2008). For classic critiques of the unitarian approach, see Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996); and Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994).
59. Act of Mar. 2, 1867, ch. 170, 14 Stat. 485.
60. Act of Mar. 23, 1867, ch. 6, 15 Stat. 2.
61. Act of Mar. 2, 1867, ch. 154, 14 Stat. 430.
62. Letter from Andrew Johnson, President of the U.S., to the Senate (Dec. 12, 1867), reprinted in 8 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 3781 (James D. Richardson ed., 1897) [hereinafter MESSAGES AND PAPERS].
63. For a brief but more complete description of the contest, see CALABRESI & YOO, supra note 58, at 179-87.
64. CONG. GLOBE, 39th Cong., 2d Sess. 1516 (1867).
65. CALABRESI & YOO, supra note 58, at 189, 218.
66. See id. at 189-216.
67. For standard accounts, see WILFRED E. BINKLEY, PRESIDENT AND CONGRESS (1947); JOSEPH P. HARRIS, THE ADVICE AND CONSENT OF THE SENATE: A STUDY OF THE CONFIRMATION OF APPOINTMENTS BY THE UNITED STATES SENATE (1953); and WOODROW WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS (1885).
68. 1 JOHN SHERMAN, RECOLLECTIONS OF FORTY YEARS IN THE HOUSE, SENATE AND CABINET: AN AUTOBIOGRAPHY 447 (1895).
69. 2 JOHN RUSSELL YOUNG, AROUND THE WORLD WITH GENERAL GRANT: A NARRATIVE OF THE VISIT OF GENERAL U.S. GRANT, EX-PRESIDENT OF THE UNITED STATES, TO VARIOUS COUNTRIES IN EUROPE, ASIA, AND AFRICA, IN 1877, 1878, 1879, at 265 (1879).
70. Exec. Order (June 22, 1877), in 9 MESSAGES AND PAPERS, supra note 62, at 4402-03 (1877); Exec. Order (May 26, 1877), in 9 MESSAGES AND PAPERS, supra note 62, at 4402 (1877).
71. The standard history is PAUL P. VAN RIPER, HISTORY OF THE UNITED STATES CIVIL SERVICE (1958). Further general histories include ARI HOOGENBOOM, OUTLAWING THE SPOILS: A HISTORY OF THE CIVIL SERVICE REFORM MOVEMENT, 1865-1883 (1961); and U.S. OFFICE OF PERS. MGMT., U.S. CIVIL SERV. COMM'N, BIOGRAPHY OF AN IDEAL: A HISTORY OF THE FEDERAL CIVIL SERVICE (2003).
72. This is not to say that the latter demand was unimportant. Industrial and mercantile interests needed a post office and customs houses that functioned efficiently. Indeed, one area in which the reform of the civil service may have followed the "rational" format described in the text involved the application of merit principles in the Patent Office. As the ownership of patents migrated from individual inventors to corporate enterprises, American business demanded a more stable basis for investing in the development of products ostensibly protected by patent. This could not be accomplished unless the Patent Office were put on a more regular and scientific basis so that patents, once issued, gave reasonable certainty that they would hold up in court. Hence, while early proposals for general civil service reform languished in the Congress, the Patent Office began merit-based hiring and promotion in 1869. The process of patent examination rapidly became professionalized and bureaucratized and the accomplishments of the Office were presented to the Congress and the public as a triumph of the bureaucratic system which protected both the inventor's property rights and the access of the public to the commercialization of useful technological advances. These developments are chronicled in Kara W. Swanson, The Bureaucracy of Genius: Striking the Patent Bargain in the Nineteenth-Century United States (Aug. 2008) (unpublished manuscript, on file with author).
73. For a discussion of the Grant Civil Service Commission and its demise, see LEONARD D. WHITE, THE REPUBLICAN ERA: 1869-1901: A STUDY IN ADMINISTRATIVE HISTORY 281-87 (1958).
74. Act of Mar. 3, 1871, ch. 114, 16 Stat. 495 (1871).
75. VAN RIPER, supra note 71, at 81-82. Added to this high moral tone was a more complex analysis included in the Commission's final report in 1874. Following the introduction there appears a section entitled "The Evils to be Remedied" which begins: There had been developed, mainly within a single generation, and was existing with fearful powers of expansion and reproduction an aggressive and unscrupulous spirit of mercenary partisanship, which, promoting and dominating the pursuit of politics as a trade, and seeking public office and party and caucus leadership principally for the spoils of money and patronage they could command, was degrading all party action and popular estimation and impairing alike official integrity, political honor, and private morality. This spirit developed and animated all over the country large numbers of little and great partisan combinations, faithful to no party principles, inspired by no patriotic sentiments, conducting no useful debates, contributing nothing to public intelligence or public virtue, but mettlesome and insatiable, everywhere, whenever any official selection was to be made, or any official authority was to be exercised. Id. at 82.
76. While a moral rather than a technocratic crusade, the scope of the reform movement was limited. Civil service reform was not a prelude to some grander program of social and economic reform designed to cure the social evils of industrialization. On the ideology and practice of social services for the lower classes, see GEORGE M. FREDRICKSON, THE INNER CIVIL WAR: NORTHERN INTELLECTUALS AND THE CRISIS OF THE UNION 111-12 (1965). On the classical liberal ideology of reform leaders, see SPROAT, supra note 35.
77. Ruth M. Berens, Blueprint for Reform: Curtis, Eaton and Schurz (1943) (unpublished Master's thesis, University of Chicago), quoted in VAN RIPER, supra note 71, at 84.
78. The Merit System and the Parties, N.Y. TIMES, June 24, 1904, at 8 (stating that Garfield was shot by a "crazy, disappointed office seeker").
79. Act of Jan. 16, 1883, ch. 27, 22 Stat. 403. On the reform period leading to the Pendleton Act, see CARL RUSSELL FISH, THE CIVIL SERVICE AND THE PATRONAGE (1905).
80. RONALD N. JOHNSON & GARY D. LEIBCAP, THE FEDERAL CIVIL SERVICE SYSTEM AND THE PROBLEM OF BUREAUCRACY: THE ECONOMICS AND POLITICS OF INSTITUTIONAL CHANGE (1994).
81. Ari Hoogenboom, The Pendleton Act and the Civil Service, 64 AM. HIST. REV. 301, 313 (1959).
82. SKOWRONEK, supra note 42, at 39.
83. In prescribing examinations for the competitive service, the Civil Service Commission was, of course, not itself making appointments. And, the Constitution allows the placement of appointments for "inferior officers" elsewhere than in the President. Nevertheless, as Attorney General A.T. Akerman opined at the time of the creation of the Grant Civil Service Commission, the Congress "has no power to vest appointments elsewhere, directly or indirectly." 13 Op. Att'y Gen. 516, 521 (1871). By "elsewhere" Akerman meant elsewhere than in the constitutionally named places. And at some point restrictiveness in the requirements for qualifications would at least "indirectly" invade the appointments power. Much better, therefore, that if any invading of the President's power were to be done, the President would do it himself. Hence, the Civil Service Commission's functions were largely technical and advisory. The Commission proposed; the President disposed.
84. SKOWRONEK, supra note 42, at 73. For a more detailed discussion of the enactment and consolidation of the Pendleton Act reforms, see WHITE, supra note 73, at 278-364.
85. WHITE, supra note 73, at 109. In the same vein, White argues that bureaus often eluded effective departmental control, and hence, indirectly, presidential control as well. Officers dealing with public lands, patents, military pensions, and Indian affairs were all nominally in the Interior Department, but their strong supportive networks outside of government allowed them to operate semiautonomously. Id. at 175-81.
86. Id. at 68-92.
87. Act of May 15, 1862, ch. 72, 12 Stat. 387.
88. Act of Feb. 9, 1889, ch. 122, 25 Stat. 659.
89. Act of Mar. 2, 1867, ch. 158, 14 Stat. 434.
90. Act of July 12, 1870, ch. 251, 16 Stat. 230, 242; Act of July 30, 1869, ch. 176, 15 Stat. 92, 106.
91. Act of June 22, 1870, ch. 150, 16 Stat. 162.
92. Act of June 13, 1888, ch. 389, 25 Stat. 182. This department received cabinet status as a part of the new Department of Commerce and Labor in 1903, and was finally established as a separate department in 1913. Act of Mar. 4, 1913, ch. 141, 37 Stat. 736.
93. LOWI, supra note 7, at 77. By constituent policy, Lowi means to include acts that create a new agency or department or reorganize the government, that is, that are constitutive of governmental organization.
94. LOWI, supra note 7, at 76 (quoting WOODROW WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS (1885).
95. SHORT, supra note 12, at 220.
96. WILLIAMJAMES HULL HOFFER, TO ENLARGE THE MACHINERY OF GOVERNMENT: CONGRESSIONAL DEBATES AND THE GROWTH OF THE AMERICAN STATE, 1858-1891 (2007). Hoffer's analysis is based on a comprehensive review of congressional debates surrounding the Morrill Land Grant Colleges legislation; the statutes creating the Department of Agriculture, the Freedman's Bureau, the Department of Education, and the Bureau of Labor; plus the debates over the Pendleton Civil Service Reform Act, judicial or circuit court reform, and the Blair proposals for federal support of common schooling.
97. Id. at 171.
98. Id. at 197.
99. See Mashaw, Administration and the Democracy, supra note 9, at 1668-69
100. Act of Feb. 25, 1863, ch. 58, 12 Stat. 665.
101. ALBERT S. BOLLES, THE FINANCIAL HISTORY OF THE UNITED STATES, FROM 1861 TO 1885, at 43 (1886).
102. Act of Feb. 28, 1871, ch. 100, 16 Stat. 440.
103. See Mashaw, Administration and the Democracy, supra note 9, at 1643-53
104. Act of Feb. 28, 1871, §§ 12-17, 16 Stat. at 445-47.
105. Id. §§ 24-30, 16 Stat. at 449-50.
106. On congressional control, or lack of control, over appropriations, see WHITE, supra note 73, at 54-67.
107. The basic argument for agency control through monopolization of information is from NISKANEN, supra note 57. For a sympathetic revision of Niskanen's model which finds his strongest claims overstated, see Gary J. Miller & Terry M. Moe, Bureaucrats, Legislators, and the Size of Government, 77 AM. POL. SCI. REV. 297 (1983).
108. For discussion of broad delegations of regulatory authority in antebellum legislation, see Mashaw, Administration and the Democracy, supra note 9, at 1628-66; Mashaw, Recovering, supra note 9, at 1292-96; and Mashaw, Reluctant Nationalists, supra note 9, at 1650-95.
109. Act of Feb. 15, 1893, ch. 114, § 3, 27 Stat. 449, 451 (granting additional quarantine powers and imposing additional duties upon the Marine Hospital Service). On the development of federal quarantine laws in the nineteenth century, see Edwin Maxey, Federal Quarantine Laws, 23 POL. SCI. Q. 617 (1908).
110. Act of May 29, 1884, ch. 60, § 3, 23 Stat. 31, 32 (establishing a Bureau of Animal Industry).
111. Id. §§ 4-5.
112. This system was similar to the regulatory scheme pioneered by Charles Frances Adams in Massachusetts. On the Massachusetts system, see THOMAS K. MCCRAW, PROPHETS OF REGULATION: CHARLES FRANCIS ADAMS, LOUIS BRANDEIS, JAMES M. LANDIS, ALFRED E. KAHN 1-56 (1984).
113. Act of June 19, 1878, ch. 316, § 3, 20 Stat. 169, 170. The auditor was upgraded to the title of "Commissioner of Railroads" in the General Appropriations Act of 1882, ch. 130, 21 Stat. 385, 409 (1881). These powers of investigation and required reports are very similar to those provided to the ICC, and after judicial construction of the ICC's other powers, about all that it wielded. SKOWRONEK, supra note 42, at 151.
114. Act of June 19, 1878, § 3, 20 Stat. 170.
115. Act of Aug. 2, 1886, ch. 840, 24 Stat. 209, 212.
116. For the elaboration of this idea of autonomous administrative authority, see DANIEL P. CARPENTER, THE FORGING OF BUREAUCRATIC AUTONOMY: REPUTATION, NETWORKS, AND POLICY INNOVATION IN EXECUTIVE AGENCIES, 1862-1928 (2001).
117. Merrill, supra note 53.
118. See Mashaw, Administration and the Democracy, supra note 9, at 1669-84.
119. See, e.g., United States v. Comm'r, 72 U.S. (5 Wall.) 563 (1866) (denying mandamus to compel the issuance of a patent by the Commissioner of the General Land Office); Comm'r of Patents v. Whiteley, 71 U.S. (5 Wall.) 552 (1866) (denying mandamus to compel the Commissioner of Patents to reexamine a patent application).
120. 74 U.S. (5 Wall.) 347 (1868).
121. 62 U.S. (21 How.) 579 (1858).
122. Id. at 581.
123. 74 U.S. at 352. For this last bit of reasoning, the Supreme Court cited its decision in Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866), the case in which the State of Mississippi sought to enjoin Andrew Johnson from carrying out the Reconstruction statutes. Mississippi v. Johnson was, indeed, an injunction case, and part of the Court's reasoning in that case relied on the obvious proposition that President Johnson's activities under the Reconstruction Acts were hardly ministerial, nondiscretionary duties. But, Mississippi v. Johnson was, in essence, a political question case. Indeed, the Court imagined that action of the sort requested would involve it in a political imbroglio. What, the Court asked, was it to do if the President complied with an injunction forbidding execution of the Reconstruction Acts and Congress attempted to impeach him for his failure to implement those same statutes? Was the Court then supposed to enjoin Congress from engaging in impeachment? Id. at 500-01. This political question approach was carried further in Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867), where Georgia sought to restrain the Secretary of War and the general in command of the military district comprising Georgia, Florida, and Alabama from enforcing the Reconstruction Acts. Instead of rehearsing the mandamus jurisprudence and the usual distinctions between discretionary and ministerial functions, the Court simply concluded that it lacked jurisdiction. In the words of the opinion, this was because "a case must be presented appropriate for the exercise of judicial power; the rights in danger, as we have seen, must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity." Id. at 76.
124. Gaines, 74 U.S. at 352.
125. Id. at 352-53.
126. Id. at 353.
127. 76 U.S. (9 Wall.) 298 (1869).
128. The decision is somewhat confusing because the Court combined this dictum with concerns about finality. The predecessor could no longer carry out the duty and the current officeholder had never been given an opportunity to act on the matter. Id. at 303, 313.
129. 84 U.S. (17 Wall.) 604 (1873).
130. Id. at 607.
131. Id. at 609.
132. 5 U.S. (1 Cranch) 137 (1803).
133. 86 U.S. (19 Wall.) 107 (1873).
134. Id. at 116.
135. Id. at 117-18.
136. 99 U.S. 624 (1878).
137. Id. at 627.
138. 103 U.S. 480 (1880).
139. Id. at 483.
140. Id. at 484.
141. 128 U.S. 40 (1888).
142. Id. at 48.
143. Id. at 52.
144. 15 D.C. (4 Mackey) 310 (1885).
145. The letter is quoted in the Supreme Court opinion in United States ex rel. Angarica de la Rua v. Bayard, 127 U.S. 251, 255 (1888).
146. 127 U.S. at 261.
147. 16 D.C. (5 Mackey) 428 (1887).
148. Bayard v. United States ex rel. White, 127 U.S. 246 (1888). 149. Id. at 250.
149. 68 U.S. (1 Wall.) 644 (1863).
150. Id. at 650-51.
151. 70 U.S. (3 Wall.) 334 (1865).
152. Id. at 344.
153. Id.
154. Ann Woolhandler, Judicial Deference to Administrative Action: A Revisionist History, 43 ADMIN. L. REV. 197, 216-19 (1991).
155. 67 U.S. (2 Black) 554 (1862).
156. Id. at 563.
157. 80 U.S. (13 Wall.) 72 (1871).
158. Id. at 81.
159. Id. at 83.
160. Id. at 84.
161. Id. at 84-85
162. Id. at 86.
163. Id.
164. 101 U.S. 473 (1879)
165. Id. at 476.
166. Id. The plaintiff also asserted that there was fraud, but the Court found that the plaintiff was merely trying to "stigmatize acts which are adverse to the plaintiff's view of his own rights" and was not alleging any actual fraud. Id. at 478.
167. For the view that the divergent practices of nineteenth-century courts hinge crucially on the understanding of the concept of "public rights" in that period, see Caleb Nelson, Adjudication in the Political Branches, 107 COLUM. L. REV. 559 (2007).
168. See, e.g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986) (holding that the Commodity Futures Trading Commission could decide a limited class of private rights claims).
169. See Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 915 (1988).
170. Land Office decisions were probably the most common subject of judicial review proceedings in the federal courts during the second half of the nineteenth century. Justice, then Professor, Scalia, in 1970, described the proceedings as having reached "habeas corpus proportions." Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public-Lands Cases, 68 MICH. L. REV. 867, 884 (1970).
171. For an extended treatment of the difficulties in surveying and selling the public lands, including the adjudication of thousands of private claims, see Mashaw, Reluctant Nationalists, supra note 9, at 1696-1734.
172. LOUIS L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 327-53 (1965).
173. 187 U.S. 94 (1902).
174. Id. at 108. And this was in a case directly reviewing the legality of a fraud order by the Post Office Department.
175. See JAFFE, supra note 173; Merrill, supra note 53. Moreover, judicial review remained highly deferential. According to Reuel E. Schiller, By the 1920s, courts consistently deferred to agency actions with respect to public health, customs and postal regulations, the administration of veterans' pensions, and various licensing regimes. The same was true of the actions of taxing agencies, the Patent and Trademark Office, the Federal Land Office, and the Bureau of Immigration. Reuel E. Schiller, The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 MICH. L. REV. 399, 408 (2007) (internal footnotes omitted).
176. 187 U.S. at 108 (citing Gardner v. Bonestell, 180 U.S. 362 (1901); Johnson v. Drew, 171 U.S. 93, 99 (1898); and Burfenning v. Chi. Ry. Co., 163 U.S. 321 (1896).
177. My personal favorite modern example of this is Justice Douglas's startling and ahistorical reading of the standing provisions of the APA in Association of Data Processing Organizations v. Camp, 397 U.S. 150 (1970). For a recent detailed account see Elizabeth Magill, Standing for the Public: A Lost History, 95 VA. L. REV. 1131 (2009).
178. By 1893, for example, the number of pensioners had reached one million, and pension expenditures consumed forty-two percent of the federal government's income. Peter Blanck, Civil War Pensions and Disability, 62 OHIO ST. L.J. 109, 126 (2001).
179. WYMAN, supra note 44, at 1-23
180. Id. at 4-8.
181. Id. at 75-85 (discussing United States v. Duell ex rel. Bernardin, 172 U.S. 576 (1899); United States v. Richie, 58 U.S. (17 How.) 525 (1854); and United States v. Ferreira, 54 U.S. (13 How.) 40 (1851). Wyman approves of the decisions in Ferreira and Richie, which construe congressional appeal statutes to avoid the unconstitutional conferral of judicial power to review administrative discretion, and condemns Duell, which upholds the patent statute permitting appeals of patent decisions to the Court of Appeals of the District of Columbia.
182. Id. at 321.
183. Id. at 320-41
184. Id. at 342.
185. See, e.g., Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1855); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845).
186. See Mashaw, Administration and the Democracy, supra note 9, at 1679-81; Merrill, supra note 53, at 53-55.
187. See WHITE, supra note 73, at 175-81 (ascribing this independence to the support of strong networks of politically influential private interests).
188. See, e.g., Act of June 10, 1890, ch. 407, § 12, 26 Stat. 131, 136. This statute established a nine- member board of general appraisers in the customs service of the Treasury Department. The members were appointed by the President and subject to Senate confirmation. They served without a specified term and could be removed only for cause.
189. See WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900, at 124-25 (1982).
190. WHITE, supra note 73, at 203 (quoting ANNUAL REPORT OF THE COMMISSIONER OF THE GENERAL LAND OFFICE 11 (1880).
191. INST. FOR GOV'T RESEARCH, THE GENERAL LAND OFFICE: ITS HISTORY, ACTIVITIES AND ORGANIZATION 29 (1923).
192. Act of Mar. 23, 1792, ch. 11, 1 Stat. 243.
193. The Pension Office had been given important legislative status in 1833 with the creation of the Office of Commissioner of Pensions in the War Department. Act of Mar. 2, 1833, ch. 54, 4 Stat. 619, 622. That Office was periodically continued for two-year terms in appropriations legislation, until made permanent in 1849 and relocated in the Interior Department. Act of Mar. 3, 1849, ch. 108, 9 Stat. 395.
194. An Act To Grant Pensions, ch. 166, 12 Stat. 566 (1862).
195. Claudia Linares, The Civil War Pension Law 2 (Univ. of Chi. Ctr. for Population Econ., Working Paper No. 2001-6, 2001). The standard treatment of the political and social origins of the post-Civil War military pension system is THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS: THE POLITICAL ORIGINS OF SOCIAL POLICY IN THE UNITED STATES (1992).
196. An Act To Grant Pensions, 12 Stat. at 566.
197. Act of Mar. 3, 1873, ch. 234, 17 Stat. 566, 566-67
198. Id. at 570.
199. WILLIAM H. GLASSON, FEDERAL MILITARY PENSIONS IN THE UNITED STATES 113 (1918). 201. Act of Mar. 19, 1886, ch. 22, 24 Stat. 5.
200. See Act of Mar. 3, 1873, § 15, 17 Stat. at 572; Act of July 27, 1868, ch. 264, § 6, 15 Stat. 235, 236. 203. GLASSON, supra note 200, at 165-66.
201. Act of Jan. 25, 1879, ch. 23, § 3, 20 Stat. 265, 265.
202. President Cleveland's unpopularity with the Grand Army of the Republic, the chief lobbying group for increased pension coverage and rates, is often credited with causing his defeat by Benjamin Harrison in the 1888 election. STUART MCCONNELL, GLORIOUS CONTENTMENT: THE GRAND ARMY OF THE REPUBLIC, 1865-1900, at 149 (1992).
203. Act of June 27, 1890, ch. 634, 26 Stat. 182.
204. GLASSON, supra note 200, at 236.
205. An Act To Grant Pensions, ch. 166, 12 Stat. 566, 566 (1862).
206. H.R. EXEC. DOC. NO. 38-1, at 657-58 (1864).
207. An Act To Grant Pensions, 12 Stat. at 566.
208. See infra notes 276-287 and accompanying text.
209. Act of June 6, 1866, ch. 106, 14 Stat. 56. The first included those who had lost both hands or both eyes or who were "otherwise so permanently and totally disabled as to render them utterly helpless, or so nearly so as to require the constant personal aid and attendance of another person." Id. at 56. A second grade of disability included loss of both feet or one hand and one foot or claimants who were "otherwise so disabled as to be incapacitated for performing any manual labor, but not so much so as to require constant personal aid and attention." Id. And finally, there was a third grade of disability which included loss of one hand or one foot and claimants who were "otherwise so disabled as to render their inability to perform manual labor equivalent to the loss of a hand or a foot." Id.
210. See GLASSON, supra note 200, at 129-31.
211. See Mashaw, Recovering, supra note 9, at 1332-33.
212. This description is based upon Instructions and Forms To Be Observed in Applying for Pensions Under the Act of July 14, 1862, reprinted in ROBERT SEWELL, PRACTICE IN THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT UNDER THE PENSION, BOUNTY, AND PRIZE LAWS OF THE UNITED STATES 260 (1865). Accord CALVIN B. WALKER, TREATISE ON PRACTICE OF PENSION BUREAU, GOVERNING ADJUDICATION OF ARMY AND NAVY PENSIONS, BEING UNWRITTEN PRACTICE FORMULATED (1882).
213. SEWELL, supra note 215, at 81-119.
214. WALKER, supra note 215, at 44.
215. Richardson v. Perales, 402 U.S. 389 (1971).
216. Comm'r of Pensions, Order No. 59 (Aug. 20, 1881), reprinted in FRANK B. CURTIS & WILLIAM H. WEBSTER, A DIGEST OF THE LAWS OF THE UNITED STATES GOVERNING THE GRANTING OF ARMY AND NAVY PENSIONS AND BOUNTY-LAND WARRANTS; DECISIONS OF THE SECRETARY OF THE INTERIOR, AND RULINGS AND ORDERS OF THE COMMISSIONER OF PENSIONS THEREUNDER 350, 350 (1885) ("Matters of fact. as well as the ascertainment of the character and reliability of testimony and credibility of witnesses, are questions solely for the adjudicating divisions. The sole function of the Review Board is to treat cases judicially, upon the papers.").
217. The annual reports of the Pension Bureau provide statistics on applications and awards, but the lag between application and award meant that an application in 1871 might well have been decided in 1872 or even later. Hence, awards as a percentage of annual application does not reflect the true award rate with complete accuracy.
218. See Heywood T. Sanders, Paying for the "Bloody Shirt:" The Politics of Civil War Pensions, in POLITICAL BENEFITS: EMPIRICAL STUDIES OF AMERICAN PUBLIC PROGRAMS 137, 148-50 (Barry S. Rundquist ed., 1980) (computing the award rates for the period 1878 to 1899).
219. See 1883 PENSION OFFICE, U.S. DEP'T OF THE INTERIOR, REPORT OF THE COMMISSIONER OF PENSIONS 325 [hereinafter PENSION OFFICE REPORT].
220. GENERAL INSTRUCTIONS TO SPECIAL EXAMINERS OF THE UNITED STATES PENSION OFFICE 7 (1881).
221. See generally JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS (1983) (describing the process of Social Security disability claims adjudication).
222. DECISIONS OF THE DEPARTMENT OF THE INTERIOR IN CASES RELATING TO PENSION CLAIMS AND THE LAWS OF THE UNITED STATES GRANTING AND COVERING PENSIONS 5 (1887) [hereinafter PENSION CLAIMS].
223. Id.
224. PENSION CLAIMS, supra note 225, at 1 (1890).
225. Bidding for Popularity: All Sorts of Pension Claims Now Passed, N.Y. TIMES, May 27, 1889, at 5 (discussing, in addition to Ammerman's case, Assistant Secretary Cyrus Bussey's decision to award a pension to William Jones of the Ohio Volunteers). Jones was injured, according to the article, while "standing on a portico in front of his quarters at dinner time, eating his rations, when two of his comrades, who were scuffling., pushed him backward over the balustrade. The act was intentional on the part of his comrades, and was unsuccessfully resisted by Jones." Id.
226. M.M. Trumbull, Pensions for All, 35 POPULAR SCI. MONTHLY 721, 724 (1880). 230. GLASSON, supra note 200, at 238.
227. See Blanck, supra note 179, at 129-48.
228. MORTON KELLER, AFFAIRS OF STATE 311 (1977).
229. ROBERT M. LA FOLLETTE, SR., LA FOLLETTE'S AUTOBIOGRAPHY: A PERSONAL NARRATIVE OF POLITICAL EXPERIENCES 84 (3d ed. 1919).
230. 4 PENSION CLAIMS, supra note 225, at iii (1891) (stating in the preface that it is intended to highlight "a spirit of larger liberality exercised by the present administration in applying the pension system to those entitled to its benefits").
231. See Theda Skocpol, America's First Social Security System: The Expansion of Benefits for Civil War Veterans, 108 POL. SCI. Q. 85, 109-10 (1993).
232. Id.
233. THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS: THE POLITICAL ORIGINS OF SOCIAL POLICY IN THE UNITED STATES 145 (1992).
234. Blanck, supra note 179, at 148-71.
235. Act to Grant Pensions, ch. 166, § 8, 12 Stat. 566, 568-69 (1862)
236. PENSION OFFICE REPORT, supra note 222, at 581-82 (1862)
237. Id. at 582-86; id. at 639-48 (1863).
238. Act of Mar. 8, 1859, ch. 88, § 2, 11 Stat. 439, 439.
239. Act of July 4, 1864, ch. 247, § 8, 13 Stat. 387, 388. The Commissioner's 1864 Report alluded to the potential cost-savings such biennial and special examinations could produce: a review of the 407 pensioners enrolled at the Boston agency by Doctors George Stevens Jones and A.B. Bancroft resulted in a twenty-two percent reduction in the dollar value of the roll. PENSION OFFICE REPORT, supra note 222, at 658-59 (1864) (reporting a decrease in the roll from $29,596 to $23,176 and hypothesizing that "[a] general reduction, in an equal or still greater proportion, of the entire invalid list, without any injustice to the pensioners, may be assumed as the result of a strict enforcement of this law").
240. SEWELL, supra note 215, at 262-63. Initially, nonappointed civil surgeons could also perform these examinations upon a showing of the impracticability of obtaining an examination from appointed surgeons. But a claimant was required to supplement the nonappointed surgeons' certificates with affidavits establishing their competence and impartiality, an
241. PENSION OFFICE REPORT, supra note 222, at 661 (1874)
242. Id.
243. Id. at 331 (1872).
244. Act of Mar. 3, 1873, ch. 234, § 5, 17 Stat. 566, 569.
245. PENSION OFFICE REPORT, supra note 222, at 658 (1864)
246. Id. at 791 (1865).
247. U.S. PENSION BUREAU INSTRUCTIONS TO EXAMINING SURGEONS FOR PENSIONS [hereinafter PENSION BUREAU INSTRUCTIONS], reprinted in PENSION OFFICE REPORT, supra note 222, at 437-38 (1870).
248. Id. at 8-9 (1884); Id. at 6 (1877). For the fractional rates corresponding to the degrees of deafness, see Comm'r of Pensions, Ruling No. 136 (Oct. 7, 1885), reprinted in CURTIS & WEBSTER, supra note 219, at 397; and Comm'r of Pensions, Ruling No. 80 (Apr. 3, 1884), reprinted in CURTIS & WEBSTER, supra note 219, at 395.
249. PENSION OFFICE REPORT, supra note 222, at 313 (1883).
250. SEC'Y OF THE INTERIOR, REPORT OF THE SECRETARY OF THE INTERIOR 388
251. PENSION OFFICE REPORT, supra note 222, at 388 (1871)
252. Id. at 331 (1872).
253. See Comm'r of Pension, Ruling No. 136 (Oct. 7, 1885) (defining fractional ratings for forty subdivisions of eighteen-dollar third-grade disability), reprinted in CURTIS & WEBSTER, supra note 219, at 397; Comm'r of Pension, Ruling No. 80 (Apr. 3, 1884) (same), reprinted in CURTIS & WEBSTER, supra note 219, at 395; Comm'r of Pension, Ruling No. 57 (n.d.) (defining fractional ratings for subdivisions of eight dollar "total disability"), reprinted in CURTIS & WEBSTER, supra note 219, at 394; U.S. PENSION BUREAU, BUREAU OF PENSIONS, ITS OFFICERS AND THEIR DUTIES: THE MANNER IN WHICH THE WORK OF ADJUDICATING CLAIMS IS PERFORMED 88-91 (1893).
254. PENSION BUREAU INSTRUCTIONS, supra note 251, at 16 (1877) (emphasis added). Examining surgeons were reminded that they were confidential advisers to the Bureau, id. at 8, and charged to report every instance of violation of the pension laws and every case of fraud or attempt at fraud, id. at 16. A circular from the Commissioner warned, "Examining surgeons are recognized as confidential agents of the Office. In no instance should they communicate what they have recommended, or intend to recommend, either to an attorney or a claimant." Comm'r of Pensions, Circular No. 3 (Sept. 23, 1873), reprinted in PENSION BUREAU INSTRUCTIONS, supra note 251, at 23 (1877). The 1884 instructions also prohibited the delegation of a surgeon's duties to nonappointed physicians. PENSION BUREAU INSTRUCTIONS, supra note 251, at 13 (1884).
255. Act of July 25, 1882, ch. 349, § 4, 22 Stat. 174, 175 ("[A]ll examinations, so far as practicable, shall be made by the boards, and no examination shall be made by one surgeon excepting under such circumstances as make it impracticable for a claimant to present himself before a board.").
256. PENSION OFFICE REPORT, supra note 222, at 324 (1883).
257. Id. at 441 (1875).
258. Id. at 442.
259. Turnover among the examining surgeons was not trivial. Between June 1874 and June 1875, for example, of 1443 surgeons, 70 were dismissed for incompetence or neglect of duty, 49 resigned, 23 died, 18 changed residence, giving an attrition rate of around 11%, and 214 new surgeons were appointed. Id. at 440. In the previous year, attrition was a comparable 10%. Id. at 659 (1874).
260. Id. at 442 (1875).
261. Id. at 703 (1876).
262. Id. at 704-05 (quoting Doctor T.B. Hood).
263. PENSION BUREAU INSTRUCTIONS, supra note 251, at 13 (1884).
264. Id. at 18; see also WALKER, supra note 215, at 52.
265. Report of N.F. Graham, Acting Med. Referee, to W.W. Dudley, Comm'r of Pensions (Sept. 21, 1883), reprinted in PENSION OFFICE REPORT, supra note 222, at 337-39 (1883).
266. For a breakdown of the clerical force at the Bureau between July 1882 and June 1883, see PENSION OFFICE REPORT, supra note 222, at 329 (1883).
267. Id. at 330.
268. Id.
269. Id.
270. Id. at 330-31.
271. Appeals in rejected cases were numerous but small in relation to the total caseload. In 1883, for example, the Commissioner reported that 746 rejected applicants had appealed their cases to the Secretary. Id. at 322. But, in that same year, the Bureau disposed of over 104,000 cases, rejecting nearly 43,000 of them. Id. tbl.6, at 387. It should be noted that this was eighteen years after the war had ended, and allowance rates tended to decline as claims came to be more and more based on allegations that some injury or disease incurred during the war had produced a disability that manifested itself only two decades later. In the early years, up to 1870, allowance rates were above eighty percent. Id. at 307.
272. 7 Op. Att'y Gen. 149, 149 (1855).
273. Compare In re Cook (Pension Bureau Nov. 8, 1862), reprinted in CURTIS & WEBSTER, supra note 219, at 265, with In re Champion (Pension Bureau Aug. 15, 1865), reprinted in CURTIS & WEBSTER, supra note 219, at 265.
274. In re Vimont (Pension Bureau Jan. 17, 1866), reprinted in CURTIS & WEBSTER, supra note 219, at 265.
275. In re McCarty (Pension Bureau July 14, 1881), reprinted in CURTIS & WEBSTER, supra note 219, at 266.
276. CURTIS & WEBSTER, supra note 219, at 264-81.
277. In re Ammerman (Pension Bureau June 25, 1886), reprinted in 1 PENSION CLAIMS, supra note 225, at 5 (1887).
278. In re Brokenshaw (Pension Bureau July 23, 1887), reprinted in 1 PENSION CLAIMS, supra note 225, at 194 (1887).
279. Brokenshaw, reprinted in 1 PENSION CLAIMS, supra note 225, at 196 (1887).
280. In re Harrington (Pension Bureau Aug. 29, 1885), reprinted in CURTIS & WEBSTER, supra note 219, at 279.
281. Brokenshaw, reprinted in 1 PENSION CLAIMS, supra note 225, at 195 (1887) (quoting Harrington).
282. In re Ammerman, (Pension Bureau 1887), reprinted in 3 PENSION CLAIMS, supra note 225, at 1, 2 (1889).
283. Brokenshaw, reprinted in 3 PENSION CLAIMS, supra note 225, at 195 (1890) (quoting Ammerman).
284. This is nothing more than the received wisdom that surrounds Goldberg v. Kelly, 397 U.S. 254 (1970), and its progeny. Before he became widely known for his popular book, The Greening of America, Charles Reich was famous in legal circles for his pathbreaking articles lamenting the poor state of the protection of economic interests based on government beneficence. Those articles, Charles Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 YALE L.J. 1245 (1965); and Charles Reich, The New Property, 73 YALE L.J. 733 (1964), were cited by the Court in Goldberg's footnote 8. 397 U.S. at 263 n.8. By 1975, the development of due process protections for governmentally conferred interests was being characterized variously as "a due process explosion" or a "due process revolution." See Henry J. Friendly, "Some Kind of Hearing," 123 U. PA. L. REV. 1267, 1268 (1975); Doug Rendleman, The New Due Process: Rights and Remedies, 63 KY. L.J. 531 (1975).
285. For many years, judicial review of veterans' claims was precluded by 38 U.S.C. § 211(a) (1970), which provided: "[T]he decisions of the Administrator on any question of law or fact [concerning a claim for benefits]. shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision." This, and subsequent amendments to § 211, were held not to preclude constitutional claims, Johnson v. Robison, 415 U.S. 361 (1974), but most other types of legal challenge remained immune from judicial review. This situation changed with the adoption of the Veterans Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988), which converted the Veterans Administration into a cabinet level department and created a new Article I court, the United States Court of Veterans Appeals.
286. RICHARD R. JOHN, SPREADING THE NEWS: THE AMERICAN POSTAL SYSTEM FROM FRANKLIN TO MORSE (1995).
287. See Mashaw, Recovering, supra note 9, at 1293-95.
288. See Mashaw, Administration and the Democracy, supra note 9, at 1619-24. 293. NELSON, supra note 190, at 122-23.
289. For a detailed, if somewhat glorified, description of the training and testing of clerks and Railway Mail Service employees in the Post Office, see MARSHALL CUSHING, THE STORY OF OUR POST OFFICE: THE GREATEST GOVERNMENT DEPARTMENT IN ALL ITS PHASES, 68-100, 163-91 (1893).
290. Act of May 8, 1794, ch. 23, § 16, 1 Stat. 354, 360-61.
291. On the growth of letter writing as a general social practice, see DAVID M. HENKIN, THE POSTAL AGE: THE EMERGENCE OF MODERN COMMUNICATIONS IN NINETEENTH-CENTURY AMERICA (2006).
292. Id. at 93-118.
293. The controversy over Abolitionist literature is described in considerable detail in MATTHEW A. CRENSON, THE FEDERAL MACHINE: BEGINNINGS OF BUREAUCRACY IN JACKSONIAN AMERICAN 149-51 (1975); and DOROTHY GANFIELD FOWLER, UNMAILABLE: CONGRESS AND THE POST OFFICE 26-41 (1977). See also W. SHERMAN SAVAGE, THE CONTROVERSY OVER THE DISTRIBUTION OF ABOLITION LITERATURE 1830-1860 (1938).
294. Amos Kendall, The Incendiaries, NILES' WKLY. REG. (Baltimore), Aug. 22, 1835, at 448.
295. Andrew Jackson, Seventh Annual Message to Congress, December 7, 1835 in THE STATESMANSHIP OF ANDREW JACKSON AS TOLD IN HIS WRITINGS AND SPEECHES 399 (Francis Newton Thorpe ed., 1909).
296. Act of July 2, 1836, ch. 270, § 32, 5 Stat. 80, 87. The legislative history of Jackson's proposal is discussed briefly in Ex parte Jackson, 96 U.S. 727, 733-35 (1877).
297. Kendall's orders are discussed in WAYNE E. FULLER, THE AMERICAN MAIL: ENLARGER OF THE COMMON LIFE 92 (1972); and THEODORE D. JERVEY, ROBERT Y. HAYNE AND HIS TIMES 379- 81 (1909).
298. 8 Op. Att'y Gen. 489, 501 (1857).
299. Act of Feb. 28, 1861, ch. 61, 12 Stat. 177
300. FOWLER, supra note 298, at 43.
301. Business Activity Compatible with a State of War, N.Y. TIMES, Aug. 26, 1861, at 4
302. The Great Rebellion, N.Y. TIMES, Aug. 22, 1861, at 1.
303. 2 THE WAR OF REBELLION: A COMPILATION OF THE OFFICIAL RECORDS OF THE RECORDS OF THE UNION AND CONFEDERATE ARMIES 162, 179, 191 (1897) (reproducing correspondence between Trott, Blair, and Secretary Seward).
304. REPORT OF THE POSTMASTER GENERAL, 3 S. EXEC. DOC. NO. 37-1, at 582-84 (1861) [hereinafter 1861 REPORT]; FOWLER, supra note 298, at 45.
305. FOWLER, supra note 298, at 48.
306. 1861 REPORT, supra note 309, at 583 (citing Supreme Court Justice Joseph Story for the proposition that the government need not be the agent of its own destruction).
307. FRANCIS W. KELLOGG, POSTMASTER GENERAL'S AUTHORITY OVER MAILABLE MATTER, H.R. MISC. DOC. NO. 37-16, at 8 (1863) [hereinafter MAILABLE MATTER REPORT] (featuring the testimony of the Postmaster General).
308. Id. at 8-9.
309. CONG. GLOBE, 38th Cong., 2d Sess. 661 (1865) (containing the debate on the Committee's report); see MAILABLE MATTER REPORT, supra note 312, at 8; FOWLER, supra note 298, at 51; WAYNE E. FULLER, MORALITY AND THE MAIL IN NINETEENTH-CENTURY AMERICA 100 (2003).
310. Act of Mar. 3, 1865, ch. 89, 13 Stat. 504, 507.
311. CONG. GLOBE, 38th Cong., 2d Sess. 661.
312. 1 Op. Assistant Att'y Gen. P.O. Dep't 41, 42-43 (1873).
313. FULLER, supra note 314, at 252.
314. Act of July 27, 1868, ch. 246, 15 Stat. 194, 196 (1868); see 12 Op. Att'y Gen. 538 (1868).
315. 12 Op. Att'y Gen. 538. For a description of the multiyear campaign against the Louisiana Lottery and its offshoots, see CUSHING, supra note 294, at 505-65.
316. Those statutes include: Act of Sept. 19, 1890, ch. 908, 26 Stat. 465 (strengthening the antilottery statutes, including banning second-class periodicals from the mails if they merely contained lottery related advertisements); Act of Mar. 2, 1889, ch. 393, 25 Stat. 873 (providing a list of particular schemes that were forbidden to be promoted by the use of the mail); Act of Sept. 26, 1888, ch. 1039, 25 Stat. 496 (providing for the first time explicit congressional authorization for the Post Office to confiscate obscene material "under such regulations as the Postmaster General shall prescribe"); Act of June 18, 1888, ch. 394, 25 Stat. 187 (expanding the provisions of the Comstock Law to cover any matter that exhibited "libelous, scurrilous, or threatening" language on the wrapping); Act of July 12, 1876, ch. 186, 19 Stat. 90 (strengthening further the antilottery and obscenity statutes); and Act of Mar. 3, 1873, ch. 258, 17 Stat. 598 (strengthening the obscenity provisions of prior law and promoting Anthony Comstock's campaign against sexual immorality).
317. Act of June 8, 1872, ch. 335, 17 Stat. 283.
318. Similar explicit authority was provided for the removal of obscene material in an 1888 statute providing that obscene matter "shall be withdrawn from the mails under such regulations as the Postmaster-General shall prescribe." Act of Sept. 26, 1888, 25 Stat. at 496.
319. 1 Op. Assistant Att'y Gen. P.O. Dep't 864, 865 (1883).
320. 96 U.S. 727 (1877).
321. Id. at 729.
322. Id. at 730-31.
323. Brief of the Government, Ex Parte Jackson, 96 U.S. 727 (No. 6).
324. 96 U.S. at 735.
325. See, e.g., NICOLA BEISEL, IMPERILED INNOCENTS: ANTHONY COMSTOCK AND FAMILY REPRODUCTION IN VICTORIAN AMERICA (1997) (describing Comstock's campaign to stamp out abortion and contraception).
326. Act of Mar. 3, 1873, ch. 258, 17 Stat. 598.
327. JAMES R. PETERSEN, THE CENTURY OF SEX: PLAYBOY'S HISTORY OF THE SEXUAL REVOLUTION: 1900-1999, at 11 (1999).
328. Durland v. United States, 161 U.S. 306 (1896)
329. Id. at 313.
330. See Hearings on H.R. Res. 109 To Investigate the Post Office Department Before the House Committee on Expenditures in the Post Office Department, 62d Cong. 2013 (1911).
331. FULLER, supra note 302, at 240.
332. See Act of July 2, 1836, ch. 270, § 9, 5 Stat. 80, 81.
333. See REPORT OF THE POSTMASTER-GENERAL, H.R. EXEC. DOC. NO. 41-1, at 10 (1869); FULLER, supra note 302, at 273.
334. FULLER, supra note 302, at 258.
335. REPORT OF THE POSTMASTER-GENERAL, H.R. EXEC. DOC. 46-1, pt. 4, at 18 (2d Sess. 1879)
336. See CARPENTER, supra note 49, at 70-77.
337. Id. at 94-116. On the crucial role of the emergence of rural free delivery in curbing the power of local postmasters, see id. at 123-43.
338. Id. at 70. For a flavor of the tales of the special agents, see CUSHING, supra note 294, at 320-71.
339. CARPENTER, supra note 49, at 83-84.
340. CUSHING, supra note 294, at 192.
341. Id.
342. 1 Op. Assistant Att'y Gen. P.O. Dep't 41, 43 (1873).
343. 1 Op. Assistant Att'y Gen. P.O. Dep't 866, 866-67 (1883). 349. 1 Op. Assistant Att'y Gen. P.O. Dep't 898, 899 (1884).
344. POSTAL LAWS AND REGULATIONS OF THE UNITED STATES OF AMERICA § 228, at 80 (Arthur H. Bissell & Thomas B. Kirby eds., 1879).
345. Id. § 227, at 80.
346. Id. § 434, at 112.
347. Id. § 436, at 112, 113.
348. An early opinion of the Justice Department suggested that any communication addressed to a lottery company could be seized as unmailable. 1 Op. Assistant Att'y Gen. P.O. Dep't 455 (1879). But this position was rebuffed by the judiciary, Commerford v. Thompson, 1 F. 417 (C.C.D. Ky. 1880), and later regulations of the Post Office Department instructed local postmasters that they could not assume that letters addressed to lottery companies or their agents contained material concerning lotteries. H.R. MISC. DOC. NO. 50-63, § 379, at 159 (1887).
349. See 1 Op. Assistant Att'y Gen. P.O. Dep't 816 (1874); 1 Op. Assistant Att'y Gen. P.O. Dep't 78 (1882).
350. 1 Op. Assistant Att'y Gen. P.O. Dep't 796, 799 (1883); accord 1 Op. Assistant Att'y Gen. P.O. Dep't 816, 823 (1883).
351. See 1 Op. Assistant Att'y Gen P.O. Dep't 95, 96 (1885) ("[T]he argument urged in a petition. by Mr. Dawson, his counsel, who personally appeared before me and made an argument on behalf of the petitioner, is that as the business is now conducted it involves no fraudulent use of the mails.").
352. 1 Op. Assistant Att'y Gen P.O. Dep't 796 (1883). 359. H.R. REP. NO. 59-4919, at 2 (1906).
353. Public Clearing House v. Coyne, 194 U.S. 497 (1904).
354. Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902).
355. H.R. REP. NO. 59-4919, at 2 (quoting People's U.S. Bank v. Gilson, 140 F. 1 (E.D. Mo. 1905).
356. 1 Op. Assistant Att'y Gen. P.O. Dep't. 816, 819 (1883)
357. 2 Op. Assistant Att'y Gen. P.O. Dep't. 247, 248 (1886).
358. U.S. POST OFFICE DEP'T, INSTRUCTIONS TO POST OFFICE INSPECTORS CONCERNING THEIR CONDUCT, POWERS, AND DUTIES § 11, at 9 (1899) [hereinafter 1899 INSTRUCTIONS].
359. Id. at 94.
360. Id. at 95.
361. Id. at 57.
362. Later editions of the instructions which reach beyond the scope of this study provided greater detail concerning fraudulent investment schemes. See U.S. POST OFFICE DEP'T, INSTRUCTIONS TO POST OFFICE INSPECTORS CONCERNING THEIR CONDUCT, POWERS AND DUTIES § 53, at 63 (1905).
363. 1899 INSTRUCTIONS, supra note 365, § 50, at 60.
364. George B. Cortelyou, Frauds in the Mail: Fraud Orders and Their Purposes, 184 N. AM. REV. 808 (1907).
365. Id. at 815.
366. Id. at 812.
367. Id. at 809-10.
368. Id. at 810.
369. See Merrill, supra note 53, at 27-33.
370. For some revisionist history of the period, see THE GILDED AGE: A REAPPRAISAL (H. Wayne Morgan ed., 1963).
371. See FREDRICKSON, supra note 76.
372. See, e.g., 2 FRANCIS LIEBER, Amendments of the Constitution, Submitted to the Consideration of the American People, in MISCELLANEOUS WRITINGS OF FRANCIS LIEBER: CONTRIBUTIONS TO POLITICAL SCIENCE 137 (1881).
373. See Samuel Fowler, The Political Opinions of Jefferson, 101 N. AM. REV. 313 (1865).
374. This figure was calculated from estimated population totals in 1 BUREAU OF THE CENSUS, supra note 11, tbl.A6-8, at 8 (1975).
375. This figure was calculated from 2 BUREAU OF THE CENSUS, supra note 11, tbl.Y308-317, at 1103. As in prior periods the largest numbers of new employees were in the Post Office Department, but other parts of the executive establishment grew at a comparable rate.
376. WHITE, supra note 73, at 387.
377. SKOWRONEK, supra note 42, at 82.
378. Id. at 149.
379. LOWI, supra note 7, at 78.
380. On the signal success of the Department of Agricultural in building a bureaucratic system largely immune from political control, see CARPENTER, supra note 116, at 179-325.
381. See SHORT, supra note 12; WHITE, supra note 73.
382. 1 GOODNOW, COMPARATIVE ADMINISTRATIVE LAW, supra note 44, at 6-9
383. Id. at 7.
384. Id. at 8-9.
385. Id. at 8.
386. GOODNOW, PRINCIPLES OF ADMINISTRATIVE LAW, supra note 44, at 371-72. 394. WYMAN, supra note 44.
387. J. RES. 27, 38th Cong., 13 Stat. 571 (2d Sess. 1865).
388. LOWI, supra note 7, at 77.
389. See supra notes 99-107.
390. Act of Mar. 3, 1873, ch. 258, 17 Stat. 598.
391. JAMES FORD RHODES, HISTORY OF THE UNITED STATES FROM THE COMPROMISE OF 1850, at 265-66 (1919).
392. WHITE, supra note 73, at 392.
393. See GOODNOW, COMPARATIVE ADMINISTRATIVE LAW, supra note 44, at 62-70.
394. Or perhaps, once again, we are looking in the wrong places. In a recent paper, James Pfander and Jonathan Hunt investigate the private bill practice in antebellum America. James E. Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic (2009) (unpublished manuscript, on file with the author). They find that Congress routinely enacted private bills to compensate officers who had been held liable for illegal acts, but who had acted reasonably or in accordance with their instructions from superiors. Moreover, Congress also compensated parties who were unable to sue the offending officer because the officer was absent or insolvent. Id. at 29. Hence, on their interpretation, the doctrine of sovereign immunity and of official common law liability, operated not to deny inquiry into the reasonableness of government action, but to put that inquiry in the hands of Congress. See id. at 5-6. And in the halls of Congress these matters were handled by specialized committees that built up precedent and deployed it in a quasi-judicial fashion. Id. at 15, 24 n.122. Hence, to some degree, the familiar reasonableness review in contemporary American administrative law was, while missing from nineteenth-century judicial review, firmly ensconced in another institution.
395. 194 U.S. 497 (1904)
396. Id. at 508-09.
397. 96 U.S. 97 (1877).
398. Id. at 103-04.
399. Opinions of the Attorneys General first became generally available in 1840. On the development of the advisory functions of the Attorney General, see HOMER CUMMINGS & CARL MCFARLAND, FEDERAL JUSTICE: CHAPTERS IN THE HISTORY OF JUSTICE AND THE FEDERAL EXECUTIVE 78-92 (1937).
400. See JERRY L. MASHAW, RICHARD A. MERRILL & PETER SHANE, ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM 150-68 (6th ed. 2009).
401. See WYMAN, supra note 44, at 342-56.
402. Letter from President Thomas Jefferson to Governor Charles Pinckney (July 18, 1808), in 12 THE WRITINGS OF THOMAS JEFFERSON 102 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905).
403. See, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976); Richardson v. Perales, 402 U.S. 389 (1971).
404. ATT'Y GEN.'S COMM. ON ADMIN. PROCEDURE, FINAL REPORT OF THE ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE (1941).
405. For a flavor of the global administrative law scholarship referred to here, see Sabino Cassese, Administrative Law Without the State: The Challenge of Global Regulation, 37 N.Y.U. J. INT'L L. & POL. 663 (2005); Daniel C. Esty, Good Governance at the Supranational Scale? Globalizing Administrative Law, 115 YALE L.J. 1490 (2006); Benedict Kingsbury, The Administrative Law Frontier in Global Governance, 99 AM. SOC'Y INT'L L. PROC. 143 (2005); and Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, LAW & CONTEMP. PROBS., Summer/Autumn 2005, at 15.
406. 397 U.S. 254 (1970).
407. See generally JERRY L. MASHAW, DUE PROCESS IN THE ADMINISTRATIVE STATE (1985) (arguing for a "dignitary theory" of due process).
408. 424 U.S. 319 (1976).
409. Id. at 349.
410. For a similar lament, see Elizabeth Magill, Foreword: Agency Self-Regulation, 77 GEO. WASH. L. REV. 859, 861 (2009), stating that "[T]he aim of this Article is to create the category of self-regulation and to persuade students of the administrative state that it has been a mistake to ignore it."
411. See supra notes 389-393 and accompanying text.
412. Benedict Kingsbury, The Concept of "Law" in Global Administrative Law, 20 EUR. J. INT'L L. 23 (2009).
413. Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 HARV. L. REV. 1791 (2009).