Notice & Comment

Vermeule on Cuellar on Administrative Wars (AdLaw Bridge Series)

Last month over at Jotwell, Adrian Vermeule reviewed Administrative War by then-Stanford Law Professor and now-California Supreme Court Justice Tino Cuellar. Justice Cuellar’s article was published in the George Washington Law Review in 2014. Indeed, it was the foreword to the Law Review’s annual administrative law issue, which also included, among others, an article of mine on administrative law’s ordinary remand rule. Check out the full issue here.

Here’s a summary of the article from the abstract:

This Article takes up an issue with major implications for American administrative law, political development, and security studies: what happened to the American administrative state during and immediately after World War II, and what were the consequences of this period? As the Roosevelt Administration rushed to align domestic affairs with American geostrategic priorities at the outset of World War II, it confronted a host of now largely forgotten legal and organizational challenges. These ranged from a federal income tax base that encompassed less than ten percent of the labor force to unresolved legal questions about the scope of agencies’ power to issue subpoenas. For policymakers, organized interests, and the public, these challenges created uncertainty about the success of mobilization and the scale of the changes that the Administration would pursue. In response, the Administration and its legislative supporters made strategic choices to expand the administrative state without pursuing direct public control of industry. They created agencies such as the War Production Board, the Office of Price Administration, and the Office of Economic Stabilization. Within a few years, these organizations became part of a broader structure for legally sanctioned agency action that facilitated price regulation and consumer rationing, mass taxation on an unprecedented scale, and industrial mobilization and coordination.

By 1944, the American economy was producing forty percent of the world’s armaments, and by 1945, the United States was the wealthiest society in history. Americans had witnessed an evolutionary transformation of their administrative state — involving greater exposure among the public to powerful, adaptive federal agencies of nationwide scope; newly permissive legal doctrines legitimizing the delegation of legislative authority and routine compliance investigations; new arrangements for mass taxation; White House supervision of agency action; and further entrenchment of procedural constraints meant to shape agencies’ weighing of the consequences of official decisions. The resulting framework was defined by high-capacity regulatory agencies and contractual arrangements, but it was also subject to political, ideological, and legal constraints. It reflected an avoidance of radical changes in the American political economy in favor of a circumscribed vision of administrative action relative to private markets. With these features in place, the federal administrative state became a fixture of American life.

Entitled Leviathan Had a Good War, Professor Vemeule’s Jotwell review—as one would expect from anything written by Vermeule—is a really fun read. Here’s a taste of the review:

Some readers value an article for logical rigor, some for sound judgment, some for immediate utility, some for originality, and so on into N dimensions. (We may value more than one dimension, of course, but not “all of the above,” because the desirable traits may trade off against one another, at a frontier; no one piece can display all of them simultaneously and to a maximum degree). The peculiar excellence of richness is on display in Administrative War by Tino Cuellar, formerly of Stanford, now molted into a higher form of life as Justice Cuellar of the California Supreme Court. Cuellar recounts the history of the administrative state during the Second World War, and connects it to the surrounding political conflicts and developments in legal theory. There is no single thesis, no one-sentence nugget. Rather we are treated to a kind of legal-historical cornucopia. Cuellar’s story undermines conventional wisdom on a number of critical issues in administrative law. Let me attempt to lay out some of the wealth of interesting points that emerge.

I may be a bit biased as Professor Cuellar taught me administrative law (and criminal law) in law school, and has been a tireless mentor ever since. But this is a terrific article, and his historical work on the administrative state—including his must-read book Governing Security—has helped us better understand the rise of the twentieth-century regulatory state. Although I’m proud that he has been appointed to the California Supreme Court, his ongoing contributions to the legal academy are sorely missed.


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