The Yale Law Journal

April 2018

Petitioning and the Making of the Administrative State

Administrative LawLegal History

abstract. The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state within our constitutional framework. Nor have the lawmaking models of classic legal process theory, on which much of our public law rests, captured the nuanced democratic function of these commissions, boards, and agencies.

This Article takes a different tack. It begins with an institutional history of the petition process, drawn from an original database of over 500,000 petitions submitted to Congress from the Founding until 1950 and previously unpublished archival materials from the First Congress. Historically, the petition process was the primary infrastructure by which individuals and minorities participated in the lawmaking process. It was a formal process that more closely resembled litigation in a court than the tool of mass politics that petitioning has become today. The petition process performed an important democratic function in that it afforded a mechanism of representation for the politically powerless, including the unenfranchised. Much of what we now call the modern “administrative state” grew out of the petition process in Congress. This Article offers three case studies to track that outgrowth: the development of the Court of Claims, the Bureau of Pensions, and the Interstate Commerce Commission. These case studies supplement dynamics identified previously in the historical literature and highlight the integral role played by petitioning in the early administrative state—a role unrecognized in most institutional histories. Rather than simply historical, this excavation of the petition process is distinctly legal in that it aims to name the petition process and to connect it with the theory and law that structure the practice.

Excavating the historical roots of these myriad commissions, boards, and agencies in the petition process provides a deeper functional and textual understanding of the administrative state within our constitutional framework. First, it highlights the function of the administrative state in facilitating the participation of individuals and minorities in lawmaking. By providing a mechanism of representation for individuals and minorities, the “participatory state” serves as an important supplement to the majoritarian mechanism of the vote. Second, it offers new historical context against which to read the text of Article I and the First Amendment. This new interpretation could begin to calm discomfort, at least in part, held by textualists and originalists with regard to the administrative state. Lastly, this Article offers a few examples to illustrate how this new interpretation could provide helpful structure to our administrative law doctrine. With its concern over procedural due process rights, administrative law largely reflects the quasi-due process protections offered by the Petition Clause. This Article explores two areas where the Petition Clause could direct a different doctrinal result, arguing for a stronger procedural due process right for petitioners of the administrative state than that offered by Mathews v. Eldridge and arguing against the Supreme Court’s decision in INS v. Chadha holding the legislative veto unconstitutional.

author. (Fond du Lac Band of Lake Superior Ojibwe) Assistant Professor, University of Pennsylvania Law School. I owe a great debt to my Co-Principal Investigator, Dan Carpenter, and the research team who together created the Congressional Petitions Database: Benjamin Schneer, Tobias Resch, Joseph Breen, Justin Connor, Jonathan Hansen, Caroline Lauer, Sarah Murphy, Jesse Shelburne, and Jason St. John. I am deeply grateful for their brilliance and ingenuity over the last three years, and grateful that they took a chance on a Harvard fellow with a novel idea. Harvard Law School, the Ash Center for Democratic Governance, and the Radcliffe Institute for Academic Ventures provided generous, and much needed, support. For close reads, critical insights, and helpful sug-gestions, my thanks to Bruce Ackerman, Janet Alexander, Ian Ayres, Shyam Balganesh, Jack Balkin, Stephanos Bibas, Cary Coglianese, Glenn Cohen, Phil Deloria, Chris Desan, Yaseen Eldik, Einer Elhauge, Bill Eskridge, Dick Fallon, Noah Feldman, Matthew Fletcher, Charles Fried, Gary Gerstle, Abbe Gluck, John Goldberg, Sally Gordon, Jamey Harris, Lawrence Lessig, Ken Mack, Serena Mayeri, Bill Novak, Karen Orren, Nick Parrillo, Juan Perea, Robert Post, Daphna Renan, Dorothy Roberts, Susan Rose-Ackerman, Bill Rubenstein, David Schleicher, Rebecca Scott, Daniel Sharfstein, Wenona Singel, Joe Singer, Ganesh Sitaraman, Stephen Skowronek, Henry Smith, Kevin Stack, Karen Tani, Alexander Tsesis, Adrian Vermeule, Jim Whitman, Michael Wishnie, Tobias Wolff, and Andrew Yaphe. Like language, ideas are not cultivated in isolation. For ongoing discussions and support, my thanks to Greg Ablavsky, Monica Bell, Dan Carpenter, Guy-Uriel Charles, Ryan Doerfler, Laura Edwards, Heather Gerken, Naomi Lamoreaux, Sophia Lee, John Manning, Martha Minow, and Ben Schneer. Ned Blackhawk, nimiigwichiwendam endaso-giizhik maamawi, ninimoshe. Chi-miigwech nimaamaa gi-mashkawizii. This manuscript benefited from numerous faculty workshops, and I am grateful to each for their hospitality. These ideas were also tempered through discussion and occasionally heated debate at the Tobin Project’s conference on the History of American Democracy, USC’s Political Economy and Public Law Conference, and the “Friday Seminar” at Penn’s McNeil Center for Early American Studies. I am endlessly grateful to the editorial team at the Yale Law Journal—led by Leslie Arffa, R. Henry Weaver, Kyle Edwards, and Arjun Ramamurti—for their expertise and thoughtfulness in ushering this piece to publication. James Pollack and the late, great Justin Hamano provided discerning research assistance. As always, belying this wealth of support, mistakes remain and remain my own.