There persists a form and pattern of bureaucratic government in the United States that eludes the political scientist’s eye. Adjudication in agency decision making, not merely in enforcement but in the common-law-like concatenation of regulatory principles, makes up an immense part of what US agencies do. In the domain of rulemaking, too, an implicitly adversarial process embedded in notice-and-comment procedures, often closely monitored by courts, imparts judicial spirit and form to the production of regulations.

In ways that would hardly have surprised Max Weber, law and bureaucratization ran together in the early twentieth century. That co-evolution of administrative form and judicial puzzlement about agencies profoundly marked the state we have today. The departure from the Weberian framework is that the legal and administrative forms embedded a particular concern for liberal notions of individual rights protected by procedural integrity. And this development defied Alexis de Tocqueville’s predictions that centralized government inevitably came at the expense of individual liberty. Quite the opposite. The twentieth century administrative state embeds a host of legal protections – formal notice, administrative hearings, and comment requirements for new rules – for which both the nineteenth-century American citizen and the mid-century European citizen would have searched in vain when scouring their governments. This trenchant observation rests at the heart of a beautiful new reading of the Progressive and New Deal administrative state by Georgetown law professor Daniel Ernst.

Ernst organizes a study combining intellectual history, the analysis of statutes in formation, and the tracing of interactions between courts and agencies enforcing new laws. His careful studies of the wishes and writings of Ernst Freund, Felix Frankfurter, Charles Evans Hughes, Roscoe Pound and Jerome Frank, among others, compose the best demonstration yet produced of the influence of legal thinking on the developing American state. Ernst’s writing is cogent and reflects an ambitious empirical scholarship that draws upon a wealth of primary sources in legislation, administration, and jurisprudence.

The book begins with a moment of frustration and an intellectual battle. Ernst Freund wanted dearly to import a version of the Rechtstaat – Europe’s statute-based institutions for “city planning, social insurance, rural cooperatives” and other constraints upon capitalism – to America, but found himself frustrated by Progressive Era politics and by the resistance of none other than his long-time interlocutor Felix Frankfurter. Freund and Frankfurter diverged sharply on what counted as scientific and informative legal research, but their normative disagreement was perhaps more significant. Frankfurter trusted properly-constrained administrative discretion whereas Freund wanted formal rules.

The essential protagonist of the book becomes Charles Evans Hughes, who in his legal career and his eventual captainship of the Supreme Court carved out a space that resisted the most aggressive New Deal regulations but preserved space for strong agency leeway and quasi-judicial procedures. Perhaps most influentially, the jurisprudence of the Hughes Court induced a coterie of Roosevelt Administration lawyers to rethink the way they approached administrative design in their statute-writing. After the Securities Act of 1933 provided a model (by embedding provision of notice and hearing before any action halting the issuance of a security), Roosevelt lawyers, humbled by the Court’s 1935 decisions, designed the National Labor Relations Act (NLRA) to require the NLRB to turn to the Justice Department for prosecution after the Board established case facts. Although Ernst does not cover the case, the prosecutorial procedures of the Food and Drug Administration under the Food, Drug and Cosmetic Act of 1938 (FDCA) were developed with similar procedural constraints in mind. The Hughes’ Court’s jurisprudence appears in Ernst less as a volte face than as a puzzlement over which limits to place upon the administrative state that had, by 1938, been legitimated.

The legalistic administrative state fashioned by courts and agency lawyers would be challenged from the Left and the Right in the 1930s. The first challenge came in New York, where in 1938 the state’s voters rejected a constitutional amendment to subject agency decisions to “weight of evidence” review. This “antibureaucracy clause” attracted the interest and admiration of the New Deal’s fiercest critics. Soon thereafter, a more broadly based attack on New Deal agencies emerged from the American Bar Association (ABA). The ABA launched a Special Committee on Administrative Law, chaired after October 1937 by former Harvard Law School Dean Roscoe Pound, who feared that preformed opinions would be made legally binding in the new administrative government. As the Pound committee’s 1938 report was issued, the ABA attached to it a bill that became the Walter-Logan Bill, a measure that placed internal review boards inside the agencies in lieu of the agencies’ trial examiners. These proto-courts (and not the examiners) would engage in findings of fact, and appeal went from these boards to the agency head and only then to the courts. Agency proposed rules would be subject to review by the D.C. Circuit when any person was “substantially interested in the effects” of a rule. The courts could also interrogate agency discovery, as the bill offered a means for setting aside clearly erroneous factual findings. Pound’s diffident relationship to the bill did not stop New Deal supporters such as Jerome Frank and James Landis from attacking him as a friend of investors.

Roosevelt’s veto of the Walter-Logan bill, combined with New York’s rejection of the anti-bureaucracy clause, were soon followed by Roosevelt’s 1940 re-election and then Pearl Harbor. When the Second World War stilled the judicial and political tensions over administrative governance, “the entente between the courts and the agencies was still the one the Hughes Court had fashioned” (p. 7). Even Pound’s eventual endorsements did not diverge much from the Hughes’ Court’s settlement (p. 125). The administrative state had been judicialized, in ways strikingly dependent upon legal academics, agency lawyers, and the word games they played.

I am not particularly taken with the volume’s title, which conveys neither the interplay of judicial and administrative energies and forms, nor the essential fact that “Tocqueville’s nightmare” never materializes. Pressed to add some other items to the debit side of the evaluative ledger, I would offer two. The first is that certain aspects of the police and licensing power of the regulatory state were broadly sanctioned by the New Deal Court, not least in the Dotterweich decision (1943), authored by Frankfurter himself, that upheld criminal liability for those executives whose firms were found in violations of the FDCA. Given the breadth of licensing authorities and associated police powers in the New Deal regulatory regime, an important site of state power is missing from Ernst’s analysis. And while Ernst rightly notes that the Administrative Procedure Act of 1946 (APA) serves less as a bill of rights for bureaucratic government than as “a codification of the agencies’ own best practices for formal adjudication” (p. 137), he forfeits an opportunity to draw more granular connections between those practices and the kinds of reforms embedded in the APA.

Yet in reconceiving the transnational and comparative relationship between continental European legal models and American administration, and in rewriting the statutory and administrative histories of the twentieth century bureaucracy, Ernst achieves a remapping of the Progressive and New Deal transformations on the order of Skowronek’s Building a New American State (1982) or Scott James’ Presidents, Parties and the State (2000). Given the academic earthquakes set in motion by Skowronek, and the accolades rightly bestowed on James, this may seem like undue praise. Yet no scholar has so persuasively and studiously noted how the American state, in the crucible of its contested development, morphed incrementally and near-invisibly into court-like face and form. No future analysis of the development of American administrative government will credibly proceed without having taken stock of Ernst’s well-crafted study.