‘Judicializing’ the administrative state refers primarily to the extent to which public administrative agencies rely on adjudication as a means of decision making in enforcement, eligibility, and other court-like adversarial proceedings as well as in policymaking. In this deeply researched volume, Professor Okayama contends that ‘American [federal level] administrative agencies have been judicialized to a degree unexperienced elsewhere in the world’ (6) and convincingly explains why and how by focusing on the initial development and subsequent status of independent regulatory commissions (IRCs) in the national government. The ‘book's primary contribution is to the study of American political development’ (6). However, its rich, detailed analysis of the judicialization will also be of great interest to scholars, researchers, and students in public administration and administrative law.
The sustained development of IRCs began in the 1880s with the establishment of the federal Civil Service Commission (1883) and especially the Interstate Commerce Commission (1887) (ICC), which served as a model for several IRCs that followed. IRCs like the ICC, the Federal Trade Commission (1914), Securities and Exchange Commission (1934), and the Federal Communications Commission (1934), do not fit easily into the U.S. constitutional separation of powers. ‘Executivists’ contend that they should be firmly anchored in the executive branch while ‘judicialists’ have viewed them as courts. For others they might even be considered extensions of Congress. In practice, they combine executive, legislative, and judicial functions and have consequently become subordinate to all three constitutional branches.
One explanation for the IRCs use of adjudicatory procedures is that, informed by common law, the law profession and courts demanded that they do so. Another is that public administrative thought in the post-Civil War and Progressive periods (late 1860s-mid-1920s) asserted that mixing politics (partisan, electoral, and policy formulation) with administration is a prescription for inefficiency, which was considered a defining quality of bad administration. Conceptualizing IRCs as courts or independent agencies outside the executive branch and, therefore, beyond ordinary presidential influence or control satisfied these legalistic and administrative concerns. To these standard explanations Okayama adds separation of powers dynamics and a widely shared public interest in ensuring ‘fairness-oriented’ (7) administration.
Noting that fairness can compromise efficiency, Okayama proceeds to explain how the separation of powers drove the independence of IRCs and concern for fairness promoted adjudicatory procedures in the development of IRCs. In chapter one, Okayama defines ‘judiciality’ as ‘institutionalized autonomy of agency members from elected public officials, especially the president, and formal, courtlike procedures usually featuring adversarial settings, cross-examination of witnesses, and the taking of full records’ (11). He views ‘state judicialization primarily as a political process driven by Congress trying to regulate in accordance with the constitutional system, with the judiciary playing the role of legitimizing the courtlike public administration it created’ (24). The president and those who followed Alexander Hamilton in believing that unity of command is required for successful administration were far from sanguine with the federal government's reliance on IRCs. Ultimately, though, it is the ‘tradeoff between efficiency and fairness’ rather than the separation of powers alone, ‘that makes the judicialist state vision a meaningful alternative to the Weberian, executivist one’ (32).
Institutionalization of judicialization occurred in three phases. First, from 1887 to 1910, ‘the idea of courtlike public administration and the judicialist state emerged in the form of the ICC and came to enjoy widespread support’ (34). During the second phase, beginning in Woodrow Wilson's administration (1913–1921) and continuing into the mid-1920s, presidents ‘eager to realize their policy goals and executive departments in fear of losing their turf became more hostile to the creation of new commissions’ (35). In the third phase, IRCs ‘made a comeback … and became fully established by the mid-1930s’ (35). The next four chapters deal with each of these phases.
Chapter two focuses on the ‘judicial roots’ (39) and legislative-political development of the ICC. Chapter three analyzes continued judicialization in the form of the Federal Reserve Board. Chapter four addresses ‘retrenching administrative commissions’ accompanied by ‘expanding state judiciality’ (89). Chapter five focuses on ‘institutional consolidation of the IRCs’ (116). It presents a detailed analysis of the impact of the Supreme Court's decision in Humphrey's Executor v. United States (1935) on President Franklin D. Roosevelt's discomfort with IRCs and the work of his President's Committee on Administrative Management (PCAM, also known as the Brownlow Report after its chairperson, Louis Brownlow). Both the president and the committee believed that IRCs ‘were inefficient and obstructed consistency of public policy because of their unaccountability to the president’ (122). The PCAM's proposed solution – folding IRC's ‘into executive departments in charge of relevant policy domains’ (122) touched off substantial resistance, including within Congress. Notwithstanding additional Rooseveltian efforts, such IRC reorganization was never implemented. Okayama takes this failure to be the ‘clearest reminder that ACs [administrative commissions] were considered superior adjudicators to executive departments’(141).
The concluding chapter provides an overview of how ‘America's judicialized administrative state organized around IRCs making through policy through formal adjudication’ became a phenomenon of ‘the past’ (151). Nevertheless, although ‘the American administrative state has taken a decidedly executivist turn since the New deal, … it has not become a Weberian state’ because it still relies heavily on administrative adjudication by administrative law judges and other adjudicators in the federal government's ‘hidden judiciary’ (153).
The Judicialization of the Administrative State is an outstandingly important book that adds new dimensions to our understanding of U.S. administrative history. Its main limitation in Okayama's view is that it focuses on the IRC's ‘adjudicatory functions’ while largely ignoring their ‘investigation and policy-related research’ (7–8). In so doing, it tends to isolate adjudication from the larger administrative contexts in which it takes place. Additionally, one could quibble with Okayama's treatment of some secondary sources in terms of interpretation and attribution of shortcomings. Much of this literature is complex, nuanced, and even tentative, thereby resisting brief characterization. Nonetheless, Okayama clearly and succinctly brings together major new insight and convincing analysis to provide fuller appreciation of IRCs’ fundamental contributions to U.S. federal administrative development.
