The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law

• Published in: Michigan law review Vol. 106; no. 3; pp. 399 - 441
• Main Author: Schiller, Reuel E.
• Format: Journal Article
• Language: English
• Published: Ann Arbor Michigan Law Review Association 01-12-2007
• Subjects: Administrative agencies; Administrative courts; Administrative law; Administrative procedure; Constitutional history; Corporations; Customer services; Decision making; Economic policy; Evaluation; Government agencies; Great Depression; Innovations; Judicial power; Judicial review; Judicial review of administrative acts; Judicial system; Judiciary; Laws, regulations and rules; New Deal; Policy making; Public administration; Public welfare; Separation of powers; Specialized committees; State court decisions; Supreme Court decisions; Tribunals & commissions; Valuation; Welfare; UNITED STATES; United States > US
• ISSN: 0026-2234; 1939-8557

The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal--era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt's appointees to the federal bench changed administrative law so as to dramatically diminish the role of the judiciary in the administrative process. The New Dealers espoused what I will call a "prescriptive" vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model of judicial deference that would be both emulated and reacted against as administrative law developed during the rest of the twentieth century.