Thursday, November 5, 2015

ASLH Panel Recap: The Administrative State at the Grassroots

[Smita Ghosh, JD, Class of 2014, and PhD Candidate, American Legal History, at the University of Pennsylvania, has provided us with a recap of a second ASLH panel, "The Administrative State at the Grassroots."  The panelists were (1) Eric L. Muller, the Dan K. Moore Distinguished Professor in Jurisprudence at the University of North Carolina School of Law; (2) Sarah Milov, an assistant professor in the Corcoran Department of History at the University of Virginia; and (3) Joanna Grisinger, Associate Professor of Instruction and Director of Undergraduate Studies in the Center for Legal Studies at Northwestern University.  I chaired and commented.  Here is Ms. Ghosh’s report.  The text of my comment and an addendum follow after the jump.]

Eric Muller’s “Looking at Japanese American Imprisonment through a Law Office Window” is a microhistory of legal contests at a Japanese internment site in Wyoming.  Project Attorneys for the War Relocation Agency (WRA), who acted as all-purpose lawyers in Japanese internment camps.  They served as representatives for camp directors and internee organizations, and also gave legal aid to particular detainees in low-level disputes.  While historians have seen these officers as embodiments of the government’s exclusionary impulse--”assimilationists” at best, abusive racists at worst--this paper found more nuanced story.  Project Attorneys often ignored explicit directives from Washington in order to accommodate the desires of detainees.  At one point, a cuckolded man assaulted another detainee who had been sleeping with his wife.  Officials in Washington, who monitored the attorneys in weekly correspondence, urged the Project Attorney to contact state officials to press charges.  But the attorney pushed back, convinced by the perception among the detainee “community” that the assault was justified.  In the end, the lawyer handled the case in house,  suggesting the negotiability of legal practices on the ground. 

In Sarah Milov’s paper, “Clearing the Air: Shimp v. New Jersey Bell and the Strange Politics of Workplace Smoking,” the original sin is not imprisonment but a little secondhand smoke.  The protagonist is an aggrieved plaintiff, rather than a government lawyer, but processes are similarly negotiable (we are, after all, in the grassroots).  The paper focuses on Donna Shimp, an employee of Bell Telephone who developed serious health problems after working in a smoke-filled office in the early 1970s. When Bell was unresponsive to her complaints--instead putting her on unpaid leave--Shemp became an anti-smoking activist.  She drew from a set of newly available resources to develop her complaints: agencies like the EPA and OSHA and their state counterparts, as well as newly formed anti-smoking advocacy groups.  Eventually, she sued the company in state court with the help of a Rutgers Law professor and his employment law clinic.  The suit pitted Shimp against her union, which had only ten years before earned its members the right to smoke at work.  After winning an injunction against Bell, Shimp developed a non-profit consulting company to help non-smokers advocate for similar changes on the job.  Despite the success of the suit, Shimp’s work focused on the bottom-line (and, as someone mentioned in Q&A, a gendered language about protection).  Employers of tobacco-toting TAs should take note: Smokers waste 2-10% of the workday on cigarette breaks. 

Joanna Grisinger’s paper, “‘The self-containment of the bureaucracy’: The Civil Aeronautics Board and the Right to Participate,” offered a grassroots-level view of public participation in agency processes.  The agency in question is the Civil Aeronautics Board, which was empowered to both regulate and promote the American airline industry.  This dual mandate made the liberal public participation provisions of the CAB’s statutory mandate fairly hollow. The agency rarely took the public’s input very seriously.  Instead, it was overwhelmed by public complaints, captured by greedy airlines and distracted by their orders to boost the industry.  But activists were still moved by the power of participation.  Activists interested in civil rights, environmentalism and dismantling Apartheid all complained to the Board in one way or another.  In this way, as Dan Ernst noted in his comments, Grisinger showed the optimistic tone of the early participation movement.

In his comments, Ernst reflected on his own work on the NRA in the 1930s and ’40s.  From this vantage point, he was able to assess the changing nature of administration  over the years.  In Ernst’s era, it was agencies that made the more “adventurous” legal arguments towards hostile and conservative courts. But by the 1970s things were different: Courts--like the NJ Superior Court in Shimp--were at the forefront of legal change, while agencies were slow to act, perhaps desiring political cover.  It was an apt time for Ernst's New Deal era film reference: We weren't in Kansas anymore.

[My comment and an addendum prompted by the Q&A appear after the jump.]

Well, by now I hope you’ve all spotted the irony of this session.  Here we are, just about as inside-the-Beltway as it’s possible for an academic conference to get, and we have a panel entitled “The Administrative State at the Grassroots.”  In fact, the panel could as easily have been entitled “Friends in High Places or the Lack Thereof: Public Officials and the American State, 1942 to 1976.”  But that would not have been any more accurate.  One reason why these papers are so useful as a report on the collective work-in-progress that is the history of governance in the United States since the New Deal is that it lets us see how private individuals, social groups, and street-level bureaucrats interacted with the Washington officialdom–both the Grassroots and the High Places.  Figuring out how to keep both in the same frame is perhaps the top item on the field’s research agenda, now that we are getting a critical mass of book and articles on the administrative state, some by scholars whose historical imaginations are fired by social theory, social movements, and other social history and some by scholars who are intrigued more by the political history of administrators, legislators, presidents and other executive officials, by American political development, and other varieties of political science. 

The papers also help with three other items on the field’s research agenda.  First, to what extent were courts and agencies allies–“collaborative instrumentalities of justice,” in Felix Frankfurter’s phrase–and to what extent were they rivals after the mid-century expansion of the federal administrative state?  Second, what part did administrative agencies play in the emergence of the new politics of the 1970s, once organized labor no longer provided the vanguard of reform”?  Third, what was lawyers ‘s role within federal bureaucracies, especially when judicial review of their administrators’ actions was pretty unlikely?

It happens that I read these papers after being immersed for some time in an earlier interlude in the federal administrative state, the National Recovery Administration (NRA) of 1933-35.  In effect, I’ve been present at the creation of the legal-political regime that went to war in Professor Muller’s paper and is coming or has come undone in Professor Milov’s and Professor Grisinger’s.  When I read Professor Muller’s paper, I still felt I had my bearings.  After reading Professor Milov’s and Professor Grisinger’s, it was hard for me not to look around in wonderment and say, with Dorothy Gale, “Toto, I’ve a feeling we’re not in Kansas anymore.”

Because understanding my bewilderment might help with periodizing the twentieth-century history of the administrative state, I’m going to say just a few words about the NRA.  Its codes of fair competition were created out of bargains in which representatives of industry agreed to wage, hour, and collective bargaining provisions in exchange for as much price and production controls as they could get away with.  Although it especially appealed to industrialists and trade unions, at NRA’s start, institutional economists, especially the Brain Truster and Assistant Secretary of Agriculture Rexford Tugwell, also approved, thinking that properly constituted code authorities could end cutthroat competition that was impoverishing communities and also, they imagined, prevent excessive industrial concentration.

As would-be cartelizers gained the upper hand, NRA economists fought back.  NRA lawyers’ did, too, although, because of their professional role, they pitched their objections not as a matter of policy–which was the domain of their clients, the NRA’s administrators--but of law, the requirements of NRA’s organic act and of the Constitution.  The best the consumers’ internal advocates could do on their own was keep NRA’s price policy shifting and uncertain. Tugwell famously captured the lack of a popular consumer movement by calling the NRA’s consumer advocates “spearheads without shafts.”

Some hoped that organized labor would champion the public interest.  Not too long into the New Deal, the rise of industrial unionism would inaugurate a long era of reform, but in its first days, whether labor would rise to the occasion was very much in doubt.  “I used to believe that labor would take the reins,” Charles E. Wyzanski, Jr., Solicitor of Labor, wrote to Frankfurter in September 1933, “but I have watched the timidity of Green and the limited vision of Lewis ... and I cannot see that even with the aid of Section 7A these leaders can triumph.  (It would be different if we had a dozen Hillmans.)”  [That’s AFL president William Green, UMW president John L. Lewis, and Amalgamated Clothing Workers president Sidney Hillman.  Section 7(a) was the collective bargaining provision of the National Industrial Recovery Act.]

The most effective resistance to price fixing came from the consumers’ friends in high places.  In Congress, these included William Borah, Gerald Nye, and the Senate’s other Progressive Republicans, whom Roosevelt wanted in his electoral and governing coalitions.  In the Cabinet, the consumers’ friends were Interior Secretary Harold Ickes, who, in his capacity as head of the Public Works Administration, complained about price fixing in the cement industry and Agriculture Secretary Henry Wallace, who charged NRA with undermining his mission to bring parity to farm and industrial prices.

With that preface, let’s start with Professor Milov’s paper and consider the view it provides of the grassroots-and-high-places problem.  Perhaps some of you, like me, found Donna Shimp to be a familiar figure in legal history, the lonely sufferer of injustice who, with the courage of her convictions, went to court to vindicate her rights.  At first, I was struck by the similarity of Shimp and the African American farm laborers in the 1940s that Risa Goluboff studied in The Lost Promise of Civil Rights in terms of Felstiner, Abel and Sarat’s naming, blaming and claiming article.  In Professor Goluboff’s telling, the workers understand their suffering as an injury, blame their employers, and make a claim upon the Department of Justice for relief.  At this point in her narrative, the perspective shifts to the official in high places, to the lawyers of the Civil Liberties Unit in the Department of Justice, who decide whether they can state the dispute as a legally cognizable claim. 

Well, Shimp named, blamed and claimed: her health problems were an injury and not simply the result of her hypersensitivity; she faulted her employer for not providing her with healthy conditions, and she demanded that New Jersey Bell must do something about it.  But at this point Milov's and Goluboff's stories depart significantly.  As a middle-class white in the 1970s on paid leave from New Jersey Bell as she learned how to sue it, she had far greater access to information and assistance than black agricultural laborers in the South in the 1940s, and she actively participated in finding a legal form into which to cast her dispute.

The administrative state also makes Shimp’s story different in two respects.  First, although ultimately the courts granted relief, Shimp had other fora than the courts in which to pursue her claim: (1) state and local agencies, who appeared to be more sympathetic to Shimp’s claim than to the Southern local officialdom glimpsed in Goluboff’s book; (2) arbitration based on a collective bargaining agreement under the New Deal-era National Labor Relations Act; and (3) two “new social regulation” agencies, the Environmental Protection Administration and the Occupational Safety and Health Administration (OSHA).  Second, she had friends in high places in the Surgeons General of the United States, whose reports seemed very influential in getting to see the status quo not as a state of nature in which smokers could smoke but as a Hohfeldian regime of privilege-no right–that is, a state of affairs in which Shimp’s coworkers were privileged to smoke and Shimp had no right to make them stop.  The public imprimatur of those reports on smoking evidently helped Judge Gruccio see this state of affairs as unnatural and transform it into a right-duty regime, one that obligated New Jersey Bell to provide her with a smoke-free environment without loss of status or pay.

Professor Milov’s paper is also something of a case study in the relationship between courts and agencies in the 1970s.  This aspect of her paper prompted one of my “we’re not in Kansas anymore” moments.  Back in Kansas–that is, the progressive and New Deal eras–agencies were adventurous in the cause of reform and courts were laggards.  Reformers counted on administrative agencies to boldly go where no court had gone before.  For example, although a majority of the Supreme Court didn’t always see it this way, the drafters of the Federal Trade Commission Act intended the FTC to squelch unfair methods of competition that weren’t actionable at common law.

But in the Oz of the 1970s, courts go where agencies fear to tread.  One famous example–at least, among people who teach property courses–is the implied warranty of habitability, which judges created to help tenants after housing departments were lax in their enforcement of the housing code.  Here OSHA, for reasons I can’t quite make out from Professor Milov’s paper, declines to recognize passive smoking as a health hazard.  The court then steps in.

Should we think of the New Jersey Superior Court as a rival of OSHA or a “collaborative instrumentalit[y] of justice"?  Professor Milov wonders whether New Jersey Bell invited Shimp to sue it; it seems the president of the local union dared her to.  I wonder whether the local health departments or perhaps even OSHA were more like Bell, inviting private litigation to create a more hospitable climate for anti-smoking regulation.

In time, reform’s judicial front came under heavy fire.  As I understand it, anti-smoking litigation in state courts never fell victim to federal preemption doctrine, which felled other tort suits brought by consumers.  And federal preemption was only one of an array of court-limiting measures that have been nicely chronicled in Sarah Staszak’s No Day in Court.

Finally, Professor Milov’s paper helps with the emergence of the new politics of the 1970s from an older politics inherited from the New Deal.  Again, you can imagine why a Kansan would be confused.  When last I saw organized labor the Hillmans, Reuthers, and social democratic reforms they championed were just over the horizon. With Professor Milov’s paper (and Reuel Schiller’s Forging Rivals, which she cites), it’s as if I leap-frogged clean over labor’s reform era and landed in a time where they were digging in against the demands of the civil rights and women’s movements and great society initiatives.

In labor’s place there is a kaleidoscope of spears and shaftless spearheads.  I spotted several non-profits: the voluntary health organizations; the anti-smoking groups ASH and GASP, and Shimp’s own Environmental Improvement Associates.  Law schools also got involved: Blumrosen’s seminar at Rutgers on using the courts to address OSHA’s shortcomings, and John Banzhaf’s Legal Activism course at George Washington and his creation of ASH.

I found myself wanting an even better view of the politics, one that drew more extensively on the political and policy history of the Seventies.  What political forces–besides, presumably, tobacco-state Senators–made OSHA so balky?  How did the new groups escape the forces that tied up or down the agencies?  And even in their successes, can we glimpse the “intractable fractiousness” that Hugh Heclo has described as the reform legacy of the 1970s.

Now, when I said I still had my bearings after reading Professor Muller’s paper, I don’t want to suggest that the project attorney looked just like your average denizen of a New Deal legal division.  They only wore one of the Project Attorney’s hats–that of the government lawyer, advising his or her administrator-client.  As one of Professor Muller’s sources put it, Project Attorneys were also “city attorneys” and “private attorneys” to as many of 17,000 prisoners.  It is amazing to think how those combined roles could be performed in what was “in effect a solo law practice in a couple of rooms in the camp’s administrative barracks.”

But I did see in the WRA Solicitor’s attempt to wield the Project Attorneys into a distinct force within the WRA bureaucracy, paralleling a hierarchy of administrators all the way down and out to the camps, reporting ultimately vertically to him and not horizontally to the Camp Director, was common in New Deal legal divisions, whether Donald Richberg’s NRA, Jerome Frank’s AAA, John Burns’s SEC, or Randolph Paul’s reorganization of Treasury’s Legal Division to have the Solicitor of Internal Revenue report vertically to the department’s top lawyer rather than horizontally to the Commissioner of Internal Revenue.

The general counsels of New Deal legal divisions could instill an esprit d’corps in face-to-face exchanges, countless memos, and en masse harangues in, say the enormous auditorium of the Commerce Department.  The WRA’s solicitor had to make due with a series of round-robins capturing and sharing the experiences of Project Attorneys.  Letters from home strike me as a nice try, under the circumstances, but I doubt it did the trick for lawyers in such distant and lonely places as Heart Mountain.

My approach to Professor Muller’s Project Attorneys from the company of New Deal lawyers also made me wonder about the nature of the authority they exerted and now they distinguished between “law”–the government lawyer’s domain–and “policy”–the administrator’s.  New Deal lawyers invoked statutes and the Constitution to explain why their administrators should do or not do something.  Could Project Attorneys similarly argue that administrators’ actions were ultra vires some executive order or statute?  How did they wield what Professor Muller calls “the administrative law of incarceration ... the enormous body of rules that governed the day-to-day operation of the camps and the day-to-day lives of both the inmates and employees of the [WRA].”  And why was it the job of Heart Mountain’s Project Attorney to decide whether Nissi should sit on the camp’s “community council”?  Why was that not a matter of policy for its top administrator to determine?

The dithering within WRA over whether Nissi should hold elective office also made me wonder about whether “Friends in High Places” were at work.  Recall that the Cabinet members Ickes and Wallace helped keep NRA’s price policy unsettled.  From Harry and Jane Scheiber’s monographic article on martial law in Hawaii, "Bayonets in Paradise," we know that Ickes was also a burr under the saddle of the island territory’s military overseers.  Was some political force external to WRA at work in this policy or was the disagreement internal between pragmatists like the Heart Mountain Project Attorney and those sensitive to “public opinion” (or at least its congressional embodiment)?

Professor Grisinger's paper on “the right to participate” at the Civil Aeronautics Board (CAB) from its founding in 1940 into the 1970s suggests one way–I expect there will be many, as the field evolves–to place grassroots and high places in the same historical frame.  Professor Grisinger perspective is downward and outward from the CAB license proceedings to its participants and interveners.  Because, as Professor Grisinger said, the CAB quickly became the gold standard for captured agencies, to the despair of such dedicated regulators as James Landis and Louis Hector, it has been easy to miss the New Dealers' democratic aspirations for their agencies.  Walter Gellhorn of the Columbia Law School, after serving as research director of the Attorney General’s Committee on Administrative Procedure, noted the complaint of a senator that “the tendency to increase and enlarge bureaucracy at Washington . . . is another attempt to remove the Government from the people” but was not convinced.  “Administrative agencies can and very frequently do democratize our governmental processes,” he wrote in 1941.  “They can and do bring to the interests and individuals immediately affected an opportunity to shape the course of regulation, modeling it to fit the contours of their own special problems.”

Professor Grisinger provided a guide to understanding what happened next in her own comment on a panel on the previous day of the meeting: “independent commissions were not outside the political realm, just differently situated within it.”  Law was not much of a barrier: the CAB’s rules on intervention and participation were quite generous.  Politics was.  Before the civil rights, consumer, and environmental movements who saw in the regulatory commissions potentially promising fora for pressing their causes, collective action problems (such as free riders) kept consumers of air travel, who paid the distributed costs of cost-plus pricing, from organizing.  The airlines and airline unions, who enjoyed the concentrated benefits of price-and-entry regulation, got what they wanted.  The particularistic logic of political parties kept one potential set of friends in high places, congressmen and -women, from uniting behind price competition.

As Professor Grisinger extends and revises her paper, I expect she will draw even more expressly upon the political history of the Sixties and Seventies in explaining why a new set of spears and shaftless spearheads descended on the CAB and what happened when they did.  The pre-conference version of the paper Professor Grisinger circulated developed the point for civil rights advocates seeking to integrate airports and anti-apartheid activists who, well before their cause won much popular recognition, saw in the CAB’s approval of a South African Airlines route to Johannesburg a chance to highlight the United States’ complicity in apartheid when presidents and the State Department would have preferred them to keep quiet.  But because of changes within Congress, they found a new friend in the chair of the Subcommittee on Africa of the House Committee on Foreign Affairs and such of its liberal members as John C. Culver (a hallowed name for an Iowan like me, especially in these benighted times).  At the meeting, Professor Grisinger also discussed environmentalists, who had a new friend in high places in the EPA.  Finally,  I wondered, in light of Shimp’s unhappy experience with the CWA and AFL-CIO, what stance, if any, the airline unions took on these interventions.

Members of the audience made their own helpful contributions to the panel.  Professor Sam Erman’s invitation to have the papergivers comment on the different roles lawyers played in their papers was particularly fruitful.  The resulting discussion, including another audience member’s observation that many lawyers, such as his father, a Regional Price Attorney for the Office of Price Administration, worked in wartime agencies less to advance political beliefs than to do their part when they couldn’t wear the uniform, made me wonder whether I had potentially wrong-footed Professor Muller by suggesting that he envision the Project Attorneys wearing their government lawyer hat, the one that made them most resemble New Deal lawyers.  The city attorney hat might have fitted them better.  I was reminded not only of another OPA lawyer but also of my father’s generation of lawyers more-or-less running my hometown in casual exchanges over lunch in a greasy spoon in the basement of an office building in Dubuque, Iowa.


Shag from Brookline said...

Dan, when I came to this in Smita's comments:

"In his comments, Ernst reflected on his own work on the NRA in the 1930s and ’40s. "

I said to myself Dan isn't old enough. But of course Smita was referring to your academic work - or not?

Dan Ernst said...

That's right, Shag: although I work ON the past, I don't work IN it. I mentioned some things I had learned form my book-in-progress on New Deal lawyers.