McKinley on Petitioning and the Administrative State

Maggie McKinley, University of Pennsylvania Law School, has posted Petitioning and the Making of the Administrative State, which is forthcoming in the Yale Law Journal:

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from an original database of over 500,000 petitions submitted to Congress from the Founding until 1950 and previously unpublished archival materials from the First Congress.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.

H/t: Legal Theory Blog