Monday, November 16, 2015

Grisinger reviews Cuellar, "Administrative War"

Writing for JOTWELL's legal history section, Joanna Grisinger (Northwestern University) has posted an admiring review of "Administrative War," by the honorable Mariano-Florentino Cuéllar (California Supreme Court/Stanford Law School). The article appeared in volume 82 of the George Washington Law Review (2014). Here's a taste of Grisinger's review:
Cuéllar describes how pre-World War II agencies were hamstrung by limited powers and limited resources, limits which soon became impractical. World War II changed the political and economic context in which agencies operated, opening the door to legal changes that strengthened the agencies. Mobilization for war required greater administrative capacity, which in turn required more money to pay for agency operations. In response, federal courts expanded agencies’ subpoena powers, which markedly improved agencies’ ability to investigate. Courts also moved from a formalist understanding of the non-delegation doctrine (Schechter) to a functionalist one (Yakus) that legitimated broad congressional delegations of authority to agencies. And Congress enabled mass taxation to pay for expanded administration. (Funding is key to any discussion of administrative capacity; a chart in Cuéllar’s appendix showing the increase in federal employees during the war make this clear.) By giving agencies the tools they needed to endure, Cuéllar argues, wartime actors embedded administrative governance in American political life.
Also recently spotlighted in JOTWELL: Nicholas Bagley's "Medicine as a Public Calling," which encourages lawyers and policymakers to consider historical paths and precedents as they make sense of the world that the Affordable Care Act has wrought.