Monday, January 27, 2020

Emerson's "The Public's Law": An LHB Symposium

[The annual meeting of the American Society for Legal History last November included an author-meets-readers session on Blake Emerson’s The Public’s Law: Origins and Architecture of Progressive Democracy (Oxford University Press, 2019).  At it, I summarized the book.  Anne Kornhauser, Associate Professor in the History Department of the City College of New York and Associate Professor of History at the CUNY Graduate Center; and Noah Rosenblum, a Ph.D. candidate in history at Columbia University and a Program Affiliate Scholar at the NYU School of Law, provided comments, to which Emerson, Assistant Professor of Law at UCLA, responded.

[We will link to Kornhauser's revised and extended comment when it appears in the New Rambler Review.  This post is my summary of the book.  Rosenblum's comment and Emerson's response will appear in future posts.  DRE]

In Thinking Like Your Editor (2002), Susan Rabiner and Alfred Fortunato suggested a strategy for injecting narrative tension into serious nonfiction.  An author begins by describing some problem that has been bugging her and then explains that the book represents her search for an answer.  If the author does  that much properly, the reader will think, “You know, now that she mentions it, that problem has been bothering me, too.  I’m not exactly sure where her search would take me, but she seems to be a smart cookie who'll have interesting things to say along the way.  I’ll tag along and see whether she finds her answer.”  Narrative tension, then, is provided by the author’s search for an answer.

Emerson’s problem, speaking generally, is the political legitimacy of the administrative state in a democratic United States. The book resulting from his search for an answer has an introduction, a conclusion, and four chapters.  He uses three methodologies: (1) intellectual history (in Chapters 1 and 2); (2) institutional history (in Chapter 3); and (3) what Emerson calls “normative reconstruction” (in Chapter 4).  The answer he arrives at is a kind of bureaucracy that brings the people into the state, new forms of deliberative democratic control within administration itself."  The deliberation is not so much “formally equal, contracting persons” as “relational beings whose identities, interests, and values are formed in joint discourse and action.”  It is a relational state based on the belief that “the conditions of freedom” require that people actively determined the principles and policies by which they were bound.  The result is “the public’s law.”

In Chapter 1 Emerson starts his search in Germany.  In itself, that is not surprising: as Emerson writes, historically minded critics of the American administrative state have commonly assumed its builders used a blueprint from Max Weber’s blueprint to create purely instrumental, technocratic, efficiency-oriented agencies that appeared alien, inscrutable, and dominating to those who encountered them.  Emerson argues that this overlooks the influence of Georg Wilhelm Friedrich Hegel, whose Philosophy of Right offered Progressives “a compelling vision of the state” that “embodied and instituted the requirements of individual freedom.”  Its civil servants, trained to perceive and advance “the universal interests of society,” rooted out feudal privilege and replaced it not with a classical liberalism of abstract rights but with a Rechtsstaat that did more than create “a sphere of individual independence from state power."  Hegel, Emerson writes, held “that the classical liberal regime could not secure freedom on its own, that the state must guarantee freedom through regulatory and welfare laws implemented by public-spirited officials.” In the rest of Chapter 1, Emerson traces Hegel's influence on the great nineteenth-century German professors of administrative law (Robert von Mohl, Lorenz von Stein, and Rudolf von Gneist), contrasts Weber and Hegel, and looks for Hegel in the writings of twentieth-century German theorists, including Carl Schmitt, Ernst Forsthoff, Fritz Werner, and Jürgen Habermas.

In Chapter Two, Emerson turns to the United States.  Progressives theorists of the state at the turn of the twentieth century did not look first  to “Weber’s idea of bureaucracy as a technical instrument for fulfilling any desired substantive purpose."  Rather, “Hegel’s ideal of a state in which administrative agencies and their officials reason together about the requirements of individual freedom” was the more significant influence.  To be sure, they rejected Hegel’s opposition to democracy and his suspicion of the influence of public opinion on lawmaking and the state.  But they decided, as Woodrow Wilson wrote in 1887, that they could “Americanize” the science of administration, drive “the bureaucratic fever out of its veins,” make it “inhale much free American air.”

Weber may have taught Progressives to value bureaucratic rationality and professional expertise, but, Emerson argues, Hege inspired them to work out how administrators could foster “an ongoing, constitutive relationship between administrative agencies and the people at large" and “realize individual autonomy in and through collective autonomy.”  Like their German counterparts, the Progressive Hegelians thought the state had to enable collective as well as individual freedom, “in a material rather than merely formal sense."  It had to provide “the social and economic requisites people need to live their lives freely.”  But is the Germans arrived at policies “by philosophical contemplation or expert fiat,” the Americans believed “the concrete meaning of freedom must be determined through collective deliberation,” a process “institutionally disaggregated” and “participatory,” as well as rational.

Emerson clearly and thoughtfully weaves together the writings of five American Hegelians into a coherent account of the Progressive state.  The favored five are W. E. B. Du Bois, Woodrow Wilson, John Dewey, Frank Goodnow, and Mary Follett, who once wrote, “To be a democrat is not to decide on a certain form of human association; it is to learn how to live with other men.”  Other, more lawyerly writers on administration receive brief mention, including Bruce Wyman, John Dickinson, Felix Frankfurter, Ernst Freund, and Gerald Henderson.

Chapter 2 ends with what I experienced as a plot twist, albeit one I might have foreseen from Emerson’s contrast of Du Bois and Wilson on Reconstruction.  It turns out that a tension exists within the Progressive concept of the democratic state between the material requirements of freedom and the process–Emerson prefers the word “context”–by which those requirements are identified and supplied.  “Administrators could only fully grasp what people required to participate in democracy by consulting the public’s self-understandings,” he writes.  But what happens if those self-understandings are inegalitarian, uninformed, and distorted?  How can Progressives design administration sufficiently autonomous from an existing constellation of social power to remedy its injustices but also sufficiently informed by public opinion “to enhance the perceived and actual legitimacy of state action”?

And so in Chapter 3 Emerson turns from intellectual to institutional history to show how this tension was resolved in practice.  Although he earlier mentions a few progressive-era programs, including the trade practice conferences of the Federal Trade Commission and the U.S. Forest Service’s hearings under the Grazing Act, the chapter takes up three programs for each of two later periods, the New Deal and the "Second Reconstruction."  The New Deal programs are the Tennessee Valley Authority, the Agricultural Adjustment Administration, and the Farm Security Administration.  He decides that TVA and AAA were long on democratic process but fell short on providing the material requisites of democracy.  Almost always, they privileged the interests of upper- and middle-class farmers at the expense of impoverished farm tenants and sharecroppers.  In contrast, FSA and its precursor, the Resettlement Administration, emphasized furnishing democratic requisites over maximizing participation within the democratic process.  Emerson concludes this half of the chapter with the Administrative Procedure Act of 1946.  It mandated far less than the “local, face-to-face-deliberation” of some New Deal programs, but at least its "thin" provisions are capable of deepening.

Emerson’s Second Reconstruction programs are the Office of Civil Rights in the Department of Health, Education and Welfare, charged with enforcing Title VI of the Civil Rights Act of 1964; the Equal Employment Opportunity Commission charged with enforcing Title VII of the Civil Rights Act; and the Office of Economic Opportunity within the Executive Office of the President, the command center for War on Poverty.  Drawing upon research into manuscripts at the LBJ Presidential Library, Emerson argues that OCR established a results-oriented test of compliance by school districts premised on the understanding that individual choice was socially constrained.  The EEOC similarly recast employment discrimination as systemic rather than purely individual, proceeding not by bureaucratic fiat but a synthesis of practical judgment, information gathering, and input from beneficiaries.  With its community action programs and requirement of maximum feasible participation, OEO tried to furnish both democratic process and democratic requisites.  It did increase the political participation of African Americans but might have better improved their material conditions had it employed “a conventional, bureaucratic allocation of goods and services to the poor.”  The judiciary, largely absent in Emerson's investigation of the New Deal agencies, significantly shapes the Second Reconstruction programs by “acknowledging and inscribing into precedent agencies’ critical interpretations of the public’s law.”

In Chapter 4, Emerson draws upon the preceding to reconstruct a Hegelian Progressive vision of administrative law for today, to defend it against its rivals, and to assess how administrative law must change if agencies are to be a site of deliberative democracy in the United States.  He argues that this vision provides a better justification of administration than do those based on efficiency, constitutional norms and republicanism.  He also argues that rulemaking should be made more democratic, a “site for political discourse and not merely purely technical or economic reasoning”; that judicial review should be more value-conscious in deciding when to defer to agencies; and that presidentialism should be restrained to keep administration from being the president’s ‘personal policy instrument.”

In the Conclusion, Emerson arrives at the presidency of Donald John Trump, which he calls “the antithesis of Progressivism,” a “reactionary political moment,” and, I guess reassuringly, “not necessarily a precipitous descent into fascism” (emphasis supplied).   But because legislative inaction, increasingly intrusive presidential control of administration, a judicial focus on instrumental rationality, and the suppression of value-based argument from administrative discourse threatened government based on public participation, social-egalitarian norms, and official practical judgment before January 20, 2017, Emerson turns to two earlier but still relatively recent developments in administrative history: cost-benefit analysis of regulatory rules and presidentialism.  He dismisses neither but thinks both require reformation.  For example, he notes that presidentialism has flourished in recent years in circumstances “eerily reminiscent of the executive-centered politics of the late Weimar Republic”: a legislature “paralyzed by ideological conflict,” politics increasingly understood as “a winner-take-all affair,” and democracy that is “fundamentally agonistic, rather than deliberative.” He illustrates the difference between a Progressive and a Schmittian presidency by reviewing two actions of the Obama administration.  He concludes that DACA and DAPA required  notice and comment before promulgating.  President Obama's Climate Action Plan for limiting emissions from power plants fares better, because it attempted “to provide the democratic requisites of public health and welfare in and through a collaborative administrative process.”

[Tomorrow: Noah Rosenblum’s comment. Wednesday: Blake Emerson's response.]