To listen to the critics, one would think that the nation's social welfare programs were an abject failure–ungovernable, unaffordable, and undesirable. But though widely believed by Americans of every political persuasion, the perception of failure is false. As the authors demonstrate, America today has all the institutions of a mature welfare state, while still regarding “welfare statism” with deep suspicion. The authors seek to explain this paradox and to set the record straight about the actual workings and accomplishments of the nation's welfare programs – social security, public assistance, and medical care –and it shows that the gloom and doom that surround so much public discussion in this area stems from simple, attractive–and false–ideas about what these programs are and how they work. Above all, they argue that American social welfare policy has been shaped by certain enduring commitments which most Americans believe in whether they realize it or not.
By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was minimal and congressional statutes were either self-executing or so detailed as to preclude significant administrative discretion. Such administration as there was went on within executive departments under the exclusive control of the President, and judicial review of administrative action was virtually unknown. From this perspective the administrative state of the twenty-first century, with its independent commissions, combinations of legislative, executive, and judicial authority in administrative agencies, broad delegations of administrative discretion, limitations on presidential control of administration, and ubiquitous opportunities for judicial review of executive action, represents a radical transformation of original constitutional understandings. There is much truth in this conventional vision of nineteenth-century governance, but far from the whole truth. This Article begins a project of recovering the lost one hundred years of federal administrative law. For statutory sources, agency practice, and common law actions in the Federalist period reveal a quite different and more nuanced picture. From the very beginning some administrators were clothed with broad statutory authority, made general rules, adjudicated cases, were located outside of departments, and were tightly bound to congressional oversight and direction. And common law actions provided a judicial review that was often more intrusive and robust than we observe in contemporary practice. If there was an original understanding of the structure, function, and control of administration in early federal law, Federalist practices suggest that it was a much more complex and pragmatic understanding than our conventional account admits.
The George W. Bush administration was more aggressive than most in asserting independent executive competence pursuant to the president's joint roles as commander in chief of the armed forces and as head of the executive branch. One of its legacies is that the rule of law is an unsettled matter, both intellectually and practically. While constitutional reform to provide a framework for law‐based governance under emergency conditions may be required, it is unlikely to occur. Analysis should consider how to improve the design and operation of microstructures within the executive branch. This article surveys options for instituting design changes but concludes that no such option is compelling, given the requirements of good lawyering about contentious issues within the executive branch. It recommends systematic deliberation about “best practices” in executive branch lawyering—with the ambition of articulating a practical theory on the due processes of governance that encompasses the special circumstances of emergency conditions.
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