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Constitutionalism After the New Deal University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1987 Constitutionalism after the New Deal Cass R. Sunstein Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Cass R. Sunstein, "Constitutionalism after the New Deal," 101 Harvard Law Review 421 (1987). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. ARTICLE CONSTITUTIONALISM AFTER THE NEW DEAL Cass R. Sunstein* In recent years, the failure of administrative agencies to implement congressional programsfaithfully and effectively has called into question the wisdom of the central institutional innovations of the New Deal: the expan- sion of the regulatory state and the shift in power from the states to the federal government. In this Article, Professor Sunstein challenges the New Deal more fundamentally, examining not only the institutionalchanges them- selves, but also the shift in constitutional commitments that underlay those reforms. Professor Sunstein identifies three aspects of New Deal constitu- tionalism: the rejection of the original constitutional commitment to checks and balances in favor of independent and insulated regulatory administra- tion, the recognition of substantive entitlements beyond those protected at common law, and the abandonment of principles of federalism that vested regulatory authority in both the federal government and the states. Professor Sunstein argues that many of the presentfailures of regulatory administration - particularly the problems of agency capture and factionalism - can be traced to the New Deal's failure to incorporate the original constitutional commitment to checks and balances into regulatory administration. The remedy, he suggests, is to reinvigorate the commitment to checks and balances through a system of coordinated review of agency action that includes a strong supervisory role for each of the three branches of government - the executive, the judiciary, and Congress. In addition, Professor Sunstein maintains that the protection of new entitlements during the New Deal was a natural and justified outgrowth of the recognition by New Deal reformers that the common law itself favors some social interests over others. He suggests that this substantive aspect of the New Deal should be incorporated into modern public law, in which common law categories persist despite the insights of New Deal reformers. Finally, Professor Sunstein argues that the third aspect of New Deal constitutionalism - the emphasis on national rather than local control of regulatory issues - has been carried too far, depriving citizens of the opportunity to participate meaningfully in the debate over the terms of their social life. I. INTRODUCTION We are in the midst of a period of considerable dissatisfaction with the performance of the federal government. The post-New Deal in- * Professor of Law, University of Chicago Law School and Department of Political Science. Parts of this paper were presented at the annual American Political Science Association meeting in September, 1987, the annual American Association of Law Schools meeting in January, 1987, and the NEH/Federalist Society Conference on the Bicentennial of the Constitution, held in Chicago, Illinois, in November, 1986. The author would like to thank Bruce A. Ackerman, Akhil Amar, Walter Blum, Clark Byse, Robert Clark, David P. Currie, Christopher Edley, Richard Fallon, Robert Ferguson, Donald Gjerdingen, Barry Karl, Frank I. Michelman, Martha Minow, Henry P. Monaghan, Richard A. Posner, Carol M. Rose, Susan Rose-Ackerman, Richard B. Stewart, David A. Strauss, Peter L. Strauss, Kathleen Sullivan, and participants in the law and government workshop at the University of Chicago for valuable help. Veronica Dougherty and Daniel B. Rodriguez provided valuable suggestions and research assistance. HeinOnline -- 101 Harv. L. Rev. 421 1987-1988 HARVARD LAW REVIEW [Vol. 101:421 crease in presidential power, and the creation of a massive bureau- cracy concentrated in the executive branch, have augmented factional power and self-interested representation, often leading to regulation that fails to serve the interests of the public at large. In significant ways, the federal government both overregulates and underregulates. The failure of national institutions to intervene or to exercise restraint is not simply the product of the poor judgment of key government officials or the triumph of a particular political agenda. Much of the failure of public regulation over the past half-century reflects the inadequacy of important aspects of the constitutional vision embraced by the New Deal. Institutional reform is thus a major part of the agenda of modern public law. A. New Deal Constitutionalism The regulatory system established during the New Deal' has failed to fulfill its original promise. In the New Deal period, reformers believed that administrative officials would serve as independent, self- starting, technically expert, and apolitical agents of change. This basic understanding wedded the original constitutional belief in the need for an energetic national government 2 to the desire, associated with the Progressive movement, 3 to insulate public officials from par- ' The initial period of growth for the regulatory agency came before the New Deal, during the latter part of the 19th century and the first two decades of this century. See generally S. SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINIS- TRATIVE CAPACITIES, I877-1920 (z982) (surveying the early development of the modern admin- istrative state). It is important to emphasize as well that the New Deal was far from monolithic. There were competing strands and several different periods of experimentation, with different emphases. For all its novelty, the New Deal was not an altogether sudden break; it should instead be understood as the culmination of a set of ideas with much earlier foundations. See generally id.; W. WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS 22-23 (I98i) [hereinafter W. WILSON, CONGRESSIONAL GOVERNMENT] (describing "the new leadership of the Executive"); W. WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 57-81 (1921) [hereinafter W. WILSON, CONSTITUTIONAL GOVERNMENT]; id. at 6o (chronicling the rise of the President "as the unifying force in our complex system, the leader both of his party and of the nation"); W. WILSON, THE NEW FREEDOM: A CALL FOR THE EMANCIPATION OF THE GENEROUS ENERGIES OF THE PEOPLE 5-8 (196i) (detailing Wilson's campaign to regulate the trusts). The discussion in this Article is therefore stylized, emphasizing dominant features. For discussion of the period, see generally P. CONKIN, THE NEW DEAL (2d ed. 1975); K. DAVIS, FDR: THE NEW DEAL YEARS, 1933-1937 (1986); 0. GRAHAM, JR., TOWARD A PLANNED SOCIETY (1976); E. HAWLEY, THE NEW DEAL AND THE PROBLEM OF MONOPOLY (1966); R. HOFSTADTER, THE AGE OF REFORM (1955); B. KARL, THE UNEASY STATE (1983); J. PATTERSON, CONGRESSIONAL CONSERVATISM AND THE NEW DEAL (1967); J. PATTERSON, THE NEW DEAL AND THE STATES: FEDERALISM IN TRANSITION (x969). 2 See infra pp. 432-33. 3 See, e.g., M. BERNSTEIN, REGULATING BUSINESS BY INDEPENDENT COMMISSIONS 35-39 (1955). See generally R. HOFSTADTER, supra note I, at 232-36 (describing Theodore Roosevelt's efforts to achieve a nonpartisan administration); S. SKOWRONEK, supra note I, at 177-211 (discussing the Progressive movement's goal of reformulating civil administration). HeinOnline -- 101 Harv. L. Rev. 422 1987-1988 1987] CONSTITUTIONALISM AFTER THE NEW DEAL tisan pressures in the service of a long-term public interest. The concept of autonomous administration, now under sharp attack, was originally the source of enormous optimism about possible reformation of the system of checks and balances. The New Dealers believed that institutional changes were necessary to allow the federal government to deal with the multiple social and economic issues that arose in the wake of the Depression. The institutional program of the New Deal was one element of a three-part critique of the traditional constitutional framework. The first criticism, substantive in character, was the culmination of a long period of rethinking both of that framework and of the system of common law ordering. For the New Deal reformers, the common law was neither natural nor prepolitical. Instead, it embodied a particular social theory, serving some interests at the expense of others. 4 In particular, the New Dealers viewed the common law as a mechanism for insulating the existing distribution of wealth and entitlements from collective control. The common law catalog of rights included both too much and too little - excessive protection of established property interests and insufficient protection of the interests of the poor, the elderly, and the unemployed. Hence the New Deal reformers called for substantial changes that would recognize new interests as entitle- ments and redistribute resources.5 Most dramatically, President Franklin Roosevelt urged a "second Bill of Rights," available to all "regardless of station, race, or creed," and including: The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation; The right to earn enough to provide adequate
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