administrative procedure act and dean roscoe pound and amaerican bar association and court packing plan

In 1936 a bill was introduced in Congress that went nowhere but is important to understand in order to clarify the scope of concerns that were starting to be voiced in Congress. Called the "Logan-Celler" bill, it would have done three things to curb power of administrative agencies: (1) establish an Administartive Court but with more authority to subsume jurisdiction of other agency courts than the ABA proposal; (2) transfer license revocation hearings from the agencies to the new court [under the National Recovery Act the agency was given broad power to revoke business licenses]; and (3) grant the proposed court jurisdiction to review agency refusals to permit a person to practice before the agency. Thus, we see a clear attempt to undercut some features of administrative power that were part and parcel of the New Deal.

Though seemingly powerless to effect legislative change in the direction of creating the Adminsitrative Court, Congress did pass the Federal Register Act in 1935, which was supported by the ABA. It required all agency rules and regulations to be published in the Federal Register. Though this might seem a "tame" piece of legislation, it had far-reaching effects, for whenever you saw the rules affecting your clients in cold hard print, circulated nationally, you could make a greater case for intervention in the rule-making process.

Roosevelt's Second Term, 1937-41

Roosevelt's court-packing plan, revealed in February 1937, was born out of pique with a Supreme Court that had declared several of his landmark pieces of legislation unconstitutional. The heart of the plan--to create up to six new positions on the Court to give more "energy" to the aging Court, was widely perceived as a naked power grab at the expensive of a co-equal and respected branch of government. Although Justice Robert's timely "switch in time" in April 1937, before the bill was debated (and rejected) in Congress in June, made the bill almost moot before Congress considered it, most people perceived that Roosevelt had done himself immense damage in the proposing of it. That is, the irony of the court-packing plan is that Roosevelt eventually got what he wanted (a compliant Supreme Court), but he got it by significantly weakening his own popularity with Americans.

The ABA Again into the Fray

In response to this the ABA came up with another proposal that was both more radical than its earlier proposals and would form the basis for a piece of Congressional legislation (the Walter-Logan bill) which actually would pass both Houses in 1940 before being vetoed by FDR. In addition, they managed to get the most influential legal figure in America at the time, Roscoe Pound, vigorously to defend the position limiting agency authority. First, the proposal.

The proposal was intended to control agency adjudication and rule-making. It proposed that any agency action which aggrieved an individual was subject to judicial review. An "aggrieved" individual was never precisely defined, but such a person could bring his objection (with a lawyer, of course) before a three member intra-agency board which would involve no person who had drafted the statute or rule that had been relied upon for the decision. In addition, the board had to conduct formal proceedings with a full written record and findings. Second, the bill also would control rule-making of agencies. As Shepherd says, "The bill permitted any rule or regulation, regardless of its importance, to be issued only after notice and public hearings" (1583). Furthermore, any person with a "substantial interest" in a rule could compel the agency to provide notice and a public hearing to reconsider the rule. There was also a provision allowing appeal of the intra-agency decision that would send the matter to a federal appeals court, though the agency decisions would only be reversed if the lower decision was "based on arbitrary or capricious findings of facts." All of these provisions, in one way or another, would make it into the final APA nine years later. All were immediately attacked by administration spokespeople, also, as intended to cripple the power of the agencies.

The Roosevelt Administration's Reform Proposal

Before getting to the role played by Dean Roscoe Pound, mention should be made of proposals emanating from New Deal Democrats to reorganize the executive branch, including the administrative agencies. Usually referred to as one of the most influential attempts to reorganize the executive branch until that time, the "Brownlow Report," issued in 1937, suggested the tightening of presidential authority over the "100 separate departments, boards, commissions...through whch the work of the Government is being carried on." With the proliferation of new agencies, "the Government cannot be thoroughly effective in working, under popular control, for the common good." Then the report used a phrase that would become the conservative rallying cry over the next several eyears. "The practice of creating independent regulatory commissions, who perform administrative work in addition to judicial work, threatens to develop a 'fourth branch' of the Government for which there is no sanction in the Constitutuion."

Ah, a "fourth branch." And, in order to keep it from growing out of control, the executive had to rein it in. Roosevelt was aware that his attempt would be seen as just another power grab. "In placing this program before you I realize that it will be said that I am recommending the increase of the powers of the Presidency....This is not true..." Well, whether or not it was true, it gave opponents all the ammunition that they needed to torpedo a proposal of a President in weakness. The Congress didn't go along with the bill resulting from the report.

But, more important, it gave the conservatives some ammunition with which to support their own plans to turn the ABA proposal into a major piece of legislation. The next essay continues this story.

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