The excesses of the modern administrative state are becoming a central issue in contemporary American political debates. From the National Labor Relations Board’s intervention in Boeing’s decision to move some of its operations to South Carolina, to the Affordable Care Act’s delegation of massive power to the Independent Payment Advisory Board (IPAB) to reduce Medicare spending, Americans are increasingly at the mercy of institutions that have a tenuous connection to the Founders’ constitutional system.
The rise of these bureaucratic institutions has occurred over the last century, and controversies over the legitimacy of the administrative state have sprung up periodically throughout the last hundred years. During the New Deal, the issue of the administrative state’s legitimacy was raised primarily by the bar. The bench and the bar were the most dramatically affected by the delegation of power to administrative agencies, and they fought most vigorously against it.
One of the prominent lawyers who fought the New Deal’s expansion of administrative power was the progressive legal theorist Roscoe Pound. Many friends of Liberty Fund may not be aware that Pierre Goodrich, the founder of Liberty Fund, was a graduate of Harvard Law School, and he acknowledged his debt to Pound who was one of his teachers at Harvard. Goodrich identified Pound as one of the formative influences on his own legal and political philosophy. In a nod to Pound’s influence on Goodrich, Liberty Fund reprints one of Pound’s many books, The Ideal Element in Law.
Pound’s influence on the founder of Liberty Fund might seem startling at first to those who know Pound as one of the foremost progressive legal theorists, though it might seem rather unsurprising to those who know Pound as one of the staunchest critics of the New Deal. Pound himself has long been a mysterious figure to scholars because he was a prominent progressive yet virulently opposed to the New Deal. How can this be possible? Isn’t the New Deal a natural outgrowth of progressive political thought?
Pound’s departure from the New Deal was not prompted by a conversion to conservatism but a sense that the New Deal was a betrayal of progressivism itself. In particular, Pound objected to the dramatic expansion of unbridled administrative discretion under Roosevelt, and feared that the progressive ends of a more active federal government operating for a collective purpose would be thwarted by administrative absolutism.