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THE INTERSTATE COMMERCE COMMISSION AND THE GENESIS OF AMERICA'S JUDICIALIZED ADMINISTRATIVE STATE1

Published online by Cambridge University Press:  15 April 2016

Hiroshi Okayama
Hiroshi Okayama*
Affiliation:
Keio University
*
email: [email protected]
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Abstract

Revisiting the origins of the Interstate Commerce Commission (ICC) created in 1887 and offering a fresh interpretation that the commission was conceived and operated as a highly court-like agency, this paper argues that its emergence triggered the judicialization of the U.S. administrative state. It has been argued that the blueprint of the ICC took after existing railroad commissions. Its proponents in Congress, however, redesigned it with judicial courts as a model after facing criticisms based on the common-law principle of the supremacy of law allowing adjudication only to judicial courts. In accordance with such an institutional scheme, both the president and judiciary promoted the commission's judicialization by appointing lawyers as its members and reviewing its decisions. By the early twentieth century, the ICC was a prototypical agency whose court-like features permeated the administrative state. This paper thus offers a corrective to the literature on the U.S. administrative state building that has come to trivialize the role of the rise of the ICC. It was, instead, a critical juncture in the emergence of the modern administrative state in which being “quasi-judicial” was the norm rather than the exception for an administrative agency.

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Articles
Information
The Journal of the Gilded Age and Progressive Era , Volume 15 , Issue 2 , April 2016 , pp. 129 - 148
Copyright
Copyright © Society for Historians of the Gilded Age and Progressive Era 2016 

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Footnotes

1

The author thanks Sheila A. Hones, Sayuri Guthrie Shimizu, Kensuke Takayasu, the Journal's anonymous reviewers, and participants in the 2011 American Political Science Association Annual Meeting panel on “Law and the Rights Revolution” for very helpful comments. The hospitality of the faculty and staff at University of Virginia School of Law, at which bulk of preparation for this work was made, is warmly acknowledged. Research for this paper was supported by the JSPS Grants-in-Aid for Scientific Research.

References

NOTES

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18 Bradford Ross, “Federal Power Commission Practice and Procedure as Affected by the Administrative Procedure Act of 1946” in George Warren, ed., The Federal Administrative Procedure Act and the Administrative Agencies (New York: New York University School of Law, 1947), 171; Lloyd D. Musolf, Federal Examiners and the Conflict of Law and Administration (Baltimore: Johns Hopkins Press, 1953).

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21 Compiled from data in ICC Reports; Artola, Lilibet, “In Search of Uniformity: Applying the Federal Rules of Evidence in Immigration Removal Proceedings,” Rutgers Law Review 64 (Spring 2012): 863–93Google Scholar; Rebecca Hamlin, Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia (New York: Oxford University Press, 2014).

22 Robert Kagan has suggested that the judicialized administrative procedures have also led to “adversarial legalism” in Kagan, Adversarial Legalism: The American Way of Law (Cambridge, MA: Harvard University Press, 2001); Eugene Bardach and Robert Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (Philadelphia: Temple University Press, 1982).

23 Rosenbloom, David H., “Public Administrative Theory and the Separation of Powers,” Public Administration Review 43 (May–June 1983): 219–27CrossRefGoogle Scholar; Ethridge, Marcus E. III, “Judicialized Procedures in Regulatory Policy Implementation,” Law and Policy Quarterly 4 (Jan. 1982): 119–36CrossRefGoogle Scholar. The idea of the tradeoff is usually traced back to Arthur Okun's Equality and Efficiency: The Big Tradeoff (Washington, D.C.: Brookings Institution, 1975).

24 John F. Kennedy, “Special Message to the Congress on the Regulatory Agencies,” Apr. 13, 1961, John T. Woolley and Gerhard Peters, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=8058 (accessed Apr. 22, 2013).

25 Hoogenboom and Hoogenboom, History of the ICC.

26 Clark, Frederick C., “State Railroad Commissions and How They May Be Made Effective,” Publications of the American Economic Association 6 (Nov. 1891): 11–110.Google Scholar

27 Chicago Tribune, Apr. 2, 1884.

28 Shelby M. Cullom, Fifty Years of Public Service: Personal Recollections of Shelby M. Cullom (New York: Da Capo Press, [1911] 1969), 306; Skowronek, Building a New American State, 146.

29 Congressional Record, 48th Congress, 2nd sess. (Dec. 10, 1884), 165, (Dec. 11, 1884), 194–95.

30 Henry Parris, Government and the Railways in Nineteenth-Century Britain (London: Routledge & Kegan Paul, 1965); Marshall E. Dimock, British Public Utilities and National Development (London: G. Allen & Unwin, 1933), 70–72; Chantal Stebbings, Legal Foundations of Tribunals in Nineteenth-Century England (Cambridge: Cambridge University Press, 2006), 180–81.

31 Congressional Record, 48th Congress, 2nd sess. (Dec. 18, 1884), 328–30. A newspaper noted that the Cullom bill's ICC was “really a court to try certain specified railroad offences.” Chicago Tribune, Feb. 4, 1885.

32 Congressional Record, 48th Congress, 2nd sess. (Dec. 2, 1884), 31, (Dec. 12, 1884), 200–01.

33 The term “Reaganite” was used in the 1880s to refer to the supporters of the Reagan bill. See, for instance, The Statist, Jan. 22, 1887, 92.

34 Congressional Record, 48th Congress, 2nd sess. (Feb. 12, 1885), 1568.

35 Congressional Record, 48th Congress, 2nd sess. (Jan. 7, 1885), 516.

36 Merkel, Philip L., “The Origins of an Expanded Federal Court Jurisdiction: Railroad Development and the Ascendancy of the Federal Judiciary,” Business History Review 58 (Autumn 1984): 336–58CrossRefGoogle Scholar; Tony Allan Freyer, Forums of Order: The Federal Courts and Business in American History (Greenwich, CT: JAI Press, 1979); Gillman, Howard, “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891,” American Political Science Review 96 (Sept. 2002): 511–24CrossRefGoogle Scholar.

37 Congressional Record, 48th Congress, 2nd sess. (Dec. 2, 1884), 31.

38 Congressional Record, 48th Congress, 2nd sess. (Dec. 11, 1884), 195; James, Presidents, Parties, and the State, 42–43.

39 59 U.S. 272 (1856). The Supreme Court later admitted agency adjudication of private rights in Crowell v. Benson, 285 U.S. 22 (1932).

40 The latter principle would later play a central role in the battles over administrative procedures owing much to Albert V. Dicey's seminal work, Lectures Introductory to the Study of the Law of the Constitution (London: Macmillan, 1885).

41 In the Forty-Ninth Congress, however, Sen. John Morgan (D-AL) attacked the Cullom bill stating that the ICC would take away the power “for the settlement of the private rights” from the judiciary. Congressional Record, 49th Congress, 2nd sess. (Jan. 6, 1887), 399.

42 Congressional Record, 48th Congress, 2nd sess. (Jan. 7, 1885), 517.

43 Congressional Record, 48th Congress, 2nd sess. (Jan. 17, 1885), 808.

44 Congressional Record, 48th Congress, 2nd sess. (Feb. 2, 1885), 1152.

45 Congressional Record, 48th Congress, 2nd sess. (Dec. 18, 1884), 330.

46 Congressional Record, 48th Congress, 2nd sess. (Dec. 9, 1884), 132. Also see Congressional Record, 48th Congress, 2nd sess., (Feb. 3, 1885), 1197.

47 Congressional Record, 48th Congress, 2nd sess. (Jan. 20, 1885), 859.

48 Congressional Record, 48th Congress, 2nd sess. (Jan. 21, 1885), 884. Also see Congressional Record, 48th Congress, 2nd sess., (Dec. 11, 1884), 188–92, (Dec. 12, 1884), 194–95.

49 Congressional Record, 48th Congress, 2nd sess. (Jan. 7, 1885), 527.

50 Congressional Record, 48th Congress, 2nd sess. (Dec. 9, 1884), 128.

51 Congressional Record, 48th Congress, 2nd sess. (Feb. 3, 1885), 1205.

52 “Report of the Senate Select Committee on Interstate Commerce,” 49th Cong., 1st sess. (Jan. 18, 1886), S. rept. 46, pt. 2, 60–61, 107, 167, 267.

53 Justin Crowe, Building the Judiciary: Law, Courts, and the Politics of Institutional Development (Princeton, NJ: Princeton University Press, 2012).

54 Congressional Record, 49th Congress, 1st sess., (Apr. 14, 1886), 3474.

55 Congressional Record, 49th Congress, 2nd sess., (Jan. 14, 1887), 659.

56 James, Presidents, Parties, and the State, 43.

57 “Report of the Senate Select Committee,” pt. 2, 23.

58 “Report of the Senate Select Committee,” pt. 2, 19–20.

59 “Report of the Senate Select Committee,” pt. 2, 22.

60 “Report of the Senate Select Committee,” pt. 2, 981.

61 Also, in Section Eighteen, the commissioners' salaries were made to be “payable in the same manner as the salaries of judges of the courts of the United States.”

62 Congressional Record, 49th Congress, 1st sess. (May 10, 1886), 4307.

63 Congressional Record, 49th Congress, 1st sess. (Apr. 14, 1886), 3471.

64 Congressional Record, 49th Congress, 1st sess. (May 12, 1886), 4422.

65 Congressional Record, 49th Congress, 1st sess. (May 6, 1886), 4225.

66 Congressional Record, 49th Congress, 1st sess. (July 21, 1886), 7289.

67 Congressional Record, 49th Congress, 1st sess. (July 21, 1886), 7296.

68 Congressional Record, 49th Congress, 2nd sess. (Jan. 14, 1887), 646. Also see Congressional Record, 49th Congress, 2nd sess. (Jan. 18, 1887), 786.

69 Congressional Record, 49th Congress, 2nd sess. (Jan. 11, 1887), 529, (Jan. 14, 1887), 639. Also see Williamjames Hull Hoffer, To Enlarge the Machinery of Government: Congressional Debates and the Growth of the American State, 1858–1891 (Baltimore: Johns Hopkins University Press, 2007), 160; Rohr, To Run a Constitution, 96–97.

70 Contrary to James's view, Reagan's acceptance of the ICC may not have meant the jettisoning of his “core agrarian conviction” against regulation by agencies. James, Presidents, Parties, and the State, 102–3. In the Forty-Eighth Congress, some Reaganites had expressed their readiness to support a commission bill with provisions specifying the practices to be banned. Congressional Record, 48th Congress, 2nd sess. (Dec. 4, 1884), 64, (Jan. 20, 1885), 858.

71 Wabash, St. Louis & Pacific Railway Company v. Illinois, 118 U.S. 557 (1886).

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74 Cullom also recommended Cooley for the chairmanship of the ICC. Kolko, Railroads and Regulation, 47.

75 Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, 3rd ed. (Boston: Little, Brown, 1874) and Cooley, The General Principles of Constitutional Law in the United States of America (Boston: Little, Brown, 1880).

76 Benjamin Helm Bristow to Walter Q. Gresham, Feb. 9, 1887, box 34, Walter Q. Gresham Papers, Manuscript Division, Library of Congress.

77 Benjamin Harrison to Thomas M. Cooley, Oct. 29, 1891, box 5, Thomas M. Cooley Papers, Bentley Historical Library, University of Michigan; Miller, Clarence A., “The Interstate Commerce Commissioners: The First Fifty Years: 1887–1937,” George Washington Law Review 5 (Mar. 1937): 580–700Google Scholar. Also see I. L. Sharfman, The Interstate Commerce Commission: A Study in Administrative Procedure (New York: Harper & Row, [1937] 1969), 4: 28.

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81 First Annual Report of the Interstate Commerce Commission, 130, 133; Henry Carter Adams, “A Decade of Federal Railway Regulation,” Atlantic Monthly (Apr. 1898): 433–43.

82 Interstate Commerce Commission Reports 1 (New York: L. K. Strouse, 1888), 8.

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87 Fifth Annual Report of the Interstate Commerce Commission (Washington, D.C.: Government Printing Office, 1891), 18–20.

88 162 U.S. 184 (1896), at 196.

89 Illinois Central Railroad Co. et al. v. ICC, 206 U.S. 441, at 454. Also see ICC v. Union Pacific Railroad Co. et al., 222 U.S. 541 (1912).

90 ICC v. Baird, 194 U.S. 25 (1904). Also see ICC v. Louisville & Nashville Railroad Co., 227 U.S. 88 (1913).

91 New York Central & Harbor Railroad Co. et al. v. ICC, 168 Fed. 131 (1909), at 138–39.

92 Felix Frankfurter and James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System (New York: Macmillan, 1928), 156–74.

93 Felix Frankfurter, A Selection of Cases under the Interstate Commerce Act (Cambridge, MA: Harvard University Press, 1915), vii; G. Edward White, Intervention and Detachment: Essays in Legal History and Jurisprudence (New York: Oxford University Press, 1994), esp. part 2.

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