Excerpt from"The Task of Administrative Law"
By Felix Frankfurter (1927)
“...[T]he range of control conferred by Congress and the State legislatures upon subsidiary law-making bodies, variously denominated as heads of departments, commissions and boards, penetrates the whole gamut of human affairs. Hardly a measure passes Congress the effective execution of which is not conditioned upon rules and regulations emanating from the enforcing authorities. These administrative complements are euphemistically called ‘filing in the details’ of a policy set forth in statutes. But the ‘details’ are of the essence; they give meaning and content to vague contours. The control of banking, insurance, public utilities, finance, industry, the professions, health and morals, in sum, the manifold response of government to the forces and needs of modern society, is building up a body of laws not written by legislatures, and of adjudications not made by courts and not subject to their revision. These powers are lodged in a vast congeries of agencies. We are in the midst of a process, largely unconscious and certainly unscientific of adjusting the exercise of these powers to the traditional system of Anglo-American law and courts. A systematic scrutiny of these issues and a conscious effort towards their wise solution are the concerns of administrative law. The broad boundaries and far-reaching implications of these problems may be indicate by saying that administrative law deals with the field of legal control exercised by law-administering agencies other than courts, and the field of control exercised by courts over such agencies."
“It is idle to feel either blind resentment against ‘government by commission’ or sterile longing for a golden past that never was. Profound new forces call for new social inventions, or fresh adaptations of old experience. The ‘great society,’ with its permeating influence of technology, large-scale industry, and progressive urbanization, presses its problems; the history of political and social liberty admonishes us of its lessons. Nothing less is our task than fashioning instruments and processes at once adequate for social needs and the protection of individual freedom. The vast changes wrought by industry during the nineteenth century inevitably gave rise to a steady extension of legal control over economic and social interests. At first, state intervention manifested itself largely through specific legislative directions, depending for enforcement generally upon the rigid, cumbersome and ineffective machinery of the criminal law. By the pressure of experience, legislative regulation of economic and social activities has turned to administrative instruments. Inevitably this has greatly widened the field of discretion and thus opened the door to its potential abuse, arbitrariness. In an acute form and along a wide range of action, we are confronted with new aspects of familiar conflicts in the law between rule and discretion."
“Because of the danger of arbitrary conduct in the administrative application of legal standards (such as ‘unreasonable rates’ ‘unfair methods of competition,’ ‘undesirable residents of the United States’), our administrative law is inextricably bound up with constitutional law. But after all, the Constitution is a Constitution, and not merely a detailed code of prophetic restrictions against the ineptitude and inadequacies of legislatures and administrators. Ultimate protection is to be found in the people themselves, their zeal for liberty, their respect for one another and for the common good--a truth so obviously accepted that its demands in practice are usually overlooked. But safeguards must also be institutionalized through machinery and processes. These safeguards largely depend on a highly professionalized civil service, and adequate technique of administrative application of legal standards, a flexible, appropriate and economical procedure (always remembering that ‘in the development of our liberty insistence upon procedural regularity has been a large factor’), easy access to public scrutiny, and a constant play of criticism by an informed and spirited bar. They are still to be achieved, for we have hardly begun to realize deeply their need."
“But we must be on our guard against an undue quest for certainty, born of an eager desire to curb the dangers of discretionary power. For the problem of rule versus discretion is far broader than its manifestations in administrative law. There are fields of legal control where certainty -- mechanical application of fixed rules -- is attainable; there are other fields where law necessarily means the application of standards -- a formulated measure of conduct to be applied by a tribunal to the unlimited versatility of circumstance. To be sure, the application of a standard to individual cases opens the door to those abuses of carelessness and caprice and oppression against which we cannot be too alert. But resort to standards avoids the oppression and injustice due to abstractions whereby individual instances are tortured into universal molds which do not fit the infinite variety of life."
“In administrative law we are dealing pre-eminently with law in the making; with fluid tendencies and tentative traditions. Here we must be especially wary against the danger of premature synthesis, of sterile generalization unnourished by the realities of ‘law in action.’ Administrative law is also markedly influenced by the specific interests entrusted to a particular administrative organ, and by the characteristics -- the history, the structure, the enveloping environment -- of the administrative to which these interests are entrusted. Thus, ‘judicial review’ and ‘administrative discretion’ cannot be studied in isolation."
“What we need, above all else, is to know what is happening by objective demonstration of intensive scientific studies, instead of merely speculating, even wisely speculating, or depending on partisan claims of one sort or another. Research to no small measure is a painful means of proving what the insight of a few suspects or feels. There is need also for a technique of appraising the work of administrative agencies and of establishing the utility of such scientific appraisals. The generalizations, the philosophizing will gradually emerge from specific studies. Intensive studies of the administrative law of the States and the Nation in practice will furnish the necessary prerequisite to an understanding of what administrative law is really doing, so that we may have an adequate guide for what ought to be done. Here, as in other branches of public law, only here probably more so, we must travel outside the covers of lawbooks to understand law."
“Only a physiological study of administrative law in action will disclose the processes, the practices, the determining factors of administrative decisions, and illumine the relation between commissions and courts, now left obscure by the printed pages of court opinions. The shaping of our administrative law thus calls for students trained in the common law and familiar with its history. But in addition the inquirer must have a sympathetic understanding of the major causes which have led to the emergence of modern administrative law, and must be able to move freely in the world of social and economic facts with which administrative law is largely concerned. Above all, he must have a rigorously scientific temper of mind.”