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Recent article by McKinley details how petitioning gave rise to the modern administrative state

October 10, 2018

The American administrative state, comprised of agencies like the Environmental Protection Agency, the Food and Drug Administration, and the Department of Veterans Affairs, has long been under siege. From the highest levels of government — including the White House — to scholars, commentators increasingly question the legality of its position outside the traditionally-understood three branches of government: executive, legislative, and judicial.  

In an article in the Yale Law Journal, “Petitioning and the Making of the Administrative State,” University of Pennsylvania Law School professor Maggie McKinley uncovers the previously unexplored origins of the modern administrative state in the history of Congressional petitioning from the Founding through the mid-twentieth century. McKinley’s work offers scholars, policymakers, and the courts an opportunity to rethink the position of the administrative state within our constitutional framework.  

Administrative agencies are a defining feature of the modern United States government, engaging in regulation and enforcement that affects countless facets of American life. The history of petitioning “reveals an administrative state that was established, at least in part, to protect individual rights and to maintain equal liberty by affording individuals and minorities a mechanism for meaningful participation in the making of law,” McKinley writes. As such, it “offers a counternarrative to the libertarian vision of the administrative state as a rights-invading, and even unconstitutional, construction.”  

While some scholars have tangentially addressed petitioning within institutional histories of early American administration, McKinley “excavates the petition process comprehensively for the first time and documents how petitioning shaped the modern administrative state.” Although the most commonly understood function of Congress has been to draft and vote on widely applicable legislation, from the late eighteenth century onward, individuals and minority groups could also petition their representatives directly for resolution of their specific concerns.   

McKinley explains how the process was grounded in the text of the Constitution, where the First Amendment guarantees the right “to petition the government for a redress of grievances.” As such, she argues, the history of the petition process as a forerunner of the administrative state may offer some comfort to textualist and originalist thinkers who are uncomfortable with the position and powers of the administrative state within modern government. 

“[T]he Founding generation and the Founding Era Congress envisioned petitioning as an integral aspect of lawmaking and interpreted the vested powers to encompass petitioning. From the very first days of the young Congress, individuals submitted petitions in the form of formal documents, like complaints, and Congress institutionalized procedures to respond,” McKinley writes. The “petition process was public; petitions were read on the floor and each step in the petition process was made part of the formal record. Denial of a petition was not a ‘legislative act’ that required bicameralism and presentment, and could be completed by the decision of a single committee,” she explains.  

Meanwhile, “[g]ranting a petition could result in general legislation, passed through the traditional legislative process,” or “it could equally result in a private bill or even the decision of an agency, board, or commission.” 

Drawing on archival materials from the First Congress and from a database of more than 500,000 petitions submitted from the Founding until 1950, McKinley illuminates the way that petitioning offered individuals and minorities a voice in government. The process “provided an underappreciated avenue for political participation distinct from the vote,” as the “unenfranchised — women, Native Americans, and non-enslaved African-Americans — were afforded process on par with franchised petitioners.” Among early American petitioners were African-American freedmen in Philadelphia, who in 1799 sought regulation of an illegally operating slave trade, and war veterans who sought to receive pensions.  

Processing petitions comprised a significant portion of Congressional business, particularly in the eighteenth and nineteenth centuries. In managing that process, McKinley explains, “Congress constructed by statute boards and commissions that were not clearly within one single branch of government, and it made law not in isolation, but in consultation with individuals and minorities affected by those laws.”  

Thus, as time passed, Congress’s role in resolving petitions was gradually “siphoned off” from the legislative body itself and moved into various administrative institutions that covered a wide range of subject areas, among them “public lands, Indian affairs, military affairs, public infrastructure, regulation and incorporation of the territories, post offices and roads, labor, education, agriculture, immigration, and election administration.”  

The development of the Court of Claims to adjudicate federal claims, the Bureau of Pensions to regulate the public benefits system, and the Interstate Commerce Commission to play an executive role in managing interstate commerce provide salient examples of the outgrowth of the administrative state from the petitioning process.  

 “Petitioning complicates the simplistic notion of legislative power described by the tripartite model of separation of power,” McKinley argues. Rather, the Constitution itself contemplated entrusting the legislative branch of the government with the role of processing petitions, which “more often than not … involved an amalgam of legislating, adjudicating, and enforcing.” Thus, McKinley writes, “[l]ocating and identifying the origins of the administrative state in the petition process can begin to situate, on firmer historical and constitutional footing, the administrative state within our constitutional framework.”  

McKinley, an Assistant Professor of Law whose scholarship examines the structural representation and empowerment of minorities using empirical, theoretical, and historical methods, argues that tracing the history of the petitioning process and its significance as part of the participatory state — those mechanisms apart from the majoritarian vote that facilitate input into government — contributes to the development of “a deeper and more refined understanding of our lawmaking institutions.” Moreover, uncovering that history advances the “long overdue” “conversation about the representation and participation of individuals and minorities within the lawmaking process.”