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Robert 1. Cushman. The Independent Regulatory Commissions.
Oxford University Press, Sew York. 1941. 780 p.
As a member of the staff of the President's Com-
f
mittee on Administrative Management, Mr. Cushman, in 1936,
prepared a highly interesting and controversial set of
proposals for the reorganization of the independent regulatory commissions.
She present volume is a report on the
researches which Mr. Cushinan has pursued since the comples*&JU*1
tion of the President's Committee pepea?*, and purports to
be largely independent of that document.
I quote from the
preface:
"These also emerged from this endeavor (the
studies for the President's Committee) a realization that
little or nothing was known about the commissions as administrative agencies or about their relations to Congress
or the President. . . It seemed clear that a wide and highly
important area in the field of public administration lay
almost entirely unexplored. . * It was accordingly suggested
that I should undertake to direct a thoroughgoing and comprehensive study of the independent regulatory commissions
if funds could be found to underwrite it. ... One of the «
major conditions under which this work was undertaken, and
a condition obviously essential to its permanent value, was
thft it should be an objective and thorough research undertaking quite unrestricted by any a_ priori assumptions. Consequently the President's committee1 s proposal is dealt with,
not as the culminating conclusion of the study, but as one
of the steps in the development of ideas and proposals for
dealing with the independent regulatory commission problem. 11
pp. vii-viii.
One might, on the basis of this preface, expect
to find in Mr. Cushman 1 s study a thorough analysis of the
^£e-*^?£<
problems of the independent regulatory commissions -oulmina^
&
i«g«> perhaps, JM a "body of findings regarding their proper
organisation.
With regard to findings, the reader will not
be disappointed.
He will find recommendations aplenty
covering the proper degree of responsibility of the commissions to the courts, Congress, and the President; the
separation of legislative, judicial, and other functions
within the commissions; the effectiveness of the commissions
-2-
in long-time planning; and the staffing of the commissions.
By coincidence or otherwise, these findings are in general
agreement with the recommendations of the Presidentts Committee, though perhaps put forward in a somewhat less con-
fifcent tone*
CD
BHgthom/^ numb er of these findings might
be criticised for a regrettable lack of specificity.
For
example:
"Fourth, it must be kept in mind that there is
always danger of getting the planning function too far up
in the eir by failure to keep the planners closely enough
in touch with the administrators who will have to implement
the plans." page 740.
This tone of vague generality is especially
characteristic of Mr. Cushman f s attitude toward judicial
review of the independent regulatory commissions:
"Judicial control over commissions and their
corresponding accountability to the courts should be kept
at a minimum. It should extend to questions of law and
all isHues of ultra vires, and to the fairness and regularity of the procedure of the commissions in performing
quaii- judicial work. It should not extend to determinations of fact which are supported by substantial evidence
and under no circumstances should it extend to matters of
policy." page 697 »
Here is a doctrine which, if properly translated,
pfiu-*^.
could nntl efr the most ardent lew Dealer and which, if
properly construed in all reasonableness, could hardly fail
to jdijJftjSy the justices who concurred in the Ben Avon case.
One would like to ask Mr. Cushman whether a question of
constitutional fact is a question of fact* or of law,
o^ u>*jy^ O<AC^-> £ &«#
whether it involves an issue of ultra vires,
°"
"^ "substantial evidence",
and "matters of policy."
These terms serve merely to
define the issue of judicial review f
solve it.
In no sense do they
More puzzling even than the substance of Mr.
Cushman's findings is the question of their source.
were
what mental process wa« the 665 pages of historical
By
material which make up the first portion of this volume
translated into a set of recommendations of how things
ought to "be?
Chapters I through V are a recital of the
legislative histories of the commissions consisting
primarily of a digest of the arguments which were advanced, in and out of the halls of Congress, pro and
con each legislative measure.
Chapter VI is a matter-
of-fact description of the position the courts have taken
towards the commissions on the issues of separation of
powers, delegation of powers, the President's power of
removal, and judicial review.
Chapter VII is a summary
of Professor Fesler's largely descriptive studies of
state regulatory commissions.
Chapters VIII and IX 4« are
a review of the literature on British regulatory agencies,
with some attempt at appraisal of their results.
The
appraisal seems to be largely a summary of British opinion.
Clearly none of these chapters, confined as
they are almost entirely to legislative and constitutional
history, can afford much "basis for an evaluation of the
operations of the independent regulatory commissions.
Presumably, then, Mr. Cushman's findings must be based
upon the materials in Chapters X through XIII which make
the last htndred pages of the volume. Mr. Cushman seems to
-4concur in this view, for he says:
n !Phe concluding part of the study is devoted to
an analysis of certain basic problems relating to the
independent regulatory commissions. In separate chapters
are discussed the problems which, grow out of the independence of the commissions, the merger in them of several
kinds of powers, their relation to the important taik of
policy planning in the field, and their structure and
personnel. In respect to each of these topics the experience in England and in this country is summarized, proposed changes are catalogued, and an effort is made to
appraise the results of this complicated trial and error
process and to venture some tentative conclusions." pp. 16-17.
The only factual material which the reader
was able to find in *k-ee«-ekep%ea?e-wee-afi-efittme?e*iefi
the chapter on independence and responsibility was an
enumeration of possible devices for enforcing responsibility
to Congress, the President, and the courts, together with
a few obiter dicta, supported by a minimum of examples
much less evidence as to the effectiveness of these
devices.
This evidence, plus a large number of slightly
disguised preferences ( n if Congress has the courage of its
convietions, or of its emotions, it may employ a more brutal
It
and direct type of control over commission personnel.
may resort to 'ripper legislation, 1 the simple device of
abolishing an existing office b^ law and creating a new one
page 676
in its place.") enable Mr. Cushman to set ?*« forth some
conclxisions 1 : "A fair appraisal of the net results of
Congressional control ... is that such control is neither
continuous nor genuinely efficient." page 678.
Another feat of legerdemain enables Mr. Cushman
to proceed from 'conclusions' to 'recommendations. 1
Hot
only has Congressional control been ineffective, but it
-5will be ineffective;
"They (Meriam and Sohmeckebier) have suggested
that the standing committees of Congress ought to be provided with adequate permanent staffs which would permit
them HHBr to carry on efficiently and continuously the task
of supervising administration. The proposal unquestionably
is e sound one, but there is little to support the hope
that Congress will follow this excellent advice. The conclusion seems 4fiev4a%fele inevitable that legislative bodies
are not capable of exercising effective control over administration t «*r«a? or even over their own special agencies t the
independent regulatory Gommittees."^~k^. c (,*? 1
Quite aside from the dubiousness of the minor
premise, Mr. Cushman would seem to have invented here a
new mode of the syllogism: Major premse "They ought to."
Minor premise "They won't." Conclusion- 3* They shouldn't."
This example will serve to illustrate the deductive procedures whereby Mr. Cushman would hope to bridge
the gap separating the Waa's of the historical past from
the ought ' s of the legislative future. His discussions
of the other policcy problems which he raises are equally
unencumbered by factual evidence, and equally replete with
unverified assumptions. By virtue of his assumption that
court review is generally undesirable, he is able to^conolusively flMinTint>n*e the same conclusion. By accepting,
without evidence, the undesirability of combining prosecutor and judge, he is able to show that an internal
division of functions is desirable. 9?Throughout all this
discussion *«**w*8 time and again'aN"wave of the future "t
Jbith.
These things not only should be, but they will be.
Congress "is never likely to become competent, to hold them
(fhe commissions) accountable. 11^ "We are moving steadily
in the direction of keeping the courts more and more out of
J
f
-6the prooesses of administration." page 694. "We shall
continue to experiment with the internal segregation of
functions within the commissions themselves in order to
mitigate the evils of the prosecutor-judge combination."
pages 725-726.
Mr. Cushman has demonstrated again if indeed
the proposition needed further demonstration that scholarship is no substitute for science in *fe-Aeal4Hg-w4$fe-a
diagnosing and prescribing for our social institutions.
Myself when young did eagerly frequent
Doctor and Saint, and heard great Argument
About it and about: but evermore
Came out by the same Door as In I went.
£4xt
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