Liberty Matters

De-Immunizing the Administrative State: A Diceyan Prescription with an American Heritage


Judge Glock’s essay on Albert Venn Dicey’s legacy for modern administrative law helpfully draws our attention to an important yet neglected issue: the legal immunity of administrative officers. Although Dicey is usually cited as a critic of the administrative state in general, Glock argues that his concerns were narrower than those of today’s “anti-administrativists,”[1] whose concerns are predominantly focused on “rule-making regulators” instead of the legal immunity of administrative officials. “Some of Americans’ most trenchant modern critiques of administrative law,” he writes, “resting on a reading of the Constitution and its stark divisions of legislative, executive and judicial powers, simply did not interest Dicey.”
Glock’s essay commendably highlights the issue of administrative officers’ immunity from personal liability – a modern departure from early American law. However, Dicey’s rule-of-law principles apply to a wider array of legal doctrines and principles than Glock lets on. Those principles can be invoked against other administrative law doctrines that place administrative decisions beyond the reach of judicial decision. In my view, therefore, Dicey is even more relevant to modern administrative law than Glock’s essay credits him for. 
First, however, we must acknowledge that Glock is correct about the limits of Dicey’s critique of the administrative state. Dicey was, as Glock notes, a believer in legislative supremacy, which led him to reject the American version of separation of powers and therefore to accept the delegation of legislative power to administrative agencies. Because he started with the “belief in the total sovereignty of Parliament,” it followed that all legal authority could be vested by Parliament in other bodies at will. The American doctrine of the social compact, by contrast, starts with the belief that the people are sovereign, and that all government officials, including legislators, are creatures of the people. When the people vest legislative power in elected representatives, that power cannot be further delegated.[2] Dicey’s commitment to British constitutionalism caused him to overlook the problems associated with delegating legislative power to administrative bodies.  
Still, Dicey’s argument for the rule of law and his criticism of legal immunity of administrative officers is compelling. As a British legal theorist, Dicey understood the threat that executive control over judges posed to individual liberty. His fear of administrative power was rooted in British history, which witnessed assertions of prerogative power over courts by the Crown. His criticism of French droit administratif, as Glock explains, was rooted in its use of administrative tribunals, rather than independent courts, to try cases involving French government officials. This fact alone, however, suggests that Dicey’s concerns about administrative power went beyond the specific question of officer liability. His concerns focused on the broader issue of subjecting administrative officers to the law and the jurisdiction of ordinary courts.  
Defining the rule of law, Dicey famously explained that it meant “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established before the ordinary courts of the land.” Furthermore, he added, “every man…is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”[3] Therefore, Dicey boasted, “[w]ith us every official, from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.” Officers, therefore, are “in their personal capacity, liable to punishment.”[4] Thus it is true that Dicey directly connected the rule of law to personal liability for government officials. But his principles extended more broadly to the legality of official action as such. If “every man is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals,” officers must be subject to judicial decision when legal controversy arises over the legality of their actions. 
 This principle of administrative accountability to ordinary courts should be understood as much broader in its application than the issue of personal liability. Early American legal history, which supports Dicey’s conception of the rule of law, illustrates this. In early America administrative officers were indeed personally liable for damages caused by their illegal actions.[5] But administrators were held legally accountable in other ways as well. When administrators violated the law in the course of carrying out their responsibility, courts could review their decisions and reverse them, particularly when the administrators’ decisions were mandatory. Both at the state level (where most regulatory power resided in the 19th Century) and the national level, courts reviewed administrative decisions and invalidated them if they were not in accordance with law.[6] Most significantly, courts (rather than bureaucrats) were often the administrators themselves. As Ann Woolhandler writes, “[b]efore the development of more bureaucratic forms of government in the nineteenth century, the primary impact of government on citizens was through the courts,” not administrative agencies.[7]  In sum, the legality of administrators’ decisions could be reviewed by courts generally, and legislatures would often make courts the administrators in lieu of executive officers. All of these arrangements promoted Dicey’s rule of law principles. 
This aspect of early American administrative law was once well understood. Alexis de Tocqueville wrote extensively about it.[8] Decades later, progressive legal theorists such as Ernst Freund and Roscoe Pound noted it as well.[9] As Pound explained, “nothing is so characteristic of American public law of the nineteenth century as the completeness with which executive action is tied down by legal liability and judicial review.”[10] In sum, one of the core principles of early American administrative law was that courts should be deeply involved in the administration of the law, including judicial review of the legality of administrative action. This was part of the design of early administration in America, in order to advance the same rule-of-law concepts that Dicey alluded to in his famous definition.
Consequently, Dicey’s argument for the rule of law can be applied to a variety of modern administrative law doctrines, beyond the issue of officer liability. For instance, perhaps the most famous principle of American administrative law is the “Chevron doctrine” which requires courts to defer to administrators’ interpretations of law. This doctrine is in serious tension with Dicey’s argument that the rule of law requires government officials to be “subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”[11]
Seen in this broader light, Dicey’s insights about the rule of law implicate not only the specific issue of official liability, but the general immunity of the modern administrative state from law. The existence of administrative courts and administrative law judges, judicial deference to administrative decisions, and other issues, are all aspects of the modern state that threaten a Diceyan conception of the rule of law. Judge Glock’s essay rightfully draws our attention to one of these issues, but Dicey’s insights can be usefully applied more broadly to critique the broader legal immunity of the administrative state.