To ward off the dread that engulfs me when I contemplate the Court’s anti-administrative decisions and agenda, I love to read what amounts to regulatory fan fiction. Once, there was a time when administrative agencies roamed the earth, controlling the U.S. economy in minute detail. This was not just a rhetorical flourish or some feared dystopia lying down the treacherous slippery slope of judicial deference to agencies. It was life. What was that like? How did we survive it? Could it happen again?
Catherine Duryea’s article, Emergency Oversight, delivers these pleasures and more. Duryea analyzes the Emergency Court of Appeals (ECA), a specialized court that operated from 1942-1961 with exclusive jurisdiction to adjudicate challenges to price and rent regulations promulgated by the Office of Price Administration (OPA). OPA administered an extensive system of price and rent control regulations during WWII to thwart wartime inflation and ensure adequate wartime production. These regulations were promulgated under statutory authority delegating to the OPA’s Price Administrator the power to set maximum prices at a level that would “be generally fair and equitable,” giving “due consideration” to prices as they existed during a specified baseline time period. OPA regulations touched every aspect of American life during the war, “from what people ate for breakfast to what clothes they wore” (P. 13), to what rent they could charge for use of a refurbished outhouse. OPA had civil and criminal authority to enforce its price regulations.
The validity of OPA regulations could be challenged exclusively in the ECA, subject to Supreme Court review. Such challenges could not be brought in the lower federal courts and, perhaps more controversially, could not be raised as defenses to civil or criminal enforcement actions that the OPA pursued in the lower federal courts. Exclusive ECA jurisdiction ensured a uniform, national approach to the anti-inflation regulatory scheme. ECA judges were selected by the Chief Justice of the U.S. Supreme Court from among existing members of the federal bench. This task fell to Chief Justice Harlan Fiske Stone, a reliable supporter of New Deal legislation who had been elevated to Chief by President Roosevelt. As a practical matter, this meant that the ECA was staffed by judges who were ideologically aligned with the Roosevelt administration. There was very little turnover among ECA judges, allowing them to develop deep expertise in the complex field of price administration.
The ECA decided nearly 350 cases over its two decades in existence. Although many cases involved small, individual claims, “the aggregate economic value of the cases before the ECA was massive” (P. 32.) Although the ECA was seated in Washington, DC, the judges traveled to the locations where disputes arose to save parties the costs and burdens of travel. So, for instance, a panel of three ECA judges traveled to Alabama to assess whether renovations to a privy constituted a “major capital improvement” warranting an increase in the property’s rent ceiling. Cases before the ECA raised issues of statutory interpretation, the adequacy of OPA’s reasoning, and the constitutionality of the regulatory scheme.
Duryea demonstrates that the ECA approached these issues from the perspective of “shared responsibility” for implementation of the regulatory scheme. This meant protecting injured producers and property owners from extreme instances of agency overreach while ensuring the overall workability and efficacy of the pricing system. She outlines four key elements to the shared responsibility understanding. First, ECA judges were extremely deferential to OCA. While not a rubber-stamp, the ECA consistently gave great weight to OPA’s factual findings, reasoning, and procedures. Second, the ECA conducted independent economic analysis of OPA regulations, but it almost always reached the same conclusion as OPA because ECA judges shared with the agency and the Roosevelt administration a common understanding of the economic theory underlying price and rent controls. The ECA upheld OPA regulations and the statutory scheme authorizing them not simply out of deference but “because of its own understandings of the economic necessity—and wisdom—of price and rent controls” (P. 44.) Third, the ECA saw itself, and rhetorically positioned itself, as one of many government institutions jointly responsible for ensuring the success and practical workability of the complex regulatory system “keeping runaway inflation from imperiling the war effort.” (P. 44.)
Finally, the ECA recognized the imperative of imposing backstop limits on OPA’s power, particularly in cases of extreme unfairness to individual interests. In this way, it served as an important source of legitimacy for the extensive and intrusive regulatory scheme. At the end of the day, although OPA had significant enforcement authority as a formal matter, the system was so vast and sprawling that it “relied on public support for widespread compliance” (P. 37.) The ECA was sensitive to this, recognizing that price increases might be necessary in some cases “to keep products on the shelves” or “to avoid producers exiting the market or generating such public opposition to the system that it could no longer function” (P. 36.) Still, “[e]ven when pushing back against OPA, the ECA established itself as a partner in making sure the system worked as designed by Congress” (P. 37.)
Beyond the rich historical detail in Duryea’s account, the article generates important insights and interesting questions for administrative law. First, it showcases an innovative and dynamic conception of agency legitimacy that departs from the well-trod tracks of expertise, political control, and democratic participation. To legitimize the regulatory regime, the ECA adopted a model of presumptive deference, validated by the ECA’s own independent analysis, with an escape valve for egregious agency overreach. This was all in service of the ECA’s reading of the authorizing statute’s expansive purposes and textual delegations of authority.
Second, this arrangement suggests a political economy of deference that provides a useful lens on the contemporary deference wars. The lynchpin of “shared responsibility” between the ECA and OPA appears to have been ideological alignment. Clearly no such alignment exists between a majority of the current Supreme Court and agencies regulating the economy. This raises questions about whether such alignment is a necessary condition for deferential judicial review. More recent history would suggest not. Justice Scalia, the most vocal supporter of Chevron deference, was hardly ideological kin with regulatory agencies. What, then, are the possible conditions under which deference regimes arise and endure?
Third, the ideological alignment of the ECA and OPA was grounded not simply in shared preferences for political outcomes, but in a pro-regulatory economic theory. OPA officials and ECA judges did not have to resist economic theory to justify extensive regulation. They had an economic theory of prices and inflation that supported extensive regulation of the economy. This raises questions about whether there are existing, viable alternatives to today’s still-dominant Chicago School economic theory or whether alternative economic theories could be developed and effectively promoted.
Of course, all of this begs the question whether the “shared responsibility” model Duryea describes could only work in wartime. Maybe the emergency context was the necessary and sufficient condition for such an arrangement, and all the rest was superfluous. Duryea, for her part, sees emergency wartime powers as fundamental to the ECA’s understanding of and reasoning about its role. Even read within these confines, the ECA case study provides a striking contrast with the Supreme Court’s response to agency actions during the COVID emergency. The Court saw many of these cases as an opening to aggressively curtail agency authority rather than an occasion to share responsibility for safely navigating the emergency within the parameters of authorizing statutory schemes. The Court took no opportunity to legitimate agencies’ COVID-related policies. Indeed, some opinions forcefully asserted agencies’ illegitimacy in politically inflammatory rhetoric that exalted individual rights over any sense of shared responsibility. Perhaps the most enduring lesson to be taken from Duryea’s historical account of the ECA is that time changes all things.
