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7 Staying Current

This book has described and analyzed the core premises, processes, and principles of administrative law in the United States, mostly with respect to the federal level. It should continue to have a long shelf life. The Administrative Procedure Act (APA) of 1946 still provides the fed- eral government’s basic administrative law framework. It has been able to accommodate substantial amendment because its fundamental princi- ples have endured. Congress’s key point in enacting it was that public administration should incorporate the democratic-constitutional values of representation, participation, transparency, fairness, accountability, and limited government intrusion on private activity. Major subsequent ad- ministrative law initiatives—including negotiated rulemaking, freedom of information, alternative dispute resolution, paperwork reduction, and legislative review—have been intended to advance these values. If folding them into administrative law and practice is sometimes bumpy, it is not because they run counter to the APA’s initial purposes—in fact, national security policy aside, it is difficult to think of a single post-1946 admin- istrative law statute that undercuts the APA’s intent. Similarly, cases like Nova Scotia and Cinderella, decided decades ago, remain good law because they are firmly rooted in principles on which the APA is based (United States v. Nova Scotia Food Products Corp. 1977; Cinderella Career and Finishing Schools, Inc. v. Federal Trade Commission 1970).

Public managers can reasonably expect stability in the larger purposes of administrative law. However, they can also expect change in the partic- ulars. Today, rulemaking, adjudication, transparency, and judicial review

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Rosenbloom, David H.. <i>Administrative Law for Public Managers</i>, Routledge, 2013. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/csusb/detail.action?docID=1652860. Created from csusb on 2019-11-22 18:06:40.

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186 7. Staying Current

are not the same as in 1946. The constitutional law affecting public ad- ministration is radically different. How can public managers stay current? There are at least three relatively easy steps and one harder one. The easy ones are to (1) always keep the primary function of American administra- tive law in mind, (2) frequently consult administrative law publications and websites, and (3) talk to agency colleagues and attorneys about new administrative law developments. The more difficult and expensive step is to have experts conduct periodic administrative law audits to ensure com- pliance with newer requirements.

The Primary Function of US Administrative Law

In some fields of study, a couple of underlying principles go a long way in organizing thinking, research, and application. In economics, these are supply and demand; in sociology, stratification and mobility. In adminis- trative law, the tension between constitutional contractarianism and pub- lic administrative instrumentalism is the defining element. The primary function of administrative law is to funnel constitutional contractarian values into administrative practice in order to harmonize public admin- istration with constitutional democracy. The simple secret of the APA’s remarkable durability is that by focusing on procedure rather than sub- stantive policy criteria (e.g., cost-benefit, environmental justice), it acts as such a funnel.

Constitutional Contractarianism

Constitutional contractarianism is based on natural rights theory. Its basic assumptions are that individuals are born with fundamental rights and that they form governments to protect those rights. Rights are not created by government; they preexist it. Government is a mechanism for prevent- ing others from encroaching on our rights and for achieving common pur- poses. Perhaps nowhere are these principles more succinctly stated than in the Declaration of Independence and the Preamble of the US Constitution.

In the Declaration’s famous words, “We hold these Truths to be self- evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” The Preamble is a compact between “We the People” that aims, as one of its prime objectives, to “secure the Blessings of Liberty to ourselves and our Posterity.”

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187The Primary Function of US Administrative Law

Contractarianism pervades the Constitution’s Bill of Rights. It identi- fies spheres of personal freedom, such as religion and speech, in which the government may tread only under extraordinary circumstances. It affords a wide variety of protections for persons accused of crimes. The Eighth Amendment’s ban on cruel and unusual punishments protects those con- victed as well. Here is one court’s contractarian interpretation: “Inadequate resources can never be an adequate justification for the state’s depriving any person of his constitutional rights. If the state cannot obtain the resources to detain persons awaiting trial in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such per- sons” (Hamilton v. Love 1971, 1194 [emphasis added]). This sounds radical, but the identical premise is written into the Fifth Amendment’s Takings Clause: government can take private property only for “public use” and with “just compensation.” If the state is unable to pay for someone’s land, then it cannot have it—no matter how beneficial to a community or the na- tion a highway, bridge, dam, or other piece of infrastructure might be.1 Con- tractarian premises that may raise the cost of administration in the process of protecting individual rights are also reflected in the construction of strict scrutiny in constitutional law. As applied to equal protection and substantive rights, strict scrutiny requires government to show a compelling interest for its action and to narrowly tailor the infringement or to make the means of achieving its interest that approach which is least restrictive of those rights (see Chapter 2). Paralleling other contractarian decisions, the Supreme Court has made it clear that “administrative challenges [do] not render constitu- tional an otherwise problematic system” (Gratz v. Bollinger 2003, 275).

Contractarianism in the sense of privileging rights over administrative costs and convenience is incorporated into several aspects of contempo- rary administrative law. For instance, the absence of standing requirements gives everyone a right to comment on proposed rules in informal rulemak- ing and to file freedom of information requests. The procedural due pro- cess protection provided in adjudications is another example. Executive orders seeking to protect specific values in federal rulemaking, such as en- vironmental justice and vibrant federalism, also embody contractarianism.

Public Administrative Instrumentalism

Public administration in the United States is instrumental, rather than con- tractarian, in its outlook. It pervasively emphasizes cost-effectiveness in

1. Regulatory takings of “noxious” or injurious property are more complicated. See Lucas v. South Carolina Costal Council (1992).

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188 7. Staying Current

achieving results. It sometimes considers benefit-cost ratios, though not necessarily (or perhaps even generally) with full attention to their distri- bution (Stone 2002). From the field’s founding in Woodrow Wilson’s day in the 1880s through former vice president Al Gore’s National Performance Review in the 1990s and continuing up to the present, the grand public administrative purpose has been to make government “work better and cost less” (Wilson [1887] 1987; Gore 1993). This basic posture is captured in a classic statement on public budgeting that contrasts sharply with the Eighth Amendment interpretation quoted above:

Budget decisions must be made on the basis of relative values. There is no absolute standard of value. It is not enough to say that an expenditure for a particular purpose is desirable or worthwhile. The results must be more valuable than they would be if the money were used for any other purpose.

. . . Costs must be judged in relation to the results and the results must be

worth their cost in terms of alternative results that are foregone or dis- placed. (Lewis [1952] 1987, 213–214, 215)

Is the best possible use of public money really to reduce jail crowding? To the contractarian judge, the question is irrelevant; to administrative bud- geters and much budget reform since the 1940s, it is central.

It is an uncomfortable reality that public administration’s instrumen- talism sometimes leads to a remarkably callous disregard for individual rights (Rosenbloom, O’Leary, and Chanin 2010). This is one reason why Congress considered the APA necessary in the 1940s and the federal courts began building constitutional rights into individuals’ encounters with pub- lic administration in the 1950s. As late as 1993, a federal circuit court of appeals had the following to say in response to a prison warden’s manual for search procedures, which literally compelled male guards to sexually abuse female prisoners:

A bland American civil servant can be as much of a beast as a ferocious concentration camp guard if he does not think about what his actions are doing. . . . Half the cruelties of human history have been inflicted by con- scientious servants of the state. The mildest of bureaucrats can be a brute if he does not raise his eyes from his task and consider the human beings on whom he is having an impact. . . .

How did a civilized country and a civilized state like Washington get into this fix where it takes federal judges to tell a responsible state official

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189The Primary Function of US Administrative Law

to stop his approval of indecency because he is violating the Constitution? (Jordan v. Gardner 1993, 1544)

A major function of US administrative law is to ensure that administrators do raise their eyes to the broad contractarian values that underlie consti- tutional democracy—at the very least when legally or constitutionally re- quired to do so.

The tension between contractarianism and instrumentalism necessar- ily results in compromises. Instrumental public administration also has roots in the Preamble, which calls for promoting the common defense and general welfare. Cost-effectiveness is not irrelevant to public policy, and cost-benefit is often central to it. The constitutional law regarding proce- dural due process in administrative contexts recognizes this. The cost of more elaborate procedural protections is balanced with the individual’s interest and the relative efficacy of the procedures in place. Consequently, in the metaphor of administrative law as a funnel, the funnel has a filter. Pure contractarianism is not feasible. A government cannot really release potentially dangerous persons indicted for predatory crimes because it cannot afford constitutional jails. Rulemaking by unelected administrators is far less democratic than legislation by elected representatives; admin- istrative evidentiary adjudication affords individuals less protection than judicial trials in terms of procedure, quality of evidence, burden or persua- sion of proof, and availability of juries; transparency has exemptions and exceptions.

Administrative law’s compromises between contractarianism and in- strumentalism cannot satisfy everyone all the time. Some critics will want more contractarianism; others, more instrumentalism. If the debate did not begin with the framing of the Constitution, it certainly goes back that far. In The Federalist (1787–1788), James Madison argued for checks and bal- ances as “auxiliary precautions” necessary to ensure that the government would “control itself.” Alexander Hamilton maintained that a strong, in- dependent executive was required to prevent “bad execution,” for “a gov- ernment ill-executed, whatever it may be in theory, must be, in practice, a bad government” (Publius 1961 [1787–1788], No. 51, 322; No. 70, 423). In the 1990s, the Hamiltonians favored reinventing government to make it re- sults rather than procedure oriented. They condemned the one-size-fits-all approach that administrative law promotes (Gore 1993, 1–9). Madisonians might have responded in the words of Senator Pat McCarran (D-NV), a leading sponsor of the APA in 1946: “It is sometimes said that . . . the sub- stantive and procedural law applicable to an administrative agency should be prescribed piecemeal, for that agency alone. . . . Diversity merely feeds

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190 7. Staying Current

confusion, which is a great vice in any form of government and operates to defeat the very purposes of good government” (1946, 829).

Since the September 11, 2001, terrorist attacks on the United States, de- bate over constitutional contractarianism and administrative instrumental- ism has focused more sharply on a putative conflict between government transparency and individual personal privacy on one side and national security on the other. Keeping the tension between the contractarian and instrumental outlooks in mind usually makes it easier to understand such controversies and to assimilate change in administrative law.

Periodicals and Websites

For the reader of this book, continuing self-education in administrative law should be straightforward. It ought to be relatively easy to follow and understand any general administrative law discussion, principle, or devel- opment. Technical court decisions and statutory provisions may present more difficulty, but few should be impenetrable. The following sources are worth consulting periodically:

1. The American Bar Association’s Section of Administrative Law and Regulatory Practice publishes an invaluable quarterly newsletter, Administrative and Regulatory Law News. It contains reviews of major court cases and developments in state administrative law as well as discussions of leading law review articles. It is available at http:// www.americanbar.org/groups/administrative_law/publications/ administrativeandregulatorylawnews.html.

2. The Administrative Law Review contains highly readable articles on the entire range of administrative law topics, including frequent analyses of recent developments in specific areas, such as paperwork reduc- tion and sunshine. Careful attention to its contents is an excellent way of staying current. For information, consult http://www.administra tivelawreview.org.

3. Federal district and appellate court decisions, the Federal Register, the Code of Federal Regulations, the US Code, and a variety of other federal government publications and documents can be accessed at http://www.gpo.gov/fdsys.

4. Periodically consulting the Department of Justice’s Guide to the Free- dom of Information Act is a convenient way of keeping up with the latest Supreme Court decisions and other developments. See http:// www.justice.gov/oip/foia_guide09.htm.

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191Talk Administrative Law Talk

5. Supreme Court cases can be accessed at http://www.supremecourt .gov/opinions/opinions.aspx. These, in addition to federal appeals court and some federal special court decisions as well as state mate- rials, can be found at http://www.findlaw.com/casecode. OpenJu- rist (http://openjurist.org) is another site on which Supreme Court decisions can be readily accessed. It also has US Courts of Appeals decisions from 1790 to the present, as well as the Declaration of Inde- pendence and the Constitution.

6. Presidential executive orders issued from 1937 to the present are ac- cessible at the National Archives and Records Administration web- site at http://www.archives.gov/federal-register/executive-orders/ disposition.html.

7. The Office of Information and Regulatory Affairs makes “Current Regulatory Plan and the Unified Agenda of Regulatory and Dereg- ulatory Actions” available at http://www.reginfo.gov/public/do/ eAgendaMain.

8. Regulations.gov is a portal for submitting comments on proposed federal regulations and viewing final regulations, notices, scientific and technical findings, agency guidance, adjudications, comments submitted by others, and the Unified Agenda and Regulatory Plan. See http://www.regulations.gov/#!home.

9. Federal budget information is available from the US Office of Man- agement and Budget (OMB) at http://www.whitehouse.gov/omb.

10. Agency performance plans are available on their individual websites and can be found through search engines. An interesting use of OMB scorecards for assessing agency performance on Executive Order 13,514, “Federal Sustainability,” is available at http://sustainability .performance.gov.

This list only scratches the surface of what is available on the Internet, which can also be used to access law review and other scholarly articles, books, commentary, and an amazing amount of information related to ad- ministrative law in the United States and abroad. We are getting very close to the time when the Internet will almost completely replace traditional law libraries.

Talk Administrative Law Talk

A well-known article titled “Stories Managers Tell: Why They Are as Valid as Science” noted that “managers first and foremost communicate through

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192 7. Staying Current

stories that constitute or construct their world” (Hummel 1991, 39). Public managers talk about human resources management, budgeting, organi- zational design, program evaluation, and other administrative practices. They learn a great deal through such talk. Talking about administrative law will solidify and expand one’s understanding and knowledge. Today administrative law is too central to administrative practice to be consid- ered a technical specialty best left to the lawyers. Typically it is public man- agers, not legal staff, who are called on to integrate administrative law into day-to-day administrative operations. As noted in Chapter 2, they are also the ones who may end up being sued personally for violation of someone’s clearly established constitutional or statutory rights.

Administrative Law Audits

The vast judicial intervention in prison administration during the last quarter of the twentieth century spawned “an emerging new specialty in the corrections field, which, according to some proponents of the idea, trains and designates officials to perform ‘constitutional audits’ of facilities and procedures in order to reduce legal liabilities” (though protecting the prisoners’ constitutional rights would be reason enough) (Feeley and Han- son 1990, 26). In 2000, the US Department of Agriculture contracted out for civil rights audits. Administrative law audits can also be of great value. Many agencies lack systematic processes for learning about new court de- cisions on administrative law and integrating them into their operations. Over time, personnel and other procedural manuals can become dated and standard practices out of sync with the latest legal developments. Even where legal staffs copiously attempt to adjust agency operations to new administrative law requirements, there may be gaps in what reaches front- line personnel. Periodic administrative law audits would systematically focus attention on practices that need updating. They could also serve as an educational tool for agency personnel. Financial audits (instrumental) are common; are administrative law audits (contractarian) less important?

The Next Level

This book aims to equip public managers with the essentials to understand, follow, and integrate administrative law into their daily practice. It also provides a knowledge base for those who want to study administrative law further or dig more deeply into any of its major areas. Several books can take public administrators to the next level. The classic work empha- sizing state-level administrative law is Michael Asimow, Arthur Bonfield,

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193Discussion Questions

and Ronald Levin, State and Federal Administrative Law (4th ed., 2013). A good next step for those primarily interested in federal-level law would be Kenneth Warren’s encyclopedic Administrative Law in the Political System (5th ed., 2011), parts of which have already been listed under “Additional Reading” in Chapters 1 and 4. Kenneth Culp Davis’s older but still thought provoking Administrative Law and Government (1975) is a classic in the field. Following either of these, one cannot go wrong with Peter Strauss et al.’s massive Gellhorn and Byse’s Administrative Law: Cases and Comments (11th ed., 2011). Administrative law is a key part of the hard work of modern democracy. One can never learn too much about it.

Discussion Questions

1. Do you think posing a tension between constitutional contractari- anism and public administrative instrumentalism correctly explains how administrative law fits into contemporary US constitutional government? Why or why not?

2. Having read the book, if you could change any three aspects of con- temporary constitutional law, including judicial decisions and judicial re- view, what would they be and why?

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