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Independence of State Regulatory Agencies

Published online by Cambridge University Press:  02 September 2013

James W. Fesler
James W. Fesler
Affiliation:
University of North Carolina
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Extract

Transference to administrative agencies of powers traditionally associated with legislatures and with courts has destroyed old categories of political science, and necessitates a reappraisal of the structure of American governments. The story of the growth of quasi-legislative and quasi-judicial powers has been told too well to require extensive treatment here. With the development of the social service state, the legislatures, we are informed, have been illequipped to legislate in detailed fashion because of the quantity and the technicality of governmental activities and because of the need for flexibility and adaptability in the conduct of those activities. Two other reasons for delegation of legislative power may be advanced. The legislature may wish to devolve the responsibility of self-government on a particular industry or vocational group. Or again, it may desire to wash its hands of a particularly trying problem of public policy, and this it can do by turning the problem over to an administrative agency.

Type
American Government and Politics
Information
American Political Science Review , Volume 34 , Issue 5 , October 1940 , pp. 935 - 947
Copyright
Copyright © American Political Science Association 1940

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References

1 See especially Comer, John P., Legislative Functions of National Administrative Authorities (1927)Google Scholar; Dickinson, John, Administrative Justice and the Supremacy of Law (1927)Google Scholar; Freund, Ernst, Administrative Powers over Persons and Property (1928)Google Scholar; Hart, James, The Ordinance-Making Powers of the President (1925).Google Scholar

2 Herring, E. Pendleton, Public Administration and the Public Interest (1935), p. 139Google Scholar and passim. The legislative body may have the superficially commendable purpose of wishing to remove a debate over policy from the political arena. Herring reports this to have been the case with establishment of the Tariff Commission. He shrewdly observes, however, that traditionally political decisions, like those on tariff duties, remain political wherever the decision-making power be vested. Ibid., p. 104.

3 See especially Carr, Cecil T., Delegated Legislation (1921)Google Scholar; Robson, William A., Justice and Administrative Law (1928)Google Scholar; Hewart, Lord Gordon H., The New Despotism (1929)Google Scholar; Committee on Ministers' Powers, Report (1932).

4 Hart, James, Tenure of Office under the Constitution (1930)Google Scholar; Cushman, Robert E., “The Problem of the Independent Regulatory Commissions,” in U. S. President's Committee on Administrative Management, Report with Special Studies (1937), pp. 203–243Google Scholar; same, “The Constitutional Status of the Independent Regulatory Commissions,” Cornell Law Quar., Vol. 24, pp. 13–53, 163–197 (Dec., 1938; Feb., 1939); Doyle, Wilson K., Independent Commissions in the Federal Government (1939).Google Scholar

5 This distinction is, I believe, the most debatable one here presented. It is based on personal observation, and is subject to exceptions. To California, Wisconsin, and New York, for instance, the generalization cannot apply, for their traditions of good government and effective application of civil service laws have resulted in an administrative personnel that compares favorably with that of the federal government.

6 The state auditor might be thought an exception to this statement, but I do not regard him as a part of the executive branch. He must be outside, looking in.

7 Among the notable dissents must be noted the following: Coker, Francis W., “Dogmas of Administrative Reform,” American Political Science Review, Vol. 16, pp. 399–411 (Aug., 1922)CrossRefGoogle Scholar; Edwards, W. H., “The State Reorganization Movement,” North Dakota Law Review, Vol. 1, pp. 13–30 (Jan., 1927)Google Scholar, Vol. 2, pp. 17–67 (Feb., 1928), and pp. 103–139 (Apr., 1928); same, “The Public Efficiency Experts,” Southwestern Political and Social Science Quarterly, Vol. 10, pp. 301–312 (Dec., 1929); Hyneman, Charles S., “Administrative Reorganization: An Adventure into Science and Theology,” Journal of Politics, Vol. 1, pp. 62–75 (Feb., 1939).CrossRefGoogle Scholar

8 See, however, Buck's, A. E.The Reorganization of State Governments in the United States (1938)Google Scholar for a rarely discriminating praise of state reorganizations.

9 The Position of the Governor in Recent Administrative Reorganizations (ms., Ph.D., dissertation, Ohio State University, 1937), p. 1008.

10 The American Governor; From Figurehead to Leader (1939), p. 268.

11 The regulatory departments with large inspectional staffs are sometimes raided by spoilsmen. In North Dakota under Governor Langer, most of the state's inspectional forces were consolidated in one Regulatory Department and politically useful men appointed as inspectors.

12 E.g., the alumni, faculty, and students of a state university may have their differences, but their end is common—the improvement of the university. At the lower educational levels, the parents, teachers, and superintendents of schools may disagree as to educational techniques and emphases, but they agree on the desirability of effective education.

13 Often the technical function is termed the function of fact-finding. This is especially true in the literature on public utility commissions.

14 Regulated interests naturally object to dominance of this factor, as, for example, when a workmen's compensation board is overly liberal to employees.

15 The public naturally objects to this attitude, as, for example, when a public utility commission assumes the guise of a court and shifts to injured consumers the burden of prosecuting utility companies charging exorbitant rates.

16 Pennsylvania, Governor's Committee on Workmen's Compensation, Report, Labor and Industry 21, p. 70 (Nov., 1934).Google Scholar

17 Ibid., p. 74.

18 Other factors (e.g., the political circumstances of each state) are, of course, influential.

19 However, a few utility companies support effective regulation of utilities, recognizing that the threat of public ownership of utilities gains strength in inverse ratio to the ability of utility commissions to perform their work effectively.

20 Consideration of labor, agriculture, conservation, health, and other regulatory departments is omitted simply because their relationship with regulated interests is usually a complicated one, and the space here available does not permit an adequate treatment of the many variations.

21 I am not naively assuming that special interests do not influence legislators and governors. But the fact that many other special interests are also influential, and that their effectiveness is roughly proportional to their ability to influence the public's voting, seems to me to offer some hope that no single group of special interests can be continually dominant.

22 It should be kept in mind that some governors are elected for more than one term. Even if this does not occur, the same political faction may stay in power for many terms. Either of these events may throw awry the best planned statutory attempts to make an agency independent.

23 The statement is not meant to include statutory requirements that the governor must select his appointee from a slate of nominees proposed by some association, e.g., the state medical society. Such an arrangement may increase an agency's independence.

24 In the discussion following the reading of this paper at a meeting of the Southern Political Science Association (Nov. 10, 1939), many Southern political scientists volunteered instances of this practice in their states. Apparently, politicians recognize the practice as one of the tricks of their trade.

25 Another factor in independence is the freedom of the agency's actions from review by the courts. But I have omitted this, since the basic problem of this discussion does not include the relations between courts and regulatory bodies.

26 Appointing subordinate referees and examiners to handle cases in the first instance, to take testimony, etc.

27 Cf. the Federal Coördinator of Transportation, who, though selected by the President, was also a member of the Interstate Commerce Commission. Significantly, his reports to Congress were accompanied by a transmittal letter of the Commission.

28 I fear to give all quasi-legislative powers to the commission proper, because they might clash with its quasi-judicial powers, and because the experience of state industrial boards has been that they spend most of their time trying to keep the quasi-judicial docket clear, and so neglect their quasi-legislative functions.

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