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Administrative Law as Public Policy: The First Fifty Years

Published online by Cambridge University Press:  14 October 2011

Gerald M. Pops
Gerald M. Pops
Affiliation:
West Virginia University
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Extract

Administrative law in the United States during the last half century has been dominated by three major themes: (1) the extent to which legislative authority may be delegated to administrative agencies, (2) judicial review of legislative action, and (3) analysis of the formal aspects of agency procedures. At the core of this traditional approach to administrative law—defining its purpose—is the problem of the legitimacy of public administration. Specifically, the issue, to traditionalists, is how far administrative agencies can go before they impinge on the rights of private citizens.

Type
Articles
Information
Journal of Policy History , Volume 2 , Issue 1 , January 1990 , pp. 98 - 117
Copyright
Copyright © The Pennsylvania State University, University Park, PA. 1990

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References

Notes

1. Rabin, Robert L.perespectives on the Administrative Process (Boston, 1979).Google Scholar

2. Pierce, Richard J. Jr, Shapiro, Sidney A., and Verkuil, Paul R., Administrative Law and Process (Mineola, NY, 1985), 1–7.Google Scholar In the United States, as in other common law systems, but distinct from Continental civil law, the difference between public and private has been blurred because both “public rights” and “private rights” are seen as property interests and because one set of courts serves as the source of review for governmental actions as well as for private disputes.

3. Freund, Ernst, Administrative Powers over Persons and Property: A Comparative Survey (Chicago, 1928).Google Scholar

4. Goodnow, Frank, Comparative Administrative Law (New York, 1893).Google Scholar

5. Frankfurter, Felix, “Foreward: The Final Report of the Attorney General's Committee on Administrative Procedure,” Columbia Law Review 41 (1941), 585.CrossRefGoogle Scholar

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7. Rabin, Robert L., “Federal Regulation in Historical Perspective,” Stanford Law Review 38 (May 1986), 1267.CrossRefGoogle Scholar In Landis's more expansive view of the administrative role, the agencies would maintain a partnership role with private entrepreneurs in regulating industrial activity.

8. Davis, Kenneth Culp, Administrative Law (St. Paul, 1951).Google Scholar

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14. Woll, Peter, Administrative Law: The Informal Process (Berkeley, 1963).Google Scholar

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19. There are exceptions to this statement. For example, two fine textbooks in public administration have been written: Cooper, Philip J., Public Law and Public Administration (Palo Alto, 1983)Google Scholar; Rosenbloom, David H., Public Administration and Law: Bench v. Bureau in the United States (New York, 1983).Google Scholar

20. Hart, Introduction to Administrative Law, 23.

21. Bryner, Gary C., Bureaucratic Discretion: Law and Policy in Federal Regulatory Agencies (Elmsford, NY, 1987), 34.Google Scholar

22. Three essays of Shapiro were consulted: “Judicial Activism,” in Seymour Lipset, ed., The Third Century: America as a Post-Industrial Society (1979), 109; “On Predicting the Future of Administrative Law,” AEI Journal on Government and Society (May/June 1982), 18; and “Administrative Discretion: The Next Stage,” Yale Law Journal 92 (1983), 1487.CrossRefGoogle Scholar In the last of these, Shapiro's central thesis is that administrative law doctrines are the legal institutionalization of political theory traditions that come into play approximately a decade after the theory is articulated and accepted.

23. Shapiro, “On Predicting,” 19.

24. Musolf, Lloyd D., Federal Examiners and the Conflict of Law and Administration (Baltimore, 1953), 29.Google Scholar

25. Ibid.

26. Shapiro, “On Predicting,” 19. The constitutional debate over the delegation of congressional power reached its zenith in the Supreme Court decision in Schechter Bros. v. United States, 295 U.S. 495, in 1935. The debate “summarized the conflict between liberal and progressive political theory that had been going on for the previous four decades.”

27. Eggers, Roland, “The Period of Crisis: 1933 to 1945,” in American Public Administration: Past, Present, Future, ed. Mosher, Frederick C. (University, AL, 1975).Google Scholar

28. Musolf, Federal Examiners, 28–29.

29. Ibid., 31–32. Nor were administrators alone in this view. Musolf cites division of thought within the organized bar.

30. Nonet, Philippe, Administrative Justice: Advocacy and Change in Government Agencies (Beverly Hills, 1969), chap. 1.Google Scholar

31. Eggers, “The Period of Crisis.”

32. Musolf, Federal Examiners, 52–56. Hearing examiners have their roots in the practice of the British Court of Chancery in delegating hearing duties to single officials called “masters.” The pattern was repeated in the United States, beginning in 1812, with registers of the General Land Office settling disputes involving the sale of public lands, and with local inspectors who had investigative and hearing duties in connection with ship safety and supervision of Merchant Marine personnel starting in 1838. See, generally, Musolf, chap. 3, “Genesis of the Examiner,” 47–74.

33. Ibid., 74.

34. Ibid., 30.

35. Dickinson, John, Administrative Justice and the Supremacy of Law in the United States (New York, 1927).Google Scholar

36. Senate 915, 76th Cong., 1st Sess. (1939).Google Scholar

37. Musolf, Federal Examiners, 41–42.

38. Message from the President of the United States Returning hwithout Approval the Bill (H. R. 6324) Entitled, “An Act to Provide for the more Expeditious Settlement of Disputes, and for other Purposes. House Doc. 986, 76th Cong., 3d Sess., 2–3.

39. Ibid.

40. Lubbers, Jeffrey S., “Federal Agency Adjudications: Trying to See the Forest and the Trees,” Federal Bar News and Journal 31 (November 1984), 383.Google Scholar

41. Report of the Attorney General's Committee on Administrative Procedure, Senate Doc. 8, 77th Cong., 1st Sess. (1941), 6 (1941).Google Scholar Philip Cooper has concluded that “the report was a superior piece of work on law and administration and as such deserves consideration as one of the most important pieces of literature in law and administration of that period.” Cooper, Public Law and Public Administration, 75–76.

42. Ch. 324, 60 Stat. 237. The act is now codified, in amended form, in Title 5 of the United States Code, sections 551–59, 701–6, 1305, 3105, 3344, 5372, and 7521.

43. Conflict soon resumed in the courts, as the ABA challenged (unsuccessfully) the U.S. Civil Service Commission's assertion of authority in regulating the selection and regulation of the position of hearing examiner. See Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953).

44. David H. Rosenbloom, Public Administration and Law, 56.

45. Ibid., 56.

46. Ibid., 30.

47. Scalia, Antonin, “Vermont Yankee …” (1978)Google Scholar; Shapiro, “Administrative Discretion,” 1477–78.

48. Shapiro, “Administrative Decision.”

49. Richard Stewart, “The Reformation of American Administrative Law.” See also Garland, Merrick B., “Deregulation and Judicial Review,” Harvard Law Review 98 (January 1985), 507.CrossRefGoogle Scholar

50. Garland, “Deregulation,” 510.

51. Ibid., 510–11.

52. The high watermark was reached in 1970 with the decision in Goldberg v. Kelly, 397 U.S. 254 (1970), in which a majority of the court joined to hold that hearings, with specific and formalized procedural safeguards, were required to be offered to persons by welfare agencies before terminating public assistance payments. The decision was subsequently applied to require and shape hearings in prisons, mental hospitals, schools, and other places where persons alleged that property, liberty, or life was being threatened by government action or inaction.

53. The burgeoning of administrative justice rights was not solely the work of the courts. Many rights were extended by way of legislation or executive order. For example, law was created that worked toward the elimination of racial, ethnic, and gender discrimination in employment, which gave federal employees rights to collectively bargain and to grieve, to receive fair and equal compensation, and that promoted a safe and health-protecting workplace.

54. Wood v. Strickland, 420 U.S. 308 (1975).

55. Public Law 89–487 and Public Law 93–502, respectively (currently, Title 5, U.S. Code, sec. 552, as amended).

56. Horowitz, Donald, “Decreeing Organizational Change: Judicial Supervision of Public Institutions,” Duke Law Journal 1983 (1983), 1265.CrossRefGoogle Scholar

This brings me to the more general subject of unintended consequences in organizational change cases. As in the matter of budgetary costs, these are of two types: those that occur within the affected organization and those that occur outside it. I have already suggested that, after a decree is entered, a plethora of forces, many of them not before the court, typically combine in unanticipated ways to produce results of which courts may or may not approve but many of which they will certainly not have foreseen. The same happens outside the bounds of the affected organization. These consequences never come within the view of the courts. (1305–6)

57. This analysis is consistent with Shapiro's, in “On Predicting …” (see note 3). Writing in 1982, Shapiro said: “It is an almost unnoticed judicial step to move from the demand that all the groups be answered to the demand that all significant questions be answered. That is the step the courts are taking right now” (18).

58. Cooper, 2ded., 163–64. Cooper uses Laurence Tribe's distinction between “intrinsic” and “instrumental” approaches to due process; Tribe, , American Constitutional Law (Mineola, NY, 1978).Google Scholar

59. Mathews v. Eldridge, 424 U.S. 319 (1975), at 334–35:

More precisely, our present decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

60. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978).

61. 98 S. Ct. 2096 (1978).

62. The significance of this case is explored by Daniel D. Polsby, in “F.C.C. v. National Citizens Committee for Broadcasting and the Judicious Uses of Administrative Discretion,” The Supreme Court Review (1978), 1.Google Scholar

63. 445 U.S. 622; 100 S.CT. 1398 (1980).

64. According to Mark Tushnet, agencies were allowed a varying degree of discretion to act and, correspondingly, given varying degrees of judicial review, depending upon how professional and competent they were perceived to be by the courts.

65. Executive Order 12291 (17 February 1981).

66. Granat, Diane, “Senate Unanimously Passes Broad Regulatory Reform,” Congressional Quarterly Weekly Report (27 March 1982), 701.Google Scholar

67. See Scalia's concurring opinion in N.L.R.B. v. International Brotherhood of Electrical Workers, Local 340, 107 S.Ct 2002, at 2015–17. Perhaps the best analysis of Scalia's views in this regard is found in Richard A. Brisbin, Jr., “The Conservatism of Antonin Scalia,” Political Science Quarterly, in press.

68. Such a strategy would be more effective if Congress and OMB could frame more specific guidelines for administrative action.

69. Graham, Cole Blease Jr, “The Changing Role of the Administrative Law Judge,” Public Administration Quarterly 9 (1985), 261.Google Scholar

70. There is disagreement on this point. Compare Levinson, Harold, “The Proposed Administrative Law Judge Corps: An Incomplete but Important Reform Effort,” New England Law Review 19 (1984), 733,Google Scholar with Graham, “The Changing Role.” Graham, who takes the position that ALJs are becoming increasingly judicialized, makes the better case.

71. All federal administrative hearing officers received the title of “Administrative Law Judge” in 1978 (5 USC 3105).

72. Three major organizations represent the interests of ALJs: the Federal Administrative Law Judges Conference, the National Conference of Administrative Law Judges, and the Association of Administrative Law Judges.

73. Cofer, Donna P., “Bureaucratic Efficiency vs. Bureaucratic Justice: Administrative Law Judges in the Social Security Administration,” Judicature 71 (June/July 1981), 30.Google Scholar

74. Heflin, Howell, United States Senator (D-Ala), “A Question of Independence,” New England Law Review 19:4 (1984), 693.Google Scholar

75. Cofer, “Bureaucratic Efficiency vs. Bureaucratic Justice.

76. Palmer, Victor W., “The Evolving Role of Administrative Law Judges,” New England Law Review 19:4 (1984), 755–810, at 779–784.Google Scholar

77. Senate Bill 673, 99th Cong., 1st Sess., 131 Cong. Rec. 29, 2969 (1985). This bill replaced Senate Bill 1275, 98th Cong., 1st Sess., 129 Cong. Rec. S. 6609–13.

78. The policy initiative is reinforced by the movement in several states to establish centralized panels of ALJs.

79. Joost, Robert H., “A Corps of Federal Administrative Law Judges: Why? What Kind? Operating How? Under Whose Control?” New England Law Review 19:4 (1984), 695.Google Scholar

80. Statement of Smith, Loren A., U.S. Senate, Administrative Law Judge Corps Act, Hearings, Committee on the Judiciary (Washington, D.C., 1983), 114–16.Google Scholar