Madison's Managers: Public Administration and the Constitution

4 Raising the Bar: Law and the Administrative Process

c h a p t e r f o u r Raising the Bar Law and the Administrative Process The main thing you need to know about delegation to practice law in the federal courts can be said in one simple sentence: Congress may and does lawfully delegate legislative power. —Kenneth Culp Davis Throughout its history, the field of public administration has been strikingly consistent in one significant respect: its ‘‘anti-legal temper’’ (Waldo 1984, 80). John Gaus (1923–1924, 220) notes that ‘‘the new administration . . . claims wide exemption from judicial review of its findings of fact.’’ Says Leonard White (1926, preface), ‘‘The study of administration should start from the base of management rather than the foundation of law, and is therefore more absorbed in the affairs of the American Management Association than in the decisions of the courts.’’ As Dwight Waldo (1984, 81) interprets the antilegal temper, ‘‘the lawyer suffers from a meager social outlook, the spirit of the New Management does not abide with him.’’ The most sophisticated reflection of the antilegal temper is that of John Dickinson (1927, 156), who makes the important distinction between administrative adjudication and ‘‘matters as to which the government is a direct party in interest, that is, the distribution of pensions or public lands, collection of the revenue, direct governmental performance of public services, and the like.’’ Noting the prevailing skepticism toward legislative delegation by the courts, Dickinson argues that ‘‘the needs of the moment, the circumstances of the particular case, all that we mean and express by the word ‘policy,’ have an importance that professional lawyers do not always allow to them’’ (150–151). He asks (156): ‘‘If . . . we . . . imply that the main r a i s i n g t h e b a r 73 purpose of the technical agency is to adjudicate according to rules, will we not have abandoned the characteristic and special advantages of a system of administrative justice, which consists in a union of executive, legislative, and judicial functions in the same body to secure promptness of action, and the freedom to arrive at decisions based on policy?’’ Currently only a handful of public administration scholars (see for example Bertelli 2004; Cooper 2000; Moe and Gilmour 1995; O’Leary 1993; Rosenbloom 2003) focus on the legal aspects of administration. The role of administrative law is generally regarded as a specialized topic within the broader field of public administration —equivalent to personnel management and financial management—rather than a fundamental aspect of managing in the public sector. Most contemporary works on the current and future state of the field neglect not only the role of administrative law but also the implications of the separation of powers for democratic governance, which is the intellectual foundation of both administrative law and, we argue, public administration. A significant consequence of this neglect is that the field remains isolated from intellectual and institutional developments that provide the kinds of insights that might help in overcoming its pervasive sense of crisis and irrelevance. In effect, public administration scholarship takes little cognizance of a field, administrative law, that is the primary source of ideas concerning how the separation of powers affects public administration. The negative consequences of this neglect are compounded by the fact (noted in chapter 1) that public administration scholars and practitioners have the power to put their views concerning the implications of that separation for public administration into actual practice. By ignoring these views, public administration contributes to its own powerlessness. In this chapter, we review developments in the field of American administrative law from its inception to the present, developments that occurred while public administration , in its antilegal temper, slept. Our intention in recounting these developments , particularly the most recent ones, is to establish their fundamental relevance to a field, public administration, which shares with it a fundamental need to comprehend the separation of powers in a very nuanced way. With that convergence established , the intellectual and practical significance of the precept of managerial responsibility , which we describe in detail in chapter 6, will become clear. from nondelegation to delegation: an overview Administrative law in the United States developed at the federal level as a set of default rules for the ‘‘contracts’’ whereby Congress delegated powers to administra- 74 m a d i s o n ’ s m a n a g e r s tive agencies through the language of enabling statutes...