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7 The Thinning of Administrative Institutions
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16. George W. Carey and James McClellan, eds., The Federalist, Federalist No. 51, author James Madison (Indianapolis, IN: Liberty Fund, 2001), 268. 17. Justice William O. Douglas was a leader in advocating greater subordination of public administration to constitutional values. Among his statements were the following: “The bureaucracy of modern government is not only slow, lumbering, and oppressive; it is omnipresent” (Wyman v. James, 400 U.S. 309, 335 [1971]); “The sovereign of this Nation is the people, not the bureaucracy” (U.S. v. Richardson, 418 U.S. 166, 201 [1974]); and “Today’s mounting bureaucracy, both at the state and federal levels, promises to be suffocating and repressive unless it is put into the harness of procedural due process ” (Spady v. Mount Vernon, 419 U.S. 983, 985 [1974]). 18. Administrative Procedure Act, Public Law 79-404, U.S. Statutes at Large 60 (1946): 237. Quoted in Rosenbloom, Building a Legislative-Centered Public Administration, 7, 38–39. 19. Legislative Reorganization Act, Public Law 79-601, U.S. Statutes at Large 60 (1946): 812, sect. 136. 20. The list includes the Administrative Dispute Resolution Acts, Public Law 101-552, U.S. Statutes at Large 104 (1990): 2736, and Public Law 104-320, U.S. Statutes at Large 110 (1996): 3870; Federal Advisory Committee Act, Public Law 92-463, U.S. Statutes at Large 86 (1972): 770; Freedom of Information Act and Amendments, Public Law 89-487, U.S. Statutes at Large 80 (1966): 250, and Public Law 93-502, U.S. Statutes at Large 88 (1974): 1561; Government in the Sunshine Act, Public Law 94-409, U.S. Statutes at Large 90 (1976): 1241; Inspector General Act, Public Law 95-452, U.S. Statutes at Large 92 (1978): 1101; Negotiated Rulemaking Act, Public Law 101-648; U.S. Statutes at Large 104 (1990): 4969; Paperwork Reduction Acts, Public Law 96-511, U.S. Statutes at Large 94 (1980): 2812, and Public Law 104-13, U.S. Statutes at Large 109 (1995): 163; Privacy Act, Public Law 93-579, U.S. Statutes at Large 88 (1974): 1896; Regulatory Flexibility Act, Public Law 96-354, U.S. Statutes at Large 94 (1980): 1164. 21. Government Performance and Results Act, Public Law 103-62, U.S. Statutes at Large 107 (1993): 285. 22. Small Business Regulatory Enforcement Fairness Act, Public Law 104121 , U.S. Statutes at Large 110 (1996): 857. The provision for congressional review of agency rules is often called the Congressional Review Act. 23. Statement by Representative Earl Michener (R-MI) in 1940. Quoted in and see Rosenbloom, Building a Legislative-Centered Public Administration, 7, for the full context. 24. Kenneth Culp Davis, Administrative Law and Government (St. Paul, MN: West Publishing, 1975), 72. 25. Robert Turner, “Governing from the Bench,” Boston Globe Magazine, November 8, 1981, 12ff. 26. Wood v. Strickland, 420 U.S. 308 (1975). 27. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Public administrators retain absolute immunity when engaged in judicial functions and integral 104 Rosenbloom legislative activity. See Butz v. Economou, 438 U.S. 478 (1978), and Bogan v. Scott-Harris, 523 U.S. 44 (1998). 28. Hope v. Pelzer, 536 U.S. 730, 741 (2002). 29. Owen v. City of Independence, 445 U.S. 622, 669 (1980). 30. Malcolm Feeley and Roger Hanson, “The Impact of Judicial Intervention on Prisons and Jails,” in Courts, Corrections, and the Constitution, ed. John DiIulio Jr. (New York: Oxford University Press, 1990), 26. 31. Raoul Berger, Government by Judiciary (Cambridge, MA: Harvard University Press, 1977); Donald Horowitz, The Jurocracy (Lexington, MA: Lexington Books, 1977). 32. “Why the Courts Are Running D.C.,” Washington Post, August 15, 1995, p. A16. 33. Paul Light, The Tides of Reform (New Haven, CT: Yale University Press, 1997), 206, observes that “Congress was still quite capable of loaning the keys to administrative reform to the presidency” for paperwork reduction, and it “still shows a surprising readiness to defer to the commander in chief with regard to the war on waste.” The Supreme Court’s decisions in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978); Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984); and Heckler v. Chaney, 476 U.S. 821 (1985), give agencies greater independence from judicial review with regard to rule making, statutory interpretation , and discretionary nonenforcement. 34. Lewis Meriam, Reorganization of the National Government: Part I: An Analysis of the Problem (Washington, DC: Brookings Institution, 1939), 131. 35. Brack Brown and...