Administrative Law

Steven J. Cann

• Publisher: SAGE Publications, Inc
• Year: 2005
• ISBN:
  9781506317878
• Edition: 4
• Topic: Politik & Internationale Beziehungen
• Subtopic: Öffentliche Ordnung

In this new edition, author Steven J. Cann once again enlivens the topic of United States administrative law through the use of recent and "classic" legal cases to make it accessible and interesting to students. Administrative Law, Fourth Edition is an engaging casebook that presents a unique problem-solving framework that contrasts democracy with the administrative state. This novel approach places the often complex subject matter of U.S. administrative law into a more comprehensible context. The Fourth Edition has been completely updated and revised and includes many new cases to reflect changes in the law since the year 2000.

PART I

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POLITICS, DEMOCRACY, AND BUREAUCRACY

1

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DEMOCRACY AND BUREAUCRACY

Case in Point:
Whitman v. American Trucking Association
531 U.S. 457 (2001)

America has a remarkably strong and stable economy. Economists debate about why our economy is so much stronger than others, but many believe that our reliance on the free market has something to do with it. We are, perhaps, the most capitalistic country in the world, which means that we rely on the free market to an extent that other countries do not. That means that market forces (supply, demand, and price) drive most economic decisions in America. That is not true in the rest of the industrialized world, where governments rather than [as well as?] markets make significant economic decisions.

From a public administration perspective, the free market, wonderful though it may be, is not without its flaws. The particular flaw that will concern us in the discussion of the American Trucking Association case is market failure. Market failure occurs when the market provides no incentive to incur added expenses to cover costs associated with second-order consequences of doing business. Pollution is the classic example of market failure. If you own a business and your business produces a harmful by-product, your choices are simple and few: (a) you can dump the by-product into the river or on the land or (b) you can incur the added expense of disposing of it safely and properly. Choice A will not affect your profits but has adverse consequences for who live near the business or downstream from it. In the free market system, however, there is absolutely no incentive for Choice B. Indeed, if you exercise Choice B and your competitors do not, the market will actually punish you for having made a “bad” economic decision. One reason for government involvement and regulation of the economy is to force businesses into Choice B.

The Cuyahoga River runs through downtown Cleveland, Ohio, and on the morning of June 22, 1969, the river caught fire.¹ That happened because all the businesses along its banks and all who navigated it exercised Choice A. Although the 1969 fire was neither the first nor the worst fire on the Cuyahoga, this one was covered by the national media; most Americans were aware of it and bothered by the concept of a fire burning on top of a body of water. The river fire was one of the events that pressured Congress to pass the Clean Water Act in 1971. The case in point, Whitman v. American Trucking Association, involves the Clean Air Act rather than water, but the principle is the same. Government regulation was thought necessary because the market offered no incentive not to pollute the air we breathe.

The original Clean Air Act was entitled the Air Pollution Control Act of 1955. It has been amended and revised several times. It is a complex and lengthy law, but it works like this: Congress has required that certain pollutants be controlled; Congress delegated the power to the Environmental Protection Agency (EPA) to set standards for those pollutants, and these were called national ambient air quality standards (NAAQS); those states that meet the NAAQS need do nothing but maintain their compliance; those states that do not meet the NAAQS are called nonattainment areas, and they must submit plans to the EPA to come into compliance within a certain number of years. Finally, the EPA director is required to reevaluate each NAAQS every five years and “make such revisions … as may be appropriate.”

In 1997, President Bill Clinton’s EPA director conducted the required reevaluation and revised the NAAQS for particulate matter and ozone downward, reducing human exposure to both. Solid particles and liquid droplets in the air are what constitutes particulate matter. When the particulate matter is large enough for the naked eye to see, it is called smog, but most frequently, it is too small to see. Combustion is the primary source of particulate matter, whether it comes from gas-burning engines or firewood; the result is all sorts of respiratory problems, including “heightened risk of premature death.” Indeed, the EPA believes that ozone is—and particulate matter may be—nonthreshold pollutants,² pollutants that cause adverse health effects at any atmospheric concentration above 0.

Ozone, by contrast, is a colorless, odorless gas that forms when other atmospheric pollutants react in the presence of sunlight. Ozone is beneficial high up in the atmosphere but bad at a level where we can breathe it; it causes all of the same respiratory ailments that particulate matter does.

One of the problems created by the EPA’s revision of the NAAQS for particulate matter and ozone was that several of the states that had been in compliance under the old NAAQS would now be classified as nonattainment areas. They would need to make their air cleaner, which would mean imposing additional environmental costs on businesses in those states. The ink could hardly have been dry on the new NAAQS when the EPA was sued by a whole host of plaintiffs, including business associations, individual businesses, individuals, congressmen, and states, who thought the new standards were too stringent. Environmental groups sued, too, and they thought the new standards were not stringent enough.

The American Trucking Association and other plaintiffs alleged the following: that Congress violated the Constitution when it gave too much discretion to the EPA to set the NAAQS; that the Clean Air Act required the EPA to consider the costs of compliance associated with lower NAAQS, but the agency did not consider such costs; and that the EPA made a legal error in its interpretation of the Clean Air Act. The lower court found that Congress had indeed violated the Constitution in its delegation of power to the EPA and sent the case back to the EPA with orders to fix the NAAQS-setting process so as to eliminate the breadth of the delegation of power. For its part, the EPA appealed to the Supreme Court, arguing that the lower court lacked jurisdiction over the case. The EPA alleged that the case was not ripe (a legal concept that means a suit was brought too early, before anyone was hurt, and hence, the suit is speculative). The EPA also argued that the NAAQS were not final yet, and “final agency action” is required by a different statute before parties can sue a federal agency.

Over the years, courts have developed numerous decision rules, sometimes called precedent, doctrines, or constitutional tests, to help resolve the conflicts between agencies and citizens. Applying those doctrines and legal tests to the issues in the American Trucking case, the Supreme Court decided: the delegation of power was constitutional; the EPA was forbidden by congressional intent from considering the costs of compliance when setting the NAAQS; the case was ripe (not filed too early); and the agency’s action was final, so the lower court did have jurisdiction. The final issue in the case involved the EPA’s interpretation of two apparently conflicting subparts of the Clean Air Act. Basically, the EPA interpreted the Act in a manner that gave the agency considerable discretion in implementing the revised NAAQS, but the Court said the EPA’s interpretation was not rational.

The American Trucking Association case is a good example of administrative law. Typically, the legislative branch authorizes an executive branch agency to take some action. When the agency takes action, it adversely affects individuals or businesses, and the adversely affected parties sue the agency. The judicial branch is left to clean up the mess.

As you read this text, you will learn administrative law by reading Supreme Court cases. For example, you will read the American Trucking case in Chapter 3, where you will learn about delegation of power to agencies. You will read the cases because that is where you will find the doctrines and decision rules that make up the common law body of administrative law. This book is not just about administrative law. It is also a book about democracy. In a democracy, public policy is supposed to be made by individuals whom the voters can hold responsible in an election. Is that how you would describe what happened with clean air?

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Questions

1. Ultimately, in the American Trucking case, who will decide whether more states and businesses within those states will be required to spend additional billions of dollars to make the air cleaner? Did Congress make the decision? Did unelected bureaucrats make the decision? Did an unelected, job-for-life Supreme Court make the decision?
2. If you are not certain who is responsible for the policy, what does that say about the shape of your democracy?
3. If it seems plausible to you that either the bureaucracy or the Court ultimately made the policy, what does that say to you about your democracy?
4. The issue regarding whether the EPA should consider the costs of complying with more restrictive standards was an important one for the business and state plaintiffs. Do you think it would be a good idea for agencies to be forced to consider the costs of the rules they are about to make? Congress mandated in the Clean Air Act that the EPA “must set primary NAAQS . . . which are requisite to protect the public health—with an adequate margin of safety.” If Congress had also mandated that the agency consider the costs of compliance with those NAAQS, then Congress would be delegating to bureaucrats the power to decide between industry profits and the public health. Sometimes, societies must make decisions like that. Who do you think should make such decisions; politicians who will cast their vote based on their desire to be reelected or experts within the agencies, who will base their decision on science and empirical data but who are not accountable to those who must live with the decision?

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DEMOCRACY

If you are like most Americans, you assume that you live in a democracy, but you probably cannot define what that means. Try to define democracy, being concise and definite about what the term means.

Chances are, you did one of two things: (a) you went back to Abraham Lincoln and said, “government of the people, by the people, for the people,” or (b) you tried to define it in terms of a process (elections, political parties, etc.). Without belaboring the point, let us consider these typical responses.

Government of the People

It is difficult to imagine what Lincoln had in mind when he said “of the people,” but we can put the rest of his phrase to a commonsense test. Presumably, “by the people” means some variant of “the people govern.” When was the last time you governed? When was the last time you had significant input into a government policy? When was the last time you had any input into a government policy? When was the last time anyone you know had any input into a government policy?

You may be saying to yourself, “But people can’t really govern. We elect representatives to do that for us.” True enough. When was the last time you called your senator or went to Washington, D.C., to see your senator about an issue of concern to you? When was the last time you provided governmental input to any of the following elected officials: U.S. representative, county commissioner, city council person, mayor, governor, U.S. president? If you have provided such input, do you think it was a significant force in shaping policy? The notion “by the people” is too simplistic to describe what part (if any) the American people play in shaping policy.

The concept “for the people” could be difficult to deal with because it would seem possible to govern “for the people” by doing the opposite of what the people want (assuming one could ever assess what the people want). Let us, for now, assume that Lincoln was getting at the notion of governmental responsiveness to citizens’ demands. In the late 1970s, more than 75 percent of all Americans opposed a Panama Canal Treaty, but we got one. For the past 30 years, 65 percent or more of Americans have favored stronger gun control and doing away with the electoral college.³ More recently, 63 percent of Americans did not want the House of Representatives to impeach President Clinton, but he was impeached anyway.⁴ During the last several years of the Clinton presidency, the federal government had budget surpluses. Surveys indicated that Americans generally supported using budget surpluses to pay down the debt and shore up education, Medicare, and social security rather than “giving it back” in the form of tax cuts, but Congress passed tax cuts.⁵ In the case of gun control, a small minority has been able to thwart a policy the vast majority favors. In the case of the electoral college, although proposed constitutional changes have been introduced in Congress, none has passed. Although there is some empirical evidence of association between public opinion and public policy,⁶ we can say that often in the United States, the people do not get the policies they want. Indeed, the founding fathers invented or refined several ingenious devices whose purposes were to thwart government responsiveness to the demands of the masses (for instance, state legislative election of U.S. senators, the electoral college, federalism, and separation of powers—including a judicial branch that later became armed with judicial review). Even conceding that Lincoln’s phrase “of the people, by the people, for the people” was an accurate description of American democracy in 1860 (which is doubtful), it does not describe what happens in America today.

Democracy as a Process

If you defined democracy by referring to elections and competing political parties, bear in mind that many very authoritarian regimes in the world today have elections and competing parties (e.g., El Salvador, Iran, Nicaragua, and South Korea).

DEMOCRACY DEFINED

One could take a semester-long course about notions and definitions of democracy, but for our purposes, let us simply say that democracy is a form of government in which people have some influence over the policies that affect their lives. Democracy is not an absolute concept in the sense that either you have it or you do not. Rather, it is a continuum, with some countries having a lot of it, and some countries having not very much or none at all.

It can be argued, for example, that many parliamentary systems are very democratic because the political parties take divergent and clearly identifiable stands on issues and possess the party discipline to enact their platforms into law. Hence, when a voter votes for a candidate who says, “If elected, I will help my political party bring about X, Y, and Z,” that voter has significant influence if his or her party wins a majority of seats in Parliament because the party will enact policies X, Y, and Z. But in the United States, due to separation of powers, federalism, and weakened political parties, even on those rare occasions when a politician or political party takes a definite and clear stand on a policy issue, the result is not predictable. To cite a popular example, look at what happened in 1988 when candidate George Bush said, “Read my lips. No new taxes.” In 1992, it may have cost him reelection when, as President Bush, he was forced to accept a budget compromise containing a significant tax increase.

In any case, although we may not be the most democratic country in the world, we are certainly not the least democratic. If we can agree that a democracy is a form of government in which the people can have an impact on policies that affect their lives, a short discussion addressing how the people do that is in order.

Once a polity gets beyond a certain size (say several hundred), it becomes impossible for all the people to debate and vote on polic...