Administrative Law in the Political System

Law, Politics, and Regulatory Policy

Kenneth Warren

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429757327
• Edition: 6
• Topic: Politik & Internationale Beziehungen
• Subtopic: Öffentlichsarbeit & Verwaltung

Emphasizing that administrative law must be understood within the context of the political system, this core text combines a descriptive systems approach with a social science focus. Author Kenneth F. Warren explains the role of administrative law in shaping, guiding, and restricting the actions of administrative agencies. Providing comprehensive coverage, he examines the field not only from state and federal angles, but also from the varying perspectives of legislators, administrators, and the public.

Substantially revised, the sixth edition emphasizes current trends in administrative law, recent court decisions, and the impact the Trump administration has had on public administration and administrative law. Special attention is devoted to how the neo-conservative revival, strengthened by Trump appointments to the federal judiciary, have influenced the direction of administrative law and impacted the administrative state. Administrative Law in the Political System: Law, Politics, and Regulatory Policy, Sixth Edition is a comprehensive administrative law textbook written by a social scientist for social science students, especially upper division undergraduate and graduate students in political science, public administration, public management, and public policy and administration programs.

1Administrative Law

An Introduction

Objectives of This Book

This book is written for public administration, public policy, and other social science students interested in the relevance of administrative law to their fields. While administrative law textbooks written for law school students stress what the law students need to learn to win cases with chapter sections often ending with “What judgment?”, administrative law textbooks designed for social science students stress how administrative law relates to public policy/public interest concerns, or more specifically, how knowledge of administrative law can help, for example, future public administrators serve the citizenry better by upholding procedural due process standards when promulgating public policies to promote the public interest. Decades ago Peter Woll summarized the difference by noting that formal training of lawyers “… fits them better for acting as advocates of private rights than of the public interest, …”¹

The basic twofold goal of this book is to provide public administration (PA) students with a comprehensive coverage of administrative law fundamentals while simultaneously linking administrative law issues to relevant, topical public policy questions. For example, what regulatory procedures are employed by the Department of Homeland Security (DHS) or the Securities Exchange Commission (SEC) when those agencies make rules and conduct hearings? And how do these regulatory procedures affect the DHS’s ability to prevent, for example, another 9/11 attack on the United States or the SEC’s ability to prevent another Wall Street collapse?

Another goal of the book is to promote among public administration students a greater appreciation of the genuine legal obstacles that must be recognized and confronted in the handling of administrative problems. Traditionally, social scientists have not given much more than a scant glance at the technical legal aspects associated with public administration. On the other hand, law schools have been content to produce graduates with a relatively solid understanding of legal doctrines and case law, but only a flimsy grasp of the connection between technical legal doctrines and the normative operational needs of democratic government and society. While the social scientist is typically educated to promote the public interest through balancing the rights of society (state) against the rights of individuals, the law student is trained chiefly as a legal technician whose purpose is to use the law to argue for the singular interests of a client.²

Thus, social scientists tend to take a more macro-approach, examining administrative law in the context of the role it plays in the larger entire political system. This is obviously the chief strength of the social science or interdisciplinary approach. As far back as the days of Confucius and Plato, students have been taught to respect the knowledge of the generalists over that of the expert. However, it is this generalist bias which has unfortunately allowed those learning public administration to stress abstract theory and to de-emphasize technical knowledge. Yet, to be competent public administrators in today’s complex, legalistic society, public administration students should learn about the legal parameters in which they must function as public administrators. This book will help public administration students learn what they need to know about administrative law to become better equipped to uphold the rule of law and the public interest when serving as public servants.

This Book’s Approach: Systems Theory

To study anything in the absence of a sound theoretical framework is both difficult and foolish because a well-constructed theoretical framework provides a conceptual tool that can be used to focus on particular situations (e.g., agency decision making) and to help interpret specific events (e.g., Federal Trade Commission orders). Social science researchers have used theoretical frameworks, or models, to help them systematically pinpoint, order, and conceptualize what they intend to study.³ To state it simply, models are useful because they allow one to see at a glance what variables and relationships are being considered and examined. Thus, models help to simplify, accelerate, and refine the discovery and learning process. The study of administrative law is in crucial need of theoretical approaches; approaches that can relate administrative law to real administrative behavior.

The systems approach is popular in the social sciences for good reason. Systems theory probably provides the learner with the simplest, yet most revealing analytical framework or model on how participants (frequently called actors) relate functionally to one another. The system is defined by scholars to suit their research or descriptive needs. The system may be conceptualized on the micro- or macro-level: one might focus research on the environment of a small town police chief or on a nation in an international setting.

Systems analysis has the advantage of often simplifying very complex interrelationships among actors in a system. Actors may be perceived as individuals (a judge), agencies (Environmental Protection Agency), interest groups (American Medical Association), and so on. They tend to influence the behavior of the focal political actor. Despite the relative simplicity of a systems model, such a heuristic model is excellent for specifying relationships between participants, as well as indicating possible hypotheses to be tested.

The systems model’s conceptual strength lies in its basic isomorphic character: that is, in its ability to reflect real-world behavior in a model. For our purposes, we can use the systems framework as an analytical tool, to place the administrative system into perspective with its environment. In particular, we can demonstrate quite well the complex role administrative agencies play in the American political system.

It should be emphasized that systems analysis is excellent for stressing the functional relationships between participants in a system. Systems theory is best suited for those who want to study not static but active and continuous behavior among systemic actors. In our case we can employ systems analysis to focus on administrative law issues in the context of real administrative agencies as they interact with their environment, which at least includes the White House, the Congress, the courts, the regulated industries, other governmental agencies, the media, and the general public.

Systems theory helps to explain how agencies struggle to survive in an always potentially hostile environment while carrying out their statutory mission of making, adjudicating, and executing public policies. Systems theory accepts and assumes one basic truth, as the English philosopher Thomas Hobbes stressed: the first instinct of any actor (our example is an administrative agency) is to survive. Systems analysis would have no analytical starting point without it. For centuries political theorists and sociologists have acknowledged that this fundamental instinct exists in all individuals and organizations. Self-preservation is something, then, that all administrative agencies seek, and it is impossible to understand their role in the political system without recognizing this reality.⁴ For example, President Donald Trump’s attacks on the Federal Bureau of Investigation (FBI) have met with defensive measures by the FBI designed to protect the bureau’s mission and survival.

The merit of systems theory to the study of administrative law cannot be overemphasized. Administrative law involves essentially the study of the legally sanctioned procedural activities of administrative agencies as they interact with their environment. But administrative law cannot be fully appreciated and understood if it is only studied in the context of formal organizational theory. Systems theory makes possible the examination of formal administrative law prescriptions in the context of actual behavior in real organizations. Every organization has what is referred to as a natural system, which consists of basic survival goals that often depart quite radically from the formal system’s prescribed goals (for example, regulating plane safety). A major reason people often cannot comprehend why a certain decision was made is because they tend to exclude factors which are irrational in terms of the organization’s formal objectives, yet nevertheless contribute rationally to the organization’s ability to cope successfully with its environment.⁵ Simply put, agency administrators cannot respond only to what administrative law demands because public administrators must respond to other environmental demands as well (e.g., the political demands of powerful politicians, congressional committees). The case presented at the end of this chapter, Saint Louis University v. Masonic Temple, 220 S. W. 3d 721 (2007, MO.), makes very clear the powerful role politics plays in administrative law/judicial decision making.

Figure 1.1 conveys, through a systems model, the unique environment of the Federal Communication Commission (FCC). Actually, two environments should be considered—the outer and the inner. Both environments tend to influence administrators as they formulate agency decisions. When making decisions, FCC administrators would need to make decisions that would elicit more supports than demands from their environmental actors. According to systems theory, if demands greatly exceed supports, the focal political actors cannot survive. An example of this is when Environmental Protection Agency (EPA) administrator Scott Pruitt was forced to resign in 2018 when feedback demands from his outer and even inner environments greatly outweighed his supports.⁶

Figure 1.1The Federal Communication Commission’s administrative environment

Note: Asterisks denote significant influence.

In summary, whether making internal procedural rules or major public policy statements, all prudent agency decision makers must acknowledge and respond to common outer (and sometimes inner) environmental inputs (demands and supports). In the typical agency’s environment, these inputs would come from such major political actors as: (1) Congress; (2) White House; (3) courts; (4) regulated industries; (5) interest groups; (6) other governmental agencies; (7) the media; and (8) the public. Each of these political actors in an agency’s environment presents a potential threat to the agency’s mission, its programs, or even its very survival. Therefore, their feedback (inputs) cannot be taken too lightly or ignored. Successful agency administrators have learned to make decisions which are at least minimally acceptable to their environments. In this vein, then, it should be apparent by now that administrative law dictates constitute only one environmental demand that administrators should consider when reaching decisions.

Administrative Agencies Play the Lead Roles

To obtain a deeper conceptual understanding of administrative law in the United States, it is important to understand the role played by administrative agencies and their public administrators. Accordingly, a few foundational questions should be addressed: (1) who are our public administrators?; (2) where do they work?; (3) what do they do?; (4) how do they do it?; and (5) what overall role do they play in our political system?

Who Are Our Public Administrators?

Public servants constitute a powerful class of workers in the United States. According to the U.S. Bureau of Labor Statistics, by 2018 there were 22.4 million public, nonmilitary employees (14. 5 million local; 5.1 million state; and 2.8 million federal), which constitutes a sizable percentage of the entire civilian work force of 161 million.⁷ Public administrators, constituting just over 7 million of our total public employment,⁸ are responsible for making major policy decisions and spending most of our tax dollars. Only the president and the vice president are elected on the national level and only a relative few are elected at the state and local levels (e.g., governors, mayors, attorneys general, treasurers, auditors, sheriffs)—far less than 1% of the public work force. Because many of these nonelected public administrators possess vast policymaking powers, many people believe these administrators, making up what has become popularly known as the administrative state, pose a potential threat to traditional democratic decision-making processes in this country.

It is very difficult to generalize about the character of public servants since their functions and backgrounds are so varied. Nearly all public servants have their occupational counterparts in private enterprise. While this was certainly not true during the nineteenth century, expanded governmental activities during the twentieth century have compelled government to employ those from all career areas, ranging from such professionals as doctors, lawyers, scientists, and professors, who normally handle highly sophisticated tasks, to those needed to perform lower level job tasks requiring less talent and education. Those public servants at low employee classification levels have normally not been perceived as public administrators; yet many of them, like administrative assistants, clerks, and policemen, in fact exercise significant discretionary powers and should rightfully be...