Administrative Law

The Sources and Limits of Government Agency Power

Daniel L. Feldman

• Publisher: CQ Press
• Year: 2015
• ISBN:
  9781506308562
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Asuntos públicos y administración

Why do unelected bureaucrats get to exercise power? What are the limits on those powers? What recourse do citizens have if bureaucrats abuse those powers? Anyone working with government needs to know the answers to these questions. Administrative Law: The Sources and Limits of Government Agency Power concisely examines the everyday challenges of administrative responsibilities and provides students with a way to understand and manage the complicated mission that is governance. Written by leading scholar Daniel Feldman, the book avoids technical legal language, but at the same time provides solid coverage of legal principles and exemplar studies, which allows students to gain a clear understanding of a complicated and critical aspect of governance.

Chapter 1 Non-Delegation Doctrine: “Agencies Cannot Make Laws” (Ostensibly)

Why Study Administrative Law?

Citizens and students who want to understand American government tend to look first to courses on constitutional law or to Congress. But agencies execute most of the governing. So, in order to understand most of our government, look at administrative law, the law that sets forth the logic of agency power: the sources of that power, and the limits of that power.

Many readers of this book will spend a good part of their professional lives working in government agencies. If you are among that group, you will find that administrative law explains many of the procedures you follow and creates the framework of law that structures much of your work. Indeed, you may find yourself turning to administrative law to explain why you cannot do something your political leadership has commanded.

Government operates primarily through agencies. When you attend a public school or university, pay your taxes, get protected or arrested by the police, look for “grade A” beef or eggs, you are interacting with the work of a government agency. Since administrative agencies serve so many different purposes—from delivering the mail; to fighting wars; to issuing parking tickets; to educating children; to sending social security checks—they necessarily vary in structure. Except for a small minority mandated by the U.S. Constitution, a state constitution, or the charter of a local government, these agencies owe their origin to laws enacted by Congress, state legislatures, or local legislative bodies (i.e., “statutes”). All agencies have some leadership format: a Cabinet secretary, a director, a commissioner, or some other officer or group of leaders, like a board or a commission. Most state and federal agencies employ civil servants who may have done well on merit examinations or survived some other kind of competitive process, and enjoy some degree of job protection under civil service laws that, for example, prevent them from being fired solely to make room for political patronage hires. All have units that perform executive functions, for instance any of the tasks listed at the beginning of this paragraph, among thousands of other tasks. Sometimes, the leadership of the agency devises rules (“regulations”) to clarify or implement the mandate of the legislation originally empowering the agency; often an office of counsel or another unit of the agency will prepare such regulations. Many agencies also have units that hear and resolve arguments (“adjudications”) between the executive personnel of the agency and individuals, businesses, or other entities who challenge their decisions.

One way or another, elected executive officials, such as presidents, governors, county executives, and mayors appoint agency leaders, and usually can replace them as well, giving those officials power and influence they can exercise over those agency leaders. Elected legislators can enact, repeal, and amend the legislation that empowers the agencies. Citizens who may feel that they have been abused can appeal agency adjudicative decisions. Citizens, businesses, and other government officials may also bring the judicial power to bear on questionable agency rulemaking or other agency actions, which often entails using the federal Administrative Procedure Act (APA), first enacted in 1946 and amended often thereafter. In later chapters, we explore in detail how the APA requires agencies to adhere to certain principles of fairness and due process in their adjudications, to a lesser extent in rulemaking, and to an even smaller extent in their executive functions. Every state also has an administrative procedure act, usually mirroring, at least to some extent, one of the Model State Administrative Procedure Acts (MSAPAs), especially that of 1961. Later chapters include frequent reference to the 2010 MSAPA, and one can presume that over time more states will adopt provisions of this more current MSAPA.

Survey results released in 2010 showed that about a fifth of American adults “faced a legal issue that could have involved hiring a lawyer” in the past year. ¹ Another statistic is that less than half of American adults have “contacted a U.S. Senator or Representative” between 2004 and 2008 ² ; however, virtually every adult American deals with government agencies many times a year.

While Congress in recent years ³ enacts three or four hundred bills each two-year session, and Pew Research suggests even fewer are meaningful, ⁴ federal agencies issue ten times as many rules and regulations in the same period. ⁵ Internal Revenue Service regulations determine far more decisions on individuals’ tax returns (albeit usually smaller decisions), than Internal Revenue Code provisions enacted by Congress. National Labor Relations Board (NLRB) rulings determine the outcome of thousands more labor cases than the National Labor Relations Act itself. ⁶ A federal statute that is four pages limits compensation to executives of financial institutions “bailed out” in 2008; yet, there are 123 pages of Treasury Department regulations in the Federal Register detailing those limitations. ⁷

The federal courts decide about 400,000 cases a year. ⁸ One law professor has claimed that “federal agencies complete more than 939,000 adjudications” annually, while “federal judges conduct roughly 95,000 adjudicatory proceedings, including trials.” ⁹ The Social Security Administration alone completes about twice as many hearings in an average year as all the federal courts put together. ¹⁰ At the state government level as well, agencies generate far more rules and decisions than courts or legislatures.

The point is that agencies, not courts or legislatures, are responsible for most of the governance in the United States (as well as in other nations). For any citizen, and especially for citizens who look toward careers in government, administrative law answers many fundamentally important questions ¹¹ : By what right do government agencies exercise power? What are the sources of their powers, and the limits on those powers? If they exceed those limits, what can citizens do about it?

At its core, administrative law is about basic value conflicts: fairness versus efficiency versus representativeness. Do you want to complain that the bureaucracy moves so slowly that it is driving you out of business, or do you want to complain that it does not give you a sufficient chance to prove that you are right? Do you want your taxes to go up, or your Social Security check or Medicare payments to go down so that government can afford the personnel cost of giving everyone an opportunity to fight agency decisions in court; or do you want to be told that you don’t meet the technical legal requirements to get a court to listen to your argument about why the government agency should not have done what they did to you? Do you want all policy judgments to be made by your elected representatives—people you can fire if they don’t represent your point of view—or do you want the bureaucracy to continue to operate? How much representative democracy do you need? Let’s start with the last question.

The Non-Delegation Doctrine

The second sentence of the Constitution reads “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” ¹² Therefore, in effect in a document agreed to by their representatives in 1789, the people of the United States said “The first rule is that Congress does the lawmaking.”

Also in 1789, however, Congress said that veterans’ benefits should be based on service in the Revolutionary War “under such regulations as the President of the United States may direct.” ¹³ Immediately, this produced certain problems: what if the veteran had been hurt tripping over a sack of flour, off duty, not in uniform? Congress did not have the time to pass a different law for each such question; soon, judges realized that they also had too many other things to do. ¹⁴ In 1820, after the press had exposed various scandalous abuses, Congress finally fully handed such decisions to the Secretary of War. ¹⁵ A bureaucrat began making policy decisions.

Theory versus Practice

But, didn’t this contradict the principle that Congress was supposed to do the lawmaking? The Secretary, and then his clerks, began to make rules as to who was eligible for veterans’ benefits and who was not. This would seem to have been in direct violation of the 1789 constitutional agreement that Congress would make the rules, and “the Government of the United States, or . . . any Department or Officer thereof,” ¹⁶ would merely carry them out.

The people gave up their own power to Congress to make laws. They elect Congress to represent them, and can replace Congress every two years (with one-third of the Senate also replaceable every two years). If they don’t like what their representatives in Congress do, they can replace them. But, if Congress gives its power to someone else (i.e., a civil servant, a bureaucrat, a clerk), the people might not even know, and certainly cannot fire them the way they could “fire” Congress. Clearly, the people have less control over this third party than they have over Congress. ¹⁷

Thus, legal tradition says that when the people choose to give, or “delegate,” their powers to so...