explain the essentials of administrative law clearly and accurately

explain the essentials of administrative law clearly and accurately

Case of Deceit, Abuse, and Due Process, 89

What Is Evidentiary Administrative Adjudication? 91 Criticisms of Adjudication, 93

Legal Perspectives, 94 Administrative Perspectives, 95

Why Adjudicate? 99 Agency Convenience, 99 Advantages Presented by Incrementalism, 100 Conduct and Application Cases, 101 Equity and Compassion, 102 Procedural Due Process, 106 Caveat Estoppel, 107

Adjudicatory Hearings, 108 Presiding Officers, 110

Administrative Law Judges, 110 Other Presiding Officers, 113

Decisions and Appeals, 113 Alternative Dispute Resolution, 115 Enforcement, 117 Conclusion: Should Adjudication Be Reformed? 120 Additional Reading, 121 Discussion Questions, 121

5 Transparency 123

Introduction: The Central Intelligence Agency’s Budget? What Budget? 123

The Administrative Law Framework for Transparent Government, 125

Public Reporting, 126 Freedom of Information, 128

The Freedom of Information Act, 128 The Presidential Records Act, 138

Privacy, 139 Open Meetings, 142 Whistle-Blower Protection, 145

Qui Tam, 148 Conclusion: An Opaque Fishbowl? 148

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x Detailed Table of Contents

Additional Reading, 149 Discussion Questions, 150

6 Judicial and Legislative Review of Administrative Action 151

Introduction: The Drug Companies’ Acetaminophen, Salicylic Acid, and Caffeine Headache, 151

Judicial Review of Administrative Action, 153 The Court System, 154 Reviewability, 159

Standing to Sue, 160 Mootness, 162 Ripeness, 163 Political Questions, 165

Timing, 165 Primary Jurisdiction, 165 Exhaustion of Administrative Remedies, 166 Finality, 167 Deference to State Courts, 167

The Scope of Judicial Review, 168 Agency Rules, 169 FOIA Requests, 172 Rulemaking Procedures, 172 Agencies’ Statutory Interpretations, 173 Agency Nonenforcement, 175 Discretionary Actions, 177 Adjudication, 178

Legislative Review of Administration, 178 Oversight by Committees and Subcommittees, 179 Reporting Requirements, 179 Research, Evaluation, Audit, and Investigation, 180 Sunset Legislation, 181 Casework, 181 Strategic Planning and Performance Reports, 182 Congressional Review Act, 182

Conclusion: Checks, Balances, and Federal Administration, 183 Additional Reading, 184 Discussion Questions, 184

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xiDetailed Table of Contents

7 Staying Current 185

The Primary Function of US Administrative Law, 186 Constitutional Contractarianism, 186 Public Administrative Instrumentalism, 187

Periodicals and Websites, 190 Talk Administrative Law Talk, 191 Administrative Law Audits, 192 The Next Level, 192 Discussion Questions, 193

References 195 Index 209

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xiii

Preface to the Second Edition

It may come as a surprise that the Encyclopedia of Life Support Systems, which is sponsored by United Nations Educational, Scientific, and Cul- tural Organization (UNESCO), contains an entry on administrative law. I was certainly surprised when asked to write it.1 I immediately had a sci- ence fiction inspired vision of earthlings boarding a spacecraft clutching the Encyclopedia in hand as they went to off to colonize a distant planet. Administrative law? Life support? At first, the connection seemed dubious at best. On reflection, however, I realized that the inclusion of administra- tive law is, in fact, necessary for life as we know it in modern, complex political systems. All governments in developed countries have mature administrative components. Public administration is the institutional means through which contemporary governments deliver public services and regulate aspects of economic, social, and political life. Administrative law is the regulatory law of public administration. It regulates public ad- ministrative activity. Without administrative law, public agencies could go about their business as they saw fit, perhaps routinely emphasizing ad- ministrative convenience and self-interest over other values and the public interest. In the United States, administrative law infuses public adminis- tration with democratic-constitutional values, including stakeholder repre- sentation, participation, transparency, fairness, accountability, and limited government intrusion on private activity. Life was once, and still could be, supported without it. However, other than perhaps some administrators themselves, few, if any, who know the history of US public administration would want to return to the days before the federal Administrative Proce- dure Act of 1946 went into effect.

See David H. Rosenbloom, “Administrative Law,” UNESCO-EOLSS, http://www.eolss .net/sample-chapters/c14/e1-34-05-07.pdf.

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xiv Preface to the Second Edition

To appreciate the importance of administrative law, one has to bear in mind that although students and scholars in the field of public administra- tion tend to view administration as providing valuable public services, the rest of the world doesn’t necessarily see it this way. Many in legislatures, small businesses, the health, medicine, industrial, and research sectors, and myriad other walks of life think of administration as bureaucracy impos- ing red tape and unwanted, often unnecessary, and even seemingly bizarre regulations. This is why administrative law books may contain chapters on “getting into court” and “staying in court” (W. Fox 2000). Looking from the outside in, administrative law constrains public administration, guards against abuses, and enables chief executives, legislatures, and courts to keep administrators in check. From the inside looking out, administrative law seeks to guide administrators and agencies in achieving their objec- tives within the framework of the nation’s democratic-constitutional val- ues and practices.

A solid grounding in administrative law is a prerequisite for under- standing a substantial amount about the internal administrative processes used on a daily basis by public agencies in the United States. As with other aspects of public administrative practice, it is better to learn administra- tive law in the classroom than to be bewildered by its pervasiveness upon entering a public-sector job. Students already working in the public sector will need no reminder of the importance of administrative law. Neverthe- less, they will benefit from gaining a systematic understanding of how and why it developed as it did.

Administrative law has such a major impact on what administrators and agencies do on a daily basis that it cannot be treated as tangential or as a specialization best left to lawyers. It needs to be integrated into day-to-day practice. For some administrators, such as those engaged in rulemaking, adjudication, and processing freedom-of-information requests, administra- tive law defines the fundamental structure and activity of their jobs.

This book aims to make administrative law accessible to public admin- istration students, both those new to the subject and those already in prac- tice. The book focuses on the essentials that public managers should know about administrative law—why we have administrative law; the broad constitutional constraints on public administration; administrative law’s frameworks for rulemaking, adjudication, enforcement, and transparency; and the parameters of internal executive and external judicial and legisla- tive review of administrative action. The book views public administration from the perspectives of managing, organizing, and doing administration rather than lawyering. It is far more concerned with staying out of court than getting into it.

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xvPreface to the Second Edition

The discussion is organized around federal administrative law. Where appropriate, state approaches are noted as alternatives or parallels to fed- eral designs and requirements. After reading this book and grappling with the discussion questions at the end of each chapter, readers should have a firm grasp of federal administrative law and no difficulty learning the administrative law of any state.

Unlike most administrative law texts, the book neither contains legal cases nor devotes much attention to the development of case law. Federal court decisions are readily available on the Internet, and instructors can se- lect them flexibly to augment the text. Books dealing comprehensively with case law tend toward dysfunctional excess in general public administrative education, sometimes exceeding 1,000 pages of material that is apt to go largely unused and soon be forgotten. This book also differs from others by including a chapter on the constitutional context of US public adminis- tration, which explains the constitutional constructs and doctrines within which today’s public administration and administrative law operate.

The book is intended for classroom use in three ways. First, as a supple- ment, it will efficiently cover the main dimensions of administrative law in introductory public administration classes and courses on bureaucratic politics or the political context of public management. Second, it can serve as a core text in public administration courses dealing with administrative law or the legal basis or environment of public administration. As a core text, it can be coupled with selected legal cases of the instructor’s choice. Third, in constitutional law courses, it can serve as a supplement to explain how abstract constitutional concerns such as delegations of legislative au- thority and procedural due process are transformed in concrete action by administrative agencies. It is unlikely that the book will be used in law school classes, though law students may find it refreshingly concise and helpful in explaining the political and administrative contexts in which ad- ministrative law is applied and the larger purposes it serves.

The challenge in writing the first edition was to explain the essentials of administrative law clearly and accurately, in nontechnical terms, with sufficient depth to provide readers with a sophisticated, lasting under- standing of the subject matter. That there is now a second edition is testa- ment to the success of that effort. The new edition thoroughly updates the previous one, adding discussion of new statutes and law cases, as well as developments during the first five years of Barack Obama’s presidency. It also fine-tunes the earlier discussion for clarity. I hope those familiar with the first edition will view this one as fresh and refreshing and those new to the text will find in it a welcome alternative to other treatments of administrative law.

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xvi Preface to the Second Edition

This edition continues to benefit from those acknowledged in the earlier one. I continue to extend my thanks to them. I would also like to thank the reviewers who gave such thoughtful feedback on the first edition for this revision, including Bradley Bjelke (California Lutheran University), Lo- renda Ann Naylor (University of Baltimore), Stephanie Newbold (Ameri- can University), Cindy Pressley (Stephen F. Austin State University), Susan E. Zinner (Indiana University Northwest), and others who wished to re- main anonymous. Special mention should go to my American University colleague Jeffrey Lubbers, who is always generous with his time and pa- tient in sharing his encyclopedic knowledge to explain the finer points of US federal administrative law to me.

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1

1 What Is Administrative Law?

Introduction: What Is Administrative Law?

Administrative law can be defined as the body of constitutional provisions, statutes, court decisions, executive orders, and other official directives that, first, (a) regulate the procedures agencies use in adjudicating, rulemaking, and adopting policies, (b) control the exercise of their authority to enforce laws and regulations, and (c) govern the extent to which administration is open to public scrutiny (i.e., transparent); and, second, provide for review of agency decisions, rules, orders, policies, actions, and other aspects of their operations. In short, administrative law is the regulatory law of pub- lic administration. It regulates how public administrative agencies do what they do and why, as well as their authority to do it. As such, it is among the most important aspects of modern government. We are all affected by administrative law in myriad ways in our daily lives.

Food may present the best example of why administrative law is so important. What did you eat today? Is that all? Well, probably not. The US Food and Drug Administration (FDA) regulates the “maximum lev- els of natural or unavoidable defects in food for human use that present no health hazard.” Known as the FDA “Rat Hair List,” these regulations specify the amount of rodent hair that can be in one hundred grams of var- ious foods such as apple butter, oregano, and peanut butter. The list also regulates the number of insect fragments and eggs, milligrams of mamma- lian excreta, maggots, and other unappetizing impurities in the foods that Americans consume every day (FDA, periodic). Chocolate can have up to

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2 1. What Is Administrative Law?

sixty insect fragments per hundred grams (about two bars) and one rodent hair. On average, Americans eat 1.2 pounds of spider eggs and 2.5 pounds of insect parts annually.1

The FDA is empowered to set such standards by law. It would have no power to do so without statutory authorization. However, it does have considerable discretion in deciding what levels are unavoidable and do not pose health hazards and what to do about products that exceed the speci- fied limits. An initial question is whether “unavoidable” should be deter- mined based on technology or economics. Although the agency maintains that some defects cannot be completely screened out, removing from pizza sauce more fly eggs and maggots than are allowed is probably technolog- ically feasible. Some producers may already do so. But is it economically feasible for the entire industry of large and small, relatively financially strong and weak firms to do so? Determining unavoidability also involves economic feasibility, which is related to the cost of producing products, their market price, and consumer demand for them. Some balance between purity and cost must be struck. The FDA seeks a desirable trade-off by testing products nationwide and determining the levels of defects present under the best production processes in use. This approach assumes that requiring investment to make the best practices even better is economically infeasible, or at least undesirable, and ultimately unnecessary because, while unappetizing, the acceptable levels are deemed safe to consume.

Safety is a second issue. Clearly, if people are not getting sick from the allowable defect levels in regulated foods, then these product levels are probably safe. Yet it is possible that the cumulative effect of the permit- ted impurities over one’s lifetime takes a toll on health, even though the harm may not be traceable to them. It is also possible that the defects af- fect people differently based on age, allergies, and other factors. No doubt, aside from looking at best production practices, the FDA takes the views of health experts and research into account in considering where to set and maintain defect levels.

A third issue is transparency. As a consumer you may wonder if the FDA’s regulations provide adequate information and protection. We are all familiar with the nutrition labels on food products sold in the United States. Peanut butter lists calories, fat calories, total fat, saturated fat, trans fat, polyunsaturated fat, monounsaturated fat, cholesterol, vitamins A and C, sodium, total carbohydrates, fiber, sugars, protein, calcium, and iron. The average number of insect fragments and rodent hairs is missing.

Data from http://www.spydersden.worldpress.com/2010/page/78; www.chacha.com/ question/does-the-average-american-really-consume-1.2-pounds-of-spider-eggs-a-year-and -eat-2.5-pounds-of-insect-parts-a-year.

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3Introduction: What Is Administrative Law?

Should this be identified? Who should decide—Congress, which is elected by “We the People”; an administrative agency like the FDA, which is not; or the food industry itself? If it were decided to require information about “unavoidable defects,” would it be sufficient to indicate compliance with FDA allowable levels? Should that level be specified on the product? Should the average number of various impurities be indicated? If Congress makes such decisions, it will hold hearings and receive testimony from representatives of the food industry such as the Snack Food Association, Pizza Industry Council, US Potato Board, National Confectioners’ Associ- ation, Whole Grains Council, and other groups. If an agency makes these decisions, how should its decisionmaking process be structured? Should it be open to input from the same kinds of stakeholders, and if so, how? Regardless of where the decision is made, what role, if any, should health experts, hospitals and other care providers, health insurance companies, and consumer advocates play?

Finally, how should the FDA’s defect levels be enforced? Should the FDA test products already in the marketplace, inspect production facilities, or both? If a firm’s product exceeds the allowable defect levels, what steps should be taken? What opportunities should the firm have to contest the FDA’s finding? Such questions are the stuff of administrative law. Although they focus largely on process, as they suggest, process can affect substance.

Administrative policymaking often involves a wide range of consider- ations and complex trade-offs like those involved in establishing the FDA’s Rat Hair List. Administrators make a great number of decisions that di- rectly affect the health, safety, and welfare of the population or sections of it. They have to address difficult issues regarding transportation, envi- ronmental protection, economic practices, labor relations, and much, much more. Their decisions are of fundamental consequence to the nation’s qual- ity of life and attract a great deal of political and media attention. Equally important to our constitutional democracy, though generally less visible and interesting to the public, is how administrators should make and en- force their decisions.
explain the essentials of administrative law clearly and accurately

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