vironmental justice and vibrant federalism

vironmental justice and vibrant federalism

The constitutional law affecting public ad- ministration is radically different. How can public managers stay current? There are at least three relatively easy steps and one harder one. The easy ones are to (1) always keep the primary function of American administra- tive law in mind, (2) frequently consult administrative law publications and websites, and (3) talk to agency colleagues and attorneys about new administrative law developments. The more difficult and expensive step is to have experts conduct periodic administrative law audits to ensure com- pliance with newer requirements.

The Primary Function of US Administrative Law

In some fields of study, a couple of underlying principles go a long way in organizing thinking, research, and application. In economics, these are supply and demand; in sociology, stratification and mobility. In adminis- trative law, the tension between constitutional contractarianism and pub- lic administrative instrumentalism is the defining element. The primary function of administrative law is to funnel constitutional contractarian values into administrative practice in order to harmonize public admin- istration with constitutional democracy. The simple secret of the APA’s remarkable durability is that by focusing on procedure rather than sub- stantive policy criteria (e.g., cost-benefit, environmental justice), it acts as such a funnel.

Constitutional Contractarianism

Constitutional contractarianism is based on natural rights theory. Its basic assumptions are that individuals are born with fundamental rights and that they form governments to protect those rights. Rights are not created by government; they preexist it. Government is a mechanism for prevent- ing others from encroaching on our rights and for achieving common pur- poses. Perhaps nowhere are these principles more succinctly stated than in the Declaration of Independence and the Preamble of the US Constitution.

In the Declaration’s famous words, “We hold these Truths to be self- evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” The Preamble is a compact between “We the People” that aims, as one of its prime objectives, to “secure the Blessings of Liberty to ourselves and our Posterity.”

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Rosenbloom, David H.. Administrative Law for Public Managers, Routledge, 2013. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/csusb/detail.action?docID=1652860. Created from csusb on 2019-11-22 18:06:40.

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187The Primary Function of US Administrative Law

Contractarianism pervades the Constitution’s Bill of Rights. It identi- fies spheres of personal freedom, such as religion and speech, in which the government may tread only under extraordinary circumstances. It affords a wide variety of protections for persons accused of crimes. The Eighth Amendment’s ban on cruel and unusual punishments protects those con- victed as well. Here is one court’s contractarian interpretation: “Inadequate resources can never be an adequate justification for the state’s depriving any person of his constitutional rights. If the state cannot obtain the resources to detain persons awaiting trial in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such per- sons” (Hamilton v. Love 1971, 1194 [emphasis added]). This sounds radical, but the identical premise is written into the Fifth Amendment’s Takings Clause: government can take private property only for “public use” and with “just compensation.” If the state is unable to pay for someone’s land, then it cannot have it—no matter how beneficial to a community or the na- tion a highway, bridge, dam, or other piece of infrastructure might be.1 Con- tractarian premises that may raise the cost of administration in the process of protecting individual rights are also reflected in the construction of strict scrutiny in constitutional law. As applied to equal protection and substantive rights, strict scrutiny requires government to show a compelling interest for its action and to narrowly tailor the infringement or to make the means of achieving its interest that approach which is least restrictive of those rights (see Chapter 2). Paralleling other contractarian decisions, the Supreme Court has made it clear that “administrative challenges [do] not render constitu- tional an otherwise problematic system” (Gratz v. Bollinger 2003, 275).

Contractarianism in the sense of privileging rights over administrative costs and convenience is incorporated into several aspects of contempo- rary administrative law. For instance, the absence of standing requirements gives everyone a right to comment on proposed rules in informal rulemak- ing and to file freedom of information requests. The procedural due pro- cess protection provided in adjudications is another example. Executive orders seeking to protect specific values in federal rulemaking, such as en- vironmental justice and vibrant federalism, also embody contractarianism.

Public Administrative Instrumentalism

Public administration in the United States is instrumental, rather than con- tractarian, in its outlook. It pervasively emphasizes cost-effectiveness in

Regulatory takings of “noxious” or injurious property are more complicated. See Lucas v. South Carolina Costal Council (1992).

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Rosenbloom, David H.. Administrative Law for Public Managers, Routledge, 2013. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/csusb/detail.action?docID=1652860. Created from csusb on 2019-11-22 18:06:40.

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188 7. Staying Current

achieving results. It sometimes considers benefit-cost ratios, though not necessarily (or perhaps even generally) with full attention to their distri- bution (Stone 2002). From the field’s founding in Woodrow Wilson’s day in the 1880s through former vice president Al Gore’s National Performance Review in the 1990s and continuing up to the present, the grand public administrative purpose has been to make government “work better and cost less” (Wilson [1887] 1987; Gore 1993). This basic posture is captured in a classic statement on public budgeting that contrasts sharply with the Eighth Amendment interpretation quoted above:

Budget decisions must be made on the basis of relative values. There is no absolute standard of value. It is not enough to say that an expenditure for a particular purpose is desirable or worthwhile. The results must be more valuable than they would be if the money were used for any other purpose.

. . . Costs must be judged in relation to the results and the results must be

worth their cost in terms of alternative results that are foregone or dis- placed. (Lewis [1952] 1987, 213–214, 215)

Is the best possible use of public money really to reduce jail crowding? To the contractarian judge, the question is irrelevant; to administrative bud- geters and much budget reform since the 1940s, it is central.

It is an uncomfortable reality that public administration’s instrumen- talism sometimes leads to a remarkably callous disregard for individual rights (Rosenbloom, O’Leary, and Chanin 2010). This is one reason why Congress considered the APA necessary in the 1940s and the federal courts began building constitutional rights into individuals’ encounters with pub- lic administration in the 1950s. As late as 1993, a federal circuit court of appeals had the following to say in response to a prison warden’s manual for search procedures, which literally compelled male guards to sexually abuse female prisoners:

A bland American civil servant can be as much of a beast as a ferocious concentration camp guard if he does not think about what his actions are doing. . . . Half the cruelties of human history have been inflicted by con- scientious servants of the state. The mildest of bureaucrats can be a brute if he does not raise his eyes from his task and consider the human beings on whom he is having an impact. . . .

How did a civilized country and a civilized state like Washington get into this fix where it takes federal judges to tell a responsible state official

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Rosenbloom, David H.. Administrative Law for Public Managers, Routledge, 2013. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/csusb/detail.action?docID=1652860. Created from csusb on 2019-11-22 18:06:40
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