Public Administration and Law

Julia Beckett, Heidi O. Koenig

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317461951
• Edition: 1
• Topic: Business
• Subtopic: Advertising
• Index: Business

Public Administration and Law has been edited for use as a supplement for an undergraduate or MPA level course on administrative law. The selections, all from the pages of Public Administration Review, have been chosen to enlighten and enliven the contents of any standard administrative law textbook. Each of the book's main sections begins with introductory text and discussion questions by the volume editors, Julia Beckett and Heidi Koenig, followed by relevant readings from PAR. The book's contents follow the standard pattern established by the field's major textbooks to facilitate the instructor's ability to assign readings that illuminate lectures and text material. The book concludes with two invaluable resources - a bibliography of 65 years of PAR articles concerning public law, plus a bibliography of law-related articles appearing in other journals published by ASPA.

PART I

A GOVERNMENT UNDER LAW

America has a government under law both in practice and in democratic theory. Law plays an important role in American society. It defines relationships between all combinations of individuals, businesses, groups, and governments. Many of these relationships are established from social expectations and enumerated through the common law case-by-case development of legal principles. Many other relationships are now specified in statutes and administrative rules. Law is often broadly defined to include constitutions, statutes and legislative authority, regulations and rules, and court decisions. Such laws provide the foundation for public administrators’ authority to act as well as establish limits on governmental authority.

Administrators must understand legal and constitutional obligations. For the general public, the old adage that ignorance of the law is no excuse may be adequate. However, more is expected of public servants. They have the duty to know the law and act in a lawful manner.

One definition of public administration is “the execution of the law.” Yet determining “what is the law” is complex. Judges and lawyers often view law in the context of a particular legal challenge and their understanding of law is developed predominantly through analysis of appellate court decisions. In this context, law is often technical and specific. Administrators, in carrying out law and implementing policy, may interpret law differently from lawyers. In this context, the administrative concern is law in action. In contrast, the general public’s understanding of law differs from the expert views of lawyers and bureaucrats. There are legal, practical, and theoretical aspects of government under the law that public administrators need to understand, and the chapters in Part I are selected to address themes and debates regarding the interplay between the constitutional foundations, the rule of law, and legal specialization.

Understanding public administration and law begins with considering the constitutional foundations of American public administration. The discussions of the legal foundations of government commonly begin with the U.S. Constitution because it is the founding document and the supreme law of the land. The Constitution establishes the foundation and authority of government and provides the structure and functions of the three primary branches: legislative, executive, and judicial. Yet, questions arise regarding the constitutional source and extent of administrative authority. Many chapters in this book consider relationships of legislative delegation, executive authority, administrative discretion, individual rights, and court review.

Every legal inquiry begins by understanding the constitutional and legislative foundations of the administrative activity and only then assesses the questions of constitutionally protected individual rights and civil rights. Administrators must understand and respect constitutional rights, including the First Amendment rights of free speech and petition for redress, the Fourth Amendment limits on unreasonable search and seizure, and the due process and equal protection rights in the Fifth and Fourteenth Amendments. These important rights are closely linked to democratic values. What these constitutional rights are and what is appropriate governmental action has been determined in a long line of Supreme Court cases. Often two or more constitutional values are at issue in a single case. A challenge for both courts and administrators is balancing competing values and important constitutional rights. One thing is certain: The constitutional guarantees of individual and civil rights place obligations and constraints on government and its public servants.

Perhaps the most important constitutional constraint on administrators is that of due process. Due process is an essential democratic and judicial value that does not have a definitive or rigid definition. The constitutional requirement that government cannot take life, liberty, or property without due process of law in the Fifth Amendment applies to federal actions. The Fourteenth Amendment imposes due process on state and local governments. Due process has been expansively interpreted by the courts, which emphasize the equitable concern of fundamental fairness to the individual as more important than traditional administrative concerns of efficiency or economy. Courts separate due process into categories of substantive due process and procedural due process. The former addresses whether government has narrowly crafted and applied statutes when policies that regulate or otherwise provide public benefits may also impose upon constitutional rights. Although substantive due process review is less common, this issue reflects concerns about democratic values and government actions.

Courts are particularly vigilant about procedural due process challenges to administrative hearings. Many of the due process requirements of a trial apply to administrative hearings. The government must give to the defendant: prior and specific notice of the offense; access to government information on the case; an opportunity to present information and arguments; a detailed explanation of the reasons for the decision by the hearing officer; and an opportunity for appeal. What are appropriate and necessary procedures to satisfy due process in one case depend upon the type of rights and the type of setting, but a central question for courts is whether the government has considered fundamental fairness to the individual. Discussions about constitutional due process rights, government responsibilities, and administrative practices are found in many chapters in this book.

Constitutions grant authority to governments to act in certain areas; this is a structural and functional view of the constitution. The structure applies to the intergovernmental relationships between both the branches and the levels of governments. The United States Constitution created a federal government of limited and enumerated powers. States are general-purpose governments with broader powers to protect the health, safety, and welfare of their citizens. Local governments are subordinate to both levels of government. Although the structures and powers may differ for cities and states, the constitutional theories of government under law apply to them.

All levels of government pass laws and regulations to provide for the public must be consistent with constitutional powers. Legislatures enact laws that specify what government will do, such as how to raise revenue and budget spending, what the government will regulate, and what agencies can and must do. Issues relating to the relationships among various forms of government and governmental power have been raised both by scholars and in court cases. For example, a question of federalism arising in a Supreme Court case might ask whether a responsibility should belong to the federal or state government under their Constitutions. Other issues about government powers arise from interpreting statutes in relations to a constitutional clause. For example, the Commerce Clause, “regulating commerce among the several states,” is the foundation of many regulatory powers of the federal administrative state. Supreme Court decisions addressing these issues demonstrate a philosophy of governance and administration, yet the Court may be divided on important fundamental questions. What the Court considers appropriate and acceptable changes both over time and in factual context.

Public administrators are ruled by every branch of government. According to longstanding doctrine, the executive is responsible for developing programs, administering policy, and implementing laws. Others contend that political theory means the legislature, elected by and representing the people, is the predominant branch for developing laws and policies. The role of the judiciary is to interpret cases that challenge the legality of statutes and administrative actions. The ultimate government authority interpreting the U.S. Constitution is the Supreme Court. The involvement of three branches of government that dictate administrative action often raises questions in practice regarding roles, interaction, overlap, and cooperation in governance. These themes are considered in all of the chapters in this section.

The source and structure of authority for public administrators is an essential concern in bureaucratic theory. The concepts of hierarchy, chain of command, and unity of command do not fit neatly into the constitutional structure. In addition, there is little direct constitutional language about public administration. This has led to a number of questions: To whom are administrators responsible? How do the differing values and issues for the executive, legislative, and judicial branches affect public administrators? The first chapter, by David Rosenbloom, from 1983, presents a systematic comparison of the three branches and administrative responsibilities.

Interpretation of constitutional authority evolves through many court decisions, but scholarship also plays a key role in understanding the Constitution. A long-standing debate about administrative legitimacy concerns the issue that public administrators are not given a separate article or description in the federal Constitution. Public administration scholars have considered constitutional design and the founders’ intent regarding administration. This debate centers on whether the lack of constitutional language about administration affects the importance and legitimacy of public administration practice. A beginning point for discussing public administrative authority is in the constitutional role of the executive, and in Chapter 2 John A. Rohr traces the executive from the history of the constitutional convention, statutory actions, and key Supreme Court decisions. Rohr asserts there is constitutional confusion about the two types of executive roles—as clerk and as leader—that continues to affect public administrators.

Another aspect of “government under law” is American governments must enact laws before exercising authority. Many legal scholars distinguish public and private legality by specifying that governments have only the power to do those things that are specifically granted and that individuals can do anything unless it is specifically prohibited by law. The clarity, specificity, and purpose of legislation are not always obvious and this raises challenges for public administrators. Broad legislative authority allows policy directives to change with the results of elections or social problems; it allows for administrative interpretation and discretion. Sometimes administrators are tasked to fill in gaps in laws by developing rules and regulations. These two aspects of discretionary authority are part of administrative practice and are areas of concern to scholars.

The nuances of appointing public officials, defining their duties, and determining who can fire officials are examples of why this legislative authority and interpretation matters. Rohr’s chapter from 1989 also discusses the role of the executive and how legislative enactment of a new role—the independent counsel—affec...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Boxes, Figures, and Tables
• Introduction: The Field of Public Administration and Public Law
• I. A Government Under Law
• II. The Relationships Between Courts and Administrators
• III. Government Operations and Administrative Law
• IV. Administrators and Conflict Resolution
• V. The Role of Law in Public Administration
• Index
• About the Editors