Public Administration and Law

by David H. Rosenbloom, Rosemary O'Leary, Joshua Chanin

Overview

Since the first edition of Public Administration and Law was published in 1983, it has retained its unique status of being the only book in the field of public administration that analyzes how constitutional law regulates and informs the way administrators interact with each other and the public. Examining First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights as they pertain to these encounters, it explains how public administrators must do their jobs and how administrative systems must operate in order to comply with constitutional law.

Explores the conflicts between laws

The book begins by presenting a historical account of the way constitutional and administrative law have incrementally "retrofitted" public agencies into the nation’s constitutional design. It examines the federal judiciary’s impact on federal administration and the effect of the nation’s myriad environmental laws on public administration. Next, it focuses on the role of the individual as a client and customer of public agencies. In a discussion of the Fourth Amendment, it examines street-level encounters between citizens and law enforcement agents. Responding to the rise of the new public management (NPM), it also adds, for the first time in this edition, a chapter that analyzes the rights of the individual not only as a government employee but also as a government contractor.

Enhanced with numerous references

The final chapters of the book address issues concerning the rights of inmates in administrative institutions and balancing the need to protect individual rights with the ability of agencies to function effectively. Supplemented with case citations and lists of articles, books, and documents, this text is designed to facilitate further study in a constantly evolving area.

About the Authors:

David H. Rosenbloom, Ph.D. is Distinguished Professor of Public Administration in the School of Public Affairs at American University in Washington, D.C., and Chair Professor of Public Management at City University of Hong Kong. Rosemary O’Leary, Ph.D., J.D. is Distinguished Professor of Public Administration and the Howard G. and S. Louise Phanstiel Chair in Strategic Management and Leadership at Syracuse University. Joshua M. Chanin, M.P.A., J.D. is a Ph.D. candidate in Public Administration and Justice, Law, and Society in the School of Public Affairs at American University in Washington, D.C.

Product Details

ISBN-13:	9781439803981
Publisher:	Taylor & Francis
Publication date:	06/23/2010
Series:	Public Administration and Public Policy , #157
Edition description:	New Edition
Pages:	354
Product dimensions:	6.20(w) x 9.40(h) x 1.00(d)

About the Author

David H. Rosenbloom, Ph.D. is Distinguished Professor of Public Administration in the School of Public Affairs at American University in Washington, D.C., and Chair Professor of Public Management at City University of Hong Kong. Rosemary O’Leary, Ph.D., J.D. is Distinguished Professor of Public Administration and the Howard G. and S. Louise Phanstiel Chair in Strategic Management and Leadership at Syracuse University. Joshua M. Chanin, M.P.A., J.D. is a Ph.D. candidate in Public Administration and Justice, Law, and Society in the School of Public Affairs at American University in Washington, D.C.

Table of Contents

Preface xvii

Acknowledgments xxi

About the Authors xxiii

Section 1 The Administrative State, Democratic Constitutionalism, and the Rule of Law

1 The Problem: Retrofitting the American Administrative State into the Constitutional Scheme 3

1.1 Public Administration and American Constitutionalism 4

1.2 The American Public Administrative "Orthodoxy" 5

1.3 "Reinvented" Public Administration: Toward a New Public Management 8

1.4 U.S. Constitutionalism 11

1.4.1 Efficiency 12

1.4.2 Who's in Charge of Public Administration? 13

1.4.3 Consolidation of Functions 18

1.4.4 Instrumentalism and Utilitarianism versus Contractarianism 19

1.4.4.1 Spending 19

1.4.4.2 Collective Action 20

1.4.4.3 Contractarianism 22

1.4.5 Regulation versus Liberty and Property Rights 24

1.4.6 Legitimacy 27

1.5 Controlling Administrative Discretion: The Role of Law 31

1.6 Judicial Responses to the Administrative State 35

1.6.1 Judicial Opposition to the Administrative State (1890s-1936) 36

1.6.2 Judicial Acquiescence in the Administrative State (1937-Early 1950s) 39

1.6.3 Constitutionalization and Partnership: The 1950s Forward 41

1.7 Conclusion: Retrofitting as an Incremental Project 43

References 44

Cases 44

Articles, Books, and Documents 46

2 Administrative Law and the Judiciary Today 51

2.1 The Commerce Clause 52

2.2 Delegated Power 55

2.3 The Federal Government's Administrative Law Framework 57

2.4 Judicial Review of Agency Action 62

2.4.1 Statutory Interpretation 63

2.4.2 Substantial Evidence Review of Facts 65

2.4.3 Abuse of Discretion Review 66

2.4.4 Remand 66

2.4.5 Review of Rules and Regulations 67

2.5 Review of Informational Activity 67

2.5.1 Administrative Searches 67

2.5.2 Freedom of Information 68

2.5.3 Privacy Act 69

2.5.4 Open Meetings 69

2.5.5 Federal Advisory Committee Act 70

2.6 Adjudications 71

2.6.1 Notice 71

2.6.2 Intervention 71

2.6.3 Procedures 72

2.6.4 Expertise 72

2.7 Rulemaking 73

2.8 Review of Executive Orders 75

2.9 Alternatives to Litigation 76

2.9.1 Ombuds 77

2.10 Regulatory Negotiation 78

2.11 Conclusion 79

References 80

Cases 80

Articles, Books, and Documents 81

3 Environmental Law: Changing Public Administration Practices 85

3.1 Judicial Review of Agency Actions 86

3.1.1 Standing to Sue: The Case of Global Warming 87

3.1.2 Ripeness and Standard of Review: The Case of Timber Cutting 90

3.1.3 Standard of Review: The Case of Air Quality 92

3.2 Interpretation of Environmental Laws 93

3.2.1 Interpreting Statutes: Two Cases Concerning the Endangered Species Act 94

3.2.2 Interpreting Statutes and the Constitution: Regulatory Takings and Land Use 97

3.2.3 Choice of Remedy 100

3.3 The Growth of Environmental Conflict Resolution 102

3.3.1 ECR Processes 105

3.3.2 Consensus-Based Processes 105

3.3.2.1 Conflict Assessment (Convening) 106

3.3.2.2 Facilitation 106

3.3.2.3 Mediation 106

3.3.2.4 Conciliation 107

3.3.2.5 Negotiated Rulemaking 107

3.3.2.6 Policy Dialogues 107

3.3.2.7 Quasi-Adjudicatory Processes 108

3.3.2.8 Early Neutral Evaluation 108

3.3.2.9 Minitrials and Summary Jury Trials 109

3.3.2.10 Settlement Judges 109

3.3.2.11 Fact-Finding 109

3.3.2.12 Arbitration 110

3.4 Conclusion 110

References 111

Cases 111

Articles, Books, and Documents 112

Section II The Constitutionalization of Public Administrative Action

4 The Individual as Client and Customer of Public Agencies 115

4.1 The Public Administration of Services 116

4.1.1 Traditional Public Administration 116

4.1.2 The New Public Management and Reinventing Government Movements 120

4.2 Constraining Clients: The Problem of Conditional Benefits 121

4.3 Clients and Customers in Court: The Traditional Response 124

4.4 The Demise of the Doctrine of Privilege 127

4.4.1 Redefining Equal Protection 128

4.4.1.1 Equal Protection Today 130

4.4.2 Unconstitutional Conditions: Protecting Clients' and Customers' Substantive Rights 133

4.4.3 The "New Property": Expanding Clients' and Customers' Rights to Procedural Due Process 137

4.5 A Constitutional Limit to Clients' and Customers' Interests in Public Benefits 142

4.6 The Case Law in Sum 143

4.7 Impact on Public Administration 144

References 147

Cases 147

Articles, Books, and Documents 148

5 Street-Level Encounters 151

5.1 The Need for Street-Level Intuition versus the Fear of Arbitrary or Discriminatory Administration and Law Enforcement 155

5.2 The Fourth Amendment 158

5.2.1 Inspectors 159

5.2.2 Trash Inspections 161

5.2.3 Inventory Searches 162

5.2.4 Requests for Identification 165

5.2.5 Sweep Searches 168

5.2.6 Random Stops 169

5.2.7 Highway and Transportation Checkpoints 170

5.2.8 Border Searches 173

5.2.9 Drug Testing 173

5.3 Impact on Public Administration 175

References 176

Cases 176

Articles and Books 177

6 The Individual as Government Employee or Contractor 179

6.1 Public Administrative Values and Public Employment 180

6.2 Constitutional Values in Public Employment 184

6.3 Considering Whether the Constitution Should Apply to Public Employment 185

6.4 Judicial Doctrines 189

6.4.1 The Doctrine of Privilege and Government Employment 189

6.4.2 The Transformational Case Bailey v. Richardson 191

6.4.3 Finding a New Approach: The Emergence of the Public Service Model 193

6.5 The Structure of Public Employees' Constitutional Rights Today 196

6.5.1 Substantive Rights 196

6.5.1.1 Speech on Matters of Public Concern 196

6.5.1.2 "Work Product" Speech 198

6.5.1.3 Partisan Speech and Activity 199

6.5.1.4 Freedom of Association 200

6.5.2 Protection against Unreasonable Searches and Seizures 202

6.5.3 Procedural Due Process 203

6.5.4 Equal Protection 205

6.5.5 Substantive Due Process 206

6.5.6 Enforcing Public Employees' Constitutional Rights 206

6.6 Government Contractors 207

6.7 Conclusion: The Courts, Public Personnel Management, and Contracting 212

References 214

Cases 214

Articles, Books, and Documents 216

7 The Individual as Inmate in Administrative Institutions 219

7.1 Administrative Values and Practices 220

7.2 Total Institutions and Public Administrative Values 221

7.3 Theory and Practice in Public Total Institutions Prior to Reform in the 1970s 227

7.3.1 Mental Health Facilities 227

7.3.1.1 Conditions on the Ground 230

7.3.2 Prisons 231

7.3.2.1 Conditions on the Ground 233

7.4 Transformational Cases 238

7.4.1 A Fourteenth Amendment Right to Treatment Wyatt v. Stickney (1971) 238

7.4.2 Redefining Cruel and Unusual Punishment Holt v. Sarver (1970) 241

7.5 Subsequent Developments: The Right to Treatment and Prisoners' Rights Today 242

7.5.1 The Right to Treatment 242

7.5.2 The Eighth Amendment: Conditions of Confinement 246

7.5.2.1 Prison Administrators' Personal Liability under the Eighth Amendment 248

7.5.2.2 Prisoners' Additional Constitutional Rights 252

7.6 Implementation and Impact 254

7.6.1 Public Mental Health Administration 255

7.6.2 Prisons and Jails 257

7.7 Conclusion: Consequences for Public Administrators 259

7.7.1 Integrating Constitutional Values, Law, and Day-to-Day Administrative Operations 260

7.7.2 From Few Actors to Many 260

7.7.3 Budget Pressures 261

References 262

Cases 262

Articles, Books, and Documents 264

8 The Individual as Antagonist of the Administrative State 267

8.1 The Antagonist of the Administrative State 268

8.2 The Antagonist in Court: Traditional Approaches 270

8.3 Public Administrators' Liability and Immunity 271

8.3.1 The Civil Rights Act of 1871 272

8.3.2 Absolute Immunity 275

8.3.3 Qualified Immunity 278

8.4 Suing States and Their Employees 287

8.5 Failure to Train or to Warn 287

8.6 Public Law Litigation and Remedial Law 288

8.6.1 The Supreme Court and Remedial Law 291

8.7 Standing 292

8.8 State Action Doctrine, Outsourcing, and Private Entities' Liability for Constitutional Torts 294

8.9 Conclusion 297

References 298

Cases 298

Articles and Books 300

9 Law, Courts, and Public Administration 301

9.1 Judicial Supervision of Public Administration 305

9.2 Administrative Values and Constitutional Democracy 308

9.3 Assessing the Impact of Judicial Supervision on Public Administration 310

9.4 The Next Steps: Public Service Education and Training in Law 314

References 315

Cases 315

Articles, and Books 315

Index 319

Editorial Reviews

Praise for the First Edition "This is a good book and an important one.... "...fascinating...brilliant.

American Political Science Review

Focuses on how constitutional doctrines regulate the main contexts in which individuals deal with administrators, analyzing their application to specific contexts and competing values. Also discussed are contemporary federal administrative law and judicial review of agency action/inaction, the general framework at controls agency rule- making, adjudication, release of information, and environmental regulations. Includes an index of applicable court cases. Annotation c. by Book News, Inc., Portland, Or.

Booknews

More than a half century ago, Paul Appleby colorfully described the political nature of public administration and the "press and public interest in every detail of his [the administratorÆs] life, personality, and conduct" (Appleby, p. 7). Rosenbloom and OÆLeary remind us, however, that the political nature of public administration has often been obscured, in part by the omniscient push for efficiency associated with orthodox public administration, but also by modern efforts to reinvent government by removing some controls in order to expedite decision making and program delivery. The authors' theme is that all too often public administration has stood in sharp contrast to constitutional law and that only in the modern era has the U. S. Supreme Court turned its attention to ensuring constitutional rights, both for citizens when they interact with the bureaucracy and for bureaucrats themselves in their capacity as employees. PUBLIC ADMINISTRATION AND LAW is organized into two parts. Part I states the problem, provides an overview of contemporary administrative law and the judiciary, and--an addition to the first edition of the book--discusses the special area of environmental law. Part II organizes case and statutory law so as to reflect the development of constitutional protections for the individual who is a client or a customer of government, legal constraints that limit (somewhat) the behavior of street-level bureaucrats, protections for government employees, protections for individuals who are in "total institutions" (prisons, mental health facilities, e.g.), and approaches used by individuals who become formal antagonists against the administrative state. It ends with a helpful summary and conclusions chapter. The first chapter, "The Problem," points out that individual rights are not necessarily "efficient" and that THE FEDERALIST PAPERS, Number 10, spoke to the importance of rights in contrast to the lesser importance of costs ("efficiency"). Rosenbloom and OÆLeary argue that, in addition to the orthodox fascination with efficiency, the newest of the "new public administration" movements, National Performance Review, in its penchant for red-tape cutting and eliminating barriers in the name of efficiency, creates its own constitutional dilemma even though calling for customer satisfaction (pp. 10-12). One can easily conclude that NPR smacks of the old presidential imperialism in its crusade for ridding administration of legislative controls. The second chapter provides an overview of "where we are" in the evolution of administrative law. One of its key messages is that the Administrative Procedures Act of 1946 was a watershed public policy that was followed by other significant acts including those dealing with access to information and protection of privacy. Its other key message is that, though often neglected, "administrative law is central to the practice of public administration" (p. 82). The third chapter deals explicitly with environmental law and traces the shift from unbridled administrative discretion that resulted in such malevolent actions as the radiation experiments that poisoned hundreds in the West to aggressive policies protecting both the environment (endangered species) and the people (takings). The authors conclude that "Government immunity is being eroded in environmental statutory provisions that clearly leave public servants and public organizations vulnerable to lawsuits" (p. 111). Even the most mundane of administrative operations--solid waste removal and treatment--has been limited by the C&A CARBONE, INC. ET AL. V. CLARKSTOWN, NEW YORK case. This chapter outlines one of the newer areas of law affecting administrators. It suffers somewhat from overuse of acronyms (CERCLA, SARA, RCRA, CWA, e.g.) that are commonplace to environmentalists but of whose meaning the rest of us need an occasional reminder. Chapters 4-8 elaborate on the themes developed in the first part of the book. A succinct statement of one component of the thesis appears on p. 124 in the third chapter: " . . . the public administration that developed out of the confluence of these three movements (civil service reform, Progressive, scientific management) became a willing vehicle for constraining clientsÆ constitutional rights." Rosenbloom and OÆLeary reiterate that the courts have not determined that a constitutional right to public benefits exists, but if benefits are offered, the courts insist on fairness and due process. The street-level bureaucrat chapter draws helpful distinctions between the areas where the federal courts have strengthened Fourth Amendment constraints on government employees (routine inspections, requests for identification, sweep searches, random stops) and where the courts have strengthened bureaucrats in their implementation of public policy (drugs, alcohol, customs, illegal aliens). All of us who teach personnel administration are aware of the evolution described in the sixth chapter from public employment as a privilege with few constitutional protections to numerous protections of individuals in their capacities as public employees. The authors demonstrate that the courts have tried to avoid compromising "the governmentÆs ability to act effectively as an employer" (p. 209), although many a manager would say that the intent has failed. One of the most interesting chapters, at least to this reviewer, was the chapter on inmates in the care of government. It is easy to forget that the growing body of constitutional rights of inmates belongs to administrative law. PUBLIC ADMINISTRATION AND THE LAW goes beyond the discussion of the various prison rights cases--and in Texas, we are all too familiar with the maltreatment of prisoners spelled out in RUIZ V. ESTELLE and ESTELLE V. GAMBLE--to the budgetary and operational implications of the cases. The eighth chapter varies somewhat from others in Part II by focusing on ways that concerned groups and individuals can challenge administrative actions. Elections, lobbying, public debate, use of the media, protests, citizen participation, use of an ombudsman, and litigation are all cited. From the standpoint of the administrator, both the erosion of immunity and the courtsÆ constant reminders of administrative obligation to protect constitutional rights are significant. The book concludes with a deft chapter that reprises the elaboration of the bookÆs theme. It then lays out 21 negative implications of judicial supervision of public administration ranging from loss of judicial neutrality to unanticipated costs of implementing a judicial decision to poor agency staff morale. The book ends with a call for inclusion of administrative and environmental law in professional masterÆs degree programs with emphases that will be useful to the student/practitioner and for periodic re-tooling of faculty members. "American public administrators today must think and act in a broader context than ever before. Constitutionalization makes public administration more akin to governance than to management alone" (p. 320). PUBLIC ADMINISTRATION AND LAW is a useful book for anyone interested in constitutionalism, but its specific dividends will be paid to individuals interested in administrative law and in the context of public administration. Those dividends are these: 1) the history of administrative law is laid out in case law, literature on administrative theory, and governmental practice; 2) the compendium of case summaries is daunting, more nearly paralleling a constitutional law book than a public administration book; and 3) the thesis of the book is developed logically and lucidly, with myriad examples. Although the page count may seem small for a book purporting to cover the history of administrative law in American government, this is a book with few tables or figures and set in a relatively small type size. Thus, the contents of the book are equal to one of considerably more pages. As someone trained by Emmette Redford, one of the leading public interest scholars, I found this book to be an articulate statement of the importance of administratorsÆ regard for constitutional principles and societal good over and above agency efficiency. Unfortunately, many prospective readers of this book will never see it. Its $150 cost is prohibitive for use in class, and even some persons charged with ordering library materials may be put off by the price tag. References Appleby, Paul. 1945. BIG DEMOCRACY. New York: Alfred A. Knopf.

Charldean Newell