Administrative Law for Public Managers

241 Pages·2014·14.221 MB·English

by  David H. Rosenbloom

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“Rosenbloom crafted a compelling narrative . . . Students R
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like Administrative Law for Public Managers because it is
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straightforward and easy to understand. I teach a wide range E
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of students—mid-level managers to students with no work
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experience—both are relieved that the content and examples
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are easily digestible. It’s an excellent book!” O
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—Lorenda Ann Naylor, University of Baltimore
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“This book presents a profound, as well as comprehensive,
knowledge base of administrative law.”
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—Public Administration Review D
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Administrative Law for Public Managers is an accessible and comprehensive guide to N
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the fundamentals of administrative law—why we have administrative law, the constitutional S
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constraints on public administration, and administrative law’s frameworks for rulemaking,
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adjudication, enforcement, transparency, and judicial and legislative review. Rosenbloom A
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explains administrative law from the perspective of administrative practice, emphasizing
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how various administrative law provisions promote their underlying goal of improving the fit
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between public administration and US democratic-constitutionalism. L
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The second edition includes more coverage of state administrative law, as well as an

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expanded discussion of judicial review. It has also been updated to include the major O
statutes, court cases, executive orders, and other major executive initiatives since 2003. R

The addition of discussion questions makes this an even more valuable resource for public P
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administration classrooms and students.
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David H. Rosenbloom is Distinguished Professor of Public Administration at American IC
University. A major contributor to the field and a Fellow in the National Academy of Public M Administrative Law
Administration, he has received numerous awards, including the Gaus Award for exemplary A
scholarship in political science and public administration, the Waldo Award for outstanding N
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contributions to the literature and leadership of public administration, the Levine Award
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for excellence in public administration, and the Brownlow Award for his book, Building E
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a Legislative-Centered Public Administration. He edited Public Administration Review, Public Managers
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coedited the Policy Studies Journal, and is now on the editorial boards of about twenty
academic journals.
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Cover Image © Shutterstock DE
Cover Design: Miguel Santana & Wendy Halitzer IC
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DAVID H. ROSENBLOOM
A Member of the Perseus Books Group
www.westviewpress.com
Administrative Law for Public Managers
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Administrative Law for
Public Managers
second edition
David H. Rosenbloom
American University
A Member of the Perseus Books Group
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Westview Press was founded in 1975 in Boulder, Colorado, by notable publisher
and intellectual Fred Praeger. Westview Press continues to publish scholarly titles
and high-quality undergraduate- and graduate-level textbooks in core social science
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Copyright © 2015 by Westview Press
Published by Westview Press,
A Member of the Perseus Books Group
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Library of Congress Cataloging-in-Publication Data
Rosenbloom, David H., author.
Administrative law for public managers / David H Rosenbloom. -- Second edition.
pages cm
ISBN 978-0-8133-4881-0 (paperback) -- ISBN 978-0-8133-4882-7 (e-book) 1.
Administrative law--United States. 2. Public administration--United States. I. Title.
KF5402.R669 2014
342.73'06--dc23
2014015458
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Contents
Preface to the Second Edition xiii
1 What Is Administrative Law? 1
2 The Constitutional Context of US Public Administration 19
3 Administrative Rulemaking 63
4 Evidentiary Adjudication and Enforcement 89
5 Transparency 123
6 Judicial and Legislative Review of Administrative Action 151
7 Staying Current 185
References 195
Index 209
v
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Detailed Table of Contents
Preface to the Second Edition xiii
1 What Is Administrative Law? 1
Introduction: What Is Administrative Law? 1
Why We Have Administrative Law Statutes: Delegation and
Discretion, 4
Delegation, 4
Discretion, 7
Administrative Decisionmaking, 8
Procedural and Substantive Review of Administrative
Decisions, 10
The Development of US Administrative Law, 12
Conclusion, 16
Additional Reading, 16
Discussion Questions, 16
2 The Constitutional Context of US Public Administration 19
The Separation of Powers, 22
Congress, 22
The President, 23
The Judiciary, 32
Federalism, 35
The Commerce Clause, 36
The Tenth Amendment, 40
The Spending Clause, 41
The Eleventh Amendment, 41
Individuals’ Constitutional Rights in Administrative
Encounters, 43
vii
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viii Detailed Table of Contents
Relationships with Clients and Customers, 43
Equal Protection, 43
New Property and Procedural Due Process, 46
Unconstitutional Conditions, 47
Public Personnel Management, 48
First Amendment Rights, 49
Fourth Amendment Privacy, 51
Procedural Due Process, 51
Equal Protection, 52
Substantive Due Process Rights, 52
Relationships with Contractors, 53
Public Mental Health Patients, 54
Prisoners’ Constitutional Rights, 55
Street-Level Regulatory Encounters, 56
Fourth Amendment Constraints, 56
Equal Protection Constraints, 57
Public Administrators’ Liability for Constitutional Torts, 58
Conclusion, 60
Additional Reading, 60
Discussion Questions, 61
3 Administrative Rulemaking 63
Introduction: Smoking Whitefish, 63
Rulemaking: Definitions and General Concerns, 64
Rulemaking Processes, 71
Limited or No Procedural Requirements, 71
Informal Rulemaking, 72
Formal Rulemaking, 74
Hybrid and Negotiated Rulemaking Processes, 75
Hybrid Rulemaking, 75
Negotiated Rulemaking, 76
Additional Features of the Idealized Legislative Model for
Rulemaking, 78
Representation: Advisory Committees, 78
Protecting Specific Interests and Values, 79
Executive Efforts to Influence Federal Agency Rulemaking, 82
Conclusion: The Philosopher’s Stone Versus the Bubble Effect,
85
Additional Reading, 86
Discussion Questions, 86
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Detailed Table of Contents ix
4 Evidentiary Adjudication and Enforcement 89
Adjudicating Cinderella: A 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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