Administrative Law in the Political System

641 Pages·2011·6.796 MB·English

by  Warren, Kenneth F

W
“A masterpiece in enlivening administrative law. This is the ‘go to’ book for
a
faculty seeking answers to administrative law questions and a superb comprehensive
r
administrative law text for MPA, MPP, and political science courses.”
r
—DAVID H. ROSENBLOOM, CITY UNIVERSITY OF HONG KONG AND AMERICAN UNIVERSITY
e
n A DM I N I S T R AT I V E
“Professor Warren has produced a new edition of his excellent text that retains considerable strengths
of previous editions while exploring signifi cant recent developments.…His command of the major
topics and the literatures that illuminate them—both established and cutting-edge—is nothing short
of extraordinary. The book is full of original insights, trenchant observations and sound judgment; only
the rare scholar of Professor Warren’s erudition and talent could sustain all three qualities in a single
book.…[A] major contribution to our understanding of the complex interactions between law and politics I
as they collide in the crucible of contemporary administrative processes.” N
—CORNELIUS M. KERWIN, PRESIDENT, AMERICAN UNIVERSITY

T
“This fi fth edition keeps pace with current issues with crucial material on balancing individual
H A
liberties and societal interests in security. It includes ‘administrative’ searches and seizures in light of
the USA Patriot Act passed in the aftermath of the terrorist attacks of 9/11, and the decline of the right E D
against self-incrimination in the rise of the ‘administrative state.’ The interplay of constitutional rights and
M
administrative procedures is well-developed throughout the book and makes the book P
an important contribution to understanding the essentials of the American style of governance.” O
I
—MICHAEL A. WOLFF, SUPREME COURT JUDGE, SUPREME COURT OF MISSOURI N
L I N T H E
I I
T S
Emphasizing that administrative law must be understood within the context of the political system, this core
T P O L I T I C A L
text combines a descriptive systems approach with a social science focus. Author Kenneth F. Warren explains I
the role of administrative law in shaping, guiding, and restricting the actions of administrative agencies. C R
Providing comprehensive coverage, he examines the fi eld not only from state and federal angles, but also
A
A
from the varying perspectives of legislators, administrators, and the public.
L T S Y S T E M
Substantially revised, the fi fth edition features approximately one hundred new and current cases that place
S I
administrative law in the context of the Obama administration. Each chapter concludes with an edited
V
exemplary case that highlights major themes and helps students understand important points made in the Y
E
chapter. Using straightforward prose and avoiding unnecessary legal jargon, Administrative Law in the S
Political System provides students with an informed and accessible overview of a diffi cult subject matter. T
KENNETH F. WARREN is professor of political science at Saint Louis University. President of the E
Warren Poll for over two decades, he also conducts polls for the media, government, private clients, and poli- M
ticians. He has served as a political analyst for thirty years, appearing in such news sources as the New York
Times, the London Times, the Wall Street Journal, and the New Republic, and on most major television net-
FF II FF TT HH EE DD II TT II OO NN
works.
COVER DESIGN: MIGUEL SANTANA & WENDY HALITZER
FIFTH
EDITION
Kenneth F. Warren
A Member of the Perseus Books Group
www.westviewpress.com
www.perseusacademic.com
9780813344560-text_Layout 1 5/18/10 11:05 AM Page i
ADMINISTRATIVE LAW
IN THE POLITICAL SYSTEM
9780813344560-text_Layout 1 5/18/10 11:05 AM Page ii
9780813344560-text_Layout 1 5/18/10 11:05 AM Page iii
FIFTH EDITION
ADMINISTR ATIVE
L AW
IN THE
POLITICAL SYSTEM
Kenneth F. Warren, Ph.D.
Professor of Political Science and Public Policy
Saint Louis University
A Member of the Perseus Books Group
9780813344560-text_Layout 1 5/18/10 11:05 AM Page iv
Copyright © 2011 by Westview Press
Published by Westview Press,
A Member of the Perseus Books Group
All rights reserved. Printed in the United States of America. No part of this book may be
reproduced in any manner whatsoever without written permission except in the case of
brief quotations embodied in critical articles and reviews. For information, address
Westview Press, 2465 Central Avenue, Boulder, CO 80301.
Find us on the World Wide Web at www.westviewpress.com.
Every effort has been made to secure required permissions to use all images, maps, and
other art included in this volume.
Westview Press books are available at special discounts for bulk purchases in the United
States by corporations, institutions, and other organizations. For more information, please
contact the Special Markets Department at the Perseus Books Group, 2300 Chestnut
Street, Suite 200, Philadelphia, PA 19103, or call [phone], ext. 5000, or e-mail
[email protected].
Designed by Trish Wilkinson
Set in 11 point Adobe Garamond
Library of Congress Cataloging-in-Publication Data
Warren, Kenneth F., 1943–
Administrative law in the political system / Kenneth F. Warren. — 5th ed.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-8133-4456-0 (alk. paper)
1. Administrative law—United States. 2. Delegated legislation—United States.
3. Administrative agencies—United States. I. Title.
KF5402.W37 2011
342.73'06—dc22 2010010934
10 9 8 7 6 5 4 3 2 1
9780813344560-text_Layout 1 5/18/10 11:05 AM Page v
To those who provide love and joy to my life,
Tao, Heidi, Megan, Emily, and Jeremy
and
To all those who struggle to achieve
procedural due process
9780813344560-text_Layout 1 5/18/10 11:05 AM Page vi
9780813344560-text_Layout 1 5/18/10 11:05 AM Page vii
Contents
Preface xi
1 ADMINISTRATIVE LAW: AN INTRODUCTION 1
Objectives of This Book 1
Organization of This Book 2
This Book’s Approach: Systems Theory 3
Administrative Agencies Play the Lead Roles 7
The Nature of Administrative Law 15
Administrative Law’s Increasing Relevance 23
Summary 25
Saint Louis University v. Masonic Temple Association, 220 S.W. 3d 721 (2007) 25
Comments and Questions 30
Notes 31
2 THE GROWTH OF ADMINISTRATIVE POWER
AND ITS IMPACT ON THE AMERICAN SYSTEM 35
Growth of the Administrative System 35
Agency Proliferation: From George Washington to Barack Obama 35
An Important Historical Development: The Delegation of Power to
Administrative Agencies 46
The Power of Administrative Officials and Agencies 58
Administrative Growth, the Public Interest, and Administrative Law
Considerations 63
Regulating in the Public Interest: Regulation Versus Deregulation 75
Summary 88
Whitman Administrator of Environmental Protection Agency v. American
Trucking Associations,531 U.S. 457; 121 S.Ct. 903 (2001) 89
Comments and Questions 97
Notes 99
3 LEGISLATIVE ATTEMPTS TO ACHIEVE DEMOCRATIC
ACCOUNTABILITY IN THE ADMINISTRATIVE PROCESS 105
Keeping Administrators Accountable 105
Traditional Congressional Oversight Powers 109
vii
9780813344560-text_Layout 1 5/18/10 11:05 AM Page viii
viii Contents
Seeking Administrative Accountability Through Guidance Legislation 116
The Administrative Procedure Act: An Overview of Its Role in Controlling
Administrative Behavior 128
Sunshine and Sunset Legislation 138
Summary 142
Rutan v. Republican Party of Illinois, 497 U.S. 62; 110 S.Ct. 2729 (1990) 144
Comments and Questions 151
Notes 152
4 PROTECTING ADMINISTRATORS FROM
UNDUE INTERFERENCE AND HARASSMENT 157
Legitimate Versus Illegitimate Meddling in the Administrative Process 157
Protecting Administrators from Themselves and Others:
Conflict-of-Interest Laws 158
Congressional Influence Peddling 166
Tinkering with Administrators: The President’s Appointment and
Removal Powers 179
Summary 187
Wiener v. United States,357 U.S. 349; 78 S.Ct. 1275 (1958) 188
Comments and Questions 190
Notes 191
5 RULEMAKING: AGENCIES AS LEGISLATIVE BODIES 195
The Growing Importance of Agency Rulemaking 195
What Is Rulemaking? 196
Rulemaking: Loopholes and Their Significance 202
The Democratic Character of Rulemaking Procedures and Public
Policy Outputs 207
Sensible Suggestions for Making Rulemaking More Democratic 216
Summary 226
Motor Vehicle Mfrs. Ass’n v. State Farm Mutual, 463 U.S. 29; 103 S.Ct.
2856 (1983) 227
Comments and Questions 232
Notes 233
6 THE PUBLIC POLICY–MAKING TUG-OF-WAR
BETWEEN RULEMAKING AND ORDERMAKING 239
What Is Ordermaking? 239
Differentiating Ordermaking from Rulemaking 241
Pros and Cons of Ordermaking and Rulemaking in Agency Policymaking 243
Summary 249
National Labor Relations Board v. Bell Aerospace Company, 416 U.S. 267;
94 S.Ct. 1757 (1974) 250
Comments and Questions 253
Notes 254
9780813344560-text_Layout 1 5/18/10 11:05 AM Page ix
Contents ix
7 AGENCY HEARINGS: HOW FAIR ARE THEY? 257
Serving Due Process in Agency Hearings 257
Administrative Hearings Versus Court Trials 260
Bias, Due Process, and Regulatory Effectiveness 266
Considering Evidence in Agency Hearings 272
Decision Making in Agency Adjudications 288
Summary 297
State of California v. Federal Energy Regulatory Commission, 329 F.3d
700 (9th Cir. 2003) 298
Comments and Questions 306
Notes 307
8 ADMINISTERING PUBLIC POLICIES:
DISCRETIONARY AGENCY ACTIONS 313
Formal Versus Informal Agency Actions 313
Defining Administrative Discretion 315
A Historical Glance at Discretion: The Rule of Law Versus Discretionary Power 317
Kenneth Culp Davis on the Problem of Discretion 319
A Critique of Davis’s Discretionary Justice 327
Reacting to Davis: Gifford’s Model of Discretionary Decision Making 330
The Courts’ Role in Controlling Discretionary Agency Actions 333
Cases Overruling Discretionary Actions 334
Cases Upholding Discretionary Actions 338
Nontraditional Alternatives to Controlling Administrative Power 344
Summary 354
Federal Communications Commission v. Fox Television Stations,
129 S.Ct. 1800 (2009) 355
Comments and Questions 361
Notes 362
9 JUDICIAL REVIEW OF AGENCY BEHAVIOR 369
Judicial Review: An Overview 369
The Changing Role of the Courts 371
The Availability of Judicial Review of Administrative Actions 377
Scope of Review 393
Court Orders and Problems of Compliance 404
Summary 405
United States v. Mead Corporation,533 U.S. 218; 121 S.Ct. 2164 (2001) 406
Comments and Questions 414
Notes 415
10 SUING THE GOVERNMENT AND ITS ADMINISTRATORS 419
Tort Liability Issues in a Democratic State: An Overview 419
The Sovereign Immunity Doctrine 420