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Administrative Law

Administrative Law

BIBLIOGRAPHY

Definition and scope. Administrative law is that branch of the law which determines the organization, powers, and duties of administrative authorities, the legal requirements governing their operation, and the remedies available to those adversely affected by administrative action.

There is a basic difference in approach between the Anglo-American conception of administrative law and that which prevails in civil-law countries. In the Anglo-American legal system administrative law tends to be narrower than the above definition and is essentially divided into three parts: (1) the delegation of legislative and judicial powers to the administration; (2) the manner in which such powers must be exercised (emphasizing primarily the procedural requirements imposed by the law); and (3) judicial control of administrative authority. In a civil-law country like France, the conception of administrative law is broader. In addition to covering the topics just referred to, French works on the subject describe the various forms of administrative agencies (what they term “the subjects of rights” in administrative law); the exercise of and limitations upon administrative regulatory power; civil service law; the acquisition and management of property by the administration; public works; and the obligations of the administration (subdivided into contracts, quasi contracts, and tort liability).

In the Anglo-American view much that is included in the civil-law approach to administrative law involves matters within the domain of public administration, not of administrative law. The Anglo-American administrative lawyer is not concerned with administrative powers as such; only when administrative power is turned outward against the person or property of private citizens does he deem it a proper subject of administrative law. Hence the Anglo-American emphasis upon powers of delegated legislation and adjudication, for it is through exercise of these substantive powers that administrative authorities are able to determine private rights and obligations.

Basic systems. Even more important than the difference in approach to the scope of the subject is the basic difference between common-law and civil-law systems of jurisprudence in the very structure of administrative law. Civil-law countries tend to make a sharp distinction between administrative law and private law and to have a separate set of courts for each. The model in this respect has been the French system, which since the revolution has been based upon such a distinction, with an autonomous body of administrative courts (headed by the Conseil d’État), wholly separate from the ordinary law courts. The latter have, since 1790, been barred from exercising jurisdiction in other than private-law cases.

In the common-law countries there has been no sharp dichotomy between administrative law and private law and no separate system of administrative courts. Questions of administrative law have been determined by the ordinary law courts on the basis of principles worked out by analogy with those developed in private-law cases.

The difference in this respect has not been merely a structural one. The law fashioned by the administrative courts in France has been an autonomous system, developed independently of the direct influence of private-law principles. This separation has been established since 1873, when the celebrated decision in the Blanco case eliminated the notion of fault, on which the French private law of torts was grounded, from the law of administrative tort liability. The French administrative courts have regarded the Blanco case as a mandate to develop the whole system of administrative law as a body distinct from the ordinary private law, proceeding from wholly different principles. French administrative law has, as a consequence, come to be based on the existence of a special law for cases involving the administration, as well as of special courts to decide such cases.

In the Anglo-American system this French conception of the autonomy of administrative law has been rejected. Administrative-law cases and those arising between private citizens are decided by the same law courts, and the judges have refused to accept the notion that wholly different rules must be applied in their decision. If anything, indeed, the outstanding feature of the common-law legal system has been the primacy of private, as compared to public, law. Anglo-American courts have tended to conceive of the state as only a collective person and then to resolve cases involving the state by analogy with the private law of persons. The result has been that many of the most important doctrines and conceptions of Anglo-American administrative law have been drawn from the different branches of private law. These include: the maxim against the delegation of legislative power (derived from the law of agency); the doctrine of ultra vires (imported from the law of corporations); the rule of personal tort liability of public officers (based on the treatment of administrative wrongful acts as private torts); and the concept of government employment as only a privilege (based on the treatment of the state employer as an ordinary private employer).

Most countries have adopted either the French or the Anglo-American type of administrative-law system as a model, although often with significant variations. Thus, many South American countries have accepted the formal structure of the Anglo-American systems (with control by the ordinary courts) but have tended to follow the substantive doctrines (and especially the basic division between administrative law and private law) espoused by French and other civil-law jurisprudence. In Japan, the administrative-law system was first set up on the civil-law pattern (modeled upon the German system); but since 1945, the structure has been remodeled and patterned on that of the United States. Such drastic change in the basic system has been very rare, although suggestions as to its desirability have been made in other countries, even in Britain and France themselves.

Historical background. Administrative law, in its broad sense as the law relating to administration, is as old as government itself. In its modern connotation, however, it was not recognized as a separate branch of the law until the nineteenth century. In the Anglo-American countries, indeed, such recognition was not widespread until the twentieth century. This delay stemmed in large part from the dominance of private law. In Blackstone, administrative law is essentially part of the private law of persons, with officials treated as persons governed by the same law as everyone else. The great Victorian public lawyer A. V. Dicey asserted that in England and the United States administrative law was unknown.

Today such a statement could not be made, for administrative law exists as a recognized rubric of both British and American law. The change in this respect has resulted largely from the drastic transformation in the role of the state during the twentieth century which has led it to play an increasingly positive role in the life of the people. Such a role has been manifested in two principal ways: through regulation and operation of various aspects of the economy and through the dispensation of benefits connected with state social-service plans.

In the United States the rise of administrative law is contemporaneous with the need for governmental regulation of industry. Such a need led to the creation in 1887 of the Interstate Commerce Commission (ICC). That body, set up to regulate the railroads (then of crucial importance to the national economy), became the prototype of the American regulatory agency. The industrial abuses that called forth the ICC were to be dealt with by an independent commission vested with authority over the most significant aspects of railroading, from the prescription of rates to the control of discriminatory practices and the supervision of financial operations. The ICC has been well characterized as a super-board of directors of the railroad industry and was given jurisdiction over other forms of surface transportation as well—over oil pipelines in 1906, interstate motor carriers in 1935, and domestic water carriers in 1940.

In the years that followed the creation of the ICC the same need for regulation was felt in other parts of the American economic scene. This was especially true during the period following the economic crisis of 1929. The result has been the establishment of a host of regulatory agencies modeled on the ICC. The most important are the Federal Trade Commission, established in 1914, regulating unfair trade practices; the Federal Power Commission, 1930, regulating water, electric, and gas power; the Federal Communications Commission, 1934, regulating broadcasting and wire communications; the Securities and Exchange Commission, 1934, regulating dealings in securities; the National Labor Relations Board, 1935, regulating labor practices; and the Civil Aeronautics Board, 1938, regulating aviation.

American administrative law developed from the operation of these different regulatory agencies, vested with significant powers to determine, by rule or by decision, private rights and obligations. As the regulations and orders promulgated by these organs impinged more and more upon the community and the bar that counseled it, the development of legal rules to ensure the subordination of agency activities to law became of concern to jurists. During the 1920s courses on administrative law began to be offered in law schools, the American Bar Association set up a special committee on the subject, and it came increasingly to occupy the attention of courts and lawyers.

In Britain the development of administrative law is intimately connected with the modern growth of the social-service functions of the state. In the first part of the nineteenth century, spurred on by Bentham’s philippics, Parliament swept aside the archaisms that had become encrusted in the common law. Toward the end of the century it was seen that negative reform of this type was not enough; public opinion required the state to bring ever-increasing parts of the population under its guardianship. In particular, a vast system of social insurance has been established, designed to protect the individual against the hazards of employment and of life in general in the modern industrial society. The continuous tasks involved in the operation of this system have been delegated to various ministries, although the tendency has been to assign the cases arising to specific executive tribunals, and not to the one relevant minister.

The growth of social-service agencies of the type just referred to, as well as of significant administrative powers over private rights (particularly those involving authority to acquire land compulsorily), led British jurists of the twentieth century to reject Dicey’s denial of the existence of administrative law. Lord Chief Justice Hewart’s attack on what he termed “administrative lawlessness” in The New Despotism (1929), the consequent appointment by the lord chancellor of the Committee on Ministers’ Powers, which reported in 1932 (Great Britain 1932), and the 1957 report of the Franks Committee on Administrative Tribunals and Enquiries (Great Britain 1957) have served to make administrative law an accepted branch of English jurisprudence.

In Continental countries administrative law as a recognized branch of the law has a much longer history. In France the subject has its beginnings in the postrevolutionary era, with the setting up of the Conseil d’État at the end of 1799 and the creation within it in 1806 of a separate section to decide cases touching on the validity of administrative action, a function performed by the law courts in Anglo-American countries. The existence of a separate administrative court and its development of autonomous legal principles focused the attention of French jurists upon administrative law as a distinct subject worthy of doctrinal attention. Treatises on the subject began to appear during the course of the nineteenth century; the classics of modern French administrative law made their first appearance toward the end of the century.

Delegation of power. The question of which powers may be delegated to administrative agencies is of importance in all systems of administrative law; but it is of particular moment in a system like the American one, which is dominated by a judicially enforceable written constitution. Relying upon the separation-of-powers doctrine and the maxim (derived from the law of agency) against the further delegation of a delegated power, the American courts have required delegations of power to be limited by defined standards. This has not barred wide grants of legislative and judicial types of power to administrative agencies, although it has prevented such extreme delegations as those granted under the “Henry VII clause” and the decree-law power. Although since 1935 no delegation has been held unconstitutional by the United States Supreme Court, the mere existence of judicial control has served to restrain delegations so broad as to constitute abdications of the legislative function.

British public law rests on the doctrine of parliamentary supremacy, which is inconsistent with the notion of restrictions on the power that may be delegated to the administration. There are no limitations on Parliament to restrain it from assigning authority when and as it will. Hence, the so-called Henry vm clause (named in disrespectful commemoration of that monarch’s tendency to absolutism), which goes so far as to delegate the authority to amend acts of Parliament. Since the Committee on Ministers’ Powers strongly criticized this type of clause in 1932, it has virtually disappeared from British legislation.

In France, a civil-law country, the existence of a written constitution has led jurists to deny that the legislature may delegate power without limitations. But the absence of effective judicial review has meant that, in practice, there are no legal restrictions on delegation. Since World War I the executive has often been given the broadest power to govern by so-called decree laws. These might override any existing laws and could include any measures deemed necessary to cope with the economic or political exigency that called them forth. The delegation of the decree-law power continued under the Fourth Republic despite an express prohibition against such delegation in the 1946 constitution. Under the Fifth Republic the power to promulgate decree laws is an essential part of the augmented executive authority which is that republic’s chief characteristic. Similar power has existed under other Continental constitutions, notably the Weimar constitution and, to a lesser extent, that of the German Federal Republic. [seeDelegation of powers.]

Administrative procedure. Works on American administrative law devote what may seem to be inordinate attention to the subject of administrative procedure, but this is a natural reflection of the country’s preoccupation with the adjective aspects of the subject. Earlier American works were concerned mainly with the delegation of authority and judicial control. More recently has come the realization that the exercise of administrative power is of equal, if not greater, importance. This has led to an emphasis on procedural safeguards to ensure the proper exercise of administrative authority—an emphasis that found articulation in the Federal Administrative Procedure Act of 1946, which lays down the basic procedures to be followed by American administrative agencies.

It is fair to say that American administrative law is the most developed system in existence, insofar as the procedural requirements that must be followed prior to the taking of administrative action are concerned. In the main, this results from the fact that the due-process clause of the American constitution is construed as a demand of notice and hearing. This means that before an administrative decision which adversely affects the personal or property rights of a particular individual may be made, that individual is entitled, as a matter of constitutional right, to notice and a full and fair hearing. Such a hearing must conform to the essential adjudicatory requirements of the courtroom, which means that the individual has the right to an adversary trial, with the right of oral evidence and argument, cross-examination, counsel, and the like, before an administrative decision can be made against him. Above all, he has the right to have the decision based only upon known evidence presented at the hearing (the principle of “exclusiveness of the record,” as it is termed) and to be given the reasons for an adverse decision.

In Britain and other countries the law of administrative procedure is not so fully developed. The British courts have imposed the rule of audi alteram partem as a principle of natural justice; but this is far from a requirement of a full adversary-trial type of hearing. It is common for English statutes to require a public local inquiry in many cases or an opportunity to appear before a tribunal; yet these, too, are far more informal than their American counterparts. In France the concept of a full hearing as a legal requirement for administrative action has been virtually unknown, although, starting in 1944, the Conseil d’État has held that an individual has a right to present a defense before an administrative penalty may be imposed upon him—a right demanded by the “general principles” of French administrative law.

Judicial review. It is essential in a developed system of administrative law that the citizen aggrieved by an administrative decision have the right to have the legality of such a decision reviewed by an independent judge. In the Anglo-American system, as already indicated, such judicial review is afforded by the ordinary law courts. In the French system and those modeled upon it, it is provided for in a separate set of administrative courts, headed by a supreme administrative court (in France, the Conseil d’État: in Germany, the Bundesverwaltungsgericht).

The subject of judicial review is divided into two parts: (1) availability of review and (2) scope of review. In both the Anglo—American and French systems the general rule is that one adversely affected by an administrative act may obtain judicial review of its legality. This is true regardless of whether a statute provides for such review and even in the face of legislative provisions that appear to preclude review. The plaintiff in the review action must show that the challenged administrative action is “final” in that it has adverse effect (mere preliminary or procedural action not being “ripe” for review) and that he has standing to sue (in that he is personally affected by the act which he challenges). In the Anglo-American system the review action is one for an injunction, declaratory judgment, or certiorari, mandamus, or prohibition. In the French system the normal action is a nontechnical proceeding to annul an ultra vires administrative act (recours pour excès de pouvoir), normally brought without counsel.

As far as the scope of judicial review is concerned, all systems of administrative law make a basic distinction between questions of law and questions of fact. The former are for the judge, the latter for the administrator. Hence, there is full review of questions of law, but only limited review of questions of fact. In America the scope of review of facts is limited by the so-called substantial-evidence rule. Under it, the reviewing court looks only to see whether the administrative finding of fact is supported by substantial evidence, i.e., such evidence as a reasonable mind might accept as adequate to support a conclusion. Other systems reach a comparable result, although they do not articulate a similar theory. [seeJudicial process, article onjudicial review.]

Tort liability. Closely connected with judicial review is the subject of the responsibility of the administration and its agents for damages caused by wrongful administrative acts. Anglo–American law starts with the principle of strict personal liability of administrative officers. Although this principle is still followed in British countries, in the United States it has been departed from during the twentieth century. In American law the public officer may no longer be sued personally where he exercises adjudicative authority or discretionary power. Such personal liability is now limited to officers exercising ministerial functions. In other systems there has been a different development. Most Continental countries started with a rule of immunity for officers. During the nineteenth century such immunity was withdrawn in cases of serious faults. Thus, in the French system the public officer is now personally liable for so-called fautes personelles, which involve willfulness, malice, gross negligence, or action outside the scope of official functions.

So far as the tort liability of the state is concerned, Anglo-American law starts with the doctrine of sovereign immunity, which bars suits against the state without its consent. Such consent has now been given both in Britain, in the Crown Proceedings Act of 1947, and in America, in the Federal Tort Claims Act of 1946. Under these laws the state is liable in tort on the same basis as a private person. There are, however, important exceptions in the American act which preserve governmental immunity from liability for intentional torts, nonnegligent action under a statute or regulation, and exercises of discretionary power. In Continental countries like France and Germany, state immunity from tort suits was done away with during the nineteenth century. An ever-widening principle of governmental liability has taken its place. The state is now responsible for damage caused not only by the faults (such as negligence) of its officers but also by their failure to act and, more recently, by a risk theory of absolute liability. Such state liability even without fault is evolving into what is really a scheme of social insurance far removed from the normal operation of the law of torts.

Bernard Schwartz

[See alsoAdministration; Judicial process; Legal systems. Other relevant material may be found underAdjudication; Law.]

BIBLIOGRAPHY

Works dealing with administrative law in the United States are Davis 1958 and Schwartz 1950, 1952, 1958. The British viewpoint is presented by Great Britain 1932, 1957; Griffith 1951; Hewart 1929; Schwartz 1949; and Wade 1961. France is represented by the works of Waline 1944; Laubadère 1953; and Schwartz 1954. German treatments are to be found in Forsthoff 1950 and Jellinek 1948–1950.

Davis, Kenneth C. 1958 Administrative Law Treatise. St. Paul, Minn.: West.

Forsthoff, Ernst (1950) 1961 Lehrbuch des Verwaltungsrechts. 8th ed. Munich: Beck.

Great Britain, Parliament, Committee on Administrative Tribunals and Enquiries 1957 Report. Papers by Command, Cmd. 218. London: H.M. Stationery Office.

Great Britain, Parliament, Committee on Ministers’ Powers 1932 Report. Papers by Command, Cmd. 4060. London: H.M. Stationery Office.

Griffith, J. A. G.; and Street, Harry (1951) 1957 Principles of Administrative Law. 2d ed. New York and London: Pitman.

Hewart, Gordon 1929 The New Despotism. New York: Cosmopolitan.

Jellinek, Walter (1928) 1948-1950 Verwaltungsrecht. 3d ed. rev. Offenburg (Germany): Lehrmittel. → This is a reprint of the third edition, which appeared in 1931, together with a supplement published in 1950.

LaubadÈre, AndrÉ de (1953) 1963 Traité élémentaire de droit administratif. 3d ed. Paris: Librairie Générate de Droit et de Jurisprudence.

Schwartz, Bernard 1949 Law and the Executive in Britain: A Comparative Study. New York Univ. Press.

Schwartz, Bernard 1950 American Administrative Law. London and New York: Pitman.

Schwartz, Bernard 1952 Le droit administratif américain: Notions générates. Paris: Sirey.

Schwartz, Bernard 1954 French Administrative Law and the Common-law World. New York Univ. Press.

Schwartz, Bernard (1958) 1962 An Introduction to American Administrative Law. 2d ed. Dobbs Ferry, N.Y.: Oceana; London: Pitman.

Wade, Henry W. R. 1961 Administrative Law. Oxford: Clarendon.

Waline, Marcel (1944) 1963 Droit administratif. 9th ed. Paris: Sirey, → The titles of different editions vary slightly.

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Administrative Law

Administrative Law

BIBLIOGRAPHY

Administrative law is a branch of public law that includes the laws and legal principles pertaining to the administration and regulation of state agencies, ministries, or departments and the relationship of the state with private individuals. It is a product of the need for a state to perform a multitude of functions for its citizens and deals with the decision making of a state agency in relation to its regulatory framework. Such regulatory frameworks perform a variety of state functions including natural resource protection, transportation regulation, and food and health safety regulations. Because all administrative law systems are not the same it is imperative for an individual to have knowledge of the political, historical, social, and economic context of the system of a particular state to fully understand its administrative law. In most systems a states constitution or fundamental law is inextricably linked to its administrative law system and must be considered in light of the system or tradition under consideration.

All but the most oppressive administrative law systems share at least one or more of the following interests: (1) providing justice for injuries inflicted by state personnel and agencies on private citizens; (2) maintaining the legality and propriety of subordinate state agencies and actors; and (3) remedying injuries to bureaucrats by the state. Common law administrative law scholars in the United Kingdom and the United States look to the Conseil dEtat in France because, at one time, French administrative law dominated continental systems. Not all administrative law systems conform, however, to this pattern. At least four other divergent themes have all been noted by H. B. Jacobini in An Introduction to Comparative Administrative Law (1991): (1) the Sinitic Censorate and its derivatives, (2) the Procuracy and other administrative law procedures as found in the communist world, (3) the concept of the ombudsman, and (4) machinery for registering complaints (p. 12).

The fundamental elements of administrative law in the United States that are similar to many European and other nations include: (1) statutory delegation of powers from an elected legislative body to the executive; (2) an administrative agency that derives its authority from the legislative body, and that implements the relevant law through rulemaking, adjudication, or other forms of administrative process; (3) judicial review by an independent judiciary of the administrative bodys actions for compliance with the statutory delegation of powers by the legislative body and other applicable laws; and (4) transparency of the decisional process.

For example, in the United States, administrative agencies are said to have no inherent powers because they must act pursuant to the legal authority delegated to them by the legislative body. The legislative body empowers administrative agencies to act as agents for the executive branch of government through statutory law. The statute that delegates power to an administrative agency sets forth the scope of the agencys authority. Thus, the nature of administrative law is subconstitutional in the United States because the powers of administrative agencies are delegated through statutory law, not through constitutional law. Yet the actions of the administrative agency must ultimately comply with the U.S. Constitution, its fundamental law. In contrast the German Constitution, the Grundgesetz, contains provisions specifically relevant to the development of its administrative law system.

Administrative agencies in the United States typically utilize adjudication, rulemaking, and inspection to execute their statutory authority. Adjudication can be either informal or formal and must comport to the U.S. Constitutions due process clause. Rulemaking can also be informal or formal. In addition, the power of inspection is sometimes used as a substitute for adjudication procedures or to determine whether not the existence of certain conditions warrant further administrative action. One example of an administrative agency is the Environmental Protection Agency (EPA), whose mission is to protect human health and the environment.

In many countries the courts play a large part in the development of administrative law. In the United States the power of judicial review allows courts to determine whether or not the actions of administrative agencies exceed the scope of their delegated authority or violate the Constitution. Similar processes of review are found in other countries and, although the legal standards vary, their roles are quite similar. For example, in France the Conseil dEtat has developed general principles for administrative law. In the United Kingdom, the ordinary courts are competent in administrative law and, generally, this area is subject to common law. There, the Queens Bench of the High Court is more administrative than the ordinary court when it deals with applications of judicial review.

SEE ALSO Bureaucracy; Government; Judicial Review; Public Administration; Separation of Powers

BIBLIOGRAPHY

Jacobini, H. B. 1991. An Introduction to Comparative Administrative Law. New York: Oceana Publications.

Seerden, René, and Frits Stroink, eds. 2002. Administrative Law of the European Union, Its Member States and the United States: A Comparative Analysis. Antwerpen: Intersentia.

Strauss, Peter L. 2006. Administrative Justice in the United States. 2nd ed. Durham, NC: Carolina Academic Press.

Angelique M. Davis

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administrative law

administrative law, law governing the powers and processes of administrative agencies. The term is sometimes used also of law (i.e., rules, regulations) developed by agencies in the course of their operation. In the United States, where federal and state governments are intended to maintain a tripartite (legislature, executive, judiciary) balance of powers, administrative law deals primarily with questions of the propriety of the granting of powers (as by Congress) to, or of the assumption of powers (as by executive agencies) by, bodies not originally envisioned as exercising them, and with judicial checks on their actions. Administrative agencies, either independent (e.g., the Federal Deposit Insurance Corporation and Federal Aviation Administration) or part of the executive branch (e.g., the U.S. Department of Agriculture), are created, under constitutional provisions (enabling clauses), by statute or by executive order authorized by statute.

The use of administrative agencies in the United States dates from 1789, when legislation first provided for the administration of customs laws, regulation of oceangoing vessels, and payment of pensions to veterans. But it was in the late 19th cent., with the growth of public transportation and public utilities, that agencies began to play a major role in American life. Passage of the Interstate Commerce Act and establishment of the Interstate Commerce Commission in 1887 mark the start of modern administrative law in the United States.

Over time, and especially during the New Deal, with the growth of the nation and its government, federal agencies have assumed legislative and quasijudicial functions—rulemaking, adjudication, investigation, supervision, and prosecution—which neither Congress nor the courts could effectively handle. The traditional notion of the separation of powers has thus been blurred. The principle that Congress cannot delegate its legislative powers has been circumvented by having Congress set primary standards and allowing agencies to fill in the gaps. As a result of their proliferation and the growth of their powers, agencies have come to affect activities ranging from collective bargaining to arms control.

In reaction to the great expansion of agency activity, the Federal Register Act of 1935 required the recording of executive agency actions and procedures in the Federal Register, and the collection of this body of "law" in the Code of Federal Regulations began. The Federal Administrative Procedure Act (1946) provided uniform standards of procedure. The APA guarantees the right of judicial review to any person "suffering legal wrong because of any agency action" ; in general, administrative actions will be set aside only for abuse of discretion. Under European legal codes, special administrative courts review the actions of administrative agencies; in common law systems, on the other hand, ordinary courts have complete jurisdiction over controversies involving the validity of agency action.

See C. H. Koch, Administrative Law and Practice (1985).

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Administrative Law

ADMINISTRATIVE LAW

"Administrative law" describes the legal structure of much of the executive branch of government, particularly the quasi-independent agencies, and the procedural constraints under which they operate. Most of these constraints are statutory; those that do involve the Constitution flow chiefly from the doctrine of separation of powers and the due process clause. To comprehend the effects of either of these on administrative law one must understand the growth of the administrative agency in the modern American state.

The early years of the twentieth century saw both a growth in the executive branch of the federal government and, perhaps more important, increased expectations about tasks it should perform. Some have seen these changes as a natural concomitant of industrialization; some as a growth in the power of a new professional class claiming to possess a nonpolitical expertise; some as the result of political pressure developed by farmers and small-town residents who looked to government to contain corporate juggernauts; some as the consequence of the desire of those very juggernauts to gain government sanction shielding them from the competitive forces of the marketplace. Whatever the causes, federal, state, and municipal governments took on new tasks in the closing decades of the nineteenth and the opening ones of the twentieth centuries.

Agencies such as the Interstate Commerce Commission, the Federal Trade Commission, the Food and Drug Administration, and the Federal Reserve Board bore witness to national perceptions that the existing economic and social mechanisms left something to be desired and that increased government intervention was the solution. At the local level the rise of social welfare agencies and zoning boards bespoke similar concerns.

With the coming of the Great Depression the federal government sought to revive the economy through numerous public programs designed both to coordinate sectors of the nation's industrial and commercial life (the wagner national labor relations act, the agricultural adjustment act, the national industrial recovery act) and to create public jobs to reduce unemployment and increase consumer demand (the Civilian Conservation Corps, the Works Progress Administration, the Public Works Administration). Such agencies, generating regulations under the statutory umbrella of broad enabling legislation, came to be a standard feature on the American scene.

In a parallel development state governments created a number of agencies to coordinate and regulate everything from barbers to new car dealers, from avocado marketing to the licensing of physicians. Some of these boards appear to function chiefly as means of controlling entry into occupations and thereby shielding current practitioners from competition, but all function as branches of the government armed with at least some forms of regulatory power.

In some respects such state and national agencies represent not a new form of governmental power but a transfer to state and national levels of what had once been tasks of city government. The functioning of such municipal bureaucracies was, however, largely idiosyncratic and local—defined by the terms of the cities' charters and thus beyond the reach of national law. The migration of regulatory control from city to state and nation both enabled and necessitated the development of a new "administrative" law, which in America is almost entirely a creature of the twentieth century.

Most of that law is statutory, a function of the legislation that creates the board, agency, or commission and defines its tasks and powers. Citizens and enterprises wishing either to invoke or to challenge such powers use the statutorily specified procedures, which often involve both internal agency and external judicial review of administrative actions. At two points, however, the Constitution does speak to the structure and conduct of the agencies. In the formative years of the administrative state the Supreme Court expressed doubt about the place of the agency in the divided federal system of government. Since the new deal the constitutional focus has turned to the processes employed by administrative agencies, and the courts have regularly required agencies' procedures to conform to the due process clause.

The Constitution establishes three branches of the national government, and the courts early decided that no branch should exceed its own powers or intrude on areas designated as the province of another branch. This principle, known as the separation of powers, applies to numerous activities of the federal government, but it impinges particularly on the operation of administrative agencies charged with the formation and enforcement of broad federal policy.

Congress could not possibly specify just what tasks it wishes federal agencies to accomplish and also exactly how to perform them. At the opposite extreme it would just as obviously violate the separation of powers if Congress were to throw up its hands at the task of forming policy and instead direct the President to hit on whatever combination of revenue collection and expenditure he deemed best to fulfill the needs of the country. The concern is that Congress, if it asks an administrative agency not just to carry out defined tasks but also to participate in the formation of policy, has impermissibly given—delegated—its legislative power to the agency (a part of the executive branch).

That concern surfaced in a pair of Supreme Court decisions invalidating New Deal legislation. panama refining co. v. ryan (1935) struck down a portion of the National Industrial Recovery Act that permitted the President to ban the interstate shipment of petroleum; the Court's ground was that Congress had provided no guidance as to when the President should do so or what aims were to justify the ban. A few months later, in schechter poultry corp. v. united states, the Court held unconstitutional another section of the same act; its delegation of power permitted the President to create codes of fair competition for various industries. Congress had defined neither the content of such codes nor the conditions for their proclamation, and some members of the Court evinced concern that the absence of standards could pave the way for what amounted to a governmentally sanctioned system of industrial cartels.

Since these two cases the Court has not invalidated a congressional delegation of power, but some have argued that the memory of these cases has induced the legislature to indicate more clearly the goals it intends the agency to accomplish, the means by which they are to be accomplished, and the processes that should accompany their implementation.

Even though an administrative agency does not perform tasks that constitutionally belong only to Congress, it might nevertheless violate the constitutional structure of government by performing tasks belonging to the courts. The problem has several guises.

In some instances Congress in creating the agency has given it jurisdiction that might otherwise have been exercised by the courts (for example, over maritime accidents). Did such congressional action, which could be viewed as a transfer of federal judicial jurisdiction to an agency, violate the constitutional structure of government or the rights of the parties? In Crowell v. Benson (1932) the Court concluded that if Congress established fair administrative procedures, the agency could hear and determine cases that might otherwise have been heard by the courts—with the saving proviso that the federal courts might review the agency's determination of questions of law.

That proviso pointed to another difficult question: the extent to which the courts might review agency decisions. Summarizing the history of this question, Louis Jaffe has said that we have moved from a nineteenth-century presumption of unreviewability to a twentieth-century presumption of reviewability. Such reviewability, however, flows from statutory interpretation rather than from constitutional compulsion: if Congress is sufficiently explicit, it can make an agency determination final and unreviewable—either because the statute explicitly says so or because it so clearly makes the decision in question a matter of agency discretion that there is no law to apply. For the most part, however, courts routinely scrutinize agency action for legality and at least minimal rationality and are prepared to give the agencies fairly great leeway in performing their tasks.

One measure of this leeway the agencies enjoy is the set of requirements imposed on litigants seeking to invoke federal judicial review of agency action. Such parties must satisfy the courts that they have standing (that is, actual injury caused by the agency action), that the dispute is ripe for judicial review (that is, that the case comes to the courts when it has sufficiently developed to render a judicial decision not merely abstract or hypothetical), and that they have exhausted their administrative remedies (that is, that they have sought such administrative redress as is available). Only the first two of these requirements—standing and ripeness—stem from the Constitution; all of them, however, condition the federal courts' exercise of judicial review.

Courts are prepared to grant such leeway, however, only to the extent that they are assured that the agency has complied with the requirements of due process in making its decisions. Due process plays two roles in administrative law. To the extent that agencies make rules only after extensive public participation in their deliberations, they address some of the concerns lying at the base of the delegation doctrine—ill-considered and hasty action. Due process also plays a second, more traditional role of assuring adjudicatory fairness. To the extent that agencies take action against those violating their rules, courts have often required that the agencies afford the violators various procedural protections.

Because an increasing number of Americans, from defense contractors and television broadcasters to mothers of dependent children and disabled veterans, depend on state and federal government for their livelihood, such protections have become increasingly important. In the second half of the twentieth century the courts have held many of those interests to be property, thus giving their holders the right to due process—sometimes including a fair hearing—before suffering their deprivation. Thus state and federal agencies must give welfare recipients an opportunity to know and to contest factual findings before ending benefits; public schools and colleges have to supply students some form of notice and process before suspending or expelling them; and public employers must grant tenured employees an opportunity to contest their dismissal. Courts have left the agencies some discretion as to the form of such procedures, which need not, for example, always include a hearing, but the process must suit the circumstances.

Because such protections flow from the due process clauses, they apply equally to state and to federal government; indeed, an important consequence of the constitutionalization of administrative process is that it has penetrated to state bureaucracies, some of which were perhaps less than exemplary in their concern for those affected by their actions. As a result both state courts and state legislatures have directed attention to the procedures of their agencies.

In a large sense, to understand the relationship of the administrative state to the Constitution, one has to spell constitution with a small "c," for the difficulties have been less with specific constitutional provisions than with the general picture of how executive action—especially action in new spheres—fits into received understandings of the world. That question is still debatable, but the debates, at least in the last half of the twentieth century, have taken place at the level of desirable policy, not of constitutional legality: so long as the agencies operate fairly, that much, apparently, is assured.

Stephen C. Yeazell
(1986)

Bibliography

Davis, Kenneth C. 1978 Administrative Law Treatise. San Diego, Calif.: Davis.

Jaffe, Louis 1965 Judicial Control of Administrative Action. Boston: Little, Brown.

Kolko, Gabriel 1963 The Triumph of Conservatism: A Reinterpretation of American History, 1900–1916. New York: Free Press.

Wiebe, Robert 1967 The Search for Order, 1877–1920. New York: Hill & Wang.

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