Defining
How to Use Administrative Law
Kaplan
University
Mary-Ellen
Pecci
(c) 2017
Defining How to Use Administrative
Law
Introduction
Keeping politics out of
our public agencies appears to be a challenge. I have used examples of
Departments of Corrections, the courts, and triage during times of crisis, to
try and decipher what the limitations and challenges on public agencies might
be in defining how to use Administrative Law.
The
Administrative Procedure Act and Delegation Doctrine
Without Administrative
Law; agencies could run amuck, indulge in self-interest, obstructing democratic
and constitutional values, hence the development of the APA, Administrative
Procedures Act. The APA ‘attempts’ to provide protection from the abuses of
unlawful discretion, abuse of power, and ‘tries’ to keep public administrations
in line with those statutory and constitutional values.
‘In the beginning’ there
was the non-delegation act which prevented the ultimate decision makers,
congress, from delegating any authority for decision making. But, that was not
going to work. People with limited knowledge of how a service or entity
functioned, it was recognized, should not be making pertinent decisions. As a
result congress was given the power to grant or delegate authority to the 4th
branch of government, the public agency, who now have the power to make limited
legislative, judicial, and executive decisions.
·
Legislative—Legislative delegating
involves a public agency being given the power to draft the statute after
public input—Notice is published in the Federal Register and the public can
then comment before the statute is drafted and posted in the Federal Register.
From there Administrative Regulations can be written. Informal rule making is
viewed more practical then formal rulemaking as flexibility for change is
useful. This usefulness is sometimes manipulated by lobbyist and other power
brokers. This can also lead to excessive freedom for an administrator to
interpret a statute and the administrative regulations that define/interpret
the statute. An example would be Colorado Statute 24-60-16, Interstate
Corrections Compact, and the accompanying Administrative Regulations. The
statute is well stated. The A.R. further
defines the process in AR600-01-IV- P, regarding inmate exchange under
ICC. In the case in point, an inmate put
out a request to apply for the exchange and an administrator said “there is no
such thing.”
·
Judicial—Agencies are given the power to
adjudicate between the person and the government. Formal adjudication can
result in hearings, testimony, etc., where informal adjudication may involve
investigation, conferences and negotiations. In the case in point, a formal
complaint was filed with an appeals court judge, whom is part and parcel of the
agency politically and he/she makes the decision for or against the public
agency in error. The judge misinterpreted the very clear complaint. Cover, (1986) on legal interpretation, “… every word a judge utters takes
place on a field of pain, violence, and even death. Judges
are, in fact, among the most violent of all federal and state government
employees. The violence judges routinely engage in makes the carnage of serial
killers seem insignificant in comparison.”
·
Executive decisions--The president has the
power to issue an executive order that the legislature will have a hard time
nullifying. Many have been written over our history. Rosenbloom, (2015), Bill Clinton and Barack
Obama issued orders aiding regulatory function and clarity. Barack Obama has pushed forward on criminal
justice reform through many executive orders; one which issues Pell Grants to
inmates to acquire college degrees. AlterNet Staff, (2016) The Pell Grant was
taken away by President Bill Clinton when he signed the Omnibus Crime bill.
This not only took away the Pell Grants but increased sentences. AlterNet Staff,
(2016), “Tag-teaming with ex-President Ronald Reagan, Clinton is the president
most responsible for the mass incarceration of Americans on an epic scale.”
NOTE:
Bill Clinton also submitted to political power when he include the
denial of Habeas Corpus for inmates to appeal their sentences in the AEDPA, The
Antiterrorism and Effective Death Penalty Act.
The
issuance of the executive order is similar to watching a hockey puck fly
between sticks before it hits the net and then goes back into play. It can be
challenged with a new incoming administration. Congress can pass a bill that
strips funding for that Executive order.
The president that wrote the order can veto the Congressional Act and
that veto needs a 2/3rds vote of the Congress to override the president’s veto. An incoming president can accept the new
bill; and the political game starts all over again.
Rulemaking
By delegating authority
to the 4th branch rulemaking can now take place. They can input
substantive rules which are statutory. Public input is allowed and the proposed
rule goes to the proper authority with that input before the statute is drafted
and entered into the Federal Register.
·
As an example of Public
Input: Fink, (2016) “Preparing
to make recommendations for state officials that could serve as a national
model, the researchers heard hundreds of citizens discuss whether a doctor
could remove one patient from lifesaving equipment, like a ventilator, to make
way for another who might have a better chance of recovering, or take age into
consideration in setting priorities.” Suggestions ranged from; a lottery,
children over adults, first come/first serve, or don’t treat the critically
ill. Fink, (2016) “In Maryland, participants in the forums, designed with the
help of Carnegie Mellon University’s program for deliberative democracy, tended
to favor saving the most lives or years of life by prioritizing people who were
expected to survive their current illness or live the longest after being
treated.”
·
The public agency can also make rules that
are interpretive. They take a statute apart interpreting the verbiage in order
to clarify what in the statute aids in implementing procedure, adding concise
definitions, etc. These interpretations can appear in manuals or other material.
This again would be; Administrative Regulations of a Department of Corrections
interpreting a statute.
·
Policy Statements: are on a similar plane
as interpretive statements. They offer
guidance. They do not change the statute
in any way and have no legal force. They are suggestions on process and
procedure that may help alleviate an issue. In APHA (American Public Health Assoc.)(2016),
policy #LB-16-02, Law Enforcement Violence as a Public Health Issue; they
produced data, cited evidence based strategies to improve the situation and cited
opposing evidence. Industries that may be effected by this policy statement
would be, producers of cameras with upgraded technology and other products
produced for our police departments. Private corporations benefit greatly from
many public agency developed statutes and rules.
Maintaining
the Balance of Agency Powers
Fourth branch, public
agency, power is limited. Separation of Powers keeps the checks and balances
fairly well between executive, judicial, and legislative branches, but there
can be glitches when turning these powers over to a public agency. Glitches such
as the Intelligible Principal Doctrine; Rosenbloom, (2015) “the meaning of the
statute is in the eye of the beholder” Rosenbloom, (2015). Broad
interpretations that use language as a cloud, what Chief Justice Rehnquist
calls the “Legislative Mirage” are definitely common. Such loose vocabulary as adequate, advisable,
appropriate; these words create “a term with no fixed meaning that can
accommodate any reasonable action.” “The weaker the ‘intelligible principle’
the greater the discretion.”
Rosenbloom, (2015) “Where
law ends tyranny begins.” “Delaware v. Proust, “…unrestrained discretion in law
enforcement is an “Evil.””)
In order to keep the
checks and balances and prevent these abuses it is important to have tight structure
to the decision making. The Intelligible Principal Doctrine has to leave no
room for interpretation by ‘the eye of the beholder’, and consistent procedural
and substantive review of those decisions, particularly to make sure they are
in keeping with legislative intent, has to be maintained. Leaving room for
change is like opening the wound to bacteria. Start over if a change has to be
made. I believe that is happening now with the Affordable Care Act.
A crucial issue is--adjudication. In many
locations complaints regarding poor administration, agency politics… causing trauma
to families is rampant and shocking. Those who are adjudicating, usually district
court judges, are notoriously incompetent and/or careless. Regarding state judges, Strick,
(1996) says “Most judges . . . are ex-prosecutors, ex-cops, ex-officials who
worked on the hard side of government, or ex-party workers. Most of them were
hacks -- small-time lawyers with big-time friends -- and some were crooks the
week before they went on the bench . . . Most of those men [and women] have no
respect for the individual and no interest in his character or his future.”
Our courts systems and family services divisions are in sad
need of repair.
In the words of Sherrer, (2003) “…until state and federal
judgeship's are depoliticized and judges are held personally, directly and
openly accountable for the violence they initiate with the words they speak and
write, they will continue to inflict egregious harm on multitudes of innocent
people with scant regard for the human consequences of their actions.”
The
conclusion
We have to keep politics out of public administration. Unfortunately
it is not as easy as counting ‘rat hairs’ or ‘cockroach parts’, per FDA
regulations. Rosenbloom, (2015).
