Before 1946 the congressional role in public administration had been limited to authorization, funding, and review of federal administrative operations, which had grown rapidly as a result of the New Deal and the Second World War. But in passing the Administrative Procedure Act and the Legislative Reorganization Act that pivotal year, Congress self-consciously created for itself a comprehensive role in public administration. Reluctant to delegate legislative authority to federal agencies, Congress decided to treat the agencies as extensions of itself and established a framework for comprehensive regulation of the agencies' procedures. Additionally, Congress reorganized itself so it could provide continuous supervision of federal agencies.
Rosenbloom shows how these 1946 changes in the congressional role in public administration laid the groundwork for future major legislative acts, including the Freedom of Information Act (1966), Privacy Act (1974), Government in the Sunshine Act (1976), Paperwork Reduction Acts (1980, 1995), Chief Financial Officers Act (1990), and Small Business Regulatory Fairness Enforcement Act (1996). Each of these acts, and many others, has contributed to the legislative-centered public administration that Congress has formed over the past 50 years.
This first book-length study of the subject provides a comprehensive explanation of the institutional interests, values, and logic behind the contemporary role of Congress in federal administration and attempts to move the public administration field beyond condemning legislative "micromanagement" to understanding why Congress values it.
2001 Louis Brownlow Award from the National Academy of Public Administration
The rise of the administrative state is the most significant political development in American politics over the past century. While our Constitution separates powers into three branches, and requires that the laws are made by elected representatives in the Congress, today most policies are made by unelected officials in agencies where legislative, executive, and judicial powers are combined. This threatens constitutionalism and the rule of law. This book examines the history of administrative power in America and argues that modern administrative law has failed to protect the principles of American constitutionalism as effectively as earlier approaches to regulation and administration.
Is administrative law unlawful? This provocative question has become all the more significant with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society.
With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent.
With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.
Adrian Vermeule Harvard University Press, 2016 Library of Congress KF5425.V47 2016 | Dewey Decimal 342.7306
Adrian Vermeule argues that the arc of law has bent steadily toward deference to the administrative state, which has greater democratic legitimacy and technical competence to confront issues such as climate change, terrorism, and biotechnology. The state did not shove lawyers and judges out of the way; they moved freely to the margins of power.