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All agency action can be classified in three categories: quasi-adjudication: order making, judicial quasi-legislation: rulemaking executive
Posted On: Nov. 23, 2017
Author: Shipra


All agency action can be classified in three categories: quasi-adjudication: order making, judicial quasi-legislation: rulemaking executive



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city of canton, ohio v.harris harley_v_schuykill
Posted On: Nov. 23, 2017
Author: Shipra


city of canton, ohio v.harris harley_v_schuykill



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Control Over the Bureaucracy
Posted On: Nov. 23, 2017
Author: Shipra


Control Over the Bureaucracy



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Evidentiary_Adjudication___Enforcement session 11 powerpoint
Posted On: Nov. 23, 2017
Author: Shipra


Evidentiary_Adjudication___Enforcement session 11 powerpoint



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Lecture/Notes Thus far, we have covered two of the four provisions in the Administrative Procedure Act: 1) rulemaking (quasi-legislative), and 2) adjudication (quasi-judicial). This week
Posted On: Nov. 23, 2017
Author: Shipra


Lecture/Notes Thus far, we have covered two of the four provisions in the Administrative Procedure Act: 1) rulemaking (quasi-legislative), and 2) adjudication (quasi-judicial). This week we are reviewing the third provision, transparency. Transparency in government is critical to accountability. As James Madison once stated, A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both (Madison, 1999; 790). Several approaches have been incorporated into administrative law to promote transparency in U.S. government. These include: public reporting, freedom of information, privacy, open meetings or sunshine laws, and whistle blower protection. The purpose is to make government agencies more accountable to the citizenry. For example, the Freedom of Information Act 1966 (and amendments) allows citizens and non-Americans to submit requests for information from government agencies. In 2000, the U.S. Department of Justice (DOJ) received 235,000 FOIA requests and spent roughly $70 million processing the requests (including appeals) (Department of Justice, 2001; see PiotrowskiRosenbloom article). In other words, as a former Governor of Vermont stated, "democracy is not cheap." It comes at a cost and it is not always efficient. Sometimes it takes years to receive FOIA requests once they have been submitted to an agency. Since the reading is straight forward and the power point slides highlight key components of the chapter, lecture notes are kept to a minimum this week. However, one item not mentioned in the chapter that deserves serious consideration is the issue of transparency and contracting. Government contractors, unless specified in their contract, do not have to adhere to FOIA requests. As more and more government services and functions become contracted out this becomes a major concern because the democratic value transparency is contracted out along with those services. Rosenbloom refers to this as the outsourcing of democratic values (Rosenbloom, October 14, 2004). Are citizens aware that when government functions are outsourced, they no longer have a right to get information about that function through FOIA requests? Unfortunately, most citizens are unaware of the fact that democratic values are outsourced as well. For federal departments such as the US Department of Defense, which is the largest federal contractor, this fact is significant given the size of its budget. The DOD's budget ($371 billion) is larger than Wal Mart ($227 billion), Exxon Mobil ($200 billion), GM ($181 billion) and Ford ($160 billion) (http://www.dod.gov/pubs/dod101/), and a large portion of its services and functions are contracted out. I encourage out to try to FOIA a government contractor. When I've attempted to FOIA a non-profit agency, which was a government contractor, I was told that the data falls under that category of proprietorship. REFERENCES • Madison, James. 1999. James Madison: Writings. Comp. and annot. Jack Rakrove. New York: Library of America. • Piotrowski, Suzanne J. and David H. Rosenbloom. Mission based values in results-oriented public management: The case of freedom of information. Public Administration Review Nov/Dec 2002: 643-658. • Rosenbloom, David H. Outsourcing Democratic Values, Presentation delivered to the University of Baltimore, School of Public Affairs. October 14, 2004. • United States Department of Defense. Website accessed January 15, 2007. http://www.dod.gov/pubs/dod101/



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Session 12: Transparency (Nov 13-20) Discussion Forum Extra Credit Instructions: Post answer in Discussion Forum
Posted On: Nov. 23, 2017
Author: Shipra


Session 12: Transparency (Nov 13-20) Discussion Forum Extra Credit Instructions: Post answer in Discussion Forum This is worth 5 points toward your assignment grade. Snowden: Whistleblower or Traitor? Edward Snowden, a CIA and NSA computer specialist, leaked top secret information in May of 2013, which caused a national scandal with global consequences. In your opinion, is he a whistleblower or traitor? Based on what evidence? Is he covered under the Whistleblower Protection Act?



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1. Approaches to Transparency According to Rosenbloom, what are the five approaches used to increase openness
Posted On: Nov. 23, 2017
Author: Shipra


1. Approaches to Transparency According to Rosenbloom, what are the five approaches used to increase openness or transparency in government? Identify the approaches and describe them or use examples of each. Have you ever made a FOIA request or used another approach listed in the book? If so, what was your experience? 2. Non-Mission Based Values What were the key findings in the Piotrowski and Rosenbloom article on non-mission based values? How many FOIA requests were made? How do we get public administration to pay attention to non-mission based values, such as transparency? For example, NASA has zero transparency values in its mission statement. 3. Freedom of Information Each state has a version of the federal level Freedom of Information Act. Regardless if you work for a federal or state government agency as a public administrator it is your job to be familiar with the Freedom of Information Act. If a citizen makes a request for information, how would you respond? For example, what categories of information (exemptions) are not included in the FOIA? What are the types of disclosures? Time deadlines and fees assessed for FOIA requests?



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Extra credit session Required Readings Required Readings: 1. Rosenbloom, Transparency, pp. 115-138 and Piotrowski, Suzanne David H.
Posted On: Nov. 23, 2017
Author: Shipra


Extra credit session Required Readings Required Readings: 1. Rosenbloom, Transparency, pp. 115-138 and Piotrowski, Suzanne David H. Rosenbloom. "Mission based values in results-oriented public management: The case of freedom of information," Public Administration Review (PAR) Nov/Dec 2002 62(6): 643-658. This is located on Sakai. 2. Read the Freedom of Information Act If link doesn't work then look it up on the Internet. 3. Please review the PowerPoint slides for ths week. Recommended Readings: 1. Foerstel, Herbert N. (1999). Freedom of Information and the Right to Know. (Westport, CT: Greenwood Press). Also, if you have forgotten some of the key pieces of legislation covered in this chapter you should review Rosenbloom's article, Retofitting the Administrative State to the Constitution. It was required reading for March 17th. If you would like more detail than this I encourage you to read the following pieces of legislation online: Administrative Procedure Act - Section 552;Privacy Act of 1974; Presidential Records Act; Federal Advisory Committee Act of 1972; and Government in the Sunshine Act of 1976.



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THE FREEDOM OF INFORMATION ACT 5 U.S.C. § 552 As Amended in 2002 § 552. Public information; agency rules, opinions, orders, records, and proceedings (a) Each agency shall make available to t...
Posted On: Nov. 23, 2017
Author: Shipra


THE FREEDOM OF INFORMATION ACT 5 U.S.C. § 552 As Amended in 2002 § 552. Public information; agency rules, opinions, orders, records, and proceedings (a) Each agency shall make available to the public information as follows: (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public-- (A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions; (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and (E) each amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register. (2) Each agency, in accordance with published rules, shall make available for public inspection and copying-- (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; (C) administrative staff manuals and instructions to staff that affect a member of the public; (D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D); unless the materials are promptly published and copies offered for sale. For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D). However, in each case the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made. Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of an index on request at a cost not to exceed the direct cost of duplication. Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if-- (i) it has been indexed and either made available or published as provided by this paragraph; or (ii) the party has actual and timely notice of the terms thereof. (3)(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. (B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section. (C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system. (D) For purposes of this paragraph, the term "search" means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request. (E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not make any record available under this paragraph to-- (i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or (ii) a representative of a government entity described in clause (i). (4)(A)(i) In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies. (ii) Such agency regulations shall provide that-- (I) fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use; (II) fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and (III) for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication. (iii) Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. (iv) Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. No fee may be charged by any agency under this section-- (I) if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee; or (II) for any request described in clause (ii)(II) or (III) of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication. (v) No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250. (vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records. (vii) In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo, provided that the court's review of the matter shall be limited to the record before the agency. (B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B). (C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court other wise directs for good cause is shown. (D) Repealed by Pub. L. 98-620, Title IV, 402(2), Nov. 8, 1984, 98 Stat. 3335, 3357. (E) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. (F) Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends. (G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member. (5) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding. (6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall-- (i) determine within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and (ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection. (B)(i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days, except as provided in clause (ii) of this subparagraph. (ii) With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph (C). (iii) As used in this subparagraph, "unusual circumstances" means, but only to the extent reasonably necessary to the proper processing of the particular requests-- (I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein. (iv) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated. (C)(i) Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request. (ii) For purposes of this subparagraph, the term "exceptional circumstances" does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests. (iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing the request (or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph. (D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests. (ii) Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing. (iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence. (E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records-- (I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency. (ii) Notwithstanding clause (i), regulations under this subparagraph must ensure-- (I) that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request; and (II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing. (iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination. (iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request. (v) For purposes of this subparagraph, the term "compelling need" means-- (I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. (vi) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person's knowledge and belief. (F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made. (b) This section does not apply to matters that are-- (1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual; (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made. (c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and-- (A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section. (2) Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed. (3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section. (d) This section does not authorize the withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress. (e)(1) On or before February 1 of each year, each agency shall submit to the Attorney General of the United States a report which shall cover the preceding fiscal year and which shall include-- (A) the number of determinations made by the agency not to comply with requests for records made to such agency under subsection (a) and the reasons for each such determination; (B)(i) the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for the action upon each appeal that results in a denial of information; and (ii) a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection (b)(3), a description of whether a court has upheld the decision of the agency to withhold information under each such statute, and a concise description of the scope of any information withheld; (C) the number of requests for records pending before the agency as of September 30 of the preceding year, and the median number of days that such requests had been pending before the agency as of that date; (D) the number of requests for records received by the agency and the number of requests which the agency processed; (E) the median number of days taken by the agency to process different types of requests; (F) the total amount of fees collected by the agency for processing requests; and (G) the number of full-time staff of the agency devoted to processing requests for records under this section, and the total amount expended by the agency for processing such requests. (2) Each agency shall make each such report available to the public including by computer telecommunications, or if computer telecommunications means have not been established by the agency, by other electronic means. (3) The Attorney General of the United States shall make each report which has been made available by electronic means available at a single electronic access point. The Attorney General of the United States shall notify the Chairman and ranking minority member of the Committee on Government Reform and Oversight of the House of Representatives and the Chairman and ranking minority member of the Committees on Governmental Affairs and the Judiciary of the Senate, no later than April 1 of the year in which each such report is issued, that such reports are available by electronic means. (4) The Attorney General of the United States, in consultation with the Director of the Office of Management and Budget, shall develop reporting and performance guidelines in connection with reports required by this subsection by October 1, 1997, and may establish additional requirements for such reports as the Attorney General determines may be useful. (5) The Attorney General of the United States shall submit an annual report on or before April 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section, the exemption involved in each case, the disposition of such case, and the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4). Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section. (f) For purposes of this section, the term-- (1) "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency; and (2) "record" and any other term used in this section in reference to information includes any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format. (g) The head of each agency shall prepare and make publicly available upon request, reference material or a guide for requesting records or information from the agency, subject to the exemptions in subsection (b), including-- (1) an index of all major information systems of the agency; (2) a description of major information and record locator systems maintained by the agency; and (3) a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44, and under this section. Go to: DOJ FOIA Page // Justice Department Home Page Last Updated December 23, 2002 usdoj/jmd/ls/caf



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Friends reply: no word limit of the response. Ethics in Government Act. What is it? What is its purpose? How does it impact public employees? Be specific.
Posted On: Nov. 23, 2017
Author: Shipra


Friends reply: no word limit of the response. Ethics in Government Act. What is it? What is its purpose? How does it impact public employees? Be specific. 1. The Ethics in Government Act was passed in 1978. This came on the heels of the Nixon Watergate debacle. Its purpose was to “increase public confidence in the level of integrity of federal government officials, to deter conflicts of interest from arising, and to stop unethical person from entering public service.” The impact on public employees is that this act serves as a deterrent to behavior deemed unacceptable. Title I of this act is an important one because it requires government employees to disclose any gifts or money they receive while in their position and how those gives and money are appropriated. One need only look at the scandal former Mayor of Baltimore Sheila Dixon was in to know that she violated this Act. Accepting gift cards and using them for herself and family members and then taking cash and paying down debt on her credit cards is detrimental to public trust. When elected to office, one must uphold all that this entails. When that person violates those ‘rules,’ the trust is irrevocably broken. They are elected to serve the people, and if they choose to do so with their own agenda in mind, they don’t belong in office. Explain the Hatch Act and its implications. What does it mean for government employees? Has it been violated? 2. The Hatch Act was passed in 1939. The purpose of the Act was to “restrict the political activity of executive branch employees of the federal government, District of Columbia government, and some state and local employees who work in connection with federally funded programs.” The implications of the Hatch Act are the employees in certain branches of government are encouraged to vote; however, they may not influence the voting of others in any way. During Jefferson’s tenure as President, he stated that “influencing voters” would be unacceptable behavior. For the executive branch of government employees to participate in electioneering or to accept political contributions or even to use their authority during elections would be unfair to a democratic society. If they did participate in this kind of behavior, trying to sway voters in their favor would be the opposite of Americans’ freedom for the right to vote for whomever they wish. By keeping the Hatch Act in full force, this keeps a system in place whereby that cannot happen without some type of repercussion on the employee. That is, of course, the way it should be in this society. What is the ASPA Code of Ethics? What are the components? How can it help guide practicioners in making ethical decisions? What are the advantages and disadvantages of having a code of ethics (in terms of usefulness)? Do professional codes of ethics deter corruption or is how you were raised that deters corruption? 3. The American Society for Public Administration has adopted a Code of Ethics. In order to serve the public as they are called to do, these 8 components were decided on Exercise discretionary authority to promote the public interest; oppose all forms of discrimination and harassment, and promote affirmative action; recognize and support the public's right to know the public's business; involve citizens in policy decision-making; exercise compassion, benevolence, fairness and optimism; respond to the public in ways that are complete, clear, and easy to understand; assist citizens in their dealings with government; and be prepared to make decisions that may not be popular. The advantage of having this code is that the standard of behavior is expected to be adhered to. Taking a job in public administration is to serve the public. With these 8 components in place, there should be no misunderstanding as to what is expected of that public administrator, so it is important to have a system in place before that person begins the call to serve. A disadvantage would be that while this system seems easy enough to adhere to, there may one day be a case that someone has in front of him or her that won’t be easily solved by utilizing all or some of these components. Any challenges a person may face could in some way hinder their ability to make sound decisions based on



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harley_v_schuykill
Posted On: Nov. 23, 2017
Author: Shipra


harley_v_schuykill



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U.S. Supreme Court HECKLER v. CAMPBELL, 461 U.S. 458 (1983) 461 U.S. 458
Posted On: Nov. 23, 2017
Author: Shipra


U.S. Supreme Court HECKLER v. CAMPBELL, 461 U.S. 458 (1983) 461 U.S. 458 HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. CAMPBELL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 81-1983. Argued February 28, 1983 Decided May 16, 1983 To be entitled to disability benefits under the Social Security Act a person must not only be unable to perform his former work but must also be unable, considering his age, education, and work experience, to perform any other kind of gainful work that exists in the national economy. Prior to 1978, in cases where a claimant was found unable to pursue his former occupation, but his disability was not so severe as to prevent his pursuing any gainful work, the Secretary of Health and Human Services (Secretary) relied on vocational experts to determine whether jobs existed in the national economy that the claimant could perform. In 1978, to improve the uniformity and efficiency of such determinations, the Secretary promulgated medical-vocational guidelines setting forth rules to establish whether such jobs exist. If a claimant's qualifications correspond to the job requirements identified by a rule, the guidelines direct a conclusion as to whether work exists that the claimant can perform. If such work exists, the claimant is not considered disabled. After respondent's application for disability benefits was denied, she requested a hearing before an Administrative Law Judge, who, relying on the guidelines, found that jobs existed that a person of respondent's qualifications could perform, and accordingly concluded that she was not disabled. Both the Social Security Appeals Council and the District Court upheld this determination. But the Court of Appeals reversed, holding that the guidelines did not provide adequate evidence of specific alternative jobs that respondent could perform, that in the absence of such evidence respondent was deprived of any chance to present evidence that she could not perform the types of jobs identified by the guidelines, and that therefore the determination that she was not disabled was not supported by substantial evidence. Held: The Secretary's use of the medical-vocational guidelines to determine a claimant's right to disability benefits does not conflict with the Social Security Act, nor are the guidelines arbitrary or capricious. Pp. 465-470. (a) While the statutory scheme contemplates that disability hearings will be individualized determinations based on evidence, this does not bar the Secretary from relying on rulemaking to resolve certain classes of issues. The determination as to whether jobs exist that a person having [461 U.S. 458, 459] the claimant's qualifications could perform requires the Secretary to determine a factual issue that is not unique to each claimant and may be resolved as fairly through rulemaking as by introducing testimony of vocational experts at each disability hearing. To require the Secretary to relitigate the existence of jobs in the national economy at each hearing would hinder an already overburdened agency. Pp. 465-468. (b) The principle of administrative law that when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond, is inapplicable where, as in this case, the agency has promulgated valid regulations. When the accuracy of such facts has been tested fairly during rulemaking, the rulemaking proceeding itself provides sufficient procedural protection. Pp. 468-470. 665 F.2d 48, reversed. POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 470. MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p. 473. John H. Garvey argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, and Anne Buxton Sobol. Ruben Nazario argued the cause for respondent. With him on the brief were Toby Golick and Jane Greengold Stevens. * [ Footnote * ] Briefs of amici curiae urging affirmance were filed by Eileen P. Sweeney for the Gray Panthers; and by Dan Stormer for Tulare/Kings Counties Legal Services et al. JUSTICE POWELL delivered the opinion of the Court. The issue is whether the Secretary of Health and Human Services may rely on published medical-vocational guidelines to determine a claimant's right to Social Security disability benefits. I The Social Security Act defines "disability" in terms of the effect a physical or mental impairment has on a person's ability [461 U.S. 458, 460] to function in the workplace. It provides disability benefits only to persons who are unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 81 Stat. 868, as amended, 42 U.S.C. 423(d)(1)(A). And it specifies that a person must "not only [be] unable to do his previous work but [must be unable], considering his age, education, and work experience, [to] engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. 423(d)(2)(A). In 1978, the Secretary of Health and Human Services promulgated regulations implementing this definition. See 43 Fed. Reg. 55349 (1978) (codified, as amended, at 20 CFR pt. 404, subpt. P (1982)). The regulations recognize that certain impairments are so severe that they prevent a person from pursuing any gainful work. See 20 CFR 404.1520(d) (1982) (referring to impairments listed at 20 CFR pt. 404, subpt. P, app. 1). A claimant who establishes that he suffers from one of these impairments will be considered disabled without further inquiry. Ibid. If a claimant suffers from a less severe impairment, the Secretary must determine whether the claimant retains the ability to perform either his former work or some less demanding employment. If a claimant can pursue his former occupation, he is not entitled to disability benefits. See 404.1520(e). If he cannot, the Secretary must determine whether the claimant retains the capacity to pursue less demanding work. See 404.1520(f)(1). The regulations divide this last inquiry into two stages. First, the Secretary must assess each claimant's present job qualifications. The regulations direct the Secretary to consider the factors Congress has identified as relevant: physical ability, age, education, and work experience. 1 See [461 U.S. 458, 461] 42 U.S.C. 423(d)(2)(A); 20 CFR 404.1520(f) (1982). Second, she must consider whether jobs exist in the national economy that a person having the claimant's qualifications could perform. 20 CFR 404.1520(f), 404.1566-404.1569 (1982). Prior to 1978, the Secretary relied on vocational experts to establish the existence of suitable jobs in the national economy. After a claimant's limitations and abilities had been determined at a hearing, a vocational expert ordinarily would testify whether work existed that the claimant could perform. Although this testimony often was based on standardized guides, see 43 Fed. Reg. 9286 (1978), vocational experts frequently were criticized for their inconsistent treatment of similarly situated claimants. See Santise v. Schweiker, 676 F.2d 925, 930 (CA3 1982); J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, & M. Carrow, Social Security Hearings and Appeals 78-79 (1978). To improve both the uniformity and efficiency 2 of this determination, the Secretary promulgated medical-vocational guidelines as part of the 1978 regulations. See 20 CFR pt. 404, subpt. P, app. 2 (1982). These guidelines relieve the Secretary of the need to rely on vocational experts by establishing through rulemaking the types and numbers of jobs that exist in the national economy. They consist of a matrix of the four factors identified by Congress [461 U.S. 458, 462] - physical ability, age, education, and work experience 3 - and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy. 4 Where a claimant's qualifications correspond to the job requirements identified by a rule, 5 the guidelines direct a conclusion as to whether work exists that the claimant could perform. If such work exists, the claimant is not considered disabled. II In 1979, Carmen Campbell applied for disability benefits because a back condition and hypertension prevented her from continuing her work as a hotel maid. After her application was denied, she requested a hearing de novo before an Administrative Law Judge. 6 He determined that her back [461 U.S. 458, 463] problem was not severe enough to find her disabled without further inquiry, and accordingly considered whether she retained the ability to perform either her past work or some less strenuous job. App. to Pet. for Cert 28a. He concluded that even though Campbell's back condition prevented her from returning to her work as a maid, she retained the physical capacity to do light work. Ibid. In accordance with the regulations, he found that Campbell was 52 years old, that her previous employment consisted of unskilled jobs, and that she had a limited education. Id., at 28a-29a. He noted that Campbell, who had been born in Panama, experienced difficulty in speaking and writing English. She was able, however, to understand and read English fairly well. App. 42. Relying on the medical-vocational guidelines, the Administrative Law Judge found that a significant number of jobs existed that a person of Campbell's qualifications could perform. Accordingly, he concluded that she was not disabled. 7 App. to Pet. for Cert. 29a. This determination was upheld by both the Social Security Appeals Council, id., at 16a, and the District Court for the Eastern District of New York, id., at 15a. The Court of Appeals for the Second Circuit reversed. Campbell v. Secretary of Dept. of Health and Human Services, 665 F.2d 48 (1981). It accepted the Administrative Law Judge's determination that Campbell retained the ability to do light work. And it did not suggest that he had classified Campbell's age, [461 U.S. 458, 464] education, or work experience incorrectly. The court noted, however, that it "has consistently required that `the Secretary identify specific alternative occupations available in the national economy that would be suitable for the claimant' and that `these jobs be supported by "a job description clarifying the nature of the job, [and] demonstrating that the job does not require" exertion or skills not possessed by the claimant.'" Id., at 53 (quoting Decker v. Harris, 647 F.2d 291, 298 (CA2 1981)). The court found that the medical-vocational guidelines did not provide the specific evidence that it previously had required. It explained that in the absence of such a showing, "the claimant is deprived of any real chance to present evidence showing that she cannot in fact perform the types of jobs that are administratively noticed by the guidelines." 665 F.2d, at 53. The court concluded that because the Secretary had failed to introduce evidence that specific alternative jobs existed, the determination that Campbell was not disabled was not supported by substantial evidence. Id., at 54. We granted certiorari to resolve a conflict among the Courts of Appeals. 8 Schweiker v. Campbell, 457 U.S. 1131 (1982). We now reverse. [461 U.S. 458, 465] III The Secretary argues that the Court of Appeals' holding effectively prevents the use of the medical-vocational guidelines. By requiring her to identify specific alternative jobs in every disability hearing, the court has rendered the guidelines useless. An examination of both the language of the Social Security Act and its legislative history clearly demonstrates that the Secretary may proceed by regulation to determine whether substantial gainful work exists in the national economy. Campbell argues in response that the Secretary has misperceived the Court of Appeals' holding. Campbell reads the decision as requiring only that the Secretary give disability claimants concrete examples of the kinds of factual determinations that the administrative law judge will be making. This requirement does not defeat the guidelines' purpose; it ensures that they will be applied only where appropriate. Accordingly, respondent argues that we need not address the guidelines' validity. A The Court of Appeals held that "[i]n failing to show suitable available alternative jobs for Ms. Campbell, the Secretary's finding of `not disabled' is not supported by substantial evidence." 665 F.2d, at 54. It thus rejected the proposition that "the guidelines provide adequate evidence of a claimant's ability to perform a specific alternative occupation," id., at 53, and remanded for the Secretary to put into evidence "particular types of jobs suitable to the capabilities of Ms. Campbell," id., at 54. The court's requirement that additional evidence be introduced on this issue prevents the Secretary from putting the guidelines to their intended use and implicitly calls their validity into question. 9 Accordingly, [461 U.S. 458, 466] we think the decision below requires us to consider whether the Secretary may rely on medical-vocational guidelines in appropriate cases. The Social Security Act directs the Secretary to "adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same" in disability cases. 42 U.S.C. 405(a). As we previously have recognized, Congress has "conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the [Social Security] Act." Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981); see Batterton v. Francis, 432 U.S. 416, 425 (1977). Where, as here, the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation, 10 our review is limited to determining whether the regulations promulgated exceeded the Secretary's statutory authority and whether they are arbitrary and capricious. Herweg v. Ray, 455 U.S. 265, 275 (1982); Schweiker v. Gray Panthers, supra, at 44. [461 U.S. 458, 467] We do not think that the Secretary's reliance on medical-vocational guidelines is inconsistent with the Social Security Act. It is true that the statutory scheme contemplates that disability hearings will be individualized determinations based on evidence adduced at a hearing. See 42 U.S.C. 423(d) (2)(A) (specifying consideration of each individual's condition); 42 U.S.C. 405(b) (1976 ed., Supp. V) (disability determination to be based on evidence adduced at hearing). But this does not bar the Secretary from relying on rulemaking to resolve certain classes of issues. The Court has recognized that even where an agency's enabling statute expressly requires it to hold a hearing, the agency may rely on its rulemaking authority to determine issues that do not require case-by-case consideration. See FPC v. Texaco Inc., 377 U.S. 33, 41 -44 (1964); United States v. Storer Broadcasting Co., 351 U.S. 192, 205 (1956). A contrary holding would require the agency continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding. See FPC v. Texaco Inc., supra, at 44. The Secretary's decision to rely on medical-vocational guidelines is consistent with Texaco and Storer. As noted above, in determining whether a claimant can perform less strenuous work, the Secretary must make two determinations. She must assess each claimant's individual abilities and then determine whether jobs exist that a person having the claimant's qualifications could perform. The first inquiry involves a determination of historic facts, and the regulations properly require the Secretary to make these findings on the basis of evidence adduced at a hearing. We note that the regulations afford claimants ample opportunity both to present evidence relating to their own abilities and to offer evidence that the guidelines do not apply to them. 11 The second [461 U.S. 458, 468] inquiry requires the Secretary to determine an issue that is not unique to each claimant - the types and numbers of jobs that exist in the national economy. This type of general factual issue may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing. See American Airlines, Inc. v. CAB, 123 U.S. App. D.C. 310, 319, 359 F.2d 624, 633 (1966) (en banc). As the Secretary has argued, the use of published guidelines brings with it a uniformity that previously had been perceived as lacking. To require the Secretary to relitigate the existence of jobs in the national economy at each hearing would hinder needlessly an already overburdened agency. We conclude that the Secretary use of medical-vocational guidelines does not conflict with the statute, nor can we say on the record before us that they are arbitrary and capricious. B We now consider Campbell's argument that the Court of Appeals properly required the Secretary to specify alternative available jobs. Campbell contends that such a showing informs claimants of the type of issues to be established at the hearing and is required by both the Secretary regulation, 20 CFR 404.944 (1982), and the Due Process Clause. By referring to notice and an opportunity to respond, see 665 F.2d, at 53-54, the decision below invites the interpretation given it by respondent. But we do not think that the decision fairly can be said to present the issues she raises. 12 [461 U.S. 458, 469] The Court of Appeals did not find that the Secretary failed to give sufficient notice in violation of the Due Process Clause or any statutory provision designed to implement it. See 42 U.S.C. 405(b) (1976 ed., Supp. V) (requiring that disability claimants be given "reasonable notice and [an] opportunity for a hearing"). Nor did it find that the Secretary violated any duty imposed by regulation. See 20 CFR 404.944 (1982) (requiring the administrative law judge to "loo[k] fully into the issues"). Rather the court's reference to notice and an opportunity to respond appears to be based on a principle of administrative law - that when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond. 13 See 5 U.S.C. 556(e); McDaniel v. Celebrezze, 331 F.2d 426 (CA4 1964). [461 U.S. 458, 470] This principle is inapplicable, however, when the agency has promulgated valid regulations. Its purpose is to provide a procedural safeguard: to ensure the accuracy of the facts of which an agency takes notice. But when the accuracy of those facts already has been tested fairly during rulemaking, the rulemaking proceeding itself provides sufficient procedural protection. 14 See, e. g., Rivers v. Schweiker, 684 F.2d 1144, 1156 (CA5 1982); Broz v. Schweiker, 677 F.2d 1351, 1362 (CA11 1982); Torres v. Secretary of Health and Human Services, 677 F.2d 167, 169 (CA1 1982). IV The Court of Appeals' decision would require the Secretary to introduce evidence of specific available jobs that respondent could perform. It would limit severely her ability to rely on the medical-vocational guidelines. We think the Secretary reasonably could choose to rely on these guidelines in appropriate cases rather than on the testimony of a vocational expert in each case. Accordingly, the judgment of the Court of Appeals is Reversed. Footnotes [ Footnote 1 ] The regulations state that the Secretary will inquire into each of these factors and make an individual assessment of each claimant's abilities [461 U.S. 458, 461] and limitations. See 20 CFR 404.1545-404.1565 (1982); cf. 20 CFR 404.944 (1982). In determining a person's physical ability, she will consider, for example, the extent to which his capacity for performing tasks such as lifting objects or his ability to stand for long periods of time has been impaired. See 404.1545. [ Footnote 2 ] The Social Security hearing system is "probably the largest adjudicative agency in the western world." J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, & M. Carrow, Social Security Hearings and Appeals xi (1978). Approximately 2.3 million claims for disability benefits were filed in fiscal year 1981. Department of Health and Human Services, Social Security Annual Report to the Congress for Fiscal Year 1981, pp. 32, 35 (1982). More than a quarter of a million of these claims required a hearing before an administrative law judge. Id., at 38. The need for efficiency is self-evident. [ Footnote 3 ] Each of these four factors is divided into defined categories. A person's ability to perform physical tasks, for example, is categorized according to the physical exertion requirements necessary to perform varying classes of jobs - i. e., whether a claimant can perform sedentary, light, medium, heavy, or very heavy work. 20 CFR 404.1567 (1982). Each of these work categories is defined in terms of the physical demands it places on a worker, such as the weight of objects he must lift and whether extensive movement or use of arm and leg controls is required. Ibid. [ Footnote 4 ] For example, Rule 202.10 provides that a significant number of jobs exist for a person who can perform light work, is closely approaching advanced age, has a limited education but who is literate and can communicate in English, and whose previous work has been unskilled. [ Footnote 5 ] The regulations recognize that the rules only describe "major functional and vocational patterns." 20 CFR pt. 404, subpt. P, app. 2, 200.00(a) (1982). If an individuals capabilities are not described accurately by a rule, the regulations make clear that the individuals particular limitations must be considered. See app. 2, 200.00(a), (d). Additionally, the regulations declare that the administrative law judge will not apply the age categories "mechanically in a borderline situation," 20 CFR 404.1563(a) (1982), and recognize that some claimants may possess limitations that are not factored into the guidelines, see app. 2, 200.00(e). Thus, the regulations provide that the rules will be applied only when they describe a claimant's abilities and limitations accurately. [ Footnote 6 ] The Social Security Act provides each claimant with a right to a de novo hearing. 42 U.S.C. 405(b) (1976 ed., Supp. V); 421(d). The regulations [461 U.S. 458, 463] specify when a claimant may exercise this right. See 20 CFR 404.929-404.930 (1982). [ Footnote 7 ] The Administrative Law Judge did not accept Campbell's claim that her hypertension constituted an impairment. He found that this claim was not documented by the record and noted that her current medication appeared sufficient to keep her blood pressure under control. See App. to Pet. for Cert. 27a. Campbell later reapplied for disability benefits and was found disabled as of January 1, 1981. See Brief for Petitioner 8, n. 7. The Secretary subsequent decision does not moot this case since Campbell is claiming entitlement to benefits prior to January 1, 1981. [ Footnote 8 ] Every other Court of Appeals addressing the question has upheld the Secretary use of the guidelines. See Rivers v. Schweiker, 684 F.2d 1144, 1157-1158 (CA5 1982); McCoy v. Schweiker, 683 F.2d 1138, 1144-1146 (CA8 1982); Torres v. Secretary of Health and Human Services, 677 F.2d 167, 169 (CA1 1982); Santise v. Schweiker, 676 F.2d 925, 934-936 (CA3 1982); Cummins v. Schweiker, 670 F.2d 81, 82-83 (CA7 1982); Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 529-535 (CA6 1981); Frady v. Harris, 646 F.2d 143, 145 (CA4 1981). One Court of Appeals has agreed that the Secretary may use medical-vocational guidelines but has found that with respect to age the guidelines are arbitrary. See Broz v. Schweiker, 677 F.2d 1351, 1359-1361 (CA11 1982), cert. pending, No. 82-816. The instant case does not present the issue addressed in Broz. [ Footnote 9 ] The Courts of Appeals have read the decision below as implicitly invalidating the guidelines. See McCoy v. Schweiker, supra, at 1145; Torres v. Secretary of Health and Human Services, supra, at 169; Santise v. Schweiker, supra, at 937, and n. 25. [ Footnote 10 ] Since Congress amended the Social Security Act in 1954 to provide for disability benefits, Pub. L. 761, 106, 68 Stat. 1079, it repeatedly has suggested that the Secretary promulgate regulations defining the criteria for evaluating disability. See, e. g., Subcommittee on the Administration of the Social Security Laws of the House Committee on Ways and Means, Administration of Social Security Disability Insurance Program: Preliminary Report, 86th Cong., 2d Sess., 17-18 (Comm. Print 1960) (requesting Secretary to develop "specific criteria for the weight to be given non medical factors in the evaluation of disability"); House Committee on Ways and Means, Committee Staff Report on the Disability Insurance Program, 93d Cong., 2d Sess., 6 (Comm. Print 1974) (recommending that the Secretary promulgate regulations defining disability to ease accelerating caseload); Subcommittee on Social Security of the House Committee on Ways and Means, H. R. 8076 - Disability Insurance Amendment of 1977, 95th Cong., 1st Sess., 7 (Comm. Print 1977) (comments of Rep. Burke) (noting with approval that the Secretary had promised to promulgate medical-vocational guidelines to define disability). While these sources do not establish the original congressional intent, they indicate that later Congresses perceived that regulations such as the guidelines would be consistent with the statute. [ Footnote 11 ] Both FPC v. Texaco Inc., 377 U.S. 33, 40 (1964), and United States v. Storer Broadcasting Co., 351 U.S. 192, 205 (1956), were careful to note that the statutory scheme at issue allowed an individual applicant to show that the rule promulgated should not be applied to him. The regulations [461 U.S. 458, 468] here provide a claimant with equal or greater protection since they state that an administrative law judge will not apply the rules contained in the guidelines when they fail to describe a claimant's particular limitations. See n. 5, supra. [ Footnote 12 ] Respondent did not raise either her due process or her regulatory argument below. See Brief for Appellant in Campbell v. Schweiker, No. 81-6108 (CA2); Tr. of Oral Arg. 30. Nor has respondent filed a crosspetition. As she prevailed below, we could consider grounds supporting her judgment different from those on which the Court of Appeals rested its [461 U.S. 458, 469] decision. See Dandridge v. Williams, 397 U.S. 471, 475 -476, n. 6 (1970). But where the ground presented here has not been raised below we exercise this authority "only in exceptional cases." McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434 (1940). We do not think this is such a case. Alternatively, respondent suggests that if the Administrative Law Judge had inquired conscientiously and fully into the relevant facts, as required by 20 CFR 404.944 (1982), he would have concluded that she was not capable of performing light work. The Secretary concedes that 404.944 requires such an inquiry, see Brief for Petitioner 42, but argues that the inquiry undertaken by the Administrative Law Judge satisfied any regulatory duty. Again respondent appears not to have presented her 404.944 argument to the Court of Appeals, and we decline to reach it here. [ Footnote 13 ] The Court of Appeals did not identify any basis for imposing this requirement other than its earlier decision in Decker v. Harris, 647 F.2d 291 (CA2 1981). Decker, however, identified the source of this requirement more clearly. It stated: "This requirement of specificity . . . assures the claimant of adequate notice of the grounds on which his claim may be denied, providing him with an opportunity to present rebuttal evidence. See generally 3 K. Davis, Administrative Law Treatise 15.18, at 198-206 (2d ed. 1980)." Id., at 298. In 15.18 of his treatise, Professor Davis addresses the question of administrative or official notice of material facts in disability cases and the need for an adequate opportunity to respond. He states that an administrative law judge may take administrative notice of jobs in the national [461 U.S. 458, 470] economy. He emphasizes, however, that "[a] quick remark by an ALJ that he takes official notice of availability of jobs in the national economy that would be suitable for the claimant could be unfair for lack of sufficient specificity. The jobs should be identified, their characteristics should be stated . . . ." 15.18, at 204 (emphasis added). Decker's reference to this treatise makes clear that the requirement of specificity derives from a principle of administrative law. [ Footnote 14 ] Respondent does not challenge the rulemaking itself, and, as noted above, respondent was accorded a de novo hearing to introduce evidence on issues, such as physical and mental limitations, that require individualized consideration. See supra, at 462-463. JUSTICE BRENNAN, concurring. I join the Court's opinion. It merits comment, however, that the hearing respondent received, see ante, at 462-463, if it is in any way indicative of standard practice, reflects [461 U.S. 458, 471] poorly on the Administrative Law Judge's adherence to what Chief Judge Godbold has called his "duty of inquiry": "[T]here is a `basic obligation' on the ALJ in these nonadversarial proceedings to develop a full and fair record, which obligation rises to a `"special duty . . . to scrupulously and conscientiously explore for all the relevant facts"' where an unrepresented claimant has not waived counsel. This duty of inquiry on the ALJ would include, in a case decided under the grids, a duty to inquire into possible nonexertional impairments and into exertional limitations that prevent a full range of work." Broz v. Schweiker, 677 F.2d 1351, 1364 (CA11 1982). 1 In her brief to this Court, the Secretary acknowledge that the Social Security regulations embody this duty and relies upon it in answering respondent's due process contentions. Brief for Petitioner 42 (citing Broz v. Schweiker, supra); see 20 CFR 404.944 (1982); ante, at 468, and n. 12. The Administrative Law Judge's "duty to inquire" takes on special urgency where, as here, the claimant has little education and limited fluency in English, and, given that the claimant already has a right to a hearing, the additional cost of pursuing relevant issues at the hearing is minimal. [461 U.S. 458, 472] In order to find that respondent was not disabled, the Secretary had to determine that she had the physical capacity to do "light work," compare 20 CFR pt. 404, subpt. P, app. 2, 201.10 (1982), with id., 202.10, a determination that required a finding that she was capable of frequent lifting or carrying of objects weighing up to 10 pounds and sometimes lifting up to 20 pounds, 20 CFR 404.1567(b) (1982). The hearing record included one disinterested doctor's report of a medical examination of respondent that concluded with the unexplained statement "Patient may return to light-duty work," App. 11, and a subsequent report by a second disinterested doctor stating that respondent could lift and carry only "up to 10 pounds," id., at 32. In finding that respondent could perform "light work," the Administrative Law Judge rejected the second doctor's report as "without basis." App. to Pet. for Cert. 23a-25a. Yet he failed entirely to adduce evidence relevant to this issue at respondent's hearing. At several points during the hearing, respondent stated that she could not lift things, but the Administrative Law Judge did not question her on the subject at all, 2 nor did he make any inquiry whether by "light-duty work" the first doctor meant the same thing as the Secretary's term "light work." The Administrative Law Judge further failed to inquire whether factors besides strength, age, or education, combined with her other impairments, rendered respondent disabled. See 20 CFR pt. 404, supra, 200.00(e)(2); ante, at 462, n. 5. Apparently such factors could have been dispositive of [461 U.S. 458, 473] the case before us: The Secretary has since determined that respondent is in fact disabled, see ante, at 463, n. 7, based on consideration of severe emotional complications not explored at all by the Administrative Law Judge in the hearing that led to her petition for review in this case. 3 This issue was not presented to the Court of Appeals, nor passed upon by it. See ante, at 468-469, n. 12. In terms of ensuring fair and accurate determinations of disability claims, the obligation that the Court of Appeals would have placed on administrative law judges was a poor substitute for good-faith performance of the "duty of inquiry" they already have. The federal courts have been successful in enforcing this duty in the past, see n. 1, supra, and I respectfully suggest that the Secretary insist upon its faithful performance in future cases. [ Footnote 1 ] Accord, Thompson v. Schweiker, 665 F.2d 936, 941 (CA9 1982); Ware v. Schweiker, 651 F.2d 408, 414 (CA5 1981); Diabo v. Secretary of Health, Education and Welfare, 200 U.S. App. D.C. 225, 229, 627 F.2d 278, 282 (1980); Cox v. Califano, 587 F.2d 988, 991 (CA9 1978); Smith v. Secretary of Health, Education and Welfare, 587 F.2d 857, 860 (CA7 1978); Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 43 (CA2 1972). The "duty of inquiry" derives from claimants' basic statutory and constitutional right to due process in the adjudication of their claims, including a de novo hearing, see Mathews v. Eldridge, 424 U.S. 319, 332 -335, 339 (1976); Richardson v. Perales, 402 U.S. 389, 402 -404 (1971). See also Goldberg v. Kelly, 397 U.S. 254, 262 -263 (1970). Inherent in the concept of a due process hearing is the decisionmaker's obligation to inform himself about facts relevant to his decision and to learn the claimant's own version of those facts. Goss v. Lopez, 419 U.S. 565, 580 (1975). [ Footnote 2 ] The following colloquy appears on the record: "Q. Can you bend? "A. I cannot bend. The doctor warned me not to lift weights. "Q. Uh-huh. "A. And - "Q. I notice you have stood up several times since you've been in here." App. 49-50. At no point did the Administrative Law Judge so much as ask respondent how she did her shopping, or any other question that might have elicited information on the crucial question of how much she could regularly lift. [ Footnote 3 ] See App. to Brief for Respondent 2a-3a. The decision appears to have rested on evidence similar to the evidence in the record at the hearing in this case, except that the Administrative Law Judge took note that respondent was "an obese, sad individual, who had marked difficulties in sitting, standing, and walking," and he found that her severe back disorder was "complicated by an emotional overlay." Id., at 3a. JUSTICE MARSHALL, concurring in part and dissenting in part. While I agree that the Secretary medical-vocational guidelines are valid, I believe that this case presents the additional question whether the Administrative Law Judge fulfilled his obligation to "loo[k] fully into the issues." 20 CFR 404.944 (1982). See Richardson v. Perales, 402 U.S. 389, 410 (1971) (at the hearing the administrative law judge is required to "ac[t] as an examiner charged with developing the facts"). I would therefore remand this case for further proceedings. I do not agree with the Court, ante, at 468-469, that the decision below does not question the adequacy of the Administrative Law Judge's inquiry at the hearing. Although the Court of Appeals' opinion is not entirely clear, the court appears [461 U.S. 458, 474] to have concluded that Campbell was not given an adequate opportunity to demonstrate that she was unable to perform "light work." The court explained as follows: "`The key consideration in the administrative proceeding must be that the claimant be given adequate opportunity to challenge the suitability . . . of the jobs noticed. . . .' [O]ur major concern is that the claimant be given adequate notice of the nature and demands of the types of jobs allegedly available. Absent sufficient notice, the claimant is deprived of any real chance to present evidence showing that she cannot in fact perform the types of jobs that are administratively noticed by the guidelines. This is particularly true in Ms. Campbell's case where the ALJ gave no indication of any specific `light work' jobs that she was capable of performing . . . ." Campbell v. Secretary of Dept. of Health and Human Services, 665 F.2d 48, 53-54 (CA2 1981), quoting Decker v. Harris, 647 F.2d 291, 298 (CA2 1981). 1 The Court of Appeals remanded the case for further administrative proceedings at which Campbell would be given "a listing of particular types of jobs suitable to the capabilities of Ms. Campbell." 665 F.2d, at 54. The Court of Appeals' concern was amply justified in light of the hearing that was conducted in this case. The central [461 U.S. 458, 475] issue at respondent's hearing was whether she was capable of performing "light work." 2 If Campbell had shown that she was unable to perform "light work," she would have been entitled to disability benefits under the Secretary guidelines. Although Campbell was afforded a hearing to determine whether she was disabled, she was never apprised of this central issue either in advance of or during the hearing. She was not represented by counsel, and the Administrative Law Judge who conducted the hearing never explained to her what "light work" entailed. Moreover, although the judge inquired at length into respondent's medical problems, he conducted little inquiry into the effect of her medical problems on her capacity to perform work. Yet reasonably complete questioning concerning the claimant's ability to function in her daily activity was essential to resolving this question in a fair manner. 3 [461 U.S. 458, 476] The above-quoted portions of the Court of Appeals' decision demonstrate to may satisfaction that the question whether respondent received an adequate hearing is fairly raised by the decision below. It would have been well within the Court of Appeals' authority under 42 U.S.C. 405(g) (1976 ed., Supp. V) to order a new hearing if the court concluded that the Administrative Law Judge failed to conduct an adequate inquiry. 4 That appears to be just what the court did when it remanded the case. The court required the judge to fulfill his obligation to elicit testimony concerning respondent's capacity to perform "light work" by giving her a few examples of specific types of "light work" and allowing her to explain why she is unable to perform such work. [ Footnote 1 ] It was certainly not anticipated that this procedure "would limit severely [the Secretary] ability to rely on the medical-vocational guidelines," ante, at 470, or "rende[r] the guidelines useless." Ante, at 465. The court noted simply that "if there are [approximately 1,600 types of `light work'] jobs available, it would not be too great a burden for the Secretary or the ALJ to specify a few suitable alternative available types of jobs so that a claimant is given an opportunity to show that she is incapable of performing those jobs. Moreover, we stress that the jobs should be specified at the hearing so that the claimant has a chance to put evidence into the record on that issue." 665 F.2d, at 54. [ Footnote 2 ] "Light work" is defined in the regulations as follows: "(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 CFR 404.1567 (1982). [ Footnote 3 ] The availability of medical evidence, much of which supported respondent's claim of disability, was no substitute for an examination of the claimant herself. "[I]f the hearing is meant to be an individualized inquiry into how this claimant's functioning is impaired by his medical conditions, then that evidence must almost certainly come from the claimant himself, or from people who come in contact with him in his daily life. Since in most hearings no one other than the claimant is there to testify to his daily activities, who does not also have an interest in the success of the claim, it is imperative that ALJs draw out of the claimants, in great detail, information about how they function with their limitations. This is the crucial arena for credibility judgments by ALJs. Moreover, it seems clear that such judgments will necessarily be made, whether or not the claimant's situation is fully [461 U.S. 458, 476] explored by the ALJ." Subcommittee on Social Security of the House Committee on Ways and Means, Social Security Administrative Law Judges: Survey and Issue Paper, 96th Cong., 1st Sess., 47 (Comm. Print 1979). [ Footnote 4 ] See, e. g., Currier v. Secretary of Health, Education and Welfare, 612 F.2d 594, 598 (CA1 1980); Veal v. Califano, 610 F.2d 495, 497-498 (CA8 1979); Cox v. Califano, 587 F.2d 988, 990-991 (CA9 1978); Copley v. Richardson, 475 F.2d 772, 773-774 (CA6 1973). [461 U.S. 458, 477]



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Judicial & Legislative Review of Administrative Action
Posted On: Nov. 23, 2017
Author: Shipra


Judicial & Legislative Review of Administrative Action



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Lecture/Notes Separation of Powers and the 3 Approaches to PA The three approaches to public administration (PA) are an outgrowth of the
Posted On: Nov. 23, 2017
Author: Shipra


Lecture/Notes Separation of Powers and the 3 Approaches to PA The three approaches to public administration (PA) are an outgrowth of the constitutional separation of powers. The separation of powers, a distinct characteristic of American government that fragments power and authority to provide for checks and balances, forces PA to serve three masters (executive, legislative and judicial branches). This fragmentation creates conflict for PA because the three branches have different constituencies, time constraints and political pressures. The legislative and judicial branches exert more control over PA than the executive, especially at the federal level. Congress has the constitutional authority to create agencies, determine staffing size and budget allocation, and determine agency missions and legal authority. Furthermore, Congress has developed administrative law to regulate administrative procedures such as open meetings (Sunshine Law), release of information (FOIA), and rule making. The courts also have considerable power over PA. The judicial branch defines constitutional rights of public employees and their liabilities for breaking the law, defines the legal rights and obligations of agencies and the individuals they act upon, and through remedial law has restructured public prisons, schools and mental health facilities. Judicial review of federal agencies is extensive requiring today's public servant to be abreast of constitutional rights and case law. Surprisingly, based on the U.S. Constitution the President has minimal power over public administration. He/she (yes, I am holding out for a female President) can only: 1) ask department heads for their opinion in writing; 2) make temporary appointments to vacant offices when Congress is in recess; and 3) fire his/her Presidential appointments that interfere with President duty of faithfully executing the laws. However, the President creates his own power over the bureaucracy through appointments and Congress delegates authority to the President. Constitutionally, the President can't draw a cent from the treasury to create a single position w/o legislative authority. In addition to the separation of powers, the U.S. government is also a federal system where three levels of government (federal, state and local) have overlapping and sovereign powers). Federalism and separation of powers creates a complex environment with conflicting values for public administration. PA is pulled in different directions. PA is forced in to a balancing act that requires serving three masters: judicial (legal approach), political (legislature) and executive (managerial). 1. Managerial - associated with the executive branch's execution/implementation of the law. Efficiency, business like approach that sees little difference between public and private organizations. There are two main approaches: 1) traditional - orthodoxy, which was already discussed, and b) New Public Management (NPM). 2. Political - emphasizes representativeness, responsiveness, accountability, transparency and participation through elected officials. 3. Legal - focuses on constitutional rights and adjudicatory functions: due process (fairness), substantive rights and equal protection, and equity. Constitutional rights supersede cost-effectiveness. According to the Courts, inadequate resources cannot be a justification for depriving someone of their rights. Whose Bureaucracy is this Anyway? The ideas contained in Part IV of the Rohr readings this week center around the separation of powers. In addition, you will read two articles that discuss the separation of powers in terms of who controls the bureaucracy. The 1993 article (and Gaus lecture) by Rourke titled Whose Bureaucracy is this Anyway? Congress, the President, and Public Administration, argues that the bureaucracy or public administration is placed under joint custody of the President and Congress. In other words, both the President and Congress control the activities and decisions of the executive branch (bureaucracy). Congress determines the budget and staffing allocations while the executive power is vested in the President. The second article also titled, Whose Bureaucracy is this Anyway? was published about 10 years later by Distinguished Professor David Rosenbloom. The article is based on the 17th Gaus Award Lecture presented by Rosenbloom at the 2001 American Political Science Association (APSA). Rosenbloom argues that Congress designed a legislative-centered federal administration in by passing key legislation in 1946: the Administrative Procedure Act, the Federal Tort Claims Act, and the Legislative Reorganization Act. The legislation was passed in response to Congress' loss of control during implementation of the New Deal programs. The result of the APA and other legislation was that Congress now treated the bureaucracy as a mere extension of itself. Similar to Congress, public administrators make rules (its rulemaking function is covered later) as such it must adhere to legislative values such as transparency, fairness, representation, and participation. In addition, Congress now supervises the bureaucracy through the use of standing committees and intervenes on behalf of constituents through casework. In other words, Congress influences the decision making process of the bureaucracy. This article will also be helpful for those of you who take PUAD625 Innovations in Public Management course. The PUAD 625 course largely focuses on executive strategies (Reinventing Government or the New Public Management as it is called around the globe, and the President's Management Agenda) to manage the bureaucracy. As pointed out by Rosenbloom, management strategies must take the legislative-centered approach in consideration in order to be successful since Congress and the Executive/President share joint custody of the bureaucracy. One term mentioned in the reading that you may not be familiar with is iron triangle. Iron triangle refers to the mutual relationships between three groups: 1) a government agency (i.e. Environmental Protection Agency), 2) a legislative committee or subcommittee that has jurisdiction over the EPA or other agency, and 3) interest groups. These groups or triangles form strong coalitions and make it difficult if not impossible for other groups to join or participate in the sharing of power. In essence, they create an iron triangle, which elected officials or appointed leaders can't penetrate. Iron triangles are important because they can dominate the policymaking process in their area of interest. The power point slides identify the various means of controlling the bureaucracy. In addition to Congress and the President, the Courts are also mentioned. All three branches exert control over the bureaucracy. The bureaucracy or administration is accountable to all three branches of government. Judicial control of administrative agencies is discussed at length in Session 14.



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Constitutional Context of U.S. Public Administration
Posted On: Nov. 23, 2017
Author: Shipra


Constitutional Context of U.S. Public Administration



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ADMINISTRATIVE LAW FOR PUBLIC MANAGERS
Posted On: Nov. 23, 2017
Author: Shipra


ADMINISTRATIVE LAW FOR PUBLIC MANAGERS



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Retrofitting the administrative state to the Constitution: Congress and the judiciary's twentieth-century progress David H Rosenbloom. Public Administration Review. Washington: Jan/Feb 2000.Vol.60...
Posted On: Nov. 23, 2017
Author: Shipra


Retrofitting the administrative state to the Constitution: Congress and the judiciary's twentieth-century progress David H Rosenbloom. Public Administration Review. Washington: Jan/Feb 2000.Vol.60, Iss. 1; pg. 39, 8 pgs One of the twentieth century's "big questions" for United States government has been how best to retrofit, or integrate, the full-fledged federal administrative state into the constitutional scheme. The public administration orthodoxy initially advocated placing the executive branch almost entirely under presidential control; Congress and the federal judiciary responded otherwise. Congress decided to treat the agencies as its extensions for legislative functions and to supervise them more closely. The courts developed on elaborate framework for imposing constitutional rights, values, and reasoning on public administration practice. As the challenge of retrofitting continues into the twenty-first century public administrators might profitably play a larger role in the constitutional discourse regarding the administrative state's place in constitutional government. [U]nder our system of divided powers, the executive branch of the national government is not exclusively controlled by the President, by the Congress, or by the courts. All three have a hand in controlling it, each from a different angle and each in a different way (Meriam 1939, 131). One of the "big questions" of American public administration has been how to retrofit, or integrate, the federal administrative state into the nation's constitutional scheme. The parameters of the problem are well understood. The Constitution's framers could not have anticipated the size, scope, or power of the modem administrative state. American public administration was not organized according to democratic theory and values (Waldo 1948, 1984). The separation of powers collapses into administration as agencies combine legislative, executive, and judicial functions. Administrative agencies threaten the separation of powers because, in the words of former Supreme Court Justice Robert Jackson, they are "a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking" (Federal Trade Commission v. Ruberoid, 343 U.S. 470 [1952]). The overall problem of integrating federal administration into democratic-constitutional government may not be fully solvable (Waldo 1984, xviii), but its scope should not be allowed to obscure the progress that has been made. One of the great administrative developments of the twentieth century has been the extent to which Congress and the federal judiciary have responded to the rise of the administrative state by infusing it with constitutional values and folding it into the separation of powers. Psychologically, the turn of the century is a time for taking stock. That is the genre and purpose of this article. The Orthodox Response: Enhance Presidential Control American public administrative thought was founded from the 1870s through the 1920s on a variety of propositions that are now regarded as untenable, perhaps even hazardous. In fairness to the nineteenth-century civil service reformers and the progressives who followed them, it should be noted that their public administrative doctrine was developed primarily to serve fundamental political objectives (Rosenbloom 1971, chap. 3; Rosenbloom and O'Leary 1997, 2-6). Nevertheless, the orthodoxy's politics-administration dichotomy has been "confounding" (Golembiewski 1984). Its belief that administrative systems and techniques are freely transferable among political systems has promoted frequent, and sometimes catastrophic, failure (Caiden 1991; Farazmand 1998). Less well-appreciated, the orthodoxy denied that the development of the large-scale federal administrative state in the 1930s posed significant problems for the constitutional separation of powers. In its view, administration was almost exclusively an executive function that could be managed by the president and an institutionalized presidency. However, "executive-centered" public administrative theory has also proven to be inadequate. Congress and the courts cannot be relegated to minor roles in determining the course of federal administration. The Constitution clearly provides Congress with considerable authority over federal administration. Funding, staffing, and empowering agencies require legislation. As W.F. Willoughby put it in 1927, Congress is the source of federal administration (115). The role of the courts is less specifically charted by the Constitution. However, in the framers' day judicial power was extensive and could reasonably be assumed to bear broadly on administration (Woll 1963, 91-92). Nevertheless, in the mid-1930s, the orthodoxy argued that the best way to integrate federal administration into the separation of powers was to place it almost entirely under the president's control. The orthodoxy's most significant call for presidential domination of administration came from the U.S. President's Committee on Administrative Management (PCAM) in 1937. Its membership included three pillars of the public administrative establishment: Louis Brownlow (chair), Charles Merriam, and Luther Gulick (see Karl 1963). Proceeding on the basis that "The President is indeed the one and only national officer representative of the entire Nation," the Committee claimed that only good could come of enhancing his ability to be "the Chief Executive and administrator within the Federal system and service" (PCAM 1937, 1, 2). The "canons of efficiency require[d] the establishment of a responsible and effective chief executive as the center of energy, direction, and administrative management" (PCAM 1937, 3). Not surprisingly, the committee specified no role in federal administration for the judiciary. The courts were out of favor with New Dealers for their interpretations of the Commerce Clause and the "non-delegation" doctrine. Shortly after the committee issued its report, President Roosevelt introduced what became known as the courtpacking plan and called for other changes in the federal judicial system (Gunther 1975, 167-68). At the time, calling for greater judicial involvement in federal administration was unthinkable (see Pritchett 1948). The committee was not much more generous toward Congress. It viewed the legislative role as essentially appropriating funds, with no strings attached, and then turning the entire administrative enterprise over to the president: "We hold that once the Congress has made an appropriation, an appropriation which it is free to withhold, the responsibility for the administration of the expenditures under that appropriation is and should be solely upon the Executive" (PCAM 1937, 49-50). This constitutional theory is worse than dubious: It is patently wrong. In John Rohr's words, "At the heart of the [Committee's] doctrine is a fundamental error that transforms the president from chief executive officer into sole executive officer" (1986, 139). It was also a major political error. Congress rejected most of the committee's specific recommendations. The committee's report may have been the orthodoxy's high noon (Seidman 1970, 9), but its chief legislative proposal was denounced in Congress as "the dictator bill" (Karl 1963, 24). As Senator Joel Bennett Clark put it, "no member of that committee had any real belief in Congress or any real use for the legislative department of government" (Polenberg 1966, 127). The answer to retrofitting the federal administrative state into the constitutional scheme does not lie in equating administration with the president's constitutional duty to faithfully execute the laws (see Willoughby 1927, 10-11; 1934, 114; Morrison v. Olson, 487 U.S. 654 [1988]). The president has substantial authority over administration, of course, but so do Congress and the federal courts. Congress's Strategy for Retrofitting the Administrative State In the 1930s, several senators and representatives publicly wondered how Congress should respond to the fullfledged administrative state (Rosenbloom, forthcoming 2000). There was considerable concern that either Congress was allowing itself to be supplanted by the agencies, or that the agencies were usurping its powers. Throughout the New Deal, Congress had delegated legislative authority to the president and administrative agencies on scale without precedent. Sometimes these delegations contained no real standards (Schechter Poultry Corporation v. United States, 295 U.S. 495 [1935]). The legislative committee structure was archaic, and Congress was institutionally incapable of exercising anything more than haphazard oversight of the agencies' activities (La Follette 1946), After World War 11, some members even asked if Congress was necessary and gave "serious thought to the possibility that Congress might not survive the next twenty years" (Kefauver and Levin 1947, 5). After intermittently considering how to deal with federal administration for about a decade, in 1946 Congress collectively adopted a lasting institutional strategy for repositioning both itself and the agencies in the constitutional structure (see Rosenbloom, forthcoming 2000). Congress would write the procedures to be used by administrative agencies and exercise "continuous watchfulness" of their operations. In the process, it would begin to retrofit the agencies into the constitutional scheme by mandating that administrative procedures incorporate constitutional values and by subjecting administration to more systematic congressional control. These approaches crystallized during the extensive legislative debates on the Administrative Procedure Act of 1946, the 1946 Legislative Reorganization Act (which included the Tort Claims Act as Title IV), and the Employment Act (1946). Debate often focused on the nature of the separation of powers and the scope of individual rights. Congressional retrofitting involved two main prongs. Each has served as a platform for the continuing infusion of democratic-constitutional values into federal administration and for the subordination of administration to congressional influence. Together, they do much to integrate federal administration into the constitutional scheme. Constitutional Values First, Congress reluctantly agreed that it would perforce continue to delegate its legislative authority to the agencies. However, unlike past practice, it would treat the agencies as extensions of Congress for carrying out legislative functions. This would be accomplished primarily by structuring their procedures, especially those regarding rule making and openness. The same general values that informed congressional lawmaking would be imposed on the agencies. As Rep. Frances Walter explained, "Day by day Congress takes account of the interests and desires of the people in framing legislation; and there is no reason why administrative agencies should not do so when they exercise legislative functions which the Congress has delegated to them" (U.S. Congress 1946, 5756). The Administrative Procedure Act (APA) was a major step toward applying legislative values to federal administration. It was hailed by supporters as a statute of constitutional proportions ( American Bar Association Journal 1946, 377), though, in retrospect, many of its original provisions may appear rudimentary and riddled with loopholes. President Truman readily signed the act despite some doubt in the executive branch as to the wisdom of having Congress specify administrative procedures (Brazier 1993, 318-30). The APA seeks openness and the opportunity for public participation in rule making (see Kerwin 1999, chap. 2, 5; Warren 1996, chap. 4, 6). Informal rule making involves publishing proposed rules in the Federal Register and providing an opportunity for public comment. Formal rule making procedures create an elaborate hybrid between legislative and judicial hearings. The act also calls on agencies to publish and provide information about their operations. Other key features speak to the scope of judicial review and due process in agency adjudication. In some respects, the act was viewed as "a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal Government" (Senator Pat McCarran, U.S. Congress 1946, 2149). Participation and Representation in Rule Making The APXs rationale for promoting public participation in rule making has served as a platform for three additional statutes which further infuse federal administration with constitutional values: the Federal Advisory Committee Act of 1972 (FACA), the Negotiated Rulemaking Act of 1990 (NRMA), and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). FACA was a congressional effort to make the federal advisory committee system more effective and representative. Such committees, which are established and funded by the government, are sometimes considered a "fifth branch" of the federal government (U.S. Senate 1978, 217, 293, 299-300). FACA requires their membership to represent the interests they purport to speak for and their meetings to be open to public scrutiny (see Steck 1984). In some respects, NRMA is an idealization of the legislative process. It provides for regulatory negotiation in which a committee representing affected interests, including regulated entities, the public, unions, and the agency, openly negotiates the content of a rule. Regulatory negotiation looks toward reducing the adversarial quality of conventional rule making, finding better solutions to real world problems, and reducing the likelihood of litigation after a rule is enacted (see Coglianese 1997). From an orthodox standpoint, the notion that politically neutral administrative experts should negotiate rules with outsiders is, no doubt, startling. The APA, FACA, and NRMA open agency rule making to public participation. SBREFA takes their logic one step further: It requires agencies to reach out to small entities which might not otherwise be able to comment effectively on proposed rules or have the opportunity to serve on advisory and negotiating committees. Its substantive purpose is to assist agencies in assessing the impact of proposed rules on small businesses and governments. The SBREFA also provides Congress with greater control over the content of agency rules. It requires that rules be submitted to Congress and the General Accounting Office (GAO) before they can take effect. Major rules are subject to a sixty-day review period in Congress, during which they can be disapproved by ajoint resolution. There are a number of exceptions, and such a joint resolution can be vetoed by the president (though potentially reinstated by congressional override). However, if a rule is successfully disapproved by Congress, it cannot be reissued in the absence of specific legislative authorization. This aspect of the SBREFA closes an important link in Congress's delegate-but-regulate strategy for making the agencies' exercise of legislative functions comport more faithfully with constitutional values. It enables Congress, the preeminent representative governmental unit, to reject the agencies' exercise of delegated legislative authority on the grounds that a rule does not comport with legislative intent. Transparency The APA's limited provisions for transparency also served as a platform for additional congressional regulation of administrative procedures. The chief statutes here are the Freedom of Information Act of 1966 (FOIA, substantially amended in 1974) and the Government in the Sunshine Act of 1976. Both were congressional initiatives that engendered considerable executive opposition. FOIA is a disclosure statute that builds on the APNs limited provisions for public information. Its key feature is that an individual does not need to show any particular standing or special need for the information he or she is seeking (see Vaughn 1994 for an evaluation). The Sunshine Act applies to about 50 federal multiheaded boards and commissions. As a general rule, it requires them to exercise their legislative authority in the open rather than behind closed doors. However, there are a number of exceptions and meetings, or portions of them, that can be closed for a variety of reasons (see May 1997). In an earlier form, the Sunshine bill fully incorporated the view that agencies are extensions of Congress for legislative functions by applying the same requirements for openness to congressional committees. (The provision was dropped in favor of dealing with congressional openness separately.) FOIA and the Sunshine Act are frequently criticized for encumbering the administrative process and frustrating agency decision making. But such critics miss a key point that was made during the congressional debates over legislating administrative procedures. As Senator McCarran explained in 1946, the Senate Judiciary Committee had "taken the position that the [APA] bill must reasonably protect private parties even at the risk of some incidental or possible inconvenience to, or change in, present administrative operations" (U.S. Congress 1946, 2150). Transparency is a matter of constitutional concern that, for Congress, trumps orthodox administrative values. The Senate's report on FOIA rests much of its case on James Madison's claim that "Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both" (U.S. Senate 1974, 37-38). As administrative law scholar Robert Vaughn (1994, 481) notes, federal information policy is not an "isolated body of law" because "[c]onflicts regarding information policy inescapably participate in major debates about theories of administrative legitimacy and decision-making." Supervising Administration The second major component of Congress's strategy for better integrating federal administration into the constitutional scheme was to subject the agencies to more comprehensive legislative supervision. Leading public administrative thinkers from the orthodoxy to contemporary "reinventers" have been wary-if not outright hostile-to such supervision (for example, Brownlow 1949, 116; Gore 1993, 13, 17, 20, 34). Nevertheless, the constitutional logic for congressional oversight is compelling. Agencies are empowered and funded by Congress and, therefore, they should be subject to its scrutiny. As Rep. A.S. Mike Monroney explained in 1946, "[O]nly half thejob of a standing committee is finished when it passes the legislation ... . IT]he other half should be in seeing how that legislation is carried out and seeing if the agencies are living up to the mandates of the Congress and living within the restrictions which we provide" (U.S. Congress 1946, 10040). The Legislative Reorganization Act of 1946 was an initial step toward upgrading congressional oversight of administration. It reorganized the congressional committee structure so that the committees in each chamber would more or less parallel one another and, to an extent, the organization of the federal bureaucracy. Section 136 called on each standing committee "to exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee." Additionally, the act increased and further institutionalized committee staff, in part to assist with oversight. As in the case of the APA, the 1946 Legislative Reorganization Act provided a platform for extending Congress's role in federal administration. Today, congressional (sub)committees are deeply involved in agency decision making and operations. In some cases congressional action is excessive-even abusive (Gore 1993, 13). Nevertheless, this may be part of the price the United States pays for the separation of powers. As Francis Rourke (1993) has reminded us, constitutionally, federal administration is under the "joint custody" of the president and Congress (and, one should add, the courts as well). Following the PCAM's advice might not have led to "an American form of dictatorship," as Rep. Hamilton Fish contended (Polenberg 1966, 50). However, if the checks and balances system is to be balanced, each constitutional branch needs leverage and authority over federal administration, which, by all accounts, is a major center of governmental power. For the most part, Congress's extension of its supervisory capacity since 1946 is well-known to the public administration community. Its formal oversight mission was strengthened by the Legislative Reorganization Act of 1970, which calls on the committees to "review and study, on a continuing basis, the application, administration, and execution of those laws" under their jurisdictions. The number and quality of committee staff has grown substantially (Rosenbloom 2000). The Congressional Budget and Impoundment Control Act of 1974 strengthened Congress's information and role in the budget process (Joyce 1993, 10). The Inspector General Act of 1978 created congressional "moles" in the agencies (Moore and Gates 1986, 10; Light 1993). The GAO was transformed from an auditing agency into one with great competence in program evaluation (Mosher 1984; Walker 1986). Similarly, the Legislative Reference Service, which was established by the 1946 Reorganization Act, was significantly upgraded in 1970 by its transformation into the modern Congressional Research Service. The Chief Financial Officers Act of 1990 was aimed at improving federal financial management and the quality of information available to Congress about agencies' finances. The potential for congressional supervision of the agencies took a quantum leap with the enactment of the Government Performance and Results Act of 1993 (GPRA). The act was a congressional initiative that enjoyed the Clinton-Gore administration's support for its promotion of results-oriented administration. It requires agencies to formulate strategic plans with concrete goals and indicators, preferably quantitative, for assessing progress toward them. It specifically requires the agencies to "consult with the Congress" when formulating their strategic plans. Although not actually required by the act, Congress has also claimed "a vital role regarding performance measurement development" (U.S. General Accounting Office 1997, 13). In practice, the GPRA goes a long way toward enabling congressional committees and work teams to define legislative intent for the agencies and to make sure that it is written into their strategic plans. By most definitions, this gives congressional units a direct role in managerial decision making. The act also looks toward performance budgeting as a means of making sure that Congress obtains the programmatic results it seeks, or at least does not pay for agency activities that do not deliver what it wants (see Radin 1998 for an analysis). It has the potential to strengthen the congressional portion of joint custody immensely. 1946 As a Baseline for Retrofitting If 1946 is used as a baseline for Congress's effort to retrofit federal administration into the constitutional scheme, it is evident that by the 1990s, considerable progress had been made. Administrative procedures now more closely reflect democratic-constitutional norms for legislating and governing in general. In fact, the entire debate over administrative procedures has shifted. In 1934, the American Bar Association's Special Committee on Administrative Law (1934, 228) voiced a common complaint that agency procedures were haphazard and obscure: "Practically every agency... has published its enactments, sometimes in the form of official printed pamphlets, bound or loose-leaf, sometimes in mimeographed form, sometimes in privately owned publications, and sometimes in press releases. Sometimes they exist only in a sort of unwritten law." Today, complaints are much more likely to be about how administrative law aimed at facilitating public participation, representation, and transparency encumbers administrative performance (Sargentich 1997, 136137; Lubbers 1997, 121). Similarly, it is clear that Congress has gone a long way toward integrating the agencies into the separation of powers by strengthening its capacity to supervise them. In 1946, Rep. Monroney contended that Congress was "trying to do [its] work sitting on an old-fashioned high bookkeeper's stool with a slant-top desk, a Civil War ledger, and a quill pen" and therefore could not do the ". . . fundamental task of supervision that the framers of the Constitution had in mind" (U.S. Congress 1946, 10039). By contrast, today Vice President Al Gore's National Performance Review seeks to "liberat[e] agencies from congressional micromanagement" (Gore 1993, 34). Evaluations of congressional retrofitting are bound to differ. Perhaps Congress has gone too far or not yet far enough. For the most part, however, its actions have been in keeping with contemporary constitutional theory. Congress lost the legislative veto in Immigration and Naturalization Service v. Chadha (462 U.S. 919 [1983]). However, the Supreme Court's language in other cases, notably Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council (435 U.S. 519 [1978]) and Morrison v. Olson (487 U.S. 654 [1988]), endorses very broad congressional involvement in federal administration. In this respect, one of the Court's decisions in 1838 remains good law as we enter the twenty-first century: "[I]t would be an alarming doctrine, that [C]ongress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President" (Kendall v. United States, 37 U.S. 524 [1838]). Judicial Retrofitting Retrofitting by the federal judiciary has been extensively analyzed elsewhere and consequently requires only brief review here (see Rosenbloom and O'Leary 1997; Rosenbloom, Carroll, and Carroll 2000). Its thrust is to force constitutional rights, reasoning, and values into public administrative practice at all levels of government. It is best understood as the product of four interrelated steps. First, beginning in the 1950s and continuing to the present, the federal courts established a vast array of previously undeclared rights for individuals in their encounters with public administrators. For instance, clients or customers gained substantive rights, procedural due-process protections, and far greater equal protection of the laws. Their privacy received protection (albeit modest) under the Fourth Amendment. Public employees were afforded similar rights and protections. Street-level interactions became infused with Fourth Amendment considerations. Prisoners' Eighth Amendment, due process, equal protection, and other constitutional rights were strengthened substantially. Individuals confined to public mental health facilities obtained a constitutional right to treatment or habilitation. Property owners' Fifth Amendment protections against uncompensated takings have been enhanced (see Rosenbloom and O'Leary 1997). Second, the courts made it easier for individuals to gain standing to sue administrative agencies for violations of their rights. At one point, the threshold for bringing suit in federal court was reduced "to the simple proposition that one who is hurt by governmental action has standing to challenge it" (Davis 1975, 72). Although standing requirements are tighter today than they were in the 1970s, it is probably still easier to challenge agencies in federal court than it was prior to the 1960s (Rosenbloom and O'Leary 1997,289-91). Third, the federal courts developed a new type of lawsuit that facilitates their direct intervention in administrative operations as a means of protecting individuals' rights. Such "remedial law" suits enable a single federal judge to control an entire prison, mental health facility, school, personnel, or other public administrative system. Although such suits typically involve state of local governments, federal agencies are subject to them as well (see Rosenbloom and O'Leary 1997, 283-89). Fourth, the courts vastly increased the liability that most public employees face for violating individuals' constitutional rights. Today, a public employee typically faces personal liability for violations of clearly established constitutional rights of which a reasonable person should have known. Punitive as well as compensatory money damages can be assessed against individual public administrators. Indemnification varies among federal agencies and other governmental units (see Rosenbloom and O'Leary 1997, 265-81). Liability for constitutional torts (that is, violations of individuals' constitutional rights) gives public employees a strong incentive to know the constitutional law that governs their work. In effect, as the Supreme Court has flatly stated, competence in constitutional law has become a standard aspect of job competence for public administrators at all levels of government (Harlow v. Fitzgerald, 457 U.S. 800 [1982]; Rosenbloom, Carroll, and Carroll 2000). The judicial framework for retrofitting public administration into the constitutional scheme was essentially in place by the mid- 1970s. How the courts use it varies among constitutional rights and according to judicial philosophies. For instance, standing requirements have been tightened since the 1970s. The Supreme Court has also tried to rein in the federal district courts' practice of remedial law, though without clear success (Rosenbloom and O'Leary 1997, 287-89). At the same time, the Court has extended First Amendment rights to contractors (Board of County Commissioners, Wabaunsee County v. Umbehr, 518 U.S. 668 [1996]; O'Hare Truck v. City of Northlake, 518 U.S. 712 [1996]; see Rosenbloom 1999, 160-64). It has applied equal protection more rigorously to governmental contracting than in the past, though whether this expands or reduces constitutional rights depends on one's view of affirmative action (see especially Justice Clarence Thomas's concurring opinion in Adarand Constructors v. Pena, 515 U.S. 200 [1995]). In a set of decisions that may have farreaching implications for governmental outsourcing, the Court strongly reiterated the principle that private parties engaged in "state action" (for example, public functions such as incarceration) are subject to constitutional constraints (West v. Atkins, 487 U.S. 42 [1988]; Rosenbloom 1999, 150-55; Gilmour and Jensen 1998). Currently, the potential liability of "private state actors" for constitutional torts is greater than that of public employees (Richardson v. McKnight, 117 S.Ct. 2100 [1997]; Rosenbloom 1999, 155-60). As in the case of congressional retrofitting, judicial imposition of constitutional concerns into public administrative practice is best measured against the baseline of the 1940s. At that time, equal protection analysis still allowed racial segregation in public schools, prisons, and government agencies. It failed to prevent rampant governmental discrimination. Clients' benefits could be denied or terminated without regard to procedural due process or substantive rights, as could public employees' jobs (Rosenbloom and O'Leary 1997, chap. 4-7). Federal employees were investigated and sometimes dismissed for disloyalty on the basis of behavior which is now clearly protected by the First Amendment (Rosenbloom and O'Leary 1997, chap. 6; Rosenbloom 1971, chap. 6). The Eighth Amendment did not apply to conditions in prison. Even within this framework of limited rights, public administrators generally enjoyed absolute immunity from suit for their constitutional torts. Today, by contrast, public administration is extensively governed by constitutional law. Conclusion: A Machine That Would Go of Itself? The Constitution has been likened to "a machine that would go of itself' (see Kamen 1987). However, congressional and judicial retrofitting of the administrative state into the constitutional scheme has been neither automatic nor easy. There has been opposition-much of it concerted-from elected executives, political appointees, and public administrators at many steps along the way (Rosenbloom 2000). Criticism of congressional "micromanagement" and judicial "interference" remains common. Often, the critics and retrofitters talk past one another. Whether retrofitting has been good or bad for administrative cost effectiveness is not the whole issue. As Chief Justice Warren Burger once noted, constitutional government can seem "clumsy, inefficient, even unworkable," but its purpose is to "preserve freedom" not to maximize convenience or efficiency (Immigration and Naturalization Service v. Chadha 462 U.S. 919, 959 [1983]). The larger question is how best to adjust twentieth-century retrofitting to the twenty-first-century challenges that are sure to come. Constitutional government has strong logics. It may even "go of itself' in some sense. But as Constance Homer, former director of the U.S. Office of Personnel Management, suggested some time ago, constitutional government is likely to go much better if the public administrators who inhabit it play a larger role in constitutional discourse (Homer 1988, 14). [Reference] References [Reference] American Bar Association. 1934. Report of the Special Committee on Administrative Law. In Separation of Powers and the Independent Agencies: Cases and Selected Readings, U.S. House, Senate, Committee on the Judiciary, Subcommittee on Separation of Powers. 91 st Congress, I" Session. S. Doc. 91-49. [Reference] American Bar Association Journal. 1946. The Federal Administrative Procedure Act Becomes Law. Vol. 32: 377. Brazier, James Edward. 1993. Who Controls the Administrative State? Congress and the President Adopt the Administrative Procedure Act of 1946. Ann Arbor, MI: UMI. Brownlow, Louis. 1949. The President and the Presidency. Chicago, IL: Public Administration Service. Caiden, Gerald E. 1991. Administrative Reform Comes of Age. New York: Walter de Gruyter. Coglianese, Cary. 1997. Assessing Consensus: The Promise and Performance of Negotiated Rulemaking. Duke Law Journal 46(6): 1255-1349. [Reference] Davis, Kenneth Culp. 1975. Administrative Law and Government. 2d ed. St. Paul, MN: West. Farazmand, Ali. 1998. Failure of Administrative Reform and the Revolution of 1978-79 in Iran. Korean Review of Public Administration 3(2): 93-123. Gilmour, Robert S., and L. Jensen. 1998. Reinventing Government Accountability: Public Functions, Privatization and the Meaning of "State Action." Public Administration Review 5913):_ 247-57. [Reference] Golembiewski, Robert T. 1984. Ways in Which "The Study of Administration" Confounds the Study of Administration. In Politics and Administration, edited by J. Rabin and J. Bowman, 235-47. New York: Marcel Dekker. Gore, Albert. 1993. From Red Tape to Results: Creating A Gov [Reference] ernment that Works Better & Costs Less. Washington, DC: U.S. Government Printing Office. Government Performance and Results Act of 1993. U.S. Public Law 103-62. 3 August 1993. Gunther, Gerald. 1975. Cases and Materials on Constitutional Law. 9th ed. Mineola, NY. Foundation Press. Homer, Constance Joan. 1988. Remarks on FEI's 20th Anniversary Dinner. Charlottesville, VA: U.S. Federal Executive Institute. [Reference] Joyce, Philip. 1993. The Reiterative Nature of Budget Reform: Is There Anything New in Federal Budgeting? Public Budgeting and Finance 13(3): 36-48. Kaman, Michael G. 1987. A Machine That Would Go of Itself The Constitution in American Culture. New York: Knopf. Karl, Barry Dean. 1963. Executive Reorganization and Reform in the New Deal. Cambridge, MA: Harvard University Press. Kefauver, Estes. and J. Levin. 1947. A Twentieth-Century Congress. New York: Essential Books. Kerwin, Cornelius M. 1999. Rulemaking. 2d ed. Washington, DO CQ Press. [Reference] La Follette, Robert. 1946. Congress Wins A Victory over Congress. New York Times Magazine, 4 August, I I ff. Legislative Reorganization Act. 1946. U.S. Public Law 79-601. 60 Stat. 812. 2 August 1946. Legislative Reorganization Act. 1970. U.S. Public Law 91-510. 84 Stat. 1140. 26 October 1970. Light, Paul Charles. 1993. Monitoring Government: Inspectors General and the Searchfor Accountability. Washington, DC: Brookings Institution. Lubbers, Jeffrey S. 1997. Paperwork Redux: The (Stronger) Paperwork Reduction Act of 1995. Administrative Law Review 49(l): 111-21. [Reference] May, Randolph. 1997. Reforming the Sunshine Act: Report and Recommendation by the Special Committee to Review the Government in the Sunshine Act. Administrative Law Review 49(2): 415-28. [Reference] Meriam, Lewis. 1939. Reorganization of the National Government: Part P An Analysis of the Problem. Washington, DC: Brookings Institution. Moore, Mark H. and M. Gates. 1986. The Inspectors-General: Junkyard Dogs or Man's Best Friend? New York: Russell Sage Foundation. Mosher, Frederick. 1984. A Tale of Two Agencies. Baton Rouge, LA: Louisiana State University Press. Polenberg, Richard. 1966. Reorganizing Roosevelt's Government: The Controversy over Executive Reorganization 19361939. Cambridge, MA: Harvard University Press. Pritchett, C. Herman. 1948. The Roosevelt Court. New York: Macmillan.-- [Reference] Radin, Beryl. 1998. The Government Performance and Results Act (GPRA): Hydra-Headed Monster or Flexible Management Tool? Public Administration Review 58(4): 307-316. Rohr, John. 1986. To Run A Constitution. Lawrence, KS: University Press of Kansas. Rosenbloom, David. 2000. Framing Legislative Centered Public Administration: Congress's 1946 Response to the Administrative State. Tuscaloosa, AL: University of Alabama Press. _. 1999. Constitutional Problems for the New Public Management in the United States. In Current Public Policy Issues, edited by R. Carter and K. Thai. Philadelphia, PA: PrAcademics Press. [Reference] 197 1. Federal Service and the Constitution. Ithaca, NY. Cornell University Press. Rosenbloom, David, J. Carroll, and J. Carroll. 2000. Toward Constitutional Competence for Public Managers: Cases and Commentary. Itasca, IL: F.E. Peacock. Rosenbloom, David, and R. O'Leary. 1997. Public Administration and Law. 2d ed. New York: Marcel Dekker. Rourke, Francis E. 1993. Whose Bureaucracy Is This, Anyway? PS: Political Science and Politics 26(4): 687-92, Sargentich, Thomas. 1997. The Small Business Regulatory Enforcement Fairness Act, Administrative Low Review 49(l): 123-37. [Reference] Seidman, Harold. 1970. Politics, Position, and Power. New York: Oxford University Press. Steck, Henry. 1984. Politics and Administration: Private Advice for Public Purpose in a Corporatist Setting. In Politics and [Reference] Administration, edited by J. Rabin and J. Bowman, 147-74. New York: Marcel Dekker. U.S. Congress. 1946. Congressional Record, vol. 92, 79th Congress, 2d session. Washington, DC: U.S. Government Printing Office. [Reference] U.S. General Accounting Office. 1997. Managing for Results: Using the Results Act to Address Mission Fragmentation and Program Overlap. Washington, DC: U.S. General Accounting Office. [Reference] U.S. President's Committee on Administrative Management. 1937. Report of the Committee. Washington, DC: U.S. Government Printing Office. U.S. Senate. 1978. Federal Advisory Committee Act (Public Law 92-463) Source Book: Legislative History, Texts, and Other Documents. Committee on Governmental Affairs, Subcommittee on Energy, Nuclear Proliferation, and Federal Services. 95th Congress, 2d session. Washington, DC: U.S. Government Printing Office. U.S. Senate. 1974. Freedom of Information Act Source Book: Legislative Materials, Cases, Articles. Committee on the Judiciary, Subcommittee on Administrative Practice and Procedure. 93rd Congress, 2d session. Washington, DC: U.S. Government Printing Office. [Reference] Vaughn, Robert G. 1994. Federal Information Policy and Administrative Law. In Handbook of Regulation and Administrative Law, edited by David Rosenbloom and R. Schwartz, 467-484. New York: Marcel Dekker. Waldo, Dwight. 1984. The Administrative State. 2d ed. New York: Holmes and Meier. _. 1948. The Administrative State. New York: Ronald Press. [Reference] Walker, Wallace Earl. 1986. Changing Organizational Culture: Strategy, Structure, and Professionalism in the U.S. General Accounting Office. Knoxville, TN: University of Tennessee Press. Warren, Kenneth F. 1996. Administrative Law in the American Political System. 3rd ed. Upper Saddle River, NJ: Prentice Hall. [Reference] Willoughby, William F 1934. Principles of Legislative Organization and Administration. Washington, DC: Brookings Institution. _. 1927. Principles of Public Administration. Washington, DC: Brookings Institution. Woll, Peter. 1963. American Bureaucracy. New York: W.W. Norton. [Author Affiliation] David H. Rosenbloom is Distinguished Professor of Public Administration in the school of Public Affairs of American University in Washington, D.C. He received ASPA's Dwight Waldo Award for outstanding contributions to the literature and leadership of public administration through an extended career



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ADMINISTRATIVE LAW FOR PUBLIC MANAGERS
Posted On: Nov. 23, 2017
Author: Shipra


ADMINISTRATIVE LAW FOR PUBLIC MANAGERS



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Session 7: Separation of Powers and Public Administration (Oct 9-16) Assignment Questions:
Posted On: Nov. 23, 2017
Author: Shipra


Session 7: Separation of Powers and Public Administration (Oct 9-16) Assignment Questions: 1. Civil Service Reform Act. This question contains two questions and counts for two different questions in terms of points. First, what did the Civil Service Reform Act accomplish? What ethical issues surround the SES? 2. Control over the Bureaucracy. Specifically, how does Congress and the President control administrative discretion? What is at stake here? (Hint: you will want to incorporate the Gaus and Rosenbloom articles for this answer).



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Session 8: Constitutional & Comparative Context (Oct 16-23) Lecture/Notes
Posted On: Nov. 23, 2017
Author: Shipra


Session 8: Constitutional & Comparative Context (Oct 16-23) Lecture/Notes This week we will specifically look at public administration within the constitutional context. Some of the concepts, such as separation of powers and federalism, which are covered in the reading will be a review for some of you. However, the judiciary's response to the administrative state will probably be fresh material for you unless you have a law degree or have previously taken a course on administrative law. Please read the section twice if you have difficulty grasping the key concepts. Also, refer back to Rosenbloom's Retrofitting article for a summary of the judiciary's response. Introduction The US government operates under a separation of powers system. However, not all countries use this type of democratic system. This week we assess administration from a constitutional and comparative perspective. There are key differences between the two systems. As discussed last week, the US separation of powers is based on a formal written constitution known as the U.S. Constitution. The US Constitution identifies three separate branches of government: judicial, legislative, and executive. The purpose of the separation of powers (3 branches of government) is to prevent tyranny and abuse of power, including administrative discretion (this should sound very familiar to you). Because public administrators are subordinate to three branches of government, public administrators must adhere to different values and balance a variety of mandates, policies, directives and court orders. The legislative branch expects public administrators, who are also policymakers, to incorporate the following values when making public policies and rules: 1. openness 2. transparency 3. participation 4. equity (fairness) 5. representation 6. responsiveness. Where as the executive branch, lead by the President, has a different set of values and concerns than the legislative branch, and it expects public servants to adhere to them as well. These values include: 1) effectiveness, and 2) efficiency from a managerial, bureaucratic perspective. And last, the judicial branch demands that public administrators address the legal perspective of their jobs by emphasizing constitutional values including substantive and procedural rights for individuals. In sum, in the separation of powers system there are three branches of government that place competing demands and values on public administrators. In order to be an effective public servant in this type of system you must learn to comport with these demands and integrate the competing values into the decision making process. In contrast, the parliamentary system fuses the legislative and executive branches. The two branches are blended together. This is different than the separation of powers system, which has three distinct branches of government in which no branch of government has sovereignty or power over the other two branches; it operates under a system of check and balances. As such, it has a strong accountability system. The disadvantage is that no one single branch is in charge. Under the parliamentary system, power is concentrated in one branch: the legislative branch. The executive leader, known as the prime minister, and his or her cabinet officers are selected by the legislative branch. (In the separation of powers system, the executive leader known as the President is elected by the citizenry not the legislative branch). This is a key difference. In the US, citizens went to the ballot box and elected George W. Bush as the President, and in England the legislative branch in power (the British Labour Party) selects the Prime Minister. The prime minister represents the legislative branch and through them, the voters. Another key difference is that in the US, the President serves a set term (four years), whereas in parliamentary systems, the Prime Minister and cabinet stay in power as long as they command a majority of the parliament (or there is coup like Prime Minister Bolger experienced in New Zealand). The government can lose its majority through a "vote of confidence." If the Prime Minister and the cabinet ministers fall out of political favor with the majority of the legislature they can be quickly replaced (without an election by citizens). Thus, parliamentary systems can change prime ministers easily and quickly. This is an advantage to the parliamentary system. Below is a table outlining the key differences between the separation of powers system and the parliamentary system. Note that the majority of democratic countries around the world use the parliamentary system, not the separation of powers system. Separation of Powers v. Parliamentary System Separation of Powers Parliamentary System Concentration of Power 3 branches Legislative Selection of Executive Leader Citizen election Selected by Legislature Prevention of Abuse Checks and balances Prime minister's party will lose majority in legislature These key differences in the above table represent the broad differences found in the two different systems. But as Rohr notes public servants must uphold different values depending on the country. Thus, values vary within parliamentary systems. The British appear to place a high value on secrecy, which is linked to their informal constitution, while the Americans place a high value on transparency, an opposing value compared to the British. The French encourage political participation and expect public administrators to uphold the principle of neutrality. Quite different than the US, the French do not take an oath to uphold the constitution. As you read these chapters think about how these differences create ethical dilemmas for public administrators. Can you imagine what it would be like if you went to work for the government in Great Britain, France or Italy? Would you like to be a government whistleblower in England? The values there are different, and what is ethical in the US may be considered unethical in other countries. Yet all the countries listed here are democracies and believe they operate under ethical standards. In my estimation, it would be very insightful to have public servants from the US trade positions for 6 months with a public servant in England. Have any of you worked in other countries? What kind of ethical situations arose? How did you handle them? What guidance were you given? In addition, as you think about the comparative context and administrative ethics one also needs to consider the broader perspective of government corruption. There is a tremendous amount of government corruption around the globe, which varies depending on the country and culture. I'm including a few websites for you to view to understand the scope of the problem. Please visit these sites. It will give you a better perspective on the corruption in the US. The Project on Government Oversight POGO) provides a database on US corporations that have violated laws, yet receive government contracts. http://www.pogo.org/ Transparency International is an organization dedicated to fighting corruption -- http://www.transparency.org/ Find the Transparency International Perception Index, which rates counties based on perceived corruption In order to instill democratic constitutional values into public administration the courts have taken four steps: 1. new constitutional rights for individuals, 2. easier access to gain standing to sue agencies, 3. development of remedial law, 4. qualified immunity for public administrators. The first step was to establish constitutional rights for individuals when interacting with public administrators. This step is characterized by increases in equal protection requirements, procedural due process protections, and substantive rights for individuals (Rosenbloom 2000; Rosenbloom and O'Leary, Public Administration and Law, 1997). The First, Fourth, Fifth, and Eighth Amendments are prominent in these developments. These rights came about because of the demise of the doctrine of privilege, which meant that due process rights could be taken away, based on the government's own terms; it also meant that individuals could not complain about benefits received voluntarily. This doctrine ultimately failed because it was hard to reconcile the gaining of a government benefit through the loss of ordinary constitutional rights. Another aspect was that since the doctrine was not regulated by the Constitution, it was hard to sustain its tenets in a society where individuals were beginning to depend more on government. These developments also pertained to public employees. Equal protection requirements. According to Rosenbloom and O'Leary (1997), the Equal Protection Clause was historically read to maintain the separate but equal doctrine, allowing benefits to be distributed according to race. In reality, however, the separate aspect was more emphasized than that of equal, perpetuating racial segregation. Both the separate but equal and privilege doctrines failed due to the Brown v. Board of Education (1954) decision. This case involved an effort to desegregate Kansas's public schools along racial lines. In this decision, the Equal Protection Clause was redefined so that racial segregation was prohibited. The language the Supreme Court used in its ruling made the doctrine of privilege a moot point, because benefits an individual receives from the government became a right, not a privilege, no matter what race one belonged to. In essence, Brown v. Board of Education declared that any benefit that a government entity decides to provide automatically becomes an individual right and is subject to due process. This stance was applied not only to public schools, but also to prisons, public hospitals, and other public health facilities. In The Hollow Hope, Rosenberg (1991) argues that Brown v. Board of Education did not accomplish desegregation in schools; however, the implications of this ruling on equal protection requirements has been enormous, far outweighing any claims Rosenberg has to make. Equal protection requirements today hinge on different classifications based on race, ethnicity, gender, illegitimacy, and age, among others (Rosenbloom and O'Leary 1997). Classifications based on race and ethnicity receivestrict scrutiny (the highest level) due to the Equal Protection Clause. In these situations, the burden of persuasion falls on the government, and the judiciary is not deferential to it at all. This precedent was set forth in Adarand Constructors v. Peña (1995), a case about equal protections violations regarding a government's contracting policy that was classified based on race. To not be liable, the governmental action must be shown to uphold a compelling governmental interest that is narrowly tailored to meet this interest, and the intent of this policy must not be discriminatory. When the classification involves gender, the policies are subject to a weaker test that receives intermediate scrutiny. This involves proving that the policy serves an important governmental interest and the objectives in achieving this interest are substantially related (not strictly related). Here the burden of persuasion also falls on the government, but the judiciary is more deferential to it. Intermediate scrutiny also applies to illegitimacy, but the government has to prove that this classification is substantially related to at least a legitimate state interest (Mills v. Habluetzel, 1982). Finally, classifications based on things other than those described above receive ordinary scrutiny. Examples include age, residency, wealth, and marital status. These policies are constitutional if they meet a rational basis test, which says that the policy must be rationally related to a governmental objective. Normally, the burden of persuasion falls on the client or customer, making this classification least likely to be contested. Procedural due process protections. These protections came about when public benefits began to be treated as a form of property. Traditionally, property was protected by the Due Process Clause, which grants injured parties a right to a hearing. When Charles Reich (The New Property, 1964) made the argument regarding the increasing influence of government on individuals' daily lives, he demonstrated that public benefits became a sort of property since these items allowed individuals to not only sustain themselves, but also to prosper. According to Rosenbloom and O'Leary (1997), the Supreme Court was listening. In a historic case, Goldberg v. Kelly (1970), the Court declared that welfare benefits were forms of property protected by due process. Kelly, the injured party, had his welfare benefits terminated when he refused to stay at a hotel due to the presence of drug addicts; leaving the hotel made him become homeless, and his benefits were revoked. That the benefits became property meant that the governmental interest in removing the benefit was not a consideration--what mattered was the severity of the circumstances if the client lost his benefits, which threatened his survival. Like Brown, Goldberg v. Kelly set the precedent for other new property rights that extended to eviction from public housing and termination of other public services. Substantive rights. The basis for the development of substantive rights came from the doctrine of unconstitutional conditions. This doctrine sets limits on government behavior when it tries to grant or deny benefits based on an individual's conduct. The significance of this doctrine is that, unlike equal protection laws, it covers a broad spectrum of constitutional protections. Contemporary case law on this matter began with Sherbert v. Verner (1963), which consisted of violations to freedom of religion. Sherbert, a Seventh Day Adventist, could no longer work at her job because her boss changed her work schedule so that she would have to work on Saturdays, the day she observes her religion. This led her to request unemployment compensation benefits, which were denied when she applied for them. Again, the Supreme Court noted that there was no distinction between rights and privileges, making the denying of benefits due to religion unconstitutional. The Supreme Court found policies unconstitutional when the penalty prevented the exercise of a constitutional right and when the government's interest was not compelling (Baker 1990). There has never been a case where the Court has supported an infringement on a constitutional right; on the other hand, the Court has always found a rational basis for a policy when no such infringement occurs (Ibid.). The ruling in Sherbert was bolstered by those in Thomas v. Review Board (1981), Hobbie v. Unemployment Appeals Commission (1987), Frazee v. Illinois Department of Employment Security (1989), Turner v. Department of Employment Security (1975), and Parrish v. Civil Service Commission (1967), which concerned First, Fourth, Fifth, and Fourteenth Amendment violations. The second step was to enable individuals to gain standing and thereby sue public administrators for violations of constitutional rights. The courts have facilitated this act by reducing barriers to sue public administrators. In any case, individuals complaining of a governmental act must show a substantial likelihood that the government is causing them harm and that a ruling in their favor would alleviate this harm. Many cases that deny standing to individuals are due to either one of these components. However, even the most minimal proof that the government is causing harm would guarantee standing. In U.S. v. Students Challenging Regulatory Agency Procedures (1973), students charged the Interstate Commerce Commission of destroying their future enjoyment of District of Columbia parks if it went through with a policy that would increase the amount of pollution in the area. The third step was to create the area of remedial law, which granted the judiciary a direct role in overseeing administrative operations in order to correct violations of constitutional rights (Rosenbloom 2000; Rosenbloom and O'Leary 1997). Section 1983 of the 1871 Civil Rights Act became a pivotal piece of legislation in this development. Section 1983 applies not only to individuals, it also extends to public officials and inmates. Any of these three groups can establish a case for which a remedy is sought. This type of law not only involves a change in the suits brought to the courts; it involves a change in the relationship between agency officials and the judicial branch. The tension involved in these suits arises from a clash of values: the judiciary is in charge of ensuring equity while public administration is trying to ensure effectiveness and efficiency. The mere existence of remedial law brings about two significant contributions to the constitutionalization of public administration. First, it enables the injured parties to charge entire administrative systems, not just individuals within these systems. Second, the judiciary plays a very direct role in supervising public administration. By inserting themselves into the management of administrative operations, federal judges have access to three important tools: they hold more authority than other administrators, they can hold officials in contempt, and they can control budgets. Remedial decrees have a long list of accomplishments. In the area of mental heal h reform,Wyatt v. Stickney (1972) represents one of the most appalling cases of Eighth Amendment violations. The conditions present at the mental health facility associated with this suit forced the courts to order the construction of new buildings that contained appropriate heating and cooling devices. In the area of prison reform, inmates gained new rights that went beyond cruel and unusual punishment in issues of sentencing and later included these same requirements in terms of inmate confinement (Rhodes v. Chapman, 1981). A third and final example stems from efforts at desegregating public schools. In Missouri v. Jenkins (1990), the federal judge ordered a property tax increase that would fund a magnet school that drew part of its population from white children living in Kansas City suburbs. These lawsuits have all occurred at the state level. Rosenbloom and O'Leary (1997) note that the Supreme Court involvement in remedial suits has not been as enthusiastic. These authors explain this occurrence with the claim that the Supreme Court members have become more conservative since the late 1970s. They also suggest that perhaps the Court's institutional responsibility (as head of the judiciary) makes it wary when the lower courts involve themselves in cases that might not be worthwhile and instead take up time and money. Nevertheless, Rosenbloom and O'Leary believe that remedial law is likely a permanent fixture within public administration. The fourth step was to increase the liability that public administrators face when violating individuals' constitutional rights (Rosenbloom 2000; Rosenbloom and O'Leary 1997). The main breakthrough in the judiciary's involvement regarding the liability of public officials was the shift from absolute to qualified immunity in 1971. What was originally intended by Section 1983 of the 1871 Civil Rights Act was degraded through Spalding v. Vilas (1896) and Barr v. Matteo (1959). Section 1983 contained language that individuals could use in order to hold administrators accountable for their actions; however, the way in which the Court read this statement was that it would exclude public officials. The Court argued that if Congress had intended to include public officials, they would have explicitly stated so. The Spalding case involved a postmaster that slandered a business owner by circulating a letter that represented him as a thief; this ultimately damaged any future business endeavors. When the business owner brought suit against the postmaster, the Supreme Court sealed the practice of absolute immunity for officers of the executive branch, protecting their behavior above that of private individuals. The Barr case achieved the same purpose, but extended the protection to all federal officials. Other subsequent decisions eventually protected a variety of government positions, including nonfederal administrators and officials. Before 1971, it was clear that the federal judiciary was reluctant to place any restraints on administrative behavior; as such, it rejected the view that administrators should take responsibility for their actions. Beginning in 1971, the concept of absolute immunity faded in light of the Bivens v. Six Unknown Named Agents (1971), Scheuer v. Rhodes (1974), Wood v. Strickland (1975), and Harlow v. Fitzgerald (1982) cases (Rosenbloom and O'Leary 1997). In the Bivens case, federal agents entered the home of an individual (Bivens) without a warrant, violating an individual's right to privacy under the Fourth Amendment. The individual sought damages in the amount of $15,000 from each agent. Since the agents were acting within their federal objectives, Bivens would probably not be able to bring suit against them, since absolute immunity would have applied. However, the fact that a constitutional right had been violated enabled him to bring suit and for the courts to reconsider their attitude on absolute immunity. Subsequent cases have placed administrators under qualified immunity for violations of First, Fifth, and eighth Amendments. With the Bivens case, the court read Section 1983 differently, with a shift toward the protection of constitutional rights; one century before, the Court was more deferential to administrators, especially when issues of federalism were involved. Scheuer v. Rhodes, which took place during the Watergate scandal, occurred during the nation's realization that administrative agencies could and would violate individual rights. The Scheuer case involved the Ohio National Guard and students at Kent State University. During student demonstrations about civil rights and the Southeast Asian war, some guards fatally killed some students. The Supreme Court's unanimous decision made qualified immunity the new standard for public officials. This ruling was further refined in the Wood and Harlow cases. Qualified immunity in both the Scheuer and Wood cases was based on two conditions: proof that the official acted in bad faith (subjective part of the test) and that he or she had a reasonable expectation of knowing what would constitute a violation of a person's rights (objective part of the test). The Wood case involved the expulsion of two high school girls who were not granted due process rights. Proving the subjective part of the case was problematic for the injured party (representing the girls). Harlow involved a civilian employee of the United States Air Force (Fitzgerald) who sued two government officials allegedly engaged in a conspiracy to get him terminated from his job. This case was significant because it removed the subjective condition from the qualified immunity standard. The bad faith condition was problematic for the courts because it opened the floodgates for litigation that is time consuming, expensive, and difficult to prove. Proving the bad faith condition meant that extra litigation in the form of discovery and juries had to be used. It also meant that administrators were taken away from doing their official work for a longer period of time, forcing the reaching of a settlement without answering whether the suits brought against them had any merit or not. The rulings of the Harlow case clearly pointed to a judicial intent: by using the objective condition, public administrators were now obligated to know the law and how it applied to their jobs. Under no circumstances could they violate constitutional rights. The implications of this case are threefold: it instills democratic constitutional values into public administration; it enables the judiciary to play a greater role in shaping the administrative state; and the objective standard serves as a deterrent on administrative behavior. Qualified immunity is not perfect, however: some jurisdictions might choose to defend their administrators and officials still have absolute immunity whenengaged in legislative, prosecutorial, and adjudicatory functions. Subsequent cases brought the use of qualified immunity in terms of actions against cities and in suing administrators not just for constitutional rights violations, but also for rights violations under federal laws.



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