Authority: Be Careful Not to Assume Too Much

As Goodnow and others indicated, authority and the jurisdiction (the scope and limits of action) to apply it are essential for effective administration. Since effective administration is half the requirement for responsible administration, attention to legal authority is as important as the limits on it. It turns out that what had appeared to be well-established patterns of authority have been under challenge in the courts. Beyond that, contemporary governance arrangements require renewed attention to authority and its limits.

For most of the second half of the twentieth century, it appeared settled that governments possessed the authority to make and administer policies at the federal, state, and local levels. The Supreme Court was granting broad deference to federal use of the commerce and taxing and spending powers, along with the necessary and proper clause of Article I. Even where policies regulated individuals or small businesses, the Court applied the doctrine of cumulative effects to uphold the policies based on the idea that Congress could certainly find that the cumulative effects of the behavior of individuals or businesses have a substantial effect on interstate commerce (Wickard v. Filburn, 1942; Katzenbach v. McClung, 1964). The Court had long since established that the police power authority of the states to regulate in the areas of health, safety, and public welfare was broad and that regulation was not the same thing as a taking of property without just compensation (Munn v. Illinois, 1877; Day-Brite Lighting v. Missouri, 1952). These powers, often delegated to local governments, included broad authority to regulate land use with a presumption in favor of the validity of zoning plans (Euclid v. Ambler, 1926; Berman v. Parker, 1954).

However, as the twenty-first century approached, there were changes. The Supreme Court moved away from its broadly deferential view of congressional commerce power in a series of cases, including one striking down part of the Violence Against Women Act that made clear that its method of reviewing congressional action would be far more demanding than before (United States v. Morrison, 2000). The opinion in the Patient Protection Act case warned Congress that its authority was far less expansive than officials thought, the doctrine of cumulative effects was not going to be interpreted in such a deferential manner, and its use of the taxing and spending powers for the Medicaid extension portion of the act could not be used to compel states receiving existing Medicaid funds to comply with the amendments or lose existing program dollars (National Federation of Independent Businesses v. Sebelius, 2012).

The Court also changed direction with respect to state and local authority in a series of cases that imposed restrictions in key areas like land use regulation and moved away from a clear distinction between police power regulation and the taking of property (Nollan v. California Coastal Commission, 1987; Lucas v. South Carolina Coastal Commission, 1992; Dolan v. Tigard, 1994). One important decision concluded that environmental mitigation charges in a Florida case were confiscatory and a taking, even though none of the land was used for public purpose. The dissent protested this dramatic departure from the recognized authority of state and local governments that threatened a wide array of permit fees or taxes (Koontz v. St. John's River Water Management District, 2013). The Court issued a plethora of decisions finding that the federal government preempted state and local authority either explicitly or by implication even in areas that had been traditional state functions (American Insurance Association v. Garamendi, 2003; Rowe v. New Hampshire Motor Transport Association, 2008). The Court applied the dormant commerce clause, a doctrine that the interstate commerce implies limits on the actions of state and local governments, to place restrictions on states seeking to address such important problems as solid waste disposal (Oregon Waste Systems v. Department of Environmental Quality, 1994; Fort Gratiot Landfill v. Michigan Department of Natural Resources, 1992).

In addition federal courts have rejected what many had assumed was well-established regulatory authority, for example, in ruling against Food and Drug Administration regulations aimed at tobacco advertising directed at children (Food and Drug Administration v. Brown & Williamson Tobacco Corp., 2000). More recently, the DC Circuit Court twice rejected the Federal Communication Commission's net neutrality rules designed to prevent Internet providers from treating different users differently in terms of priority or service speed (Verizon v. Federal Communications Commission, 2014; Comcast Corp. v. Federal Communications Commission, 2010).

The discussion of authority today is also about the appropriate types of authority needed by agencies to act. After the 9/11 attacks, President Bush created the White House Office of Homeland Security by executive order. The first director of that office lacked a legislative mandate or an appropriation, yet his office was supposed to bring together some two dozen federal agencies to ensure coordinated homeland security. Each of those agencies had not only legislative authority and appropriations but also supporters to advance their positions and protect their domains. The administration realized that it would have to work with Congress, which led in 2002 to the Homeland Security Act creating the Department of Homeland Security, provided the agency with broad authority, and exempted it from an array of statutory requirements. That effectively expanded the department's authority and reduced accountability. Presidential direct action has been at the center of debates on appropriate authority, particularly in recent administrations (Pfiffner, 2009; Cooper, 2005, forthcoming; American Bar Association, 2006; Coalition to Defend Checks and Balances, 2007; Congressional Research Service, 2007).

It is also important to consider how public law facilitates the many relationships that make up the fabric of modern governance and also place boundaries around them. In governance arrangements that include different units of government, nongovernmental organizations, and hybrid organizations like public corporations, questions of authority become more complex than ever before (Moe, 1987, 1988; Bozeman, 1988; Moe & Gilmour, 1995). Public policy requires authority, but just what that authority is and what its boundaries in governance networks are need to be an ongoing discussion.

For example, the nondelegation doctrine that has placed limits on what authority Congress could provide to administrators was a major concern in the New Deal, but has long been considered a dead issue, even though some tried to revive it (Whitman v. American Trucking Associations, 2001). However, a panel of the US Court of Appeals for the DC Circuit recently struck down a section of the Passenger Rail Investment and Improvement Act. The court found that the Congress had delegated authority to Amtrak to coproduce railroad rules with the Department of Transportation that was comparable to giving General Motors the ability to write regulations that would govern all automobile manufacturers. It found the delegation unconstitutional (Association of American Railroads v. US Department of Transportation, 2013). The point is that contemporary governance arrangements like Amtrak require careful thought and discussion when it comes to the question of what types of authority can be provided, in what form, and with what limits.

Administrative Discretion and Hollowed-Out Government

The use of service networks, IGAs, and contracts often relates to demands to do more with less and shrink the size of government. Declining resources mean that some of the most important decisions that administrators must make are about what not to do. Those discretionary decisions are particularly important when they may involve serious violations of law that have significant consequences for citizens.

There must be some discretion to make the hard decisions about what not to do. Indeed, the Supreme Court has held that administrative enforcement decisions are “presumptively unreviewable” unless a statute specifies mandatory enforcement criteria (Heckler v. Chaney, 1985, pp. 832–833). The question is often whether those who are adversely affected can act to enforce the law if the appropriate government agency either will not or cannot do so.

Congress or state legislatures may create citizen suit options that allow those outside government to act. In other cases, there is no specific provision, so the question is whether the legislation implies a private right of action. Until the 1980s, the Supreme Court used a relatively permissive standard to decide whether there was such an option. The Court later imposed strong presumptions against private action unless the language of the law clearly provides for it or the design of the legislation requires it (Middlesex County Sewage Authority v. National Sea Clammers Association, 1981; Gonzaga University v. Doe, 2002; City of Rancho Palos Verdes v. Abrams, 2005). There is a body of legislation, including civil rights laws, that relies on private action to bring violations to light and that the Court previously recognized these as providing implied rights of action. The Court had ruled more than once that Title VI of the Civil Rights Act of 1964, which prohibits discrimination in organizations receiving federal funds, provided such an option. However, Justice Antonin Scalia later concluded for a five-four majority that Title VI did not permit it (Alexander v. Sandoval, 2001). John Paul Stevens for the dissenters declared that the majority's action flew in the face of precedent and effectively blocked much-needed enforcement action. At some point, an unwillingness or inability of agencies to carry out the work for which they are supposed to be responsible when coupled with the inability of others to compel action is likely to result in a loss of respect for the rule of law and the legitimacy of public administration.

Deference versus Responsibility: How Much Deference Is Due?

Finally, among these classic issues and contemporary problems, there is the question of just how much deference courts should show to administrators. The so-called Chevron doctrine holds that deference is due an agency's interpretation of the statutes it administers unless Congress has clearly stated its meaning and as long as the agency's interpretation is reasonable (Chevron USA v. Natural Resources Defense Council, 1984). Similarly, the Court-held deference is due to an agency's interpretation of its own rules unless one of a number of specific conditions is met.

Because agencies have been consistently hollowed out and are increasingly required to depend on other agencies or even private sector contractors to provide expertise, it is not clear what the basis is for deference. An example of the problem is the effort to develop the online portals for the health insurance exchange under the Affordable Care Act. The federal government and states depended on private sector contractors. But there was so little governmental capacity in what is obviously a technology critical to administrative operations that states and the federal government were not able to prevent or address problems. The response was to contract with other firms to learn how to deal with the failures of the previous contractors. At some point, the loss of capacity and the lack of essential new capacity undermine the sense of responsible administration as well as the ability of agencies to perform their missions. It is not clear how much longer deference will continue with these dynamics.

Law and Focused Decisions as Compared to Disaggregated Action through Markets

Charles Lindblom (1995) focused on comparing markets and democracy in his Gaus lecture to the American Political Science Association. During his presentation, he looked away from his prepared text and explained that at some point, market theories that make everything depend on individual decisions would effectively make democracy impossible since democracy requires debate and decisions by majorities. He spoke and wrote about the importance of the rules that democracy establishes, including the rules for control of elites and responding to problems created by markets. Law is the institution that democracy uses not only to make and maintain rules for society, but even to set limits on decisions by majorities in such structures as the Bill of Rights and civil rights statutes. It provides a counter to disaggregated decisions of the marketplace and a logic for majority action. As Lindblom explained, neither markets nor democracy is going away. Yet in an increasingly disaggregated society, law can contribute to a discussion of what is needed by the society as a whole, the public interest, and commit to action by majority rule or by some institutional process responsive to democratic values.

Public Law as a Positive Reinforcement for Public Ethics

Law and ethics are different, though they often grow out of the same social values. Rohr (1989) explained that studying the discussions of critical values in legal opinions could contribute to ethics and to effective administration. The law speaks of concepts like due process, fairness, equal protection of the law, rejection of arbitrary and capricious decisions, and standards of decision for hard choices. It speaks to equity and the need for exceptions to general rules. In sum, Rohr explained, law can contribute to responsible administration even apart from discussion of the rules.

Public Law and Responsibility in Intergovernmental Relations

The law of intergovernmental relations has changed a great deal in the contemporary era, and these structural matters are important. A study of judicial opinions about federal power and its limits, state and local action, preemption, and what constitutes a state actor for purposes of public responsibility can provide a foundation for considering the fiscal, political, and organizational dimensions of IGR. It is certainly not adequate, given the fundamental changes in these areas, to consider only one of these dimensions. Fiscal federalism is only a piece of that puzzle. If we consider intergovernmental relations in its full scope, including a full integration of local government aspects in the mix, there is fertile ground to discuss administrative responsibility in a rather different manner from that prominent in the literature today. That is particularly true where the discussion includes such matters as IGAs, contracts under grants, and preemption.

Public Law and Responsibility in Cross-Sectoral Relationships

A discussion of administrative responsibility must consider issues that arise from cross-sectoral collaborations as well as government levels. The case law that has been rendered on administrative responsibility in these mixes is limited but a starting point for discussion.

The leading case was one that involved a for-profit corrections firm in which an inmate had brought suit under a civil rights statute, alleging that he had been abused by guards employed by the firm. The Court quickly concluded that the firm was a state actor and subject to civil rights laws, but it denied the guards the same limited immunity enjoyed by guards employed by the state. The Court based its decision on the fact that government employees and contractors “act within a different system” (Richardson v. McKnight, 1997, pp. 410–411).

However, the Court took a different direction in a case brought against a contractor operating a halfway house for the federal government. The Court found for the firm under the sovereign immunity doctrine, reasoning that the private contract firm was the equivalent of a federal agency (Correctional Services Corporation v. Malesko, 2001). The dissenters emphasized that corporations were never sovereign and were in no respect like a federal agency. They warned the decision would provide perverse incentives to corporate managers. In a later case, Chief Justice John Roberts found immunity for a contractor employed by a city and in the process reached back for case law to the nineteenth century, an era with little responsibility for the public or the private sector (Filarsky v. Delia, 2012).

The other side of this discussion is what happens when government is not a market regulator but a market participant. In such a case, the Court has ruled, the barriers of the interstate commerce clause do not apply. It was interesting to see Chief Justice Roberts and Justice Alito debating in one such case involving an upstate New York county waste transfer station issue over just what that distinction is and what it means (United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 2007; Department of Revenue of Kentucky v. Davis, 2008).

The point here is that the legal discussions can provide a context within which to think more carefully and systematically about cross-sectoral relationships, including when government crosses over from governing to participating like others in the marketplace. This is a perspective that has not thus far been apparent in public administration discussions of responsibility.

Rights and Not Just Power or Limits to It: The Law as an Instrument of Citizen Inclusion

Apart from discussions about what government may or may not do and how, law provides a body of rights in which a legislature recognizes rights for citizens to receive services or benefits or establishes processes that allow those citizens to make claims on agencies, impose barriers against certain kinds of government actions, or even obtain damages from public officers or institutions. Among these rights are provisions that seek to ensure inclusion and avoid discrimination. Some of these laws are negative, telling agencies what they may not do or ways in which they may not proceed. Others are more affirmative, as when the law provides for benefits to be paid according to statute. Quite apart from the rights and remedies, many of these laws exist to reinforce fundamental values not only of the society in general but of public service. Seeking fairness, openness, and opportunities for participation is fundamental.

One Device for Living in a Time of “Broken Branches”

Unfortunately, there are times in the history of a nation, state, or city when key institutions of government are not functioning effectively. The contemporary US Congress is an example. Leading analysts have termed it a “broken branch” and warned, “It's even worse than it looks” (Mann & Ornstein, 2006, 2012). The presidency has also experienced serious challenges under presidents of both major political parties. During such periods, the law still operates as a mechanism that empowers and requires responsible public administration. The existing body of law continues to operate. Citizens have rights to apply for and receive services and benefits. They face regulatory obligations. Taxes must still be paid, social security payments provided, and education mandates fulfilled. Agencies must continue to operate according to the procedures required by law unless and until those laws are changed.

The point is not that this situation is desirable or that it can continue indefinitely without damage. Funds must be appropriated. New problems arise for which existing statutory authority or policies are inadequate. Failed political institutions will take their toll over time. However, during difficult periods, public law helps the society weather the political storm.

Beyond this very broad level of legitimacy are many more specific situations in which the political institutions have been either unwilling or unable to take action on important policy matters in a timely and effective fashion. A contemporary example is the wide array of problems that have arisen under conditions of rapid technological change that deal with the Internet, smart phone technology, global positioning satellite issues, and broadband services delivered in the community. While no legislature will be able to keep up with all of the latest developments in the Internet age, the fact is that relatively little legislation has been adopted to deal with some of the most fundamental problems.

There are ongoing debates about what to do about these challenges, but in the meantime, problems arise that require responses. Administrative agencies work within the existing law to address some of them. Courts review those actions to ensure that the agencies operate within that existing body of law and develop their rules in the proper manner. Some problems come require judicial innovation.

For example, the Supreme Court encountered its first case about text messaging when a police officer was disciplined by the City of Ontario, California. The officers had been told they could use their city-provided text-messaging devices for private purpose; if they exceeded their allotted use, they would not be audited or challenged so long as they paid the overage. However, the police chief obtained, without a warrant, the transcripts of the messages. The Court concluded that although the case potentially presented a broad set of technology issues, it could be resolved within existing case law (City of Ontario v. Quon, 2010). That case was followed by one that raised issues concerning the use of a GPS tracking device on a vehicle without a warrant. At oral argument, the justices pressed attorneys to address hypotheticals about what the law should be, given that the next cases to come were not likely to be about physically attaching a tracking device but rather the idea of obtaining GPS information from smart phones through telecom providers. Although all nine justices found a violation of the Fourth Amendment, Justice Scalia's opinion relied on an eighteenth-century trespass case. Three justices criticized Scalia for failing to provide a standard with which to address problems involving “a 21st-century surveillance technique” (United States v. Jones, 2012, pp. 957–958). Another case came to the Court concerning the warrantless search of a smart phone. This time the justices focused at oral argument on the core question of the nature of the technology and the way the Court should address it (Riley v. California, 2013, 2014; United States v. Wurie, 2014). The government argued for no warrant requirement and full authority to examine the contents of one's smart phone, comparing it to the ability of police to look inside a person's wallet at the time of arrest. Justice Elena Kagan responded that this would cover any arrest, no matter how minor: “And it applies to everything on a cell phone. People carry their entire lives on cell phones. That's not a marginal case. That's the world we live in, isn't it?” (Riley v. California, 2014).

The courts would rather have statutes that address new technology, but whether the political bodies act or not, the legal system will find a way to deal with day-to-day challenges. The same is true in the regulatory arena, social services, and local government concerns. The law keeps the system functioning when the political branches seem unwilling or unable to act.

Elected Officials and Professionals: Reinforcement for Effective and Accountable Administration

Apart from institutional difficulties, law can also serve as a reinforcement for responsible administration by setting limits to inappropriate behavior by elected officials. The fact that one is elected does not mean that it is permissible to violate the law. That includes efforts to direct public service professionals to act contrary to law or to violate procedural requirements.

These constraints apply at all levels of government and to all officials. Justice Sandra Day O'Connor reminded President George W. Bush that “we have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens” (Hamdi v. Rumsfeld, 2004, p. 536). In response to a recalcitrant Reagan attorney general, a district judge said bluntly: “The Executive Branch's position that they can say when a law is unconstitutional . . . flies in the face of the basic tenet laid out so long ago by the United States Supreme Court [that] ‘no man in this country is so high that he is above the law.’ No officer of the law may set that law at defiance, with impunity. All the officers of the Government, from the highest to the lowest, are creatures of the law and are bound to obey it” (AMERON v. US Army Corps of Engineers, 1985, p. 220). Decades before, Justice Robert Jackson had written: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts . . . they depend on the outcome of no election” (West Virginia Board of Education v. Barnette, 1943, p. 638).

City managers regularly inform newly elected council members that what may have been acceptable in their private lives is not permitted by city charter or state or federal law. The council may choose to dismiss the manager, but often they respond by wanting to know what they can do lawfully if their preferred course of action has legal difficulties. City managers often use the International City/County Management Association code of ethics side-by-side with legal rules to convince elected officials of the importance of acting lawfully and ethically. In providing these checks on inappropriate action by elected officials, the law makes it possible for administrators to perform their duties responsibly. It protects the proper use of the authority that should be available under law and helps to protect the rights of those who come to the agency or the city for services, free from improper influences. In both senses, it supports both effectiveness and legitimacy.

Responsibility and the Two-Level Problem: Maintaining Effectiveness and Legitimacy

Particularly with respect to administrative law, the concern has long been to serve the practical need to administer policy. However, that law starts from an awareness that public policies are administered by unelected public service professionals who make important decisions that affect people's lives. This two-level purpose presents problems if those focused on the law forget that the purpose of public institutions is to do something and not just to prevent something bad from happening; or they become so focused on the rules that the larger purpose of ensuring legitimacy for the public institutions as well as for the system of government is lost.

Similarly, when administrators become too focused on just getting their work done or view those coming before them as problems to be dispatched as quickly as possible, legal requirements can remind them to think about larger obligations. The values that public law embodies are essential to good administration. Due process is not just a legal requirement. It is good management. The law provides processes and principles that support solid, effective, efficient, equitable, responsive, and responsible administration. That is not to deny that there are times when those values can be in tension, as when due process means that a decision may not be made quickly or inexpensively. However, the law reminds us of the set of principles key to both effectiveness and legitimacy.