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CONTENTS

LIST OF FIGURES, TABLES, AND BOXES

PREFACE
ACKNOWLEDGMENTS
ABOUT THE AUTHORS
PART I
THE RULE OF LAW IN PUBLIC ADMINISTRATION
CHAPTER 1
WHY ADMINISTRATIVE LAW?
Five Themes
Theme One: A Brief History of the Administrative State
Theme Two: The Broad Reach of Administrative Action and Power
Theme Three: The Shortcomings of Regulatory Government
Setting the Stage for the Study of Administrative Law
Exercises and Questions for Further Thought
CHAPTER 2
THE ORIGINS AND MEANING OF ADMINISTRATIVE LAW
What Is Law?
A First Look at the Development of Administrative Law
Adjudication and the Basics of Due Process: Three Illustrations
Morgan v. United States (1938)
Goldberg v. Kelly (1970)
Mathews v. Eldridge (1976)
Theme Four: What Is Administrative Law?
Theme Five: The Ethics of the Rule of Law in Bureaucratic Government
Exercises and Questions for Further Thought
PART II
ELEMENTS OF MODERN ADMINISTRATIVE LAW
CHAPTER 3
THE CONSTITUTIONAL AUTHORITY OF AGENCIES
The Constitutional Framework for Administrative Government
Munn v. Illinois (1877)
Lochner v. New York (1905)
National Labor Relations Board v. Jones & Laughlin Steel Corporation
(1937)
Dolan v. City of Tigard (1994)
Kelo v. City of New London (2005)
Economic Libertarians, Property, and Institutions: Linking Activism,
Ideas, and Identities among Property Rights Advocates (Hatcher)
The Delegation Doctrine
The Illusion of the Ideal Administration (Jaffe)
Mistretta v. United States (1989)
Exercises and Questions for Further Thought
CHAPTER 4
THE STATUTORY AUTHORITY OF AGENCIES
The Law of Separation of Powers
Immigration and Naturalization Service v. Chadha (1983)
Statutory Limits on Agency Discretion
NAACP et al. v. Federal Power Commission (1976)
American Textile Manufacturers Institute v. Donovan (1981)
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., et al.
(1984)
FDA v. Brown & Williamson Tobacco Corp. (2000)
Christopher v. SmithKline Beecham Corp. (2012)
Vance v. Ball State University (2013)
Exercises and Questions for Further Thought
CHAPTER 5
INFORMATION AND ADMINISTRATION
Investigations
Wyman v. James (1971)
Marshall v. Barlow’s, Inc. (1978)
Dow Chemical Company v. United States (1986)
Immigration and Naturalization Service v. Lopez-Mendoza et al. (1984)
Access to Information Held by Government
Department of the Air Force v. Rose (1976)
Milner v. Department of the Navy (2011)
United States Department of Justice v. Reporters Committee for
Freedom of the Press (1989)
Common Cause v. Nuclear Regulatory Commission (1982)
Exercises and Questions for Further Thought
CHAPTER 6
INFORMALITY AND FORMALITY IN ADMINISTRATIVE LAW
Examples of Informal Administration
Informal Administration in Rule Making and Adjudication
Bi-Metallic Investment Co. v. State Board of Equalization of Colorado
(1915)
Adjudication at the Informal End of the Continuum
A Study of Informal Adjudication Procedures (Verkuil)
Board of Curators of the University of Missouri et al. v. Horowitz
(1978)
Informal Rule Making
Legal Problems in Informal Administration
Federal Crop Insurance Corp. v. Merrill (1947)
Exercises and Questions for Further Thought
CHAPTER 7
ELEMENTS OF AN ADMINISTRATIVE HEARING
Controlling Law
A Threshold Question: What Triggers Formal Adjudication under the
 APA?
Marathon Oil Co. v. Environmental Protection Agency (1977)
The Components of a Hearing
Walters v. National Association of Radiation Survivors (1985)
A Determination on the Record and Statement of Reasons
Note: Administrative Findings under Section 8(c) (1965)
Mazza v. Cavicchia (1954)
Gibson v. Berryhill (1973)
Cinderella Career and Finishing Schools, Inc. v. Federal Trade
Commission (1970)
A Return to First Principles: Rethinking ALJ Compromises (Wertkin)
Ventura v. Shalala (1995)
Another View of Informality and Formality in Administrative Hearings
EEOC Guidelines on Discrimination Because of Sex
Dear Colleague Letter: Sexual Violence (Department of Education)
Policy on Sexual Assault, Harassment and Other Forms of Sexual
Misconduct (New York University)
Exercises and Questions for Further Thought
CHAPTER 8
AMBIGUITIES IN RULE-MAKING PROCEDURES
Is Rule Making a Desirable Administrative Strategy?
United States v. Florida East Coast Railway, Inc. (1973)
Legislative and Adjudicative Rule Making
Natural Resources Defense Council, Inc. v. United States Nuclear
Regulatory Commission, Vermont Yankee Nuclear Power Corp.,
Intervenor (1976)
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense
Council, Inc. (1978)
Motor Vehicles Manufacturers Association v. State Farm Mutual
Automobile Insurance Co. (1983)
Regulatory Reform: Creating Gaps and Making Markets (Harrington)
Exercises and Questions for Further Thought
CHAPTER 9
ENFORCEMENT OF ADMINISTRATIVE POLICY
Administrative Law and the Problem of Compliance
The Nature of Administrative Sanctions
Administrative Enforcement Techniques
Enforcement and Political Resistance
Citizen Initiation of Agency Enforcement
Environmental Defense Fund, Inc. v. Ruckelshaus (1971)
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. and
Natural Resources Defense Council (1987)
Massachusetts v. EPA (2007)
Legal Ambiguity and the Politics of Compliance: Affirmative Action
Officers’ Dilemma (Edelman, Petterson, Chambliss, and Erlanger)
Exercises and Questions for Further Thought
CHAPTER 10
JUDICIAL REVIEW
Access to Judicial Review
Abbott Laboratories, Inc. v. Gardner (1967)
Association of Data Processing Service Organizations, Inc. v. Camp
(1970)
United States v. Students Challenging Regulatory Agency Procedures
(1973)
Clapper v. Amnesty International USA (2013)
The Scope of Judicial Review
Citizens to Preserve Overton Park v. Volpe (1971)
Heckler v. Chaney (1985)
Reviewing Questions of Fact and Questions of Law
Universal Camera Corp. v. National Labor Relations Board (1951)
National Labor Relations Board v. Hearst Publications, Inc. (1944)
Scope of Review: Introduction to the American Public Law System
(Mashaw and Merrill)
Huzaifa Parhat v. Robert Gates, Secretary of Defense et al. (2008)
 Exercises and Questions for Further Thought
PART
III PRACTICAL PROBLEMS IN ADMINISTRATIVE LAW
CHAPTER 11
LIABILITY
Responsibilities and Liabilities in Law
Liabilities and Responsibilities Distinguished: An Important Illustration
Tort Liability of Government for Acts of Officials
Indian Towing Co., Inc. v. United States (1955)
Griffin v. United States (1974)
Allen v. United States (1987)
DeShaney v. Winnebago County Department of Social Services (1989)
County of Sacramento v. Lewis (1998)
A New Legal Shield for States
Exercises and Questions for Further Thought
CHAPTER 12
THE LAW OF PUBLIC EMPLOYMENT
The Development of Civil Service
The Constitutional Requirements of a Termination Hearing
Perry et al. v. Sindermann (1972)
Cleveland Board of Education v. Loudermill (1985)
Gilbert et al. v. Homar (1997)
Other Protections for Public Employees
Kelley v. Johnson (1976)
National Treasury Employees Union et al. v. Von Raab (1989)
Washington v. Davis (1976)
United States District Court, Western District of Washington at Seattle
Exercises and Questions for Further Thought
PART IV
EVALUATING ADMINISTRATIVE LAW
CHAPTER 13
PRINCIPLES AND POLITICS IN ADMINISTRATIVE LAW
Surveying the Terrain
The Current Administrative Law Debate
Privatization, Prisons, Democracy, and Human Rights: The Need to
Extend the Province of Administrative Law (Aman)
Outsourcing Sovereignty: Why Privatization of Government Functions
Threatens Democracy and What We Can Do about It (Verkuil)
Agency’s ’04 Rule Let Banks Pile Up New Debt (Labaton)
Practicing What We Have Preached
APPENDIX A
THE INFORMALITY–FORMALITY CONTINUUM IN
ADMINISTRATIVE LAW: RULEMAKING AND ADJUDICATION
APPENDIX B
FEDERAL ADMINISTRATIVE PROCEDURE ACT (1946): TITLE 5
—GOVERNMENT ORGANIZATION AND EMPLOYEES
APPENDIX C
UNIFORM LAW COMMISSIONERS’ MODEL STATE
ADMINISTRATIVE PRODEDURE ACT (2010)
APPENDIX D
OCCUPATIONAL SAFETY AND HEALTH ACT (1970)
APPENDIX E
THE CONSTITUTION OF THE UNITED STATES OF AMERICA
TABLE OF CASES
INDEX
L I S T O F F I G U R E S, T A B L E
S, A N D B O X E S

FIGURE 1.1 The Government of the United States

FIGURE 1.2 The Federal Trade Commission (FTC)

FIGURE 1.3 Cabinet Level Agency (OSHA in the Department of Labor)

FIGURE 1.4 The Environmental Protection Agency (EPA)

FIGURE 1.5 The Creation of the Department of Homeland Security

FIGURE 1.6 The Department of Homeland Security

FIGURE 2.1 The United States Court System

FIGURE 2.2 Number and Composition of Federal Judicial Circuits

TABLE 2.1 Disposition of Administrative Appeals in the U.S. Court of

Appeals, 1945–2010

TABLE 7.1 Number of Administrative Law Judges by Agency, 2013 (June)

TABLE 8.1 What Factors Affect an Agency’s Decision to Make Policy

through Adjudication or Rule Making?

FIGURE 8.1 Cases Filed in the U.S. Court of Appeals per 100,000 People,
1945–1985

FIGURE 8.2 Administrative Appeals as Percentage of All Cases Filed in the

U.S. Court of Appeals, 1940–1985

TABLE 8.2 Variability of Filings in the U.S. Court of Appeals, 1945–1985

(% Change in Filings per 100,000 People)
Box 8.1 The Negotiated Rulemaking Process for Title IV Regulations—
Frequently Asked Questions
PREFACE

dministrative law is a vitally important part of our legal and political

A systems. It affects us all, not just lawyers and judges. This book
opens the doors of administrative law for students, business people,
and public servants—the non-lawyers whose lives are influenced by
government and law every day.
For liberal arts students we hope this book does two things. It should alert
them to the tremendous scope and power of administrative government, and
it should illuminate how the legal system shapes administrative procedure
and practice. For business students the book provides a guide to the features
of a legal and political process that can often seem like an impenetrable
morass of rules and regulations. And for students who are training to work as
public administrators or policy analysts, we hope this book will help them
navigate the treacherous reefs of administrative law and procedure rather than
run aground through poor legal navigation or, worse, remain at anchor,
paralyzed by legal uncertainties. We hope, in other words, to help people
aspiring to work (or already working) in government and the private sector
acquire knowledge for effective decision making and policy evaluation, so
they will understand how administrative law shapes their choices and can
assess its impact on furthering democratic values.
We have tried for the most part to write about administrative law as clearly
as possible for non-law students. Part I presents a working definition of
administrative law and introduces a theoretical framework for evaluating
modern administrative law. Part II reviews some of the major issues in the
field, and Part III illustrates these issues in action. Part IV draws upon the
knowledge readers have gained in the first three parts to evaluate the politics
of contemporary administrative law issues, such as privatization and
outsourcing of government services.
None of us can make much conceptual sense of law and politics until we
are able to fit what we see into some theoretical structure. Therefore, this
book emphasizes more than other texts what the rule of law means and how it
operates in administrative governance. We believe this focus will aid
practitioner and academician alike. You will find our approach introduced
and sketched out in Part I, referred to in passing in Parts II and III, and fully
defended in Part IV.
Judging by the theories of law and politics presented in this book, we
believe that administrative law today lacks a unifying philosophical basis.
Some may count the field’s lack of a clear normative voice as a virtue on the
ground that it permits a more fluid, pragmatic, and incremental evolution of
policy. We disagree. This book, in other words, does take sides. At least users
who disagree with our positions will have what we hope are evaluative
standards to argue against (e.g., fairness and equality in the rule of law,
transparency, and accountability).
The hardest part of developing this book was deciding what to leave out.
We are writing here for non-lawyers about a murky, sprawling, and arguably
underdeveloped branch of law, one rich with issues about which law
professors and judges abidingly disagree, and rife with topics that have a
reputation for being (next to “estates in land”) some of the most highly
technical material taught in law school. Thus, much has been omitted.
Teachers and readers with strong administrative law backgrounds will have
to accept that many of the more interesting legal puzzles—the Administrative
Procedure Act’s labyrinthine definitions of rules and rulemaking, orders, and
adjudication—do not appear here, precisely because they are so interesting to
law professors. Given those objectives, we have de-emphasized some classic
cases like Crowell v. Benson because the complicated contexts from which
they arise are likely to confuse non-lawyers, and because the law they
represent has little practical significance in the present day. We have tried to
include cases easily digested by readers who have not had formal legal
training. And we have tried to present cases featuring a diverse array of the
federal and state agencies whose work those cases reveal in order to expand
students’ appreciation for the scope and complexities of the administrative
process.
A few practical suggestions for learning and teaching from this book may
be helpful. First, do not be surprised if the material as organized by chapter is
not in the end as neatly divided as it appears from the table of contents. In
part, this intersection and overlapping of topics follows from the nature of
administrative law itself. Thus, when you reach chapter 9 you will find
material on administrative enforcement that recalls the discussion of
administrative information-gathering found in chapter 5.
Second, because of the richness and diversity of administrative law,
teachers are often tempted to focus on the many extant exceptions and
qualifications to more generally accepted rules. This approach can create a
choppy text and a discontinuous course of study that students may find
difficult to follow. We have tried to avoid this by placing some of the
contradictory but nevertheless important material in the “Exercises” sections
at the end of each chapter. We hope the chapter-end exercises and questions
stimulate and aid effective teaching. Please be aware, however, that some of
these sections make points that teachers and students will not want to neglect
and that they will not find in the body of the book.
Third, we have organized Part II roughly to follow the steps of an actual
contested administrative action, from information gathering to judicial
review. College students and graduate students in masters of public
administration programs much appreciate this sequence. However, teachers
who put judicial review at the theoretical front of their courses, in the manner
of Gellhorn, Byse, Strauss, Rakoff, and Schotland, for example, may prefer
that students at least skim chapter 10 as they read chapters 2, 3, and 4. As we
moved through the steps of the administrative process, we included in chapter
3 material on the current status of the “regulatory takings” doctrine, such as
state legislative actions following the Supreme Court’s decision in Kelo
(2005) and research on the ideologies and institutions of the private property
movement. Chapter 4 looks beyond the era of administrative discretion to the
post-Chevron legal developments. Here we have substantially revised our
discussion of how administrators and judges interpret legislative statutes. We
did so in order to clarify the philosophical, political, and economic stakes that
help explain why the Supreme Court—the Roberts Court—is divided on a
judicial theory of statutory interpretation, which ultimately regulates the
scope of administrative discretion. In addition, we want students to become
familiar with how different political actors in administrative governance
(executive, legislative, administrative, and judicial) mobilize and present their
competing theories of statutory interpretations in the context of particular
policy issues, such as the Affordable Care Act.
Fourth, throughout this new edition we give concrete examples of
challenges to agency overreach. Specifically, chapter 5 examines the role
administrative agencies perform in making information about our
government public under the Freedom of Information Act, while also secretly
collecting personal data from our emails and cell phones without establishing
prior probable cause (National Security Agency’s warrantless search and
seizure).
Fifth, while agency overreach may be particularly acute when it comes to
the government gathering electronic information, in this edition we continue
to focus on the enduring problem of non-enforcement and government
inaction in areas such as environmental regulation, consumer protection,
occupational health and safety, and antidiscrimination in education. In
chapter 7 we discuss a variety of administrative hearing procedures that may
reverse the trend toward agency inaction. For example, what are the merits of
models that provide Administrative Law Judges (ALJs) with resources to
hold agencies accountable for their inaction? In addition to public interest
groups seeking to judicially mandate hearing procedures to require that
agencies enforce their own rules, this chapter pays particular attention to the
federal government’s (Department of Education) new Title IX policy on
sexual assault, harassment, and other forms of sexual misconduct in
education and asks readers to consider whether or not it produces responsive,
regulatory enforcement. This perspective allows us to see beyond the
particular policy preferences of any one presidential administration to the
fundamental role of executive power in administrative policymaking and law.
Finally, as this edition of our book goes to press, the reign of a free-market
regulatory paradigm continues to be largely unabated over the last thirty-five
years, although it has not only fallen out of favor with American voters but
also with the automobile, banking, and insurance industries that long
advocated for deregulation. Major multinational corporations from these
same industries sought and received government financial bailouts on the eve
of the Great Recession. However, in the second term of the Obama
administration, the political will to respond to the structural inequalities and
shortcomings of free-market regulatory policies has yet to coalesce. We
continue, therefore, to highlight a growing trend by some states to institute
stricter pollution controls than those imposed under federal law and to raise
the minimum wage. Equally important, of course, are the policy outcomes of
administrative governances. Chapter 13 focuses on privatization as it has
been institutionalized under the rubric of free market economic self-
regulation. From the privatization of prisons to outsourcing the provision of
other government services, our commitment is to prepare students for a new
era of administrative law disputes, their attendant legal interpretations, and
the implications they will have on the direction of political change.
ACKNOWLEDGMENTS

his new edition builds on the talents of those colleagues who worked

T with us over the years to construct a sound text. We remain thankful to

them for their efforts. They are Professors Alfred C. Aman Jr., Indiana
University Law School; James Colvin, University of Colorado at Colorado
Springs; Lisa Bingham, Indiana State University; Chris Eisgruber, Princeton
University; Paul Foote, Eastern Kentucky University; William Froehlich,
George Mason University; Carolyn Long, Washington State University
Vancouver; Albert R. Matheny, University of Florida; Charles Nobel,
California State University, Long Beach; Paul Pope, University of Texas at
Brownsville; Roger Richman, Old Dominion University; James S. Robert,
University of Nevada, Reno; Steven Seitz, University of Illinois; Martin
Shapiro, University of California-Berkeley; Sally Jo Vasicko, Ball State
University; George Warp, University of Minnesota; and Peter Woll, Brandeis
University.
Political scientists and law professors who approach administrative law
with an eye toward strengthening democratic governance also inspired this
book. While we are mindful that the debate persists whether doctrinal
materials are properly part of an administrative law text or belong, rather, to
the agendas of public-interest law, we remain grateful to the late Professor
David Fellman and Professors David Trubek and Louise Trubek of the
University of Wisconsin, Madison, and to Joel Handler, University of
California, Los Angeles, who urged us to ask how administrative law may or
may not advance social justice in a liberal democracy. We also want to
acknowledge scholars in law and social science whose empirical and
theoretical work on comparative and transnational regulatory practices
contributed to this new edition: Professors Renee Cramer, Drake University;
Simon Halliday, University of Strathclyde, Scotland; Terry Halliday,
American Bar Foundation; Bronwen Morgan, University of New South
Wales, Australia; Patrick Schmidt, Macalester College; and Greg Shaffer,
University of California-Irvine, School of Law. Our students’ reactions to
earlier editions and their labor as research assistants were essential in
producing a book we hope will enliven the classroom. In particular, this new
edition benefited greatly from the research assistance of Peggy Fleming,
B.A., New York University (2014). We acknowledge and thank recent
teaching assistants and current PhD candidates at NYU—David Bergan and
Matt Canfield—as well as former NYU teaching and research assistants (who
are now professors in this field)—Gabrielle Clark, American University;
Leila Kawar, Bowling Green State University; Richard Stacey, University of
Toronto, Law School; and Ziya Umut Turem, Bogazici University, Turkey—
who provided truly invaluable feedback on what works and doesn’t work in
the classroom. Undergraduates also had a hand in shaping this text and we
are grateful for their assistance: Stuart Address, Rutgers University, New
Brunswick; Peter Brigham, Lake Forest College; and Sipoura Barzideh, Nina
Berman, Sarah Fritz-Randolph Brown, Hayley Campbell, Elizabeth Dick,
Alex Fotopoulos, Ben Howard, Sarah Lensing, Filip Mardjokic, Ryan P.
McCarthy, Tamilla Nurizada, Jonathan Salamon, Larry Shapiro, Thais-Lyn
Trayer, and Catherine Zack at New York University.
Finally, we have worked with several great editors over the course of
writing this book. First, John Covell, now at Yale University Press but
previously at Little, Brown, encouraged us to do the second edition, which
we did with the support of two editorial groups and two publishing houses
over the course of a corporate buyout: Richard Welna at Scott Foresman and
Company and Lauren Silverman, Catherine Woods, and Michael Weinstein
at HarperCollins. The third edition was placed in the trusty hands of Eric
Stano, Acquisitions Editor, Political Science, and his staff at Addison Wesley
Longman shortly after they purchased the college division of HarperCollins.
This new edition is the result of the exceptionally talented team of people
at CQ Press/SAGE Publications. In particular, Charisse Kiino, Director of
SAGE/CQ Press College Editorial, exemplifies the highest standards in
textbook publishing for the fields of law, politics, and government. Along
with her well-deserved reputation for superbly working with authors, we
deeply value her ever-creative insights and strategies about education and
once again thank her for all her support. Thanks to Sarah Calabi, Acquisitions
Editor, and Davia Grant, Editorial Assistant, for shepherding the manuscript
from final draft to published book. Jane Haenel, Production Editor, diligently
and very competently transmitted our manuscript through the production
process, first into the capable hands of copyeditor Ellen Howard. Tricia
Currie-Knight, the proofreader, and Joan Shapiro, who prepared the indexes,
also deserve our thanks and appreciation. Amy Whitaker and Jennifer Jones,
Marketing Manager and Associate Marketing Manager, have done a fine job
in getting the word out about this edition. In the end, of course, we assume
responsibility for the text, but all of these people helped us realize what an
administrative law and politics book could be, and we acknowledge them
with gratitude.
Christine B. Harrington
August 2014
ABOUT THE AUTHORS

Christine B. Harrington is professor of politics at New York University;

she is also affiliated with the Institute for Law and Society and New York
University School of Law. She is the author of Shadow Justice: The Ideology
and Institutionalization of Alternatives to Court and editor of Lawyers in a
Postmodern World: Translation and Transgression (with Maureen Cain) and
The Presidency in American Politics (with Paul Brace and Gary King). Her
publications have appeared in Social and Legal Studies, Law and Policy, Law
and Society Review, and Journal of Law and Policy, among others. She
received the APSA Law and Courts Section’s Teaching and Mentoring
Award in 2004, and she is co-founder and chair of the Consortium on
Graduate Law and Society Programs.

Lief H. Carter served as Colorado College’s McHugh Distinguished

Professor of American Institutions and Leadership from 1995 to 2004. He
taught at the University of Georgia from 1973 to 1995. He is the author of
Reason in Law, 7th Edition, and has published major texts in constitutional
law, legal reasoning, and administrative law. He was the first faculty member
at the University of Georgia to receive the top award for teaching in two
different years, and he has won national awards and recognition from the
American Political Science Association.
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