Complex Interaction of Administration and Law
KeywordsPublic Administration Executive Branch Legislative Process Public Sector Organization Trial Court
Administrative Procedure Act: law that governs how cases are heard within the bureaucracy
Bureaucracy: the civil service arm of the executive branch
Incrementalism: the process by which small cases are made from existing decisions; relies on the use of precedent
Precedent: prior rulings by courts
The relationship between law and public administration is an active one – the complexity we see between public administration and law was built into our system of governing. The ways laws are created at the federal and state levels of government embody the diversity of interests represented by government. In addition to multiple branches of government is the use of different types of decision-making by and within each branch. The legislative branch, serving the interests of the public, relies on majority rule. The executive branch, charged with the execution of the laws, has a single decision-maker at its head. And the judicial branch, working to maintain the structure of law, uses a form of incrementalism. The variations in decision-making activities deepen the complexity of action in the government. The implementation of policies developed by the branches leads inexorably to a discipline of public administration that must persevere in the face of that complexity.
Public administration is at the center of the governing process. Public administrators exist within the political system that builds accountability checks through the same political structure that creates the policy. Legislation, executive directives, and judicial decisions are the bases of the power of public administrators to implement public programs. Administration is the embodiment of the law – without implementation, policies are mere exhortations of political preference. At the same time, public administrators are accountable to legislators to explain the programs implemented, to review by superiors in the executive branch to justify program actions, and faced with the possibility of being checked by a decision of a court. The complexity of the relationship between public administration and law is found in this multifaceted environment. With public action created by so many political and administrative actors of such varying responsibilities using so many different decision-making methods, how can the public administrator help but feel the stresses and strains of public action?
Law as the Basis of Public Administrator’s Actions
State and federal governments are created by their constitutions, which grant broad powers to government. A state’s constitution sets the requirements for the political activity of the state. For instance, citizens of Wisconsin have different rights protected by the Wisconsin Constitution than citizens of Georgia, whose rights are protected by the Georgia Constitution. However, neither state (or any state) may use its constitution or statutes to limit rights established by the United States Constitution. In the United States, constitutions contain three branches of government – legislative, executive, and judicial. Each branch has different constitutionally derived responsibilities, decision-making processes, and ways to fulfill those responsibilities. While it is not possible here to provide a primer on systems within each different branch of government, it is important to understand these systems as they form the bases of complexity. To understand how laws and rules are made that form the basis of administrative action while at the same time lay the groundwork for judgments of accountability on the implementation of those same laws, we must have a basic understanding of how those bodies act.
Legislatures craft laws. While the legislature alone cannot cause a law to come into existence by passing it, the vast majority of public policies and the resulting programs are begun through legislative processes. The many steps proposed legislation must go through ensures that the decision-making structure of the legislature – majority rule – serves the purpose of fulfilling the constitutional role given to the legislative branch of providing representation for individuals who aren’t directly involved in government. For a policy to move to the executive to be signed or vetoed, the proposal must survive review at multiple levels within each house of the legislature. This review is both substantive and procedural. A bill begins in language proposed by multiple parties; public policy ideas can be advanced by any element of society. Once there is agreement that a public policy is needed and that the proposed legislation is the appropriate way for that policy to be created, the bill begins its journey through the legislative process. That journey is marked by substantive analysis– work done by subcommittees that specialize in the topic of the public policy under consideration – and procedural steps. Procedural steps include advancing a bill from committees that assess the appropriateness of the proposed bill to steps created within each house to allow for control of the rate at which policy is brought to the attention of the entire house. It is easy to recall instances where one or two members of a legislative body are successful in delaying or preventing policy from being considered. Those instances, though notable, are not common of procedural checks on proposed legislation. Instead, the most common check on legislative policy proposals comes from the substantive review each public policy proposal must survive. After the procedural process has begun, every proposed piece of legislation is reviewed by at least one committee in both houses of the legislature. Due to the sheer amount of legislation proposed every session, proposed bills are assigned to subcommittees. Once in a subcommittee, the bill must withstand the pressures of political partisanship through the rigorous review of the necessity of the policy contained within the bill. Bills that don’t make it “die in committee.” After a bill is voted out of the subcommittee and then the committee, it may be brought to a vote before the entire house. Before a vote, the leadership of the house must agree to let that vote happen. If a bill is considered by the entire house, it goes through another round of partisan debate. The purpose of all of this debate is to ensure that the policy created is in the best interests of the people affected by it. Majority rule works to ensure that the legislation has been fully considered and modified so that more than half of the legislative body thinks that the policy will be good for the people most affected by the bill. If a bill clears each house of the legislature, it must be reconciled so that both houses can pass a single version of the bill. This is both a substantive step and a procedural step that must be completed before a bill is brought to the executive for signature or veto.
Legislative Action as the Basis of Administrative Power
The visible output of the legislative process is statutory law. Within these laws we expect to find directives about how the laws should be implemented and information about how desired outcomes might be achieved. Instead, we find that legislation is the beginning of a process. Administration of statutory law does not often have a straightforward path to implementation of a program. Instead, “[f]ollowing on the heels of the legislation are a series of administrative actions – regulations, guidelines, budget decisions, reorganizations, and so on” (Elmore 1980, p. 9) that must ultimately be considered part of the legislative process. While the legislature passes laws that have policies and programs, administration gives those laws life. And in the process of doing so, administration becomes part of the legislative process. Without the law there is no power for public administrators to accomplish programs. Without administration any program created will remain on the page of statute. This, then, is one face of the interaction between administration and statutory law: In the case of programs created through legislation, the absence of action by either party will result in a weaker or non-existent outcome.
The process of implementing programs created through legislation is sequential but not separate. Indeed, while Elmore focuses his analysis on the legislative/administrative relationship, he introduces a site of intersection between administration and law, that of the relationships between the executive branch powers and administration. The process of “doing” public policy is delegated to public administrators who are given the power to use discretion in implementing the policy. This discretion may amount to handing over some policy making power. Michael Lipsky (1980) describes the use of discretion by street-level bureaucrats. Lipsky notes that the street-level bureaucrat is the ultimate policymaker – policy is made when it is used and not when it is created. This is the logical extension of the role of the first instance of interaction noted above. However, the use of discretion can easily lead to allegations of misuse of the power granted by the original legislation. Legislatures use oversight to assess whether allegations are true.
Legislative Accountability Checks
Administration is necessary to bring legislatively enacted public policy to life. In every program created within each piece of legislation, a number of parties have tried to exercise influence. The strains of those efforts may be seen in the programs created to ensure that the policy is accomplished. It is the job of the public administrator to ensure that the policy and the program created by the legislature are carried out as required by the legislation. It is important to watch for points where strains created within the substantive and procedural processes of legislating result in programs that may not function well. Not understanding how the policy and resulting programs relate to legislation will lead to future issues with implementation and with oversight. Oversight by legislatures is most often done through hearings run by the subcommittees and committees that were responsible for creating the policy. Individuals on these committees are experts in the law as it was created and so expect to find that public administrative actions have been consistent with the law as each individual understood it. The accountability structure reflects the majoritarian decision-making process: public administrators are held to the policy ideals created by the legislation but may also be questioned about the administration of the policy from a partisan position. Again, it is the job of the public administrator to ensure that the policy and the program created by the legislature are carried out as required by the legislation.
At this point the muddling of the legislative oversight process should be apparent. Legislators create programs through majority-driven politics that contain partisan pressures. Administrators are given the program to implement, which requires a process that might include steps like rulemaking and organizational adjustments. The program, once formatted to fit within the overarching administrative structure, is given to street-level bureaucrats to administer, using some greater or lesser degree of discretion to carry out the program. Ultimately, the legislature checks the ways in which the program is administered, most likely relying on information given to it by the street-level bureaucrats and their supervisors. There is a large area of intersection between administration and legislation. While each element remains separate at times, each plays a crucial part in making sure that programs are delivered to recipients. The intersection is really an interaction – public administrators do not really become legislators, even when given discretion that is used by a street-level bureaucrat, and legislators don’t become administrators, even when using data to engage in oversight.
The Executive Branch
The executive branch houses a much more complex relationship with administration. This fact is glossed over because we think of the executive branch as “the administrative arm” of government. In fact, is much more than a set of bureaucracies. It is a political branch in the constitution and has responsibilities that go well beyond the administration of programs. The model of decision-making in the executive branch is dominated by responsiveness to a single actor – it is a unified structure by which the laws of the government are executed and is therefore managerial in nature. Questions of efficiency, effectiveness, equity, and responsiveness are hallmarks of this type of decision-making. In fact, its decision-making processes are far more varied than the managerial approach suggests. In this setting one complexity of administration and law is separating the processes and offices of administration from the legal responsibilities of the executive branch. Three aspects of activity in the executive branch that illustrate different decision-making methods that serve to highlight points how administration interacts with the executive include straightforward managerial/bureaucratic practices, political involvement in shaping decisions and carrying them out, and quasi-judicial models run by bureaucrats.
The managerial processes of the executive branch are guided by a multitude of public administrative theories and practices. For instance, we follow the dictates of public service that mean we act efficiently and effectively while maintaining equitable treatment of all individuals receiving services that is responsive to the law created through legislative and executive policies. Administration in a system that is driven by rules that shape the determinations of program status is the system of administration we know best. Activity guided by traditional public administration theory continues to develop today. Public administrators are charged with maintaining their own neutral standing within the political environment while acting through a market model of economically driven actions to incorporate all of management theories that exist and then innovating to push those management theories further (Denhardt and Denhardt 2000). This is the place, though, where the work Elmore (1980) describes is done. This is where budgets are drafted, organizations are created and disbanded, and rules are made.
Yackee and Yackee (2012) describe rulemaking as an administrative process that begins as implementing legislation and ends as a clear expression of administration’s assumption of lawmaking power. These authors note that rulemaking begins when administrators are “[t]asked with ‘filling up the details’ and ‘gaps’ in legislation,” and in the end “agencies routinely propose and promulgate regulations (or, synonymously, ‘rules’) that are as legally binding on regulated persons and entities as are the laws passed by Congress and signed by the President” (Yackee and Yackee, p. 1416). Rules may be required by legislation or by procedures already in place. The process of issuing a rule is governed by the Administrative Procedure Act (2006), either at the federal or state level. It is a lengthy process, going from giving public notice of a proposed rulemaking activity, to the publication of the proposed rule, to the publication of the final rule. The process is systematic and detail oriented, although modern exceptions to the rulemaking process set out in the Administrative Procedure Act have shortened the process requirements (Yackee and Yackee 2012). When a final rule is issued, all individuals and organizations that are covered by the subject matter of the rule must abide by it. There are three ways rules may be challenged. The first of these is in the executive branch. Every leader has created an administrative body charged with the responsibility of limiting the fiscal effects of a rule. If the cost of the proposed rule exceeds that level, the rule will not be created. The current administrative body that assesses and permits or denies the impact of rules at the federal level is the Office of Management and Budget. A legislature may choose to review the rule in an oversight hearing or as part of new legislation and the judiciary may choose to review the rule if someone affected by the rule challenges it in court. Unless one of those three things happens, the rule will remain in force. And the intersection between administration and law will be complete as the administrators have effectively created a specific law through rules promulgated in a specific policy area and have also taken the responsibility to implement that law. Decision-making in the executive branch is not immune from direct political influence. There are two primary sources of that influence: use of the executive order and the inclusion of political appointees in the bureaucracy. Executive orders serve multiple purposes. From directing actions of private contractors that have contracts with the federal government to orders that require that programs supplant elements of the political processes (Emancipation Proclamation, January 1, 1863), executive orders offer the leader in the system the opportunity to formulate policy and then have it implemented without going through the normal legislative process. Another form of political influence in the executive branch comes from the inclusion of political appointees in bureaucratic organizations. These appointments are made to ensure that the president’s policy is carried out in the form he decides to enforce. The number of political appointments into the bureaucracy and the extent of those appointments vary by president; the purpose of them remains the same. To ensure that all administrative actions are consistent with the president’s policy agenda, individuals loyal to that agenda are embedded within the administrative organization.
The final type of decision-making within the executive branch is where the greatest intersection between administration and law occurs, at times becoming inseparable. Some administrative bodies have the power to hold administrative hearings that are quasi-judicial in nature. The hearing officers are part of the executive branch structure – they are not politically placed, do not have direct ties to the legislature, and are outside the system of courts in the United States. Yet these administrative officers hold the power to alter administrative decisions, directly implement policies created by the legislature, and make determinations of fact that may be binding in a court of law. Administrative hearing officers and administrative law judges exist in many public sector organizations that distribute benefits directly to individuals where the level and type of those benefits are specifically determined by the legislature. One example of this form of administrative action is seen in the determinations made by administrative law judges within the Supplemental Security Income program administrated by the Social Security Administration. The handbook that covers this system, found at https://www.ssa.gov/OP_Home/hallex/, demonstrates the confusing role that administrative law judges play in the process of reviewing eligibility of people seeking benefits. The review system includes assistance from the Social Security Administration personnel in gathering data as well as defending the SSA against determinations of ineligibility made by that same organization. Administrative law judges are bound by the rules of discovery that are applied to courts but also may seek out additional information about the case in a way not permitted by regular courts. Determinations of eligibility and ineligibility might be viewed as creating and applying legislative standards but are instead viewed as a source of correction within the administrative body. The criticism that all three branches of constitutional government are contained in one administrative body seems appropriate, as is the recognition that in the case of administrative hearing bodies there is no true separation between administration and all three branches of constitutional government.
Executive Action as the Basis of Administration
As is clear from the description just given, the executive structure allows for a wide array of administrative activity. Although rooted in the managerial decision-making structure, this branch incorporates so many possible choices into that decision-making style that it moves beyond simple command and control or even bureaucratic discretionary use of power. The three elements of the executive branch that give rise to complexity are the development of management perspectives over time, the inclusion of political appointees in public sector organizations, and the use of the administrative hearing process. Each of these broadens the base that administrators may rest their decisions on – the breadth of control created by discretion to develop and implement new forms of program administration, work with political appointees to ensure that specific policies are advanced, and react to cases filed in the administrative review system and then react to the rulings of those decisions before the case may be appealed to a court outside the administrative structure. In fact, in the executive branch it is more likely that administration and law overlap rather than interact.
Executive Branch Accountability Checks
Public administrators are subject to classic command/control oversight. Superiors make assessments of the success and failure of administrative actions based on the standards of efficiency, effectiveness, equity, and responsiveness. The processes of innovation mentioned above come from those assessments. Where the activity of the public administrator in implementing rules and laws is judged to be inadequate, forces may be brought to bear to move administration so that greater success can occur. A second set of constraints can be made by the political appointees embedded in an executive organization. This system of control rests on the ability of political appointees, as supervisors with aspects of policy control, to force changes in line with the forces identified above. There is simply a different motivation behind the concepts of efficiency, effectiveness, equity, and responsiveness. We expect a political motivation to differ from an administrative motivation simply because the use of an appointee implies political control of administration of policy. The last set of constraints comes from the inclusion of quasi-judicial decision-making in executive organizations. The controls built into that decision-making process are based on an entirely different set of considerations than other forms of control. The mixture of how public administrators must interact with the claimant and administrative hearing officers by providing support to the claimant, represent of the organization’s interests, and respond when the result of an administrative hearing is appealed creates a system that closely resembles steps that must be taken when reacting to limitations from all branches of government.
The judicial branch is the third branch of constitutional government. Like the legislative and executive branch, courts have a unique way of reaching decisions. Courts use a decision-making process based on legal precedent and statutory interpretation as applied to facts. The use of legal precedent as a basis for decision-making by courts results in a system that is, in almost every instance, incremental (Shapiro 1965). Because the cases brought to courts rely on earlier rulings, any changes the parties can expect are limited by the earlier rulings.
The structure and process of courts are different from the other branches. There are only two forms of courts. These vary based on what kind of information is properly brought to be heard by the judge. The first type of court is a trial court. Trial courts hear information about facts and also apply the relevant law to those facts. Courts at the trial level are the only courts that hear the facts of the case. All other courts – courts of appeal – hear only about complaints that the law was applied incorrectly to the facts. This is an important distinction, as the party to the lawsuit that wins at the trial court gets that version of the facts accepted on appeal. There are, however, different types of trial courts in the United States. One set of these are the quasi-judicial (administrative hearing) courts within the executive branch. In most instances, each organization with an administrative hearing body has a process of review within the organization. That review process is parallel to the system of review in regular courts – once the initial facts are found and the relevant law/rules of the organization applied, the question on review is whether the law/rules were correctly applied. Some organizations have additional levels of review while others use only the first level of review. If a person is not satisfied with the results of the review, that person can appeal the case to a regular trial court within the state or federal system. The case is appealed to a federal district or appellate court depending on what the rules of the organization or the original statutory language requires. If moved to a state or federal court outside the review process of the organization, appeal processes are the same as those used in any other case. This is a significant point of interaction between the courts and administration. These practices may be set out in administrative processes and may also be created through legislation. Interestingly, this overlap in roles does not lead to a complex relationship between the administration and the courts. Because the processes are so similar, just taking place in different branches of government, there does not appear to be an issue of interaction. Instead, this seems to be more a replacement. Rather than moving from a completely executive decision-making process, the administrative hearing system mimics the courts, a fact that can be seen in the possibility of transition between the administrative hearing process and a court. The interaction that is complex is the one that occurs in the administrative branch as the review process begins.
The power of the judicial branch is limited. As already demonstrated, in most instances the decision-making structure used by the courts is incremental. While non-incremental decision-making does occur and these cases are not common, these are often the cases that attract most attention and when issued by the United States Supreme Court have the broadest impact. Decisions made outside the incremental process are derived by principles of government contained within the law. We expect these types of decisions to occur when someone challenges the actual legitimacy of legislative or executive action as unconstitutional. The interaction between administration and the courts is found in the decision whether or not to enforcement a court’s decision. Administrators do have discretion in the way decisions are enforced (the United States Supreme Court ruling in Brown v. The Board of Education had to be revisited because the local authorities failed to implement the Supreme Court’s ruling) and the courts have little recourse if an administrator fails to enforce a ruling.
A final interaction between administration and the court is found in the capacity of bringing suit and having suit brought against it. When an administrative organization is authorized by statute to bring cases to force behavior, the courts become another tool available to public administrators to force individuals or organizations to comply with law or rules. This is a novel form of interaction – administration is using the power of another branch of government to complete its own responsibilities. This is different than engaging in prosecutions in criminal settings. Enforcement actions may begin in a trial court or may begin as part of an administrative hearing process. The other side of this relationship is that public organizations may be sued. These suits may be in response to actions taken by the organization against an individual or the case may be brought to force the public organization to act. This is not as complex an interaction. In fact, in this case a third party is engaging in oversight through the judicial branch, which is much more in line with our expectation of how law is brought to bear.
Judicial Action as the Basis for Public Administration; Judicial Methods of Accountability Checks
The structure of the judicial branch provides a process guided by incremental system of decision-making. The purpose of incremental decision-making within the judicial branch is to ensure that the law as developed by judicial interpretation is created slowly and within a structure that can withstand challenges. Judicial decisions are implemented by the executive branch. Without executive branch involvement, rulings would not be enforced. This, then, is one point of interaction between the courts and administration – if an administrator fails to enforce a judge’s ruling, the case could be made that the law hasn’t been changed. Public administrators also use the courts to force individual actors to comply with rules or laws. The responsibility of public administrators to execute rulings of courts provides public administrators a different tool to use in implementation.
Judicial actions also provide oversight to ensure accountability of public organizations to the ideals of democratic activity. It is possible for administrative actors to look beyond their own jurisdictions and make judgments about the likelihood of suit based on the rulings of other courts. At times courts will rule against the government, asserting that a legislative or executive branch organization acted outside the powers granted by the relevant constitution. These non-incremental rulings may also be felt into the implementation processes. This is the primary source of oversight given to courts. The effectiveness of this one tool can be seen in the infrequency of its use – it is rare that public administrators have to hear from a court twice.
The relationship between public administration and law is a complex one, due in part to the number of points at which that relationship is experienced. Each branch of government has its own powers to create public policy; each branch has its responsibilities within the constitution that forms the basis of that government; and each branch has its own decision-making process. Public administrators find themselves at the crux of these attributes when creating, implementing, or modifying public programs. Both the power to act and the constraint on action of the public administrator come from all of these relationships. The complex system of government built to check inappropriate assumption of political power is visited upon public administrators – complex interaction in application of statutes, executive actions, and judicial rulings is necessary to complete the role of public administrators in process of government today.
- Administrative Procedures Act. 5 U.S.C. § 553 (2006)Google Scholar
- Denhardt and Denhardt (2000) Emancipation Proclamation, January 1, 1863; Presidential Proclamations, 1791–1991; Record Group 11; General Records of the United States Government; National ArchivesGoogle Scholar
- Elmore, RF (1980) Complexity and control: what legislators and administrators can do about implementing public policy. US Department of Education, Office of Educational Research and Improvement, National Institute of EducationGoogle Scholar
- Lipsky M (1980) Street-level bureaucracy: dilemmas of the individual in public service. Russell Sage Publishers, New YorkGoogle Scholar
- Shapiro M (1965) Stability and change in judicial decision-making: incrementalism or stare decisis. Law Transit Q 2:134Google Scholar
- Yackee JW, Yackee SW (2012) Testing the ossification thesis: an empirical examination of federal regulatory volume and speed, 1950–1990. George Wash Law Rev 80:1414Google Scholar