The Constitutional Context of US Public Administration

In 1887, Woodrow Wilson, who is often considered the founder of the aca- demic field of public administration in the United States, could write that public administration “at most points stand[s] apart . . . from the debatable ground of constitutional study” ([1887] 1987, 18). Perhaps in Wilson’s day, but no longer. Today public administrative processes and practices are in- fused with constitutional concerns—and as the following cases illustrate, sometimes in surprising ways.

• In 1952, President Harry Truman (1945–1953) issued an executive or- der authorizing his secretary of commerce to seize the nation’s steel mills in order to resolve a labor dispute that threatened to harm the US military effort in the Korean War.

• President Richard Nixon (1969–1974) sent a budget message to Con- gress in 1973 that included no funds for the Office of Economic Op- portunity (OEO). OEO’s acting director, Howard Phillips, started closing down the agency. He wanted to prevent wasteful spending on activities he thought would come to a screeching halt at the end of the fiscal year.

• In 1987, a grand jury subpoenaed Theodore Olson, a former assistant attorney general in the Environmental Protection Agency, at the be- hest of an independent counsel who believed Olson had given false and misleading testimony to Congress. Olson, who later became solicitor general in the George W. Bush (2001–2009) administration,

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Rosenbloom, David H.. <i>Administrative Law for Public Managers</i>, Routledge, 2013. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/csusb/detail.action?docID=1652860. Created from csusb on 2019-09-26 21:21:10.

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20 2. The Constitutional Context of US Public Administration

challenged the subpoena on the ground that independent counsel’s position violated the constitutional separation of powers. The inde- pendent counsel was appointed to the Department of Justice by a special federal court and could be dismissed by the attorney general only for very limited, performance-related causes.

• Seeking to make federal procurement more efficient and economical, President Bill Clinton (1993–2001) issued an executive order in 1995 authorizing the secretary of labor to bar purchases from firms that hired workers permanently to replace employees who were legally on strike. The National Labor Relations Act of 1935 protects an em- ployer’s right to utilize permanent replacements, but Clinton claimed the Procurement Act of 1949 and his position as chief executive em- powered him to override federal labor law when establishing policies for federal contracting.

• In 1993, Mayor Reid Paxon of Northlake, Illinois, removed John Gratzianna’s company from the town police’s tow truck rotation list. Paxon’s action deprived Gratzianna of the business generated by the town’s enforcement of parking and other traffic regulations. Gratzi- anna had a preexisting commercial relationship with Northlake but no contract. The mayor was showing his displeasure with Gratzian- na’s refusal to contribute to his reelection bid and for supporting an opposition candidate instead.

• In 1995, Patricia Garrett, who had breast cancer, was forced to give up her position as director of nursing for OB-Gyn/Neonatal Services at the University of Alabama Hospital because her boss felt that her illness and the medical treatment she was receiving made her an un- desirable employee. Garrett sued the hospital in federal court, claim- ing a violation of her rights under the Americans with Disabilities Act (ADA) of 1990.

• In 2002, the Sarbanes-Oxley Act created the Public Company Account- ing Oversight Board. The five-member board is appointed by the Se- curities and Exchange Commission (SEC), an independent regulatory commission established in 1934. The board has executive functions, including oversight of accounting firms that audit companies issuing publicly traded stock. Board members could be removed from their positions by the SEC, but only for good cause and according to spec- ified procedures.

Each of these cases raises a substantial constitutional issue. Presidents Truman and Clinton lacked constitutional and legal authority for their

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21The Constitutional Context of US Public Administration

executive orders. The head of the OEO was bound to follow the law, not the chief executive’s budget message. Olson overstated the extent to which the separation of powers compartmentalizes the branches of gov- ernment or places federal administration under the president. Although Garrett could sue a private employer who did the same thing, the Elev- enth Amendment bars such suits against states and their agencies and institutions. The mayor violated Gratzianna’s constitutionally protected freedom of speech. The organizational design of the Public Company Ac- counting Oversight Board violated Article II of the Constitution because it twice insulated its members from direct presidential control—the pres- ident could remove SEC commissioners only for inefficiency and other maladministration, and the SEC, in turn, could remove board members only for similar reasons. (The offending good cause provision was sev- ered from the Sarbanes-Oxley Act, and the board continues to operate as otherwise intended.)

These outcomes were not self-evident. Some made new law; others clarified or integrated existing principles. Together, they provide a sam- pling of how constitutional law frames many aspects of public admin- istration in this country. The cases involving Truman, Nixon, Olson, Clinton, and the Public Company Accounting Oversight Board speak to the limits of executive authority. Garrett was done in by the doctrine of state sovereign immunity, which is an important component of con- temporary US federalism. Paxon’s action illustrates that administrative decisionmaking is constrained—sometimes in surprising ways—by indi- viduals’ constitutional rights. Constitutional law is ever changing, and even practices as old as the American republic itself, such as partisanship in hiring, firing, and contracting, can one day be ruled unconstitutional (Rutan v. Republican Party of Illinois 1990; O’Hare Truck Service, Inc. v. City of Northlake 1996).

This chapter explains four key aspects of public administration’s con- stitutional framework: (1) the separation of powers, which places ad- ministrative agencies under executive, legislative, and judicial authority; (2) federalism, which affects the relationships between state and federal administrators; (3) individuals’ rights in the context of different adminis- trative encounters; and (4) public administrators’ liabilities for violating individuals’ constitutional rights. Together, these constitutional features define and confine US public administration. They make it clear that al- though politicians, reformers, and media pundits often call for running government like a business, constitutional law makes the public’s business very different from others.

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22 2. The Constitutional Context of US Public Administration

The Separation of Powers

The US Constitution’s separation of powers has a tremendous impact on federal and state administration. It divides authority over public agen- cies and administrators. Legislatures and courts, as well as executives, are constitutionally mandated to play substantial roles in public administra- tion. Each branch brings a somewhat different value set to administration. Almost everybody wants the efficient, economical, and effective govern- ment associated with good public management. But at what cost to other concerns? Legislatures write administrative law to promote representa- tiveness, public participation, transparency, and fairness in public admin- istration. These values are also widely shared by Americans. The same is true of the courts’ efforts to protect the integrity of constitutional structure and individual rights. Maximizing all these values simultaneously is of- ten impossible. One person’s open, participatory public administration is another’s delay and hurdle to achieving programmatic results; a judge’s procedural due process is an executive’s red tape; and so on and so forth. Yet the separation of powers is not merely about executive, legislative, and judicial controls over public administration; it goes directly to the matter of what public administration should be.

The US Constitution’s design for the separation of powers is extreme in its impact on federal administration. Its main provisions were written at a time when no one could have possibly foreseen the development of the modern administrative state. The number of civilian federal employees at its his- torical highpoint—4 million in 1945—was just about equal to the entire US population when the Constitution took effect in 1789. Although the framers’ provisions for public administration were rudimentary at best, they remain largely in place today. By contrast, the states have found it easier to amend their constitutions or even adopt new ones in order to keep pace with po- litical change, including administrative growth. They have been in a better position to clarify powers over public administration, especially those of the governor. By and large, local governments avoid the separation of powers altogether or rely on a much weaker version than the federal government. The following discussion focuses on Congress, the president, and the federal judiciary because the division of authority among them provides the clearest example of the impact of separation of powers on public administration.

Congress

It is fair to say that the Constitution makes Congress the source or author of federal administration (Willoughby 1927, 1934). Legislation is required

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23The Separation of Powers

to establish, empower, structure, staff, and fund federal agencies. Article I, section 9, clause 7 is unequivocal in providing, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Article II, section 2, clause 2 requires that all federal positions not specifi- cally established by the Constitution “shall be established by Law.” These provisions were written to check presidential power. In the absence of an appropriations statute, the president cannot constitutionally draw even a penny from the US Treasury; without delegated legislative authority, the president cannot create and legally empower a single administrative office.

Relying on its constitutional powers, Congress has substantially en- hanced its role in federal administration. Since 1946, it has reorganized and staffed itself for continuous oversight of the agencies. It also created the Congressional Research Service (CRS) and the Congressional Budget Office to obtain better information regarding federal administration and public policy. Additionally, the Government Accountability Office (GAO; originally General Accounting Office), another legislative agency, gained greater capacity to investigate and evaluate federal administrative op- erations. Congress has also relied on inspectors general, who have been dubbed “congressional moles,” and chief financial officers in the agencies to keep it informed about administrative activities (Moore and Gates 1986, 10). The Congressional Review Act (1996) enables Congress to perma- nently block agency rules (see Chapter 6). The Government Performance and Results Act of 1993 and the Government Performance and Results Act Modernization Act of 2010 require agencies to consult with Congress when formulating strategic plans and to issue performance reports.

The President

Some political scientists maintain that Congress, as a result of its constitu- tional authority and oversight activity, has gained dominance over federal agencies (see Wood and Waterman 1994, ch. 3). That may sound strange to the many Americans who look to the president to control and manage the executive branch. However, it is in keeping with what several presi- dents and high-ranking federal executives have had to say. When former vice president Dick Cheney (2001–2009) was White House chief of staff in the Gerald Ford (1974–1977) administration, he commented, “There’s a tendency before you get to the White House or when you’re just observing it from outside to say, ‘Gee, that’s a powerful position that person has.’ The fact of the matter is that while you’re here trying to do things, you are far more aware of the constraints than you are of the power. You spend most of your time trying to overcome obstacles getting what the President wants

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24 2. The Constitutional Context of US Public Administration

done” (Edwards and Wayne 1985, 351). President Jimmy Carter (1977–1981) may not have been the most effective president, but presidential power over federal administration may have hit its nadir when he complained, “I can’t even get a damn mouse out of my office,” due to a bureaucratic ju- risdictional dispute between the Department of the Interior (White House grounds) and the General Services Administration (White House building) (Barger 1984, 145).

Carter’s successors have done better, but both President Ronald Reagan (1981–1989) and President Bill Clinton met with considerable frustration in trying to promote fundamental administrative change. Reagan vowed to make the federal government smaller. When he left office, it was larger in terms of the number of cabinet departments, civilian employees, bud- get deficit, and spending as a percentage of the nation’s gross domestic product (GDP). With Vice President Al Gore leading Clinton’s Reinvent- ing Government initiative, various reforms were implemented, including downsizing, outsourcing, deregulating and decentralizing the personnel system, streamlining procurement, and setting customer service standards (Gore 1993, 1995). Yet surveys of federal employees indicated that the re- form effort had only a modest overall impact. Although 72 percent of the civil service knew about the reinvention effort, just 35 percent thought their own agencies made it a priority (Barr 2000, A27). It seems noteworthy that Gore barely mentioned the reinvention effort during his unsuccessful 2000 presidential campaign.

The president’s problem is that the Constitution’s provisions regard- ing the scope of executive authority over federal administration are very general. Article II, section 1 vests “The executive Power” in the president without specifying its content. President Theodore Roosevelt (1901–1909) declared that this gave him the “duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws” (Olson and Woll 1999, 15). On more than one occasion, Pres- ident Barack Obama (2009–) has echoed the same sentiment in indicating that if Congress doesn’t take action on issues such as climate change and creating jobs he will use executive power to accomplish what he believes is necessary in the public interest (Associated Press 2011; Marks 2013). In terms of federal administration, one wonders just what this power might be without preexisting legal authority congressionally delegated to the president or executive agencies to implement a public policy, spend money, hire staff, or establish new administrative organizations. Congress is often called “the first branch,” because very little can happen in terms of domes- tic administration until it provides statutory authority and funding.

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25The Separation of Powers

Article II, section 3 is even more abstruse in authorizing the president to “take Care that the Laws be faithfully executed.” Notice the “be.” The framers charged the president not with faithfully executing the laws but apparently with overseeing and coordinating their execution—and not necessarily on an exclusive basis. In so doing the president “may require the Opinion, in writing, of the principal Officer of each of the executive Departments, upon any Subject relating to the Duties of their respective Offices” (Art. II, sec. 2, cl. 1). The president also has “the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session” (Art. II, sec. 2, cl. 3). This alternatively suggests that the president is either in charge of federal administration or merely a caretaker when Congress is not in session.

When federal administrators are caught between competing congressio- nal and presidential commands, they are constitutionally required to take refuge in the law. A Supreme Court decision issued in 1838 remains good constitutional principle today: “It 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 [C]onstitution; 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 1838, 610).

Howard Phillips’s mistake, as acting director of the OEO, was precisely listening to the president rather than the law. He believed it was his “duty to terminate that agency’s functions to effect the least ‘waste’ of funds” (Local 2677, American Federation of Government Employees [AFGE] v. Phillips 1973, 73). To the contrary, ruled the district court, “No budget message of the President can . . . force the Congress to act to preserve legislative pro- grams from extinction prior to the time Congress has declared they shall terminate, either by its action or inaction. . . . An administrator’s respon- sibility to carry out the Congressional objectives of a program does not give him the power to discontinue that program, especially in the face of a Congressional mandate that it shall go on” (Local 2677, AFGE v. Phillips 1973, 75, 77–78). (In the end, some of the OEO’s functions were transferred to other agencies, and it was disbanded.)

Clinton’s executive order barring federal contracting with firms that permanently replace lawful strikers ran into a similar problem. Clinton claimed that the order’s purpose was “to ensure the economical and ef- ficient administration and completion of Federal Government contracts” (Executive Order 12,954 1995, sec. 1) and that it was congruent with the

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26 2. The Constitutional Context of US Public Administration

purposes of the Procurement Act of 1949. Again, a federal court saw things differently:

It does not seem possible to deny that the President’s Executive Order seeks to set a broad policy governing the behavior of thousands of Ameri- can companies and affecting millions of American workers. The President has, of course, acted to set a procurement policy rather than a labor policy. But the former is quite explicitly based—and would have to be based—on his views of the latter. . . .

No state or federal official or government entity can alter the delicate balance of bargaining and economic power that the NLRA [National La- bor Relations Act of 1935] establishes, whatever his or its purpose may be.

If the government were correct [in its arguments supporting Clinton], it follows . . . that another President could not only revoke the Executive Order, but could issue a new order that actually required government contractors to permanently replace strikers, premised on a finding that this would minimize unions’ bargaining power and thereby reduce procurement costs. (Chamber of Commerce of the United States et al. v. Reich 1996, 1324 [emphasis added])

In short, the executive power does not give the president authority to use administrative processes, such as procurement, to contravene or cir- cumvent federal statutes—even in the name of efficiency, economy, or ef- fectiveness. If it did, as the court suggests, national policy could become unstable, and the rule of law might dissolve. Moreover, the president’s de facto lawmaking power would be vast: in the mid-1990s, federal contracts accounted for 6.5 percent of the nation’s GDP and 22 percent of its employ- ment (Chamber of Commerce et al. v. Reich 1996, 1338).

Morrison v. Olson (1988), the independent counsel case, limits presiden- tial power over federal administration from another angle. It essentially holds that the executive branch does not belong to the president but rather is subordinate to Congress and the federal courts as well. In a sense, the agencies are under the “joint custody” of all three branches, though Mor- rison v. Olson does not use that term specifically (Rourke 1993). The Ethics in Government Act of 1978 provided for the appointment of indepen- dent counsels by a federal court, called the Special Division. Independent counsels were vested with the “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or em- ployee of the Department of Justice” (Morrison v. Olson 1988, 662). They could be dismissed only by impeachment and conviction or by the “per- sonal action” of the attorney general “for good cause, physical disability,

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27The Separation of Powers

mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties” (Morrison v. Olson 1988, 663 [emphasis added]). No wonder Theodore Olson thought that Alexia Morrison, the independent counsel, was vexing him unconstitutionally. She was engaged in a core executive function—execution/enforcement of the law—and able to draw on the resources of the Department of Justice. Yet she was appointed by a court and provided by Congress with substan- tial legal protection from dismissal by her nominal superior, the attorney general, and she could not be fired directly by the nation’s chief executive, the president, at all.

The Supreme Court found this arrangement perfectly acceptable. The Constitution’s Appointment Clause specifically provides that “Congress may by Law vest the Appointment of . . . inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments” (Art. II, sec. 2, cl. 2). Its wording left three main questions open:

• Was Morrison an “inferior officer” (as opposed to a principal officer, such as a department head, who must be appointed by the president with the advice and consent of the Senate, except when the latter is in recess)? Yes.

• Was there “some ‘incongruity’ between the functions normally per- formed by the courts and the performance of their duty to appoint” independent counsels? No.

• Did the independent counsel provisions “interfere impermissibly” with the president’s “constitutional obligation to ensure the faithful execution of the laws”? No. (Morrison v. Olson 1988, 676, 693)

In a lone dissent, Justice Antonin Scalia protested, “There are now no lines. If the removal of a prosecutor, the virtual embodiment of the power to ‘take care that the laws be faithfully executed,’ can be restricted, what officer’s removal cannot? This is an open invitation for Congress to exper- iment” (Morrison v. Olson 1988, 726). Precisely—that is the nature of joint custody. In the context of some administrative processes, such as dismissals and rulemaking, whole units—the independent regulatory commissions— may be beyond the direct reach of presidential executive powers (Moreno 1994). In Humphrey’s Executor v. United States (1935, 628), the Supreme Court held that members of the Federal Trade Commission, which has quasi- legislative and quasi-judicial functions, occupy “no place in the executive department” and exercise “no part of the executive power vested by the Constitution in the President.” By implication, the independent regulatory

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commissions are sometimes considered a “headless fourth branch” of the government.

The Sarbanes-Oxley Act’s provision for removing members of the Pub- lic Company Accounting Oversight Board was unconstitutional because it doubly insulated them from direct presidential control. The president’s power to remove SEC commissioners is limited to reasons of inefficiency and other maladministration. The SEC, in turn, could remove members of the board only for similar “good cause” reasons. The Supreme Court held that

such multilevel protection from removal is contrary to Article II’s vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an of- ficer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharg- ing them improperly. That judgment is instead committed to another of- ficer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagrees with him. This contravenes the President’s “constitutional obligation to ensure the faithful execution of the laws.” (Free Enterprise Fund v. Public Company Accounting Oversight Board 2010, 3147)

The Court went on to note that this two-level insulation also impairs “the public’s ability to pass judgment on [the president’s] efforts,” is “in- compatible with the Constitution’s separation of powers,” and would reduce the president to “cajoler-in-chief” (Free Enterprise Fund v. Public Company Accounting Oversight Board 2010, 3155, 3157).

Constitutional joint custody of administration hardly renders the presi- dent powerless. President Truman’s effort to take over the steel mills was beyond his constitutional authority—even as commander in chief during a major war. However, his action yielded an important formula for assess- ing presidential powers that continues to inform analysis of the scope of executive authority today. As explained by Justice Robert Jackson in a con- curring opinion,

1. When the President acts pursuant to an express or implied autho- rization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . .

2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent

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powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. (Youngstown Sheet & Tube Co. v. Saw- yer 1952, 636–637)

The president’s large role in federal administration is primarily a product of the circumstances in Jackson’s first category. Congress delegates a great deal of initiative and authority over administration to the president. It looks to presidents for faithful execution of the laws it enacts, cost-effective day- to-day management, and coordination of the agencies’ activities. Through legislation, Congress has given the president leadership roles in federal bud- geting, personnel administration, and, to a lesser extent, agency organiza- tional design. Within this framework, presidential power is exercised with a tool kit of sorts, consisting largely of the Executive Office of the President (EOP), political appointees, and executive orders.

The EOP was created in 1939 in response to massive administrative ex- pansion under President Franklin D. Roosevelt (1933–1945) and the New Deal, which resulted in some one hundred agencies reporting directly to the president. Its primary purpose was to give the presidency the organiza- tional capability to direct, coordinate, and monitor federal administrative activity. Today, its main units of importance to the agencies are as follows:

1. The White House Office, which promotes the president’s policy agenda within the agencies, coordinates their activities, generates solutions to administrative and policy problems, and resolves con- flicts among the president’s appointees. It also includes the presi- dent’s top advisers, the press secretary, legal advisers, and others who assist the president on a day-to-day basis. The White House Office has generally had more than four hundred employees under recent presidents. (It had 468 in 2012 [White House 2012].)

2. The Office of Management and Budget is perhaps the president’s major source of control over contemporary federal administration. In 1970, the OMB replaced and expanded on the activities of the Bu- reau of the Budget, a unit first created in the Treasury Department in 1921 and later moved to the EOP in 1939. OMB plays a major role in formulating the federal budget for submission by the president to Congress; supervising agencies’ spending, rulemaking, policy, and regulatory initiatives; and coordinating administrative activity. Its

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Office of Information and Regulatory Affairs is especially important in overseeing and coordinating agencies’ rulemaking and their use of forms and similar instruments for collecting information. It is charac- teristic of the separation of powers that although OMB is a quintes- sential presidential agency, the director, deputy directors, and head of OIRA require Senate confirmation. In recent years OMB has housed approximately five hundred employees.

3. The National Security Council, established in 1947, advises the pres- ident on the coordination and integration of domestic, foreign, and military policy as it relates to national security. Its leadership com- prises mainly federal officials with other responsibilities, including the president, vice president, secretaries of the Departments of State and Defense, director of central intelligence, and chair of the Joint Chiefs of Staff.

4. The Office of Policy Development and similarly named units have had a checkered history since 1970, when first established. Their basic purpose is to help formulate, coordinate, and implement the presi- dent’s domestic policy agenda. By and large, domestic policy units have been overshadowed by OMB.

Other EOP units include the Office of the Vice President, the Council of Economic Advisers, the Council on Environmental Quality, and offices for drug control, science and technology policy, and foreign trade. Presidents have considerable flexibility in using these units to promote their policies, although several of the top EOP appointees outside the White House Of- fice require confirmation by the Senate. In 2001, President George W. Bush (who took office that year) established the Office of Homeland Security (OHS) to coordinate the nation’s defense against terrorism. However, be- cause OHS was carved out of existing presidential authority and budget, rather than based on new legislation, its role was largely advisory. The federal budget for homeland security was spread across 2,000 separate agency and department accounts (Miller 2002). The inherent problems in this arrangement were a direct outgrowth of the constitutional limits on presidential power. In mid-2002, Bush called on Congress to enact a statute establishing the cabinet-level Department of Homeland Security to super- sede the OHS.

Political appointees to the departments and agencies also help the pres- ident direct and coordinate federal administration. Presidents rely on them to implement policy initiatives and to manage and monitor the career civil service on a day-to-day basis. There are several types of political appoin- tees of varying importance. Top-level appointees, such as department and

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agency heads or commissioners, require Senate confirmation, whereas most others do not. In recent years, the overall number of political appoin- tees has reached approximately 7,000, some of whom are part-time. About 800 are appointed by the president contingent on Senate confirmation,1 800 others are in the Senior Executive Service, and 1,400 are known as Schedule C appointees in the mid-range grades of federal agencies (Pfiffner, n.d.). Most of these appointees have policy-related functions, though perhaps limited at the Schedule C levels. Scholars consider this number so large as to impede efficiency and effectiveness (Light 1995; Cohen 1996). In prac- tice, all but a few department and agency heads have limited access to the president. They basically receive presidential direction through the White House Office and OMB. In terms of administration, the relatively short tenure of political appointees—often about two years or less in several presidential administrations—can be destabilizing or even disruptive to program implementation by the career civil service (Heclo 1977; Aberbach and Rockman 2000).

Executive orders are often a highly effective means of directing and con- trolling administrative activity. Presidents have issued more than 13,650 of them since 1862, when the term “executive order” was first used. They are a staple of presidential efforts to exercise authority over administrative agencies and processes. The executive order is one of the tools President Obama, who issued thirty-eight in 2012 and eighteen in 2013, has in mind when he says he will take action without Congress (National Archives 2012, 2013). Executive orders have been used, among other matters, to re- organize agencies, to require agencies to pay attention to particular val- ues such as vibrant federalism and customer service, to regulate agencies’ rulemaking processes, and to deal with federal personnel matters. They are often issued pursuant to congressional delegations of legislative authority, though they may be based on the president’s assertion of Article II author- ity alone. To be valid, their implementation cannot contravene the Consti- tution or statutory law. They can be challenged in federal court, as were Truman’s order dealing with the steel mills and Clinton’s regarding per- manent replacements for striking employees. Unless they fall into an area of exclusive presidential authority under the Constitution, Congress can negate them by statute (which is subject to presidential veto and override by a two-thirds vote in both the House of Representatives and the Senate).

To regulate the behavior of ordinary private citizens or businesses, an executive order must be based on a statute or a special connection to the

1. This figure excludes approximately 90 US attorneys, 94 marshals, and 180 ambassadors who also require Senate confirmation.

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government, such as being a government contractor. For example, Exec- utive Order 8,802 (1941) declared that “there shall be no discrimination in the employment of workers in defense industries or Government be- cause of race, creed, color, or national origin.” However, the prohibition of such discrimination in most private-sector employment had to wait several years for congressional legislation, namely, the Civil Rights Act of 1964. Overall, and perhaps by legislative default, executive orders have become a very powerful tool for regulating administrative processes and activity (Olson and Woll 1999).

Taken as a whole, then, Article II, delegations of legislative authority, and the tool kit put the president at the center of federal administration. Nevertheless, it is a mistake to assume that the executive branch is solely the president’s. On most administrative matters, presidential power is shared with Congress—and sometimes with the courts as well.

The Judiciary

The judiciary is central to public administration and administrative law in the United States. At the federal level, and perhaps in many states, liti- gation is a normal rather than extraordinary feature of the administrative process. Individuals and other entities often sue the agencies that regulate them, fail to satisfy requests under the Freedom of Information Act, or are otherwise thought to be in violation of their rights. Agencies use litigation to enforce statutes and administrative rules. Perhaps to taxpayers’ disbe- lief, sometimes federal agencies even sue each other (e.g., U.S. Department of Defense v. Federal Labor Relations Authority, discussed in Chapter 5). Liti- gation is so institutionalized that there is a specialized US Court of Appeals for the Federal Circuit that hears appeals dealing with patents, federal con- tracts, international trade, claims against the United States, federal person- nel matters, and veterans’ affairs. Through hundreds, if not thousands, of suits, federal and state judges define the constitutionality and legality of administrative procedures, decisions, and enforcement activities. Court decisions are part of the overall fabric of US administrative law. Conse- quently, their substantive holdings and requirements are fully integrated into this book’s discussion of rulemaking, adjudication, and transparency. However, because it is easy to get lost in the details of myriad judicial rul- ings and doctrines, the discussion here explains the overall framework and coherence of the judiciary’s impact on contemporary public administration.

Since the 1950s, the federal judiciary has responded to the post–New Deal and post–World War II role of public administration in the society, economy, and governmental structure primarily in four ways. First, it

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33The Separation of Powers

declared (or “created”) a vast array of new constitutional rights for indi- viduals in their encounters with public administrators. Prior to the 1950s, agencies’ clients or customers, employees, contractors, and those confined to prisons and public mental health facilities had very few constitutional protections against abusive administrative action. The same was true of individuals involved in street-level interaction with enforcement officers, such as police and health and safety inspectors. Since then, however, there has been a dramatic turnabout (discussed below in the section “Individu- als’ Constitutional Rights in Administrative Encounters”).

Second, the courts made it easier for individuals to gain standing (see Chapter 6) to sue administrators for violations of their newfound rights. Under Article III of the Constitution, the judicial power extends only to “cases and controversies.” Consequently, the federal district courts, circuit courts of appeals, US Supreme Court, and other Article III courts do not give advisory opinions. To bring a case against an administrative agency— that is, to have standing to sue the agency—the plaintiff must show that he or she has been, or will imminently be, injured by the agency in some concrete and particular way that can be redressed appropriately through a lawsuit. The courts can tighten or loosen the standards for standing when assessing the nature of the injury, its cause, the extent to which it is borne by particular individuals or an identifiable class of persons, and whether the remedy sought is appropriate. Merely being a taxpayer whose taxes increase due to an agency’s action is insufficient to create standing to sue a federal agency unless one is challenging Congress’s authority under its Article I, section 8 taxing and spending power (Flast v. Cohen 1968). Such an injury is shared with millions of other individuals and therefore is not particularized. One may also lack standing because the injury is too lim- ited to create a sufficient stake in the outcome of a suit, the injury was not caused by the party being sued, or the requested relief will not remedy the injury. At one point in the mid-1970s, the threshold for suing an agency 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). That opened the door to more suits and, consequently, more judicial involve- ment in administration. Today, the door remains open wider than through- out most of US history (but somewhat less so than in the 1970s).

Third, the federal judiciary developed a new type of lawsuit that facili- tates its direct intervention in public administration as a means of protecting the constitutional rights of discrete categories of people, such as prisoners or applicants for employment in a government agency. These suits, called remedial lawsuits, are aimed at creating thoroughgoing reforms in admin- istrative institutions and processes. Public school desegregation suits are a

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familiar example, in which judges become deeply involved in the operation of school systems in order to remedy previous violations of some students’ constitutional right to equal protection of the laws. Courts sometimes re- tain jurisdiction for years and may make decisions about neighborhood school boundaries, teachers’ salaries, curricula, the location of new schools and the closing of older ones, and even the architecture of school buildings. Prisons, jails, public mental hospitals, and public personnel systems have also been subject to such judicial oversight (Rosenbloom, O’Leary, and Chanin 2010; see also Missouri v. Jenkins 1995).

Fourth, as is discussed later in this chapter, the federal courts greatly increased the personal liability for monetary compensation and punitive or exemplary damages that most public administrators face for violating individuals’ constitutional rights. The administrators’ best defense against suits alleging an injury to someone’s constitutional rights is not to violate these rights in the first place. Because constitutional law “is what the courts say it is,” as Justice Lewis Powell once remarked, potential liability pro- vides a strong incentive for administrators to follow judicial decisions af- fecting the rights of their clients, customers, subordinates, contractors, or inmates, along with any others upon whom they may act in their official capacities (Owen v. City of Independence 1980, 669). Public administrators also need to integrate into their daily practices the constitutional values that underlie those decisions.

These four developments amount to a judicial response to the modern administrative state. Judges have declared new constitutional rights to pro- tect individuals against administrative abuses, made it easier for them to sue agencies and administrators, developed a type of lawsuit that enables judges to intervene directly in administrative operations, and made ad- ministrators who ignore the constitutional rights of others far more vul- nerable to personal liability. Much of their reasoning has been premised on the concern that “today’s mounting bureaucracy, both at the state and federal levels, promises to be suffocating and repressive unless it is put into the harness of procedural due process” (Spady v. Mount Vernon 1974, 985). It is also based on a desire to ensure that “where an official could be expected to know that certain conduct would violate statutory or constitu- tional rights, he should be made to hesitate” (Harlow v. Fitzgerald 1982, 819). Taken as a whole, the judiciary has “constitutionalized” public adminis- tration throughout the United States by establishing constitutional law as a basis for constraining administrative activity and defining its processes, values, and ethical requirements (Rosenbloom, Carroll, and Carroll 2000; Rosenbloom, O’Leary, and Chanin 2010; Rohr 1989).

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35Federalism

Federalism

Federalism—the division of power and sovereignty between the federal government and the states—is another constitutional arrangement of great importance to US public administration. The constitutional law of feder- alism is defined by the Commerce and Spending clauses in Article I, as well as by the Tenth and Eleventh amendments. The Tenth Amendment most succinctly underscores the basic theory of federalism in this country. The federal government is one of limited, enumerated powers, whereas the states have largely open-ended residuary sovereignty over a very broad range of policy areas: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The key issue in assessing federalism is determining which powers are denied to the states and which are vested in the federal government.

Because the states’ powers are open-ended, it is easier to say what they cannot do (as opposed to what they can do) under the Constitution. Prohi- bitions on state activity in Article I, section 10 include entering into treaties, alliances, and confederations; coining money; passing ex post facto laws, bills of attainder, and laws impairing the obligation of contracts; and grant- ing titles of nobility. The section permits the states to do the following, but only with congressional consent: levy duties on imports and exports (except those that are “absolutely necessary” for executing state inspection laws); keep troops or warships during peacetime; enter into compacts with other states or foreign powers; and engage in war, except if imminently threatened by invasion or actually invaded.

In addition to these limitations, the states are directly constrained by several constitutional amendments. In terms of contemporary administra- tion, the Fourteenth Amendment is most important. It reads, in part, “Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (sec. 1). The federal courts have interpreted the word “liberty” to “incorporate” much of the Bill of Rights (i.e., the first ten amendments) and to apply their restrictions, which originally pertained to the federal government, to the states. For example, the First Amendment’s provision that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press” applies to the states through the Fourteenth Amendment. As a consequence, the US Constitution and federal courts now play a much greater role in protecting individuals’ fundamental rights

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from infringement by the states than the framers anticipated in 1787. Sev- eral other amendments also directly limit the states. The Thirteenth (1865) bans slavery and involuntary servitude (except as punishment for con- victed criminals); the Fifteenth (1870), Nineteenth (1920), Twenty-Fourth (1964), and Twenty-Sixth (1971), respectively, prohibit abridgment of the right to vote on account of race, sex, failure to pay a poll tax, or age (for those eighteen and older). The Twenty-First (1933), by contrast, empowers the states to regulate the delivery and use of intoxicating liquors.

The Commerce Clause

Federalism is more complicated when the states are denied powers because they are constitutionally vested in the federal government. The Commerce Clause, in particular, has been central to defining the scope of federal and state powers. It authorizes Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (Art. I, sec. 8, cl. 3). However, it does not define “commerce” or “among.” The Su- preme Court’s interpretation of these words changes over time and thereby alters the balance of federal and state power.

At the low point of federal power, “commerce,” defined as buying, selling, bartering, and transporting, did not include production, manu- facturing, and mining. Regulation of these activities, including working conditions within them, was a matter for the states. The federal govern- ment could regulate commerce if it was interstate or had a direct effect on interstate trade. In the 1930s, the New Deal effort to overcome the Great Depression was frustrated by such a narrow Commerce Clause interpreta- tion, which put a great deal of economic activity beyond the reach of fed- eral regulation. For example, in 1936 the Supreme Court strongly rebuffed Congress’s attempt to regulate labor practices, wages, and other working conditions in coal mining: “The distinction between a direct and an indi- rect effect turns, not upon the magnitude of either the cause or the effect, but entirely upon the manner in which the effect has been brought about. If the production by one man of a single ton of coal intended for interstate sale and shipment . . . affects interstate commerce indirectly, the effect does not become direct by multiplying the tonnage, or increasing the number of men employed, or adding to the expense or complexities of the business, or by all combined” (Carter v. Carter Coal Co. 1936, 308). Under this approach, if production was local, there was no difference between one ton and a million tons, and a “production crisis in every part of the country simul- taneously could never add up to a national problem with which Congress could deal” (Pritchett 1977, 193). Regulation would have to come from the

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37Federalism

states, which for economic reasons might want to be more lax, or at least not significantly more stringent than their neighbors.

The Supreme Court’s constricted reading of the Commerce Clause in the 1930s triggered a great deal of criticism. President Roosevelt sought to “pack” the Court (i.e., expand its size in order to appoint up to six new jus- tices, who presumably would be more amenable to New Deal measures). The court-packing plan proved unnecessary. In 1937, the Court began to accept a broader role for the federal government in regulating the econ- omy. By 1942, the Commerce Clause could be used to regulate a farmer’s production of wheat on his farm in one state, even though almost all of it was consumed there and only a trivial amount ever entered any market. In the Court’s new and expansive interpretation of the Commerce Clause, “even if [the] activity be local, and though it may not be regarded as com- merce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect’” (Wickard v. Filburn 1942, 125). The Court’s under- lying theory was that if a large number of farmers grew and consumed wheat on their farms in excess of federal crop quotas, it would have a sub- stantial effect on the national market for wheat.

In addressing the current scope of the Commerce Clause, the Supreme Court explained,

[W]e have identified three broad categories of activity that Congress may regulate under its commerce power. . . . First, Congress may regulate the use of the channels of interstate commerce. . . . “‘[T]he authority of Con- gress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.’” . . . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in in- terstate commerce, even though the threat may come only from intrastate activities. . . . (“[F]or example, the destruction of an aircraft . . . or . . . thefts from interstate shipments. . . . ”). Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial rela- tion to interstate commerce. (United States v. Lopez 1995, 558–559)

Based on these principles, the Commerce Clause gives Congress power to enact such landmark legislation as the Civil Rights Act of 1964, which prohibits discrimination based on sex and the factors mentioned earlier in most employment, by labor unions, and in public accommodations and transportation. The clause also supports federal law against discrimination

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based on age or disability, as well as regulations for crop quotas, as in Wick- ard v. Filburn, noted above.

The breadth of the post–New Deal Commerce Clause raised two main questions. First, are there any limits to what Congress can regulate? After all, if sufficiently repeated or aggregated, almost any behavior Congress might reasonably want to control could have a substantial effect on inter- state commerce. Second, when does congressional legislation entirely pre- empt the states from regulating in the same policy area?

Until the 1990s, there appeared to be no clear limits to the federal gov- ernment’s Commerce Clause powers. However, in United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court emphasized that the act regulated must be economic in character. In Lopez the Court held that the Commerce Clause could not sustain a federal statute banning the possession of a gun in any school zone in the United States. The Court’s majority contended that if the statute were valid, “we are hard-pressed to posit any activity by an individual that Congress is without power to regulate,” and federal powers would therefore endlessly overlap those of the states (United States v. Lopez 1995, 564). Similarly, in Morrison the Court found a section of the 1994 Violence Against Women Act unconstitutional because Congress may not regulate “noneconomic, violent criminal con- duct based solely on that conduct’s aggregate effect on interstate com- merce” (United States v. Morrison 2000, 617).

In Gonzales v. Raich (2005), however, the Supreme Court held that mari- juana used for medicinal purposes under California law could be regulated under the federal Controlled Substances Act even though it was locally cultivated and never bought or sold. The Court reasoned that the mari- juana involved was part of a subset of economic activities that Congress could regulate, because

one need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cul- tivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance. The congres- sional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire reg- ulatory scheme is entitled to a strong presumption of validity. Indeed, that judgment is not only rational, but “visible to the naked eye,” . . . un- der any commonsense appraisal of the probable consequences of such an open-ended exemption. (Gonzales v. Raich 2005, 28–29)

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39Federalism

In dissent, Justice Sandra Day O’Connor contended that the majority’s decision was inconsistent with Lopez and Morrison. She noted, “Most com- mercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the su- permarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything eco- nomic. We have already rejected the result that would follow—a federal police power [in Lopez]” (Gonzales v. Raich 2005, 49–50).

As O’Connor’s dissent points out, it is fair to say that the majority’s rul- ing in Gonzales adds confusion to determining what constitutes an economic activity subject to regulation under Lopez and Morrison. In National Federation of Independent Business v. Sebelius (2012), which upheld the constitutionality of the Patient Protection and Affordable Care Act (“Obamacare”), the Su- preme Court set what seems to be a clear and indelible limit to congressional Commerce Clause authority. It held that Congress lacks the power to com- pel individuals to engage in commerce: “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority” (National Federation of Independent Business v. Sebelius 2012, 2587).

Preemption doctrine is also complex. The fact that Congress regulates something, such as the environment, does not automatically mean that the states lose all power to address the same policy area. For instance, a state might want its groundwater to be even freer of toxins than EPA standards require. However, when federal legislation comprehensively occupies a policy field, the states are preempted—that is, excluded—from asserting jurisdiction over it. In general, states are more likely to be preempted by federal legislation when (1) the policy area requires uniform national regu- lation, (2) the policy area has not historically been dominated by the states (e.g., nuclear energy), (3) dual regulation will promote conflict, and (4) a federal agency has been created to regulate the policy area. Business inter- ests often favor national regulation that preempts the states from setting a variety of separate standards, but both the federal and state governments are active in regulating health, safety, labor, the environment, transporta- tion, and other matters.

Federal preemption can also be based on the Commerce Clause alone. A judicial construct called the “negative” or “dormant” Commerce Clause prohibits state and local governments from passing regulations that dis- criminate against interstate commerce or impose burdens on interstate com- merce that are “clearly excessive in relation to the putative local benefits”

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(C & A Carbone, Inc. v. Town of Clarkstown 1994, 390). The usual motive for discrimination is to retain as much economic activity as possible within a state. For instance, a state might try (probably unsuccessfully) to require that all timber or shrimp harvested within its borders be processed there as well. The excessive burden test requires a subjective balancing by the courts. In one example, Arizona sought to enhance its reputation for fine ag- ricultural produce by requiring that cantaloupes grown there be packed in boxes clearly showing their origin. In order to ensure effective enforcement, the packaging would have to be done in Arizona as well. The Supreme Court found the regulation excessively burdensome to a grower who, lack- ing a packing facility in Arizona, shipped his cantaloupes to a nearby one in California and would have had to make a $200,000 capital investment to comply (Pike v. Bruce Church, Inc. 1970).

The Tenth Amendment

The Tenth Amendment ratifies the concept of dual sovereignty, whereby the federal government is sovereign in some areas and the states in others. The residuary state powers it protects necessarily vary with judicial inter- pretation of the Commerce Clause. As Justice O’Connor explained, “If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress” (New York v. United States 1992, 156). The broader state sovereignty under the Tenth Amendment, the narrower the Commerce Clause, and vice versa.

State sovereignty under Tenth Amendment interpretation waned in the wake of the New Deal. In 1985, the Supreme Court came close to holding that the amendment was no longer judicially enforceable. Rather, the states should look to their representation in Congress—the Senate, in particu- lar—for protection against federal encroachment: “The Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority” (Garcia v. San Antonio Metropolitan Transit Authority 1985, 552).

Tenth Amendment jurisprudence was resuscitated by the Supreme Court in the 1990s. Today, the amendment’s main ramification for pub- lic administration is to prohibit the federal government from compelling “the States to enact or administer a federal regulatory program” (New York v. United States 1992, 188). This means Congress cannot conscript or press state officers to implement federal laws (other than those statutes

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regulating the states themselves). For example, Congress cannot compel state law enforcement officers to perform the background checks required by federal gun-control legislation. Rather, the federal government must ei- ther gain the states’ cooperation or administer such a law through its own employees or agents. Even though the benefits of requiring state employ- ees to administer federal laws might far outweigh the costs, the Supreme Court rejected a “balancing analysis” where “the very principle of state sov- ereignty” is offended (Printz v. United States 1997, 932). This interpretation of the Tenth Amendment highlights the importance of the Spending Clause as a vehicle for exercising federal power.

The Spending Clause

The Spending Clause (Art. I, sec. 8, cl. 1) authorizes Congress to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” The clause has been interpreted expansively to permit Congress to use conditional grants to the states to achieve indirectly purposes it could not pursue di- rectly under the Commerce Clause or its other enumerated powers. For ex- ample, even if Congress cannot constitutionally set a national drinking age (something that is probable under the Twenty-First Amendment), it can induce the states to set the age at twenty-one by withholding federal high- way funds from those declining to do so (South Dakota v. Dole 1987). The key restrictions are that (1) the spending must be in pursuit of a general public purpose, (2) the conditions must be unambiguous so that the states clearly understand their obligations, (3) the conditions must be related to a “federal interest in particular national projects or programs,” and (4) the conditions cannot be prohibited by other constitutional provisions, such as the Fourteenth Amendment’s guarantee of equal protection of the laws (South Dakota v. Dole 1987, 207). It is also important for congressional use of the Spending Clause to buy, rather than effectively extort or coerce, state compliance (see National Federation of Independent Business v. Sebelius 2012). However, within these limits Congress has very broad power to influence state policy and administrative operations through conditional grants.

The Eleventh Amendment

The Eleventh Amendment (1795) protects the states’ sovereign immunity by preventing suits against them in federal court. It provides that “the Ju- dicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United

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States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Supreme Court has reasoned that “the preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities”; consequently, the scope of im- munity exceeds the letter of the Eleventh Amendment (Federal Maritime Commission v. South Carolina State Ports Authority 2002, 760). The Court has expanded this immunity to cover suits by the states’ own citizens as well as actions by private parties seeking adjudication of claims against state agencies in federal regulatory commissions, such as the Federal Maritime Commission.

There are several exceptions to the states’ immunity from suits in fed- eral court: (1) suits may be brought in federal court against named state officials for their violations of rights protected by the US Constitution, (2) a state court decision involving a constitutional issue or question of federal law can be appealed to the US Supreme Court, (3) the states may volun- tarily waive their immunity, and (4) Congress can override state sovereign immunity via the enforcement clauses of the Thirteenth, Fourteenth, and Fifteenth amendments.

This framework contains some additional qualifications. State officers and administrators cannot be sued in their official capacities in federal court for constitutional violations if the relief requested would require the state to pay money damages for past conduct. (As noted later in this chap- ter, state officers and administrators can be sued in their personal capaci- ties for such damages in federal court.) Suits are not barred if the remedy sought could require prospective state spending, as in remedial law deci- sions requiring prison reform.

Another complication involves congressional legislation under the en- forcement clauses mentioned above. These specifically give Congress the power to enforce the amendments “by appropriate legislation.” One means of enforcement is to authorize private individuals to sue a state in federal court for money damages for violations of their rights under any of the three amendments. However, in nurse Garrett’s case, the Supreme Court emphasized that for enforcement clause legislation to be “appropriate,” there must be “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end” (Board of Trust- ees of the University of Alabama v. Garrett 2001, 963). In applying this stan- dard, the Court concluded that the Americans with Disabilities Act was constitutionally defective in authorizing state employees like Garrett to sue their states in federal court. In developing the ADA, Congress failed to show a pattern of discrimination in state employment that would vi- olate the Equal Protection Clause. Consequently, the ADA’s override of

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the Eleventh Amendment was not congruent with and proportional to the harm it was trying to stem.

By preventing private individuals from vindicating their rights in federal court under statutes like the ADA, the Eleventh Amendment complicates public administration in the United States (Rosenbloom 2013a). Enforce- ment of such federal laws may require a federal agency to sue a recalcitrant state or attempt to gain compliance through conditional grants. Either ap- proach requires a greater federal administrative presence. Both are more costly and probably less efficacious than authorizing injured parties to sue the states directly. Furthermore, Eleventh Amendment immunity creates an incongruity of its own. It applies only to the states and affords no pro- tection to local governments. Consequently, the means available for safe- guarding individuals’ federally protected rights depends on which level of government has violated them. If a state wanted to reduce the overall vulnerability of its public sector to suits for money damages, it could put a higher proportion of local-level administrators on its payroll (McMillian v. Monroe County, Alabama 1997).

Individuals’ Constitutional Rights in Administrative Encounters

Constitutional law currently affords individuals broad rights in the con- text of their interactions with public administrators. At all levels of gov- ernment, public administrators’ encounters with clients and customers, coworkers, contractors, patients confined to public mental health facilities, prisoners, and individuals involved in street-level administrative regula- tion are significantly bounded by constitutional law (Rosenbloom, O’Leary, and Chanin 2010; Rosenbloom, Carroll, and Carroll 2000).

Relationships with Clients and Customers

Public administrative relationships with clients and customers are gov- erned by the constitutional doctrines of equal protection, “new property,” and unconstitutional conditions. Each of these was developed or substan- tially strengthened between the 1950s and the 1970s and continues to apply today.

Equal Protection. Contemporary equal protection doctrine has a three- tiered structure. The threshold issue is whether a government is classifying people by some characteristic such as race, sex, wealth, residency, or age. The classification may be implicit in a policy or its implementation rather

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than explicitly stated in legislation or formal regulations. However, if there is no classification, there is no equal protection issue. A “classification of one” is possible under equal protection, but unfair treatment of particular individuals is typically litigated under procedural due process protection against arbitrary or capricious administrative decisionmaking (Village of Willowbrook v. Olech 2000; Engquist v. Oregon Department of Agriculture 2008).

Classifications based on race or ethnicity are considered suspect. In view of the nation’s history, it is likely that they will be used to disadvantage mi- norities. They are subject to strict scrutiny (the courts’ most exacting level of judicial review) and are constitutional only when narrowly tailored to promote a compelling governmental interest. A heavy burden of persua- sion rests on the government, and the courts will not be deferential to its claims. These requirements apply whether the purpose of the classification is benign, as in the case of affirmative action, or invidious, as in the case of racial segregation.2 Classifications based on noncitizenship at the state and local levels may also trigger strict scrutiny.

Narrow tailoring is intended to ensure that a classification does not do significantly more damage to equal protection rights than is necessary to serve a compelling governmental interest. It is somewhat more flexible than a similar test, the least restrictive alternative analysis, which is sometimes applied to abridgements of First Amendment rights and requires govern- ment to use the least invasive means of achieving its compelling interests. Neither narrow tailoring nor the least restrictive alternative places much emphasis on the financial cost to government of finding ways to promote its interests that are less harmful to constitutional rights. Narrow tailoring generally requires that the use of a classification (1) be efficacious relative to other policy approaches that a governmental entity can reasonably be expected to consider; (2) have a fixed stopping point, either in terms of time or the achievement of a specific policy goal; (3) be sufficiently flexible so that irrational outcomes can be avoided; (4) in the case of affirmative action, be proportionate to the beneficiaries’ representation in the relevant population, not excessively harm the interests of nonbeneficiaries, provide individualized consideration of all applicants so that race or ethnicity is a contributing factor rather than a determinative one, and not insulate mi- nority applicants from competition with nonminorities (Grutter v. Bollinger 2003; Gratz v. Bollinger 2003; Fisher v. University of Texas at Austin 2013).

2. Benign and invidious are terms used in equal protection law. Justice Clarence Thomas is among others who maintain that no such distinction exists. See his opinions in Adarand Con- structors v. Peña (1995) and Fisher v. University of Texas at Austin (2013).

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Classifications based on factors that are considered somewhat remote from the Fourteenth Amendment’s central purpose of extending equal protection of the laws to racial and ethnic minorities, such as wealth and residency, are constitutional when they are rationally related to the achieve- ment of a legitimate governmental purpose. The burden of persuasion is typically on the challenger, and the courts grant considerable deference to the government’s claims. This analysis turns on mere rationality or rational basis. It also applies to classifications based on age and noncitizenship at the federal level. An exception occurs if a nonsuspect classification directly interferes with the exercise of a protected constitutional right. For example, a residency requirement for welfare eligibility might abridge the constitu- tional right of indigents to travel and relocate across state lines. In such a case, the classification is subject to strict judicial scrutiny and must serve a compelling governmental interest in a way that is narrowly tailored or, possibly, the least restrictive of the protected constitutional rights involved (Shapiro v. Thompson 1969).

Classifications based on biological sex are quasi-suspect and face an in- termediate test. They must be substantially related to the achievement of important governmental objectives. The courts may ask the government to provide an “exceedingly persuasive justification” for such classifications, many of which are legacies of earlier practices and beliefs about gender dif- ferences that society no longer supports (United States v. Virginia 1996, 531). For instance, women were once excluded from juries in order to shield them from hearing about the grisly acts of depraved criminals.

Contemporary equal protection interpretation constrains administrative behavior with respect to clients and customers in a range of circumstances. Most obviously, it prohibits racial and ethnic discrimination in public ed- ucation, housing, welfare, health, recreation, occupational licensing, and other programs, except where the government can meet the compelling governmental interest and narrow tailoring tests under strict judicial scru- tiny. Invidious discrimination is likely to be justified, if ever, under only the most extraordinary circumstances. Benign or remedial racial and eth- nic classifications, as in affirmative action and minority business set-asides, face the same test, but some may serve a compelling governmental interest in a narrowly tailored fashion. Even though classifications based on gender do not require a compelling governmental interest and narrow tailoring, it is highly unlikely that invidious discrimination against females or males will be constitutional in client and customer relationships.

Theoretically, the weaker standard for gender classifications makes it easier to justify affirmative action programs for women and girls than for minorities. However, in practice there may be no real difference. Allowing

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affirmative action on the basis of gender, which would substantially ben- efit white women, but not on the basis of race would run counter to the historical purpose of the Fourteenth Amendment. By contrast, the weaker standard might permit single-sex public schools or classes even though racially segregated ones would be unconstitutional. Classifications based on other factors, such as age, will most likely be constitutional unless they are clearly irrational or interfere with the exercise of another protected con- stitutional right.

New Property and Procedural Due Process. New property theory treats an individual’s governmental benefits as his or her own property, rather than as a privilege or gratuity (Reich 1964). As such, the benefits are covered by the Due Process clauses of the Fifth and Fourteenth amendments, which protect against the deprivation of “life, liberty, or property, without due process of law.” Consequently, welfare benefits, public housing, public ed- ucation, a variety of occupational and other licenses, and similar benefits cannot be withheld or terminated (during the period for which they have been offered) without a fair procedure.

Procedural due process requires a balancing of three factors: (1) the indi- vidual’s interest in the benefit and/or severity of the deprivation at issue; (2) the risk, if any, that the procedure in place will result in erroneous de- cisions, as well as the probable value of additional procedures in reducing errors; and (3) the government’s administrative and financial interests in avoiding additional or alternative procedures. The underlying assumption in this formula is that, in general, the more elaborate the procedures, the more costly they will be but the lower the risk of error. Once a statute or administrative regulation establishes a continuing new property interest, it can be withheld or terminated only in accordance with constitutional due process. In other words, statutory procedures for terminating a benefit, such as public housing, will be inadequate if they do not afford sufficient procedural due process.

The application of procedural due process is subjective. One must weigh both the individual’s and the government’s interests. Typically, two issues arise. First, is the client entitled to procedural due process prior to the ter- mination of a benefit during the term for which it is offered? Recipients of means-tested welfare benefits, which may be vital to their survival or ability to use post-termination procedures, generally enjoy a procedural due process right to some pretermination protection against erroneous ad- ministrative decisions. An exception exists when there is no factual dispute about their continuing eligibility.

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Second, how elaborate must the due process be? Procedures can range from highly informal notice and opportunity to respond, to a formal re- sponse in writing only, to the rudiments of a nonjury judicial trial with a right to counsel, presentation of evidence and witnesses, confrontation and cross-examination of adverse witnesses, a written transcript, a de- cision by an impartial decisionmaker, and a right to appeal (Goldberg v. Kelly 1970; Goss v. Lopez 1975; Mathews v. Eldridge 1976; Board of Curators of the University of Missouri v. Horowitz 1978). Impartiality prevents bi- ased officials or those who have investigated or prosecuted the case from making adjudicatory decisions (see Chapter 4). Sometimes pre- and post- termination requirements are linked. For example, because elaborate post-termination procedures are available to Social Security disability re- cipients, only limited procedure is required before these non-means-tested benefits are cut off.

The impact of new property doctrine on administration depends on the specific context. Pre- or post-termination hearings are common in decisions to terminate welfare, disability benefits, and occupational licenses. Suspen- sions and expulsions from public schools are also controlled by procedural due process. It is important to remember that when benefits expire because they were offered for a fixed term or terminate because the recipients have aged, moved, married, or otherwise changed their eligibility status, pro- cedural due process may require nothing more than notice, if that (proce- dural due process is discussed at greater length in Chapter 4).

Unconstitutional Conditions. The conditions attached to governmental ben- efits sometimes interfere with clients’ and customers’ constitutional rights. For instance, a state might mandate that applicants for unemployment compensation be available for work on Saturday despite their Sabbatarian religious beliefs or that public school students recite prayers or pledge al- legiance to the flag. The unconstitutional conditions doctrine seeks to limit a government’s ability to use client and customer relationships as leverage for regulating behavior that it could not reach directly without violating individuals’ constitutional rights.

The problem public administrators and lawmakers face is knowing which conditions imposed on clients or customers will be adjudged uncon- stitutional. Essentially, the courts apply a two-part test, but as in the case of procedural due process, a good deal of subjectivity is involved. Specific re- quirements vary with the nature of the benefit and type of condition. Con- ditions that gratuitously infringe on protected rights by failing to serve a significant governmental purpose or by prohibiting more than necessary in

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order to achieve a legitimate or compelling public interest are very likely to be unconstitutional. Conditions involving freedom of speech, association, religion, or protection from unreasonable searches must generally promote at least an important, if not compelling, governmental interest. Conditions attached to building permits that constitute a Fifth Amendment taking of private property must be roughly proportional to the impact that the pro- posed development will have on legitimate governmental interests, such as traffic congestion (Dolan v. City of Tigard 1994).

Together, contemporary equal protection, new property, and unconsti- tutional conditions doctrines bring constitutional law directly into the re- lationships between public administrators and their clients and customers. This complicates public administration by expanding the set of values that administrators and programs must protect and, sometimes, by requiring elaborate procedure. It also broadens the role of courts and judges in public administration.

Public Personnel Management

Public employees first began to gain significant constitutional rights in the context of their employment during the period from the 1950s to the 1970s as equal protection was applied to public employment, civil service jobs were considered part of the new property, and the unconstitutional condi- tions doctrine was invoked to protect public employees’ First Amendment rights. However, the constitutional doctrine that regulates public person- nel management differs from that affecting relationships with clients and customers.

Constitutional rights within the framework of public employment are assessed through a public service model. Its core premise is that the admin- istrative values of efficiency and effectiveness are more important to gov- ernments when they act as employers than when they seek to regulate the behavior of ordinary citizens. Government, like any employer, needs greater authority over its employees than it can exercise over its clients, customers, or the general public. But there are also limits to that authority.

The public service model balances four considerations: (1) the interest of the employee in exercising his or her constitutional rights, that is, in being free of governmental controls; (2) the government’s interest in achieving some important purpose as an employer; (3) the public’s interest in the way government and public administration operate; and (4) avoidance of overly intrusive judicial involvement in public management. The crux of the public service model is that the public’s interest may coincide with that of either the employee or the government. For example, in the realm of free

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speech, the public has a very clear interest in strong constitutional protec- tion of whistle-blowing by public employees. The public is better able to assess governmental performance when public employees can freely ex- pose illegality, gross waste, fraud, abuse, and specific and immediate dan- gers to public health and safety. By contrast, the public has only a minimal interest, if any, in public employees’ partisan campaign speeches, routine office gossiping, and grousing about political bosses and administrative higher-ups. Under the public service model, whistle-blower speech is con- stitutionally protected, whereas partisan speech and speech that is of mini- mal or no public concern are not. (Whistle-blowing is discussed in Chapter 5.) Although the public might be interested in the reports, memos, and other work produced by public employees, such “work-product” speech does not enjoy constitutional protection. This is largely because protecting it would “commit state and federal courts to a new, permanent, and intru- sive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business” (Garcetti v. Ceballos 2006, 423).

The same kind of public service model balancing applies to public em- ployees’ free exercise of religion and association as well as to their Fourth Amendment privacy rights and equal protection guarantees. In constitu- tionally evaluating constraints on personnel management in these contexts, one always considers the individual’s interest in exercising or retaining protected rights, government interests that could justify abridgments, and the public’s interest. The judiciary’s interest in avoiding undue intrusion into public management sometimes also comes into play. It is important that public personnelists, managers, and employees bear in mind that the government’s interest, though often stated as serving the taxpayers, is not necessarily synonymous with the public interest. Even in the context of public employment, a governmental interest in cost-effective administra- tion may not justify infringements on constitutionally protected rights. If there is no clear public or judiciary interest one way or the other, then the balance is simply between the interests of the employee and the gov- ernment. The employee will sometimes win because judges may place a higher value on protecting the robustness of constitutional rights than on obtaining administrative results or maximizing values such as efficiency and economy (Stanley v. Illinois 1972).

First Amendment Rights. Public employees enjoy broad First Amendment rights to speak openly on matters of policy, politics, administration, and public affairs. Under the public service model, the major limitations on their freedom of speech are as follows: (1) in order to enjoy constitutional

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protection, expressive activity must be on a matter of public concern (that is, public interest); (2) speech as part of a partisan political campaign may be banned; and (3) speech, including written documents, produced pur- suant to work assignments (i.e., work-product speech) may be the basis of adverse personnel actions such as demotion or dismissal. Disruptive re- marks on matters only of private concern are not protected because they serve no public interest. Restrictions on the partisan political activity of public employees are constitutionally justified by the public interest in ad- ministrative impartiality and efficiency, as well as by the protection they afford government workers against being coerced by political appointees and supervisors to support political parties and partisan candidates.

In general, public employees’ non-work-product speech on matters of public concern is most vulnerable to forming the basis for a successful ad- verse action when it impairs discipline or harmony in the workplace, jeop- ardizes close working relationships, interferes with normal operations, or detracts from the employee’s ability to do his or her job. In balancing the interests of government, employee, public, and judiciary, attention must be paid to the nature of the employee’s position in the organization (Rankin v. McPherson 1987). Identical remarks by those at the top and bottom of an organizational hierarchy may be treated differently. When disciplining em- ployees for their off-the-job remarks or other protected activities, the gov- ernment should be able to show a nexus between its significant interests as an employer and the conduct involved (United States v. National Treasury Employees Union 1995; San Diego v. Roe 2004).

The public service model also broadly protects employees’ freedom of association and religion. Restrictions on these freedoms have to be justified by the balance among the interests of employee, public employer, pub- lic, and judiciary. Constitutional law extends extensive protection to em- ployees’ freedom of association on the premise that membership alone is not a proxy for behavior. Consequently, employees may join labor unions (though there is no constitutional right to collective bargaining), employee associations, hate groups such as white or black nationalist, and even sub- versive organizations. Exceptions are permissible for categories of employ- ees whose membership in particular organizations would significantly harm the employer’s or the public’s interests. For instance, supervisors and managers can be banned from joining labor unions representing rank- and-file employees because such membership might conflict with their hierarchical responsibilities. Employees also have the right not to join orga- nizations; consequently union-shop labor agreements are unconstitutional in the public sector (Abood v. Detroit Board of Education 1977; Chicago Teach- ers Union v. Hudson 1986). Since the late 1970s, public employees’ freedom

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of association has been interpreted to make job actions based on political partisanship unconstitutional unless the government can show that relying on party affiliation is the means of ensuring effective job performance that is least restrictive of constitutional rights or narrowly tailored to avoid ex- cessive intrusion on those rights (Rutan v. Republican Party of Illinois 1990).

The parameters of public employees’ religious freedom are less clear. A government employer cannot coerce employees to engage in prayer or other religious activity. Neither can it gratuitously restrict their religious expression or behavior. Because federal equal employment opportunity law prohibits discrimination based on religion, civilian public employees at all levels of government ordinarily are permitted to wear religious jew- elry or headgear, even if other workers find it objectionable. Restrictions on religious activity might be justified when overt religious proselytizing or vocal praying at work is disruptive or otherwise interferes with the em- ployer’s legitimate interests in workplace harmony and cost-effectiveness.

Fourth Amendment Privacy. Public employees retain protections against unreasonable searches and seizures even while at work in public buildings. The threshold question is whether the employee has a reasonable expecta- tion of privacy under the circumstances, that is, an expectation of privacy that society is prepared to support (according to judges). Absent such an expectation, public employers are free to search an employee’s workspace, desk, files, computer, and so forth. Where there is a reasonable expectation of privacy, the governmental search must be reasonable in its inception and scope. Employees have a reasonable expectation of privacy in their bodily fluids, but suspicionless drug testing is constitutionally permissible when it reasonably promotes national security, law enforcement, or public safety (see City of Ontario, California v. Quon 2010).

Procedural Due Process. Civil service systems typically provide public employees with new property rights in their jobs. Consequently, proce- dural due process protects them against arbitrary, capricious, or abusive dismissal or demotion. Pretermination notice and opportunity to respond are generally required, as are more elaborate post-termination procedures (Cleveland Board of Education v. Loudermill 1985). Depending on the circum- stances, a public employee may not have a right to procedural due process prior to suspension without pay for wrongdoing. However, the employee should be offered a hearing of some kind within a reasonable time after the suspension takes effect (Gilbert v. Homar 1997).

For the most part, the constitutional requirements for public employ- ees’ procedural due process are now written into civil service laws and

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regulations. However, once the government creates a new property right in public employment, its termination or diminution is controlled by con- stitutional rather than statutory law. Where public employees do not have civil service or tenured status, adverse actions may be at will only insofar as they do not violate First or Fourth Amendment, equal protection, or other constitutional rights.

Equal Protection. The three-tiered equal protection analysis previously discussed applies to public employees as well as to clients and customers. Racial and ethnic classifications, whether benign or invidious, are subject to strict scrutiny. To date, the Supreme Court has not held that promoting workforce diversity is a compelling governmental interest. It has permitted benign racial classifications only as a remedy for past, proven, egregious violations of equal protection. These and other racial/ethnic classifications must be narrowly tailored. For instance, the public service model does not generally permit personnel assignments based on race or ethnicity, but such criteria might be acceptable when necessary for the achievement of a specific and important governmental purpose, as in undercover police work (see Baker v. City of St. Petersburg 1968).

Residency and age requirements are subject to rational basis analysis. They will be constitutional if they are rationally related to the achievement of a legitimate governmental purpose. Gender-based classifications face a higher standard—they must be substantially related to the achievement of important governmental purposes.

Substantive Due Process Rights. The Fifth and Fourteenth amendments protect individuals against governmental deprivations of “life, liberty, or property, without due process of law.” The body of constitutional interpre- tation defining “liberty” in this context is substantive due process. It enables the courts to identify and protect fundamental rights that are not specifi- cally mentioned elsewhere in the Constitution. Consequently, substantive due process is open-ended, and specific decisions under it are often contro- versial. In the context of public personnel management, the Supreme Court invalidated overly restrictive maternity leave policies on the grounds that the “Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Pro- cess Clause of the Fourteenth Amendment. . . . [T]here is a right ‘to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child’ ” (Cleve- land Board of Education v. La Fleur 1974, 639–640). In another case, the Court found no substantive due process barrier to short-hair and clean-shave

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grooming regulations for police (Kelley v. Johnson 1976). There is little ju- dicial guidance on how to analyze substantive due process claims within the public service model. As a threshold matter, the government should be able to demonstrate a reasonable connection between its interests and the prohibited behavior.

Relationships with Contractors

Contractors also have constitutional protections against governmental in- fringements on their rights. Some of these are well settled. Governments cannot engage in invidious racial, ethnic, or gender discrimination when contracting out. Contracts that establish new property interests cannot be terminated without procedural due process. Since the late 1980s, the Su- preme Court strengthened the Constitution’s application to contractor re- lationships in three ways.

First, the Court unequivocally held that benign racial and ethnic classi- fications in governmental contracting are subject to strict scrutiny (Adarand Constructors v. Pena 1995). They must serve a compelling governmental interest in a narrowly tailored fashion. This severely restricted the use of minority business set-asides and other preferences. Even though the con- stitutional test for gender classifications is weaker, preferences for women- owned businesses will also be difficult to sustain.

Second, the Court made it clear that contractors and those engaged in preexisting commercial relationships with governments, such as Gratzi- anna’s with the city of Northlake, retain First Amendment rights. Using unconstitutional conditions analysis, the Court held that the Constitution protects contractors’ public criticism of a government and their political campaigning against its officials. Essentially, the same constitutional test that applies to public employees’ speech is used to determine the free speech rights of contractors and others engaged in ongoing business re- lationships with government. A government can terminate its commercial relationship with such parties in response to their speech only if it can show that, on balance, such action is justified by the speech’s detrimental impact on the government’s ability to deliver public services.

Third, the Court clarified the application of state action doctrine to con- tractors. With the exception of the Thirteenth Amendment, the Constitu- tion ordinarily does not govern relationships among purely private parties. However, under some circumstances, contractors may be considered state actors (i.e., governmental actors, regardless of whether at the state, local, or federal level) and are thereby bound by constitutional requirements. The basic premise is that the Constitution applies to private parties if “there

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is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State it- self’” (Brentwood Academy v. Tennessee Secondary School Athletic Association et al. 2001, 930). Unfortunately for those who like their constitutional law to come with bright lines, determining what constitutes state action is often “a matter of normative judgment” (Brentwood Academy v. Tennessee Second- ary School Athletic Association et al. 2001, 295).

In general, a contractor may become a state actor when it (1) engages in a public function, such as incarceration; (2) exercises government’s co- ercive power (e.g., to seize property); (3) acts as a government’s agent for some unconstitutional purpose, such as promoting racial discrimination; (4) is nominally private but largely or wholly controlled by a government unit; or (5) is entwined with government or acts as a joint participant with it (Brentwood Academy v. Tennessee Secondary School Athletic Association et al. 2001).

Private parties will not be state actors merely because they are heavily regulated or funded by government. Neither will governmental subsidiza- tion of their clients or customers transform them into state actors. Private entities engaged in public-private partnerships, collaborative relationships, and contracting with government agencies should pay close attention to state action doctrine. For instance, a private physician on part-time contract with a state prison and guards employed by a private company operating a prison are state actors with Eighth Amendment obligations to prisoners and attendant potential liability for violating their rights against cruel and unusual punishments (West v. Atkins 1988; Richardson v. McKnight 1997).

Public Mental Health Patients

Since the early 1970s, patients involuntarily confined to public mental health facilities have had a constitutional right to treatment. Earlier, they were often warehoused indefinitely or otherwise inadequately treated. In Wyatt v. Stickney (1971), a federal district court held that confining such patients without treatment constitutes a violation of their right to liberty under the Fourteenth Amendment. Although the decision applied directly only to the Alabama mental health system, its logic was soon adopted nationwide.

The constitutional right to treatment was eventually defined in broad terms. It includes reasonable care, safety, and freedom from confinement, as well as individualized treatment (or training for the mentally disabled). Implementation requires a humane physical and psychological environ- ment as well as adequate staffing. In practice this may require far-reaching

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architectural and medical reforms. The Wyatt litigation eventually required Alabama either to release patients or to provide the following: (1) protection of patients’ right to wear their own clothes, freedom of religious worship, and opportunity for physical exercise; (2) physical building conditions in which there were no more than six patients per room, at least one toilet for each eight patients and one shower or tub for every fifteen, not less than fifty square feet per person in the dayroom, at least ten square feet per per- son in the dining room, and a temperature range between sixty- eight and eighty-three degrees Fahrenheit; and (3) various per patient staffing ratios for professionals, clerical workers, and other staff.

Initially, judicial involvement in public mental health care was some- times characterized as misguided interference in professional psychiatry. However, eventually the American Psychiatric Association supported the constitutional right to treatment. Along with other factors, including bet- ter psychoactive drugs, crowding was reduced through deinstitutionaliza- tion and shorter stays, and the overall conditions in public mental health facilities improved substantially. On the downside, deinstitutionalization contributed to homelessness (Rosenbloom, O’Leary, and Chanin 2010, 256–257).

Prisoners’ Constitutional Rights

Since the 1970s, the treatment of prisoners has been thoroughly consti- tutionalized. The Eighth Amendment prohibition of cruel and unusual punishments was reinterpreted to apply to the conditions of confinement rather than to the sentence alone. This required prison reforms in more than forty states to reduce overcrowding, provide adequate medical care and safety, and guarantee inmates at least a minimal level of nutrition, hy- giene, and civilized life’s other necessities. The scope of what is prohibited by the Eighth Amendment changes as society progresses and standards of decency evolve. For instance, in the 1990s prisoners gained the right to challenge exposure to secondhand tobacco smoke when it poses a risk of serious harm due to their personal respiratory or other health problems (Rosenbloom, O’Leary, and Chanin 2010, ch. 7).

In addition to Eighth Amendment protections, prisoners have a right to procedural due process when proposed discipline creates extraordinary hardships within the framework of normal prison life. Similarly, within the confines of what incarceration requires in practice, they have the right to free exercise of religion and to marry. The general test is whether re- strictions on the prisoners’ constitutional rights, including their impact on other inmates and guards, serve legitimate penological interests. Prison

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administration has become so thoroughly infused with constitutional con- cerns that some prison systems engage in constitutional audits to ensure their compliance with the latest judicial decisions.

Street-Level Regulatory Encounters

Street-level public employees engage in face-to-face regulatory interaction with the public. They are police, social workers, public school teachers, public health workers, health and safety inspectors, and others who (1) tend to work in the absence of close proximate supervision, (2) have a great deal of discretion in dealing with members of the public, (3) are largely self-reporting, and (4) are often in a position to have a substantial positive or negative impact on the individuals with whom they deal. It is also com- mon for street-level employees to work with heavy caseloads and inade- quate resources. Their work environment may be charged with physical and/or psychological threats (Lipsky 1980; Maynard-Moody and Musheno 2003).

The Fourth Amendment and the Equal Protection Clause are most rele- vant to individuals’ rights in street-level encounters. However, these pro- tections are porous and subject to circumvention.

Fourth Amendment Constraints. Fourth Amendment law is notoriously un- even because it is fact specific in its application. It applies only when an individual has a reasonable expectation of privacy. The courts treat this expectation as a continuum. On one end, individuals who are in their own homes with the windows and doors closed and curtains drawn have a great expectation of privacy. On the other end, the same individuals would have a minimal expectation of privacy with regard to their baggage when seeking to board a scheduled commercial airplane at a US airport. In be- tween, there are many gradations. The slope from a conventional home, to a permanently parked mobile home, to one moving on an interstate highway, to a minivan camper, to a public bus can prove slippery. More- over, some individuals have reduced Fourth Amendment protections due to their special relationship with an administrative function and its per- sonnel. For example, public school administrators have greater leeway to search students because the schools have special custodial and tutelary re- sponsibilities (Vernonia School District 47J v. Acton 1995; Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls 2002).

A distinction is usually drawn between law enforcement searches and administrative inspections. Whenever practicable, the Fourth Amend- ment requires law enforcement officers to seek a warrant from a judge,

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magistrate, or other judicial official. The warrant is issued upon probable cause, which essentially means there is specific evidence that a violation of law may exist or a breach of law is imminent. When time or other consid- erations make obtaining a warrant impractical, law enforcement agents can proceed upon probable cause alone. Administrative inspections of nonper- vasively regulated businesses may also require warrants. However, it is not necessary to show probable cause, as these warrants may be issued when reasonably necessary for the enforcement of the statute involved. Administrative searches involving special relationships or needs, such as public school discipline, are generally governed by reasonableness in their inception and scope rather than probable cause. Pervasively or closely reg- ulated entities have a reduced expectation of privacy and therefore may be inspected without a warrant under a rational regulatory scheme (see the “Enforcement” section in Chapter 4). Precisely what constitutes such an entity is sometimes a judgment call.

The constraints on street-level administration generated by this frame- work often appear inconsistent and sometimes close to nonexistent. On the one hand, for instance, an individual can be arrested for any traffic infrac- tion, however minor, and consequently subjected to a legitimate personal and vehicle search. The Supreme Court has eschewed inquiry into whether such stops or arrests following them are merely pretexts used by the police to search individuals and their vehicles. Even arrest and subsequent search for a nonjailable offense, such as not wearing a seatbelt, are permitted (At- water v. City of Lago Vista 2001; Whren v. United States 1996). On the other hand, a federal Occupational Safety and Health Administration inspector may need a warrant in order to inspect a workplace—depending in part on how open the facility is to the public or how pervasively the govern- ment regulates it (Marshall v. Barlow’s, Inc. 1987). The constitutionality of a public hospital’s drawing of bodily fluids from patients may depend on its purpose. For law enforcement, the hospital needs the patients’ consent or a warrant, though apparently the same fluids can be taken for diagnostic purposes without implicating the Fourth Amendment (Ferguson v. City of Charleston 2001).

Equal Protection Constraints. The main problem for individuals who chal- lenge street-level administrators’ behavior on equal protection grounds is that the burden of persuasion rests on the challenger to demonstrate that the government employees have explicitly or implicitly created a classifi- cation. Explicit invidious racial, ethnic, or gender classifications are highly unusual in contemporary street-level administration. Public personnel and governments know better than to openly categorize people by such

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58 2. The Constitutional Context of US Public Administration

social characteristics in order to discriminate against them. Implicit classi- fications, based on these characteristics, may be inferred from patterns of administrative behavior. However, establishing their existence to a court’s satisfaction is difficult. This is why the Equal Protection Clause has been of limited efficacy in combating racial and ethnic profiling by law enforce- ment agents when there is no written or verbal evidence. Unless profiling is the only plausible explanation for the administrative behavior at issue, it may be impossible to show that an implicit classification exists. Of course, equal protection is a more effective constraint against street-level behavior that follows directly from racist, ethnically derogatory, or sexist statements (Larrabee 1997).

Public Administrators’ Liability for Constitutional Torts

There is often a notable gap between formal constitutional requirements and actual administrative practice. Constitutional law may be unclear or poorly communicated to administrators. As already noted, sometimes it is highly subjective or requires an elaborate balancing of multiple factors. Specific constraints may seem counterintuitive to administrators or im- practical due to scarce resources or lack of time. They may also run counter to deep-seated administrative and organizational values. Furthermore, in- dividuals whose constitutional rights are violated may lack the incentive or resources to sue the government or its employees for redress.

In a series of decisions crystallizing in the 1980s, the Supreme Court sought to protect individuals’ constitutional rights in their encounters with public administrators by invigorating the law of constitutional torts (i.e., injuries to constitutional rights). The Court made it far easier for individu- als to sue most public administrators personally in federal court for money damages for violations of their constitutional rights. In terms of legal doc- trine, the Court changed the presumption that public employees and offi- cials are absolutely immune from civil suits for money damages (meaning they could not be sued for their constitutional torts) to one that affords them only a qualified immunity from such suits. The Court reasoned that making it easier to bring constitutional tort suits serves to deter violations of constitutional law as well as to compensate victims. The current stan- dard for qualified immunity requires public administrators, at all levels of government, to have reasonable knowledge of constitutional law and to factor it into decisionmaking.

Since 1982, most public administrators in the United States have been potentially personally liable for money damages for conduct violating

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59Public Administrators’ Liability for Constitutional Torts

“clearly established [federal] statutory or constitutional rights of which a reasonable person would have known” (Harlow v. Fitzgerald 1982, 818). This standard expands the requirements of administrators’ job competence to include constitutional law. In the Supreme Court’s words, “A reason- ably competent public official should know the law governing his con- duct” (Harlow v. Fitzgerald 1982, 819). Suits may be for punitive, exemplary, and compensatory damages (Smith v. Wade 1983). The major exception is that public administrators cannot be sued for constitutional torts commit- ted while engaging in adjudicatory or legislative functions. There are also some technical differences in how local, state, and federal employees may be sued. However, the vast majority of public administrators are subject to suit, and constitutional torts produce considerable litigation. Local gov- ernments and their agencies are also liable to such suits for compensatory damages when their policies directly cause violations of individuals’ con- stitutional rights (Pembaur v. City of Cincinnati 1986). Under limited cir- cumstances, cities and counties can also be sued for failure to train their employees to protect individuals’ constitutional rights (City of Canton v. Harris 1989). Local governments cannot be sued for punitive damages in constitutional tort cases.

It should be emphasized that the “clearly established” constitutional law a reasonable administrator should know is not synonymous with the latest judicial precedent on some matter. In Hope v. Pelzer (2002, 741), the Supreme Court emphasized that “officials can be on notice that their con- duct violates established law even in novel factual circumstances.” Con- duct may be obviously unconstitutional even though it has never been the subject of litigation. The broad purpose of qualified immunity is to encour- age public administrators to follow the case law and be responsive to the judiciary’s constitutional reasoning and values. Qualified immunity is de- signed to give federal judges a greater role in defining appropriate public administrative behavior. The courts labor hard to give substance to con- stitutional rights. They do not want their decisions to be hollow. Knowing that they face personal suits for constitutional torts gives public adminis- trators a strong incentive to think twice before taking an action that might tread on someone’s constitutionally protected rights.

Relatively speaking, qualified immunity protects the public interest in allowing public administrators to act without fear of frivolous or other unwarranted lawsuits. Depending on the circumstances, private individ- uals engaged in state action may either have no immunity at all, mean- ing they are vulnerable to suit regardless of whether the constitutional law was clearly established or likely to be known by a reasonable person;

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60 2. The Constitutional Context of US Public Administration

alternatively, they may have qualified immunity or simply not be subject to such suits (Richardson v. McKnight 1997; Filarsky v. Delia 2012; Minneci v. Pollard 2012).

Conclusion

The US Constitution is central to the organization and practice of public administration in the United States. The separation of powers defines the scope of legislative, executive, and judicial authority for public adminis- tration. Each branch brings different—and often competing—core values to public administrative practice. Constitutional federalism allocates sov- ereignty and power between the federal government and the states. It also adds to the complexity of public administration. During the second half of the twentieth century, the federal courts, often led by the Supreme Court, vastly expanded individuals’ constitutional rights in their encounters with public administration. Constitutional law became relevant, if not central, to administrative decisions and operations regarding clients and customers, public personnel systems, outsourcing, the treatment of patients in public mental health facilities, incarceration, and the exercise of regulatory au- thority in street-level encounters. The courts also greatly strengthened the opportunity for aggrieved individuals to vindicate their newfound rights through constitutional tort suits.

Constitutional law is dynamic rather than static. It affords the federal judiciary continual opportunities to exercise influence over public admin- istrative decisionmaking and values at all levels of government. Perhaps most important, the federal judiciary expects public administrators to fol- low the development of constitutional law, to understand how it bears upon their official functions, and to treat it as a central element of job com- petence. It is no longer true—if it ever was—that US public administration “at most points stands apart even from the debatable ground of constitu- tional study” (Wilson [1887] 1987, 18). Rather, contemporary public admin- istration is informed by and infused with constitutional concerns.

Additional Reading

Barron, Jerome, and C. Thomas Dienes. Constitutional Law in a Nutshell. 8th ed. St. Paul, MN: West Group, 2013.

Rosenbloom, David H., Rosemary O’Leary, and Joshua Chanin. Public Administration and Law. 3rd ed. Boca Raton, FL: CRC/Taylor and Francis, 2010.

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61Discussion Questions

Discussion Questions

1. The US constitutional separation of powers was designed well be- fore federal administration became central to how the national government now operates. Some other countries have adopted new constitutions to deal with the rise of large-scale administration (i.e., “the administrative state”). By contrast, the United States has tried to “retrofit” the administrative state into the constitutional design. If you could make any three changes to the separation of powers to improve control over administration by the presi- dent, Congress, or both, what would they be? Why?

2. Do you think governmental benefits, such as welfare and civil service jobs, should be treated as “new property” and protected by constitutional procedural due process? In your view, what are the pros and cons of new property theory?

3. Do you think constitutional equal protection interpretation should ap- ply strict scrutiny to classifications based on biological sex, as it is applied to racial classifications based on race? How about to classifications based on sexual orientation? What would be the advantages and disadvantages of doing so, if any?

4. What is the current standard for public administrators’ potential li- ability for committing constitutional torts? If you could change it, would you? If not, why, and if so, how?

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The Constitutional Context of US Public Administration

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