II.

Legal Frameworks: The Big Picture

The study of public policy is closely tied to the operational issues surrounding government. Thus, we can look to how government operates in order to gain a sense of where public policy emanates, and the role of administrative law in the public policy process. We can begin our exploration with the foundational legal framework that exists in our federal government, The United States Constitution. Our federal constitution provides the framework from which public policy is created and thus helps us understand the ways in which policy develops, is implemented, and ultimately changed. For example, the U.S. Constitution mandates a separation of powers between the three branches of government: the legislature, the executive, and the judiciary. Each branch has the capacity to make policy, but some branches of government are more entrenched in policymaking than others. If we understand the basic interactions between each branch of government from a policy standpoint, then we can begin to understand the administrative law principles at the heart of public management and this course.1 Let us begin by summarizing some basic constitutional responsibilities of each branch of government. The three branches of U.S. government are responsible for the following areas of policy concern: Legislative Branch Development and acceptance of policy proposals (through bills) Legitimization of policy proposals (through passing laws) Delegation of policy implementation (identifying who is responsible for implementing and enforcing a law that has been passed). Evaluation of policies that have been implemented

It is important to note that each branch of government has the ability, in certain circumstances, to go beyond the basic interactions mentioned in this lecture. For example, although the legislature is primarily responsible for passing laws (the legitimization of policy initiatives), the executive also has the power in limited circumstances to directly pass law-like policy initiatives (executive orders are one example). While acknowledging the capacity of the executive branch to engage in direct legitimization of certain policy proposals (and the judiciary as well through acts of judicial activism, or direct reinterpretations of constitutional or legislative intent), the focus in our discussion here is limited to understanding the basic principles underlying the major roles of each branch of government so that we might better understand the role of administrative law in this process. In short, we are limiting our view of the roles of government in order to understand the basic public policy principles that emanate from those roles under an administrative law context.

(reviewing, amending, and (possibly) repealing statutes) Executive Branch Development of policy proposals that are then submitted to the legislature (example is annual spending budget; President submits a budget proposal to Congress, but only Congress has the power to pass a budget implement the proposal through the spending clause of the federal constitution). Implementation of policies that have been legitimized by the legislature (implementing clean air standards that have been passed by Congress under the Clean Air Act) Enforcement of policies as part of the implementation process (the Attorney General an executive branch officer is responsible for prosecuting individuals/companies suspected of violating federal laws). Interpreting the actions of the legislature and executive branches to ensure those actions are in compliance with legal standards. For example, ensuring Congress has not overstepped its authority by passing a law that violates federal constitutional protections. Or, ensuring the President, or his executive branch members, have not gone beyond the authority granted to them by Congress when implementing a delegated responsibility; for example, reviewing the actions of the Drug Enforcement Agency to ensure they have not violated constitutional rights of suspected drug dealers as they go about enforcing drug laws passed by Congress. Evaluating policies to the extent those policies (in the form of statutes and regulations primarily) are in conflict with constitutional principles or statutory considerations (under a hierarchy of laws analysis discussed below).

Judicial Branch

A. Hierarchy of Laws Concept Conceptual Framework Now that we have some basic sense of the responsibilities of each branch of government, we need to place these responsibilities into a context that helps us understand them in relation to one another. For example, how might the judiciary determine when the executive branch is acting outside its delegated authority from the

legislature? What framework, if any, is being used to judge the actions of the executive in relation to the statutory authority granted by the legislature? To help answer this question, we can consider the following figure entitled Hierarchy of Laws:

The hierarchy of laws shown above represents the three main kinds of codified law found in the United States: constitutions, laws (statutes), and regulations (from administrative units of government). The pyramid you see here is meant to represent, roughly, how these categories of law relate to one another. For example, the constitution sits at the top of the pyramid suggesting it is the supreme law of the land. Laws sit below the constitution and are created generally by legislation through the legislative branch of government. Regulations sit at the bottom of our pyramid here and reflect the rules created by (mostly) executive branch administrative entities (agencies for example). These regulations carry the lowest weight of law, meaning they cannot conflict with laws passed by legislation. In addition, laws cannot conflict with the constitution. The framework identified in the hierarchy of laws helps us by making a few things clear: First, regulations (the main kinds of laws developed to implement legislative intent) are at the bottom of the pile when it comes to importance. From a policy standpoint this tells us that we should treat regulations with some degree of suspicion; in essence, we need to check regulations to make sure they are in compliance with both the statutes that created the legal space for the regulations, and also with the U.S. Constitution (and state constitutions where applicable) to ensure those regulations are in compliance with constitutional limitations on government action.

Second, we can connect the administrative functions of government to this overall legal framework. For example, we know government functioning in its regulatory capacity brings up both statutory and constitutional law considerations. This means we must have an awareness of what government is attempting to do and how that is influenced by other legal frameworks, both at the same level of a hierarchy (for example implementing one statutory goal and having that statutory goal impact other statutes) as well as different levels of hierarchy (implementing a statutory goal in a way that impacts constitutional rights).

B. Understanding the Hierarchy of Laws Framework in Relation to Administrative Principles By utilizing this hierarchy approach, a public policy professional can have a clearer sense of the impact legal frameworks are having on policy directions. For example, consider a policy professional charged with reducing automobile emissions. The basis for this policy goal comes from the recent passage of a statute, the Clean Air Law (CAL). The CAL, passed by Congress, states a goal of lowering emissions from automobiles but does not give specific details on how to do so. Rather, it delegates the responsibility for figuring out how to reduce emissions to the federal Environmental Agency (EA), an executive branch administrative agency. In addition to being given the power to figure out how to reduce auto emissions by creating regulations, the CAL also gives the EA power to enforce the regulations it creates and adjudicate those it believes to be violating the regulations.2 Beyond the goal of limiting auto emissions and delegating that power to the EA, the CAL has only one other provision: it exempts automobile manufacturing from the way in which auto emissions can be limited. In other words, the statute (the CAL) prevents the administrative entity (EA) from creating regulations that would interfere with the process of automobile manufacturing itself. Based on the powers delegated to it, the EA creates two regulations to implement the statutory goals of the CAL: The first regulation requires automobile manufacturers to install certain equipment on their automobiles as part of their manufacturing process that helps to limit emissions from new automobiles. The second regulation prevents minorities from driving automobiles because there is evidence that minorities overwhelmingly tend to own and operate older automobiles with higher rates of emission. Thus, by preventing minorities from

The ability of an administrative agency to engage in all of the powers of government (legislative, executive, and judicial) is a fundamental principle of administrative law. Unlike the separation of powers doctrine under our federal constitution that limits government power in any one branch, administrative law principles allows administrative entities to engage in all three functions. This is described in greater detail elsewhere in the course. However, it is important to understand that administrators of government function in multiple roles when engaging in their administrative roles, creating law (regulations), enforcing laws, and adjudicating laws.

driving automobiles there will be a reduction in auto emissions because those old automobiles will be effective taken off the road. We can look at these two regulations and ask the following questions under our hierarchy of laws framework: Are the regulations in conformance with statutory delegation, meaning does either regulation violate the statute upon which the regulation is based? Does either regulation violate constitutional principles?

The hierarchy of laws framework brings out these two questions because we know we are dealing with regulations, and based on the hierarchy of laws conceptual framework, we know that regulations sit at the bottom of our hierarchy. Thus, the regulations must be in conformance with both statutes and constitutional principles. If the regulation violates a statutory or constitutional principle, then it is invalid as a matter of law. C. Details of Statutory Delegation As indicated earlier, statutory delegation essentially means Congress via legislative action has delegated rights and obligations to the administrative entity: Rights in the sense of empowering the administrative body (usually executive agency) to engage in certain actions it would otherwise not have the right to engage in without the statute explicitly or implicitly giving the agency the power. Obligations in the sense that the agency is obliged to follow the responsibilities given to it by the statutory delegation depending on the language contained in the statute regarding the delegation. For example, if the statute indicates the agency shall regulate air quality to achieve some goal, then the term shall is generally interpreted as mandatory language and the agency has no choice and is obliged to follow the statutory mandate. On the other hand, if the language of the statute reads that the agency may regulate air quality (in its judgment), then the agency may have an obligation under the statute to decide whether or not to regulate air quality, but not an absolute duty to actually regulate air quality. The language may is generally interpreted as permissive language leaving the agency with greater discretion.3

D. Agency Discretion Under Statutory Delegation The other concept we need to identify before analyzing our hypothetical situation above is administrative discretion. Think of administrative discretion as the amount of room an agency has in implementing a statutory delegation. For example, a statutory delegation might be quite specific, stating that an agency is to engage in specific steps to achieve a

Any ambiguity whether a statutory delegation is mandatory or permissive is resolved by the judiciary.

statutory goal. Requiring the installation of a specific technology to scrub sulfur from coal-burning power plants leaves little discretion; the agency simply ensures all coalburning power plants are installing and using the same scrubber technology to filter out sulfur emissions. An alternative example with greater discretion may be a delegation that identifies a particular goal, like clean air, but leaves it up to the agency to decide both what constitutes clean air and how to develop regulations in order to get to the goal of clean air; in this example there is a great amount of discretion left to the agency by the statutory delegation. Statutory language that is vague (without details) provides greater discretion to agencies when responsibilities are being delegated. Statutory language that is detailed and comprehensive provides less discretion to agencies.

Visually we can represent the concept of statutory delegation and discretion in the following schematic:

The black box represents the extent of agency discretion granted by the legislature when delegating a statutory duty to an agency. Thus, all actions by the agency must be found to exist wholly within the box; any act by the agency that exists outside the box is outside of its discretion (and brings up hierarchy of law issues we will discuss in a moment). It is important to remember the box itself can vary in size: There is no box when a statute does not delegate any obligations of the statute to an executive entity.

There is a small box where a statute delegates very little responsibility to an executive entity in implementing the goals of the statute. There is a large box where a statute delegates lots of responsibility to an executive entity in implementing the goals of the statute.

Remember, the box created by the statute is one question that needs to be answered. However, we must also determine whether or not the box itself allows for the conduct it envisions. For example, a statute that gives authority to federal agencies to engage in actions that violate constitutional principles is an invalid statute, thus the box gave discretion to an agency it did not have the power to give (as the constitution represents the supreme law of the land). This is where the hierarchy of laws comes back into our minds as a conceptual tool by which we evaluate legal frameworks that involve administrative functions. With this information in-mind, lets now go back and review the hypothetical explained earlier. Recall in the facts of the hypothetical, the EA created two regulations to implement the statutory goals of the CAL: The first regulation requires automobile manufacturers to install certain equipment on their automobiles as part of their manufacturing process that helps to limit emissions from new automobiles. The second regulation prevents minorities from driving automobiles because there is evidence that minorities overwhelmingly tend to own and operate older automobiles with higher rates of emission. Thus, by preventing minorities from driving automobiles there will be a reduction in auto emissions because those old automobiles will be effective taken off the road.

Our job is to review these regulations and determine if they are valid under the principles set forth above. Lets start with the first regulation: The first regulation requires automobile manufacturers to install certain equipment on their automobiles as part of their manufacturing process that helps to limit emissions from new automobiles.

We know this regulation must fit within the box established by the CAL; thus we must look to the language of the CAL to see if there are any prohibitions on this regulation. While we dont have the entire language of the CAL before us in the hypothetical, the following is stated: Beyond the goal of limiting auto emissions and delegating that power to the EA, the CAL has only one other provision: it exempts automobile manufacturing from the way in which auto emissions can be limited.

Thus although the CAL granted the EA authority to lower auto emissions, it did restrict the way in which EA could go about limiting auto emissions by exempting automobile manufacturing processes. Now I agree there is some room for argument here on the language (what exactly is auto manufacturing?). However, without getting into semantics

we can simply state the first regulation is an attempt to regulate the installation of equipment on automobiles and that may very well be a kind of regulation that deals directly with automobile manufacturing. Under this view the regulation would likely violate the limitation placed on agency action by the statute. As such, the regulation is likely outside the box created by the CAL in this case. The second regulation is different from the first: The second regulation prevents minorities from driving automobiles because there is evidence that minorities overwhelmingly tend to own and operate older automobiles with higher rates of emission. Thus, by preventing minorities from driving automobiles there will be a reduction in auto emissions because those old automobiles will effectively be taken off the road.

Rather than regulating a manufacturing process by adding a component to new autos, this regulation prevents minorities from driving automobiles because of some claimed association between minorities and older polluting autos. The CAL is silent on such a regulation and thus we can say the regulation is clearly within the discretion granted to the agency by the statute itself; it is directed at reducing auto emissions, at least facially. So in looking to the relationship between the statute and the regulation there does not seem to be any violation of the hierarchy of laws principle. However, the regulation likely violates other federal laws (statutes) regarding discrimination, although we dont know this precisely. What we do know is that the regulation certainly discriminates against people of particular races and national origins and therefore likely violates constitutional protections for such individuals. Therefore, while the regulation may be OK with the statute, it is not OK with constitutional principles. As a result the regulation cannot be considered authorized by the statute; although the statute is silent on the issue, no law passed by Congress is presumed to be intentionally unconstitutional. Thus, the limitation on the agency in this case the limit of not being allowed to pass a regulation that is discriminatory is presumed to exist in the statute without the statute explicitly saying so. So our hierarchy of laws shows itself as a powerful conceptual framework for analyzing administrative law principles, at least the principles of relationships between different kinds of laws and how those relationships create certain assumptions and analyses when set against the backdrop of statutory delegation and discretion. Together these principles help us understand how administrative law functions in relation to other legal frameworks. This is the BIG PICTURE of administrative law. If you understand it, then you have the important general framework understood and can move onto some of the details of this critical area of law. END OF SECTION.