PUBLIC ADMINISTRATION AND LAW by David H. Rosenbloom and Rosemary O’Leary. 2d Edition. New York: Marcel Dekker, Inc. 1997. (No. 61 in the Public Administration and Public Policy Series.) 344 pp. Cloth $150.00.

Reviewed by Charldean Newell, Public Administration, University of North Texas.
 

More than a half century ago, Paul Appleby colorfully described the political nature of public administration and the "press and public interest in every detail of his [the administrator’s] life, personality, and conduct" (Appleby, p. 7). Rosenbloom and O’Leary remind us, however, that the political nature of public administration has often been obscured, in part by the omniscient push for efficiency associated with orthodox public administration, but also by modern efforts to reinvent government by removing some controls in order to expedite decision making and program delivery. The authors' theme is that all too often public administration has stood in sharp contrast to constitutional law and that only in the modern era has the U. S. Supreme Court turned its attention to ensuring constitutional rights, both for citizens when they interact with the bureaucracy and for bureaucrats themselves in their capacity as employees.

PUBLIC ADMINISTRATION AND LAW is organized into two parts. Part I states the problem, provides an overview of contemporary administrative law and the judiciary, and--an addition to the first edition of the book--discusses the special area of environmental law. Part II organizes case and statutory law so as to reflect the development of constitutional protections for the individual who is a client or a customer of government, legal constraints that limit (somewhat) the behavior of street-level bureaucrats, protections for government employees, protections for individuals who are in "total institutions" (prisons, mental health facilities, e.g.), and approaches used by individuals who become formal antagonists against the administrative state. It ends with a helpful summary and conclusions chapter.

The first chapter, "The Problem," points out that individual rights are not necessarily "efficient" and that THE FEDERALIST PAPERS, Number 10, spoke to the importance of rights in contrast to the lesser importance of costs ("efficiency"). Rosenbloom and O’Leary argue that, in addition to the orthodox fascination with efficiency, the newest of the "new public administration" movements, National Performance Review, in its penchant for red-tape cutting and eliminating barriers in the name of efficiency, creates its own constitutional dilemma even though calling for customer satisfaction (pp. 10-12). One can easily conclude that NPR smacks of the old presidential imperialism in its crusade for ridding administration of legislative controls.

The second chapter provides an overview of "where we are" in the evolution of administrative law. One of its key messages is that the Administrative Procedures Act of 1946 was a watershed public policy that was followed by other significant acts including those dealing with access to information and protection of privacy. Its other key message is that, though often neglected, "administrative law is central to the practice of public administration" (p. 82).

The third chapter deals explicitly with environmental law and traces the shift from unbridled administrative discretion that resulted in such malevolent actions as the radiation experiments that poisoned hundreds in the West to aggressive policies protecting both the environment (endangered species) and the people (takings). The authors conclude that "Government immunity is being eroded in environmental statutory provisions that clearly leave public servants and public organizations vulnerable to lawsuits" (p. 111). Even the most mundane of administrative operations--solid waste removal and treatment--has been limited by the C&A CARBONE, INC. ET AL. V. CLARKSTOWN, NEW YORK case. This chapter outlines one of the newer areas of law affecting administrators. It suffers somewhat from overuse of acronyms (CERCLA, SARA, RCRA, CWA, e.g.) that are commonplace to environmentalists but of whose meaning the rest of us need an occasional reminder.

Chapters 4-8 elaborate on the themes developed in the first part of the book. A succinct statement of one component of the thesis appears on p. 124 in the third chapter: " . . . the public administration that developed out of the confluence of these three movements (civil service reform, Progressive, scientific management) became a willing vehicle for constraining clients’ constitutional rights." Rosenbloom and O’Leary reiterate that the courts have not determined that a constitutional right to public benefits exists, but if benefits are offered, the courts insist on fairness and due process. The street-level bureaucrat chapter draws helpful distinctions between the areas where the federal courts have strengthened Fourth Amendment constraints on government employees (routine inspections, requests for identification, sweep searches, random stops) and where the courts have strengthened bureaucrats in their implementation of public policy (drugs, alcohol, customs, illegal aliens). All of us who teach personnel administration are aware of the evolution described in the sixth chapter from public employment as a privilege with few constitutional protections to numerous protections of individuals in their capacities as public employees. The authors demonstrate that the courts have tried to avoid compromising "the government’s ability to act effectively as an employer" (p. 209), although many a manager would say that the intent has failed. One of the most interesting chapters, at least to this reviewer, was the chapter on inmates in the care of government. It is easy to forget that the growing body of constitutional rights of inmates belongs to administrative law. PUBLIC ADMINISTRATION AND THE LAW goes beyond the discussion of the various prison rights cases--and in Texas, we are all too familiar with the maltreatment of prisoners spelled out in RUIZ V. ESTELLE and ESTELLE V. GAMBLE--to the budgetary and operational implications of the cases. The eighth chapter varies somewhat from others in Part II by focusing on ways that concerned groups and individuals can challenge administrative actions. Elections, lobbying, public debate, use of the media, protests, citizen participation, use of an ombudsman, and litigation are all cited. From the standpoint of the administrator, both the erosion of immunity and the courts’ constant reminders of administrative obligation to protect constitutional rights are significant.

The book concludes with a deft chapter that reprises the elaboration of the book’s theme. It then lays out 21 negative implications of judicial supervision of public administration ranging from loss of judicial neutrality to unanticipated costs of implementing a judicial decision to poor agency staff morale. The book ends with a call for inclusion of administrative and environmental law in professional master’s degree programs with emphases that will be useful to the student/practitioner and for periodic re-tooling of faculty members. "American public administrators today must think and act in a broader context than ever before. Constitutionalization makes public administration more akin to governance than to management alone" (p. 320).

PUBLIC ADMINISTRATION AND LAW is a useful book for anyone interested in constitutionalism, but its specific dividends will be paid to individuals interested in administrative law and in the context of public administration. Those dividends are these: 1) the history of administrative law is laid out in case law, literature on administrative theory, and governmental practice; 2) the compendium of case summaries is daunting, more nearly paralleling a constitutional law book than a public administration book; and 3) the thesis of the book is developed logically and lucidly, with myriad examples. Although the page count may seem small for a book purporting to cover the history of administrative law in American government, this is a book with few tables or figures and set in a relatively small type size. Thus, the contents of the book are equal to one of considerably more pages. As someone trained by Emmette Redford, one of the leading public interest scholars, I found this book to be an articulate statement of the importance of administrators’ regard for constitutional principles and societal good over and above agency efficiency.

Unfortunately, many prospective readers of this book will never see it. Its $150 cost is prohibitive for use in class, and even some persons charged with ordering library materials may be put off by the price tag.
 

References

Appleby, Paul. 1945. BIG DEMOCRACY. New York: Alfred A. Knopf.