Taking Law Seriously

By: David Schultz

Law matters. It especially matters in public administration and policy. Yet for too many years the public administration profession has ignored the connection between the law how governments are run and policies implemented. The goal of this column will be to explore this relationship and discuss critical issues, court opinions, and legal events that frame the field and practice of public administration.

Since its inception as a field the study, public administration included the law. Early writers such as Woodrow Wilson and Charles Goodnow discussed public administration in terms of the law. The politics/administration dichotomy was as much a description of a division of labor as it was articulation of how the law was supposed to operate to secure policy objectives. The New Deal Court cases such as Schechter Poultry Company v. United States (1935) were about the constitutional and legal limits of congressional delegation and administrative authority. The Administrative Procedures Act of 1946 was an attempt to provide a legal framework for the new administrative state. But sometime after World War II the field of public administration forgot about the law. With the exception of an administrative law class, the teaching of public administration generally ignored the law, including the Constitution and the Bill of Rights. The critique was that a legal-focus was too formal, that it ignored leadership traits, or that it slighted the significance that interest groups or other informal constraints placed on successful administration. If one wanted to study law, go to law school.

But gradually law is being brought back in. Perhaps it began with the collapse of the Berlin Wall and the Soviet Union where attention was directed at the task of building stable democracies and competent public administration. Critical emphasis was placed on addressing corruption through limits on discretion and enabling rule of law. In 2007 in Armenia (while I was teaching there on a Fulbright) the country was rolling out its new administrative law code, recognizing along with may other former eastern European or Soviet countries that legal rules affected governance.

Credit also goes to David Rosenbloom who in his 1992 work, “The Constitution as a Basis for Public Administration” declared that the Constitution and the Bill of Rights frame a constitutional ethic for public servants. The decision-making procedures and substantive protections for rights found in the Constitution and Bill of Rights define the first layer of duties and obligations that public servants have. Together they define how decisions are to be made (procedural justice or fairness) and what can be decided or done (substantive fairness or justice). Sheila Kennedy and I drew upon his arguments in our 2010 work, American Public Service: Constitutional and Ethical Foundations. We argued that the Constitution defines the rules for how the American democracy should operate and with that the role that the government and eventually public administrators should take when performing their duties. I also learned law matters when I had my first job in government back in New York as a city director of code enforcement charged with implementing and enforcing a housing, building, and zoning code.

Understanding the law is the first thing our students and public administrators should know if they are to be competent in their duties. They need not know it as lawyers do, but they need to understand how the law defines the respective authority of the three branches of government, the role of administrators, the concept of federalism, and the fact that there are legal consequences attached to all of our actions or inactions. But understanding the law is critical across many areas of public administration too.

Discussions of ethics clearly are entwined with the law. Asking what is ethically correct begins with asking what are our legal duties. But across the curriculum faculty need to do a better job discussing the law and practitioners must heed its significance. Laws generally define organizational structure. Laws and rules circumscribe procurement, biding, and finance. Laws regulate personnel decisions and how we interact with those whom we regulate. Privatization is ensconced by law. And of course, the very authority of administrative agencies to act is framed by the law.

As we enter a second Obama presidency the law will play important roles in the implementation of the Affordable Care Act as entities such as health care exchanges are set up. Dodd-Frank’s implementation will affect the behavior of banks and financial institutions. What the Supreme Court will do with affirmative action will have repercussions beyond higher education and instead perhaps go to the very heart of hiring and employment practices in government. And continued efforts to change union rights or alter public employee pension benefits directly impact the personal lives of those who work in government.

Each month this column will look at some important issue affecting public administration and the law. It may examine new cases or rules or revisit classic issues. I invite readers to submit questions too. The goal here is to initiate a learning dialogue that gets the field of public administration to again think about how the law really does matter to what we teach and what practitioners do.

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David Schultz is a professor at Hamline University. He can be reached at [email protected].