Thursday, January 28, 2010

Necessity and Excesses of Administrative Action, Evidentiary Adjudication and Executive Control of Bureaucracy in Constitutional Democracy

According to the New York Times, what may be the most controversial fraction of a second in television history, the momentary baring of the singer Janet Jackson’s breast during the halftime show of the 2004 Super Bowl, is heading back once again to the Third Circuit Court of Appeal (Stout, 2009, ¶ 1). The Supreme Court set aside an earlier ruling by the Third Circuit that had overturned a $550,000 fine imposed by the Federal Communications Commission (FCC) on CBS for the “wardrobe malfunction,” as the fateful moment has been described.
The Supreme Court remanded the case back to the Court of Appeal to answer one solitary question: “that while the FCC may not have violated administrative procedures in justifying its actions, are the FCC's indecency rules so vague and enforced in such a haphazard manner that they chill free speech or are otherwise unconstitutional?” (Oxenford, 2009, ¶ 1).

It is against this backdrop that I found the required reading not only informative but exploratory as well. The incessant difficulty in keeping the balance between “underregulation and overregulation” is often the bane of administrative decision making as well as its challenge and vibrancy. (Rosenbloom, 2003, p. 9)

The explosive growth of the United States federal government and its agencies after the Second World War led to what many scholars often described as the “Administrative State” (Rosenbloom, 2003, p. 11) or “Administrative Presidency” (Cann, 2006, p. 36). Administrative Law grew out of the attempt by the legislature, executive, and the judiciary branches to prevent the modern administrative state from trampling upon citizens right.
It is instructive to note however that bureaucracies are themselves a creation of necessity. It is impossible in modern society for the few elected officials to perform all the roles of government. Even if we elect as many of them as we can, elected officials may not have the technical “know-how” required to administer these agencies. As Cann (2006) pointed out all modern presidents often complain that their worst problem was not the Soviets, not the oppposition party, but rather, the very bureacracy meant to help them govern. (Cann, 2006, p. 23)

Even though presidents are most often powerless in establishing most agencies of government, they often found an indirect way to control the activities of these agencies. The executive branch of government exerts numerous controls over both nominally “independent” administrative agencies, and those squarely within the executive. These controls run the gamut from the power of appointment, reorganization, termination, to supervision of an agency’s rule making authority as well as use of Attorney General Opinion rendered in specific instances. (Fox, 1992, p. 45).

It has been argued that presidential power is untramelled with regards to foreign affairs. (Cann, 2006, p. 25). Presidencies also exercise controls over bureaucracy through the concept of “impoundment” (Cann, 2006, p.26); “executive privilege”, and when congress expressly delegated power to the presidency to reorganize agencies. (Cann, 2006, p.26)
Another tool of presidential control of agencies is staff removal. Cann (2006) found that the Constitution is silent on president’s power to remove those he or she has appointed. (Cann, 2006, p. 29) This lacuna may be the reason why recent congressional investigations focused on whether the Department of Justice and the Bush White House wrongfully dismissed eight assistant US attorneys for political purposes hit a brick wall in Washington, DC (Johnson, 2008, ¶ 5).

As we found in the CBS’s case, most agency decisions often impinge on constitutional rights of citizens and corporations. This is one of the reasons why congress enacted the Administrative Procedures Act: To ensure that administrative decisions are not just fair but manifestly seen to be fair. For instance, FCC is an independent agency of the United States government, created, directed and empowered by Congressional Statute (47 U.S.C. § 151 and 47 U.S.C. § 154). The Third Circuit in its ruling stated that the standard of review of agency decisions is governed by the Administrative Procedure Act, (APA) 5 U.S.C. § 706 and thus found FCC to have violated the APA. CBS Corp., et al. v. FCC (2008).

The primary criticism of agency adjudication policy making is that it is mostly done “ex-post facto” i.e after the deeds had been done. The court struck down the FCC's Jackson decision in large part because it concluded that, while the FCC had announced a new policy regarding fleeting “expletives” in another case, for more than 3 decades, it never extended that ruling to fleeting “images” CBS Corp., et al. v. FCC (2008).

In the CBS case, it is apparent that evidentiary adjudication is not a participatory problem-solving exercise. A CBS apology was rejected in place of a hefty fine. There was also not an opportunity for congress to exercise its oversight functions whilst the case was pending at the commission. There are however plethora of advantages to evidentiary adjudication; it is flexible, it provides agencies’ staff and directors with unique opportunities to resolve their policy differences and arrive at compromises often in an incremental fashion. For instance, in a notable confrontation over the FCC's local telephone competition rules, then Chairman Michael Powell was outflanked by Republican Kevin Martin, who formed a majority with the FCC's two Democratic commissioners (Werbach, 2003, ¶ 6).

Adjudication is also preferred as a means of making decisions that is often required by constitutional procedural due process. It affords opportunities for decision makers to “feel the pain” of those affected by their actions, so they could apply equity and compassion in reaching their decision. President Barrack Obama’s primary criterion for appointment of Supreme Court justices is empathy (Ruggeri, 2009 ¶ 2).

As Rosenbloom (2003) argued, the Supreme Court requires a maximum and minimal standards protection before individuals or corporations can be deprived of a benefit by administrative action when procedural due process applies. The case of Goldberg v Kelly (1970) and Goss v Lopez (1975) outlined a fundamental fairness doctrine that is often fact specific.

Adjudicatory orders are often enforced by civil sanctions such as cease and desist orders, forfeitures, product seizures, recalls, revocations suspensions of licenses and financial penalties. However, Congress must expressly delegate authority to impose punitive sanction to agencies in an enabling statute. Congress enacted the Alternative Dispute Resolution Act (1990, Suppl. 1996), in part as response to increased lawsuit against administrators in their personal capacity. There is indeed a dire need for Congress and the Executive arm of government to take another look at APA with a view to advancing its overall objective and reinventing our government for the challenges of modern time.

Administrative Dispute Resolution Act 5 U.S.C. § 571 (1990 & Supp. 1996).
Administrative Procedure Act, 5 U.S.C. § 706 (1946).
Cann, Steven J. (2006). Administrative Law, (4th ed.). Thousand Oaks: Sage Publications.
CBS Corp., et al. v. FCC, 535 F.3d 167 (Third Cir. 2008).
Fox, William F., Jr. (1992). Understanding Administrative Law, (2nd ed.). New York: Matthew Bender
Goldberg v. Kelly, 397 U.S. 254 (1970).
Goss v. Lopez, 419 U.S. 565 (1975).
Johnson, Carrie. (2008, September 29). No Grand Jury for Gonzales: Report to call for continued probe of U.S. attorneys’ firings [Electronic Version]. The Washington Post, Retrieved January 19, 2010, from

Oxenford, David. (2009, May 16). Janet Jackson Case Sent Back to Court of Appeals - Could There Be An Even Greater Impact on Broadcast Regulation? Broadcast Law Blog. Retrieved January 19, 2010, from

Rosenbloom, David H. (2003). Administrative Law for Public Managers, Boulder, Co: Westview Press.
Ruggeri, Amanda. (2009, May 26). Obama Choice of Sotomayor is a Political Balancing Act: Sotomayor could prove to be a tricky target for Republicans [Electronic Version].U.S News & World Report. Retrieved January 19, 2010 from

Stout, David. (2009, May 4). Lower Court Told to Revisit Ruling in Super Bowl Show [Electronic Version]. The New York Times. Retrieved January 19, 2010 from

Werbach, Kevin. (2003, February 19). The Real Michael Powell: The FCC chairman is Al Gore in Republican clothing. MSN Slate Online Magazine. Retrieved January 19, 2010 from

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