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Some Recent Proposals in the Sphere of Administrative Justice
Published online by Cambridge University Press: 02 September 2013
Extract
Among the problems touched upon by the President's Committee on Administrative Management is that of the role of administrative discretion in the governmental process. Both Professor Hart and Professor Cushman have contributed to the statement of, and have suggested solutions for, this problem.1 Professor Hart is concerned with the exercise of a rule-making discretion at the administrative level, and has ably defended the exercise of this type of decision-making by personnel under the control of the Executive rather than Congress. In other words, the mere fact that administrative action takes the form of general rules does not relate it functionally to the legislative department, and once the notion that rule-making is “legislation” in a separation-of-powers sense is got out of the way, the case for a complete integration of such powers under the control of the President can be pushed through to unqualified conclusion.
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- American Government and Politics
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- Copyright © American Political Science Association 1938
References
1 The special studies involved are entitled “The Exercise of the Rule-Making Power” and “The Problem of the Independent Regulatory Commissions,” respectively.
2 That there is an anomaly here is amply evidenced by the labored attempt of Mr. Justice Sutherland to define the function of Federal Trade Commissioners so as to free them from control by the President. See Humphrey's Executor v. U.S., 295 U.S. 602.
3 It is the fashion nowadays to deprecate the “mixture” of functions in such agencies as the Interstate Commerce Commission; but few stop to consider wherein this mixture exists. Is it because the same group of men have control over the making of rules, their enforcement, and adjudication? Or is it because the same group of men actually do these various things? Only in the latter event should there be any objection.
4 As printed in the Advance Program of the 60th annual meeting of the Association, pp. 168–228.
5 The novelty of this requirement lies in its application to the substantive side of legislation as well as the adjective. Department heads have long enjoyed the right to prescribe regulations for the government of their departments, but they have had no general authority to amplify the substance of statute by interpretation.
6 The committee is under great, and frequently acknowledged, obligation to Professor Hart in all of its proposals with respect to quasi-legislation.
7 It should be mentioned, however, that the committee does not propose to change the present status of the independent boards. It is concerned with extensions of administrative justice, and has given up the legislative or administrative court idea for that of administrative boards. It is true also that various subjects are excluded from the operation of the proposed system. None the less, the departure from orthodox ideas is clear enough.
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