Administrative Ethics and Executive Decisions: Channeling and Containing Administrative Discretion by Chad B. Newswander

Author:Chad B. Newswander [Newswander, Chad B.]
Language: eng
Format: epub
Tags: American Government, Political Science, Public Affairs & Administration, General
ISBN: 9781351986137
Google: d0k4DwAAQBAJ
Publisher: Routledge
Published: 2017-10-02T06:12:46+00:00

The Legislative Character of Administration

The extension of these legislative characteristics into administration matters, especially because they are suited as a means to check or control executive dispositions. The fieriness or the subtly of executive action can quickly become excessive, crude, and selfish. Legislative tendencies can offset these outcomes by encouraging a sense of moderation, refinement, and empathy. However, the ability to incorporate these tendencies is not a seamless enterprise. Administration itself is not structured in the same manner as Congress. Furthermore, administrators do not have to appear before the people to win their approval, nor are they directly accountable to the people when they fail to meet their expectations. Lacking this electoral connection, administrators do not have the capacity to directly represent the people in a vigorous manner.

Whereas there are drawbacks in expecting administrators to perfectly model legislative attributes, this setup does not mean that they are left barren of dispositions that animate the legislature. They are still connected to many of the virtues of the legislative branch of government. Congress has ensured this through retrofitting elements of administration into a scheme that mandates they uphold legislative processes that encourage debate and dialogue.23 They also share many of the same characteristics and virtues that were used to justify the original role of the Senate.24 And administrators themselves are connected to the people in many ways because they come from the people.25 These avenues have infused them with an ability to look at public opinion in a way that can be processed, moderated, refined, and made empathic. Such dispositions are solely needed not only in taming administrators’ executive sensibilities but also in trying to make critical choices.

The most prominent and visible area of administration that extols and carries out legislative values is rulemaking.26 Although a great many administrators do not play a role in crafting rules, this task of administration aptly discloses the intimate familiarity that some civil servants have with legislative tendencies. As mandated by the Administrative Procedure Act of 1946, agencies must follow certain legislative procedures before issuing any final rule. With informal rulemaking, for example, they must notify all interested parties of any proposal to establish new requirements. Agencies must then allow for a comment period, allowing any citizen, group, or organization to support or undermine what an agency is seeking to do. Whereas this method is not intended to be an exact replica of what goes on in the halls of Congress, it provides a forum for openness and participation. Administrative action is not being done in secret but disclosed to all. It also creates an avenue for citizens to be involved and to be heard, which also means that it creates a space for conflict. Administrative agencies cannot ignore or dismiss complaints raised by the public in rulemaking. They have to engage and respond. The inclusion of an adversarial mechanism is crucial to maintaining the spirit of the legislature. Authentic deliberation means confronting different viewpoints. A good administrator does not dismiss these complaints but sincerely tries to grapple with them.

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