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Public administration and the erosion of the rule of law in the United States

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The failure of public administration theorists, researchers, reformers, and practitioners to make the rule of law the foundation of U.S. public administration has contributed to an erosion of constitutionality and legality in the national administration.

Prominent contemporary threats to the rule of law include standardless delegations of legislative authority to administrative agencies, the Chevron octrine and related judicial deference, the use of administrative guidance documents in place of rules, presidential legislation by executive order, aggrandizement through unitary executive branch theory, and policymaking by concerted nonenforcement of statutory requirements.

Together, these threats contribute to massive constitutional distortion. This raises questions of whether it is time for public administration theorists, researchers, and practitioners to consider a ‘rule of law restoration’ initiative in the U.S. and use the American case examined here as a potential basis for considering the role of the rule of law in contemporary public administration worldwide.

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David H. Rosenbloom is Chinese Thousand Talents Program Professor of Public Administration in the School of Public Administration and Policy at Renmin University of China and Distinguished Professor of Public Administration in the School of Public Affairs at American University (Washington, DC).


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2 Waldo, The Enterprise of Public Administration.
3 Stivers, Bureau Men, Settlement Women.
4 Wilson, “The Study of Administration,” 22.
5 White, “Introduction to the Study of Public Administration,” 50
6 Gulick and Urwick, Papers on the Science of Administration, 192.
7 Goodnow, Comparative Administrative Law; Goodnow, The Principles of the Administrative Law of the United States.
8 Lynn, “Restoring the Rule of Law to Public Administration,” 803–813.
9 Rosenbloom, “Administrative Law and Regulation,” 635–696.
10 Yeager, Index of the Public Administration Review 1940–1994.
11 Davis, “Reflections of a Law Professor on Instruction and Research in Public Administration,” 728–752.
12 Svara and Brunet, “Social Equity is a Pillar of Public Administration,” 253–258; Svara and Brunet, “Filling in the Skeletal Pillar,”99-109
13 Rosenbloom and Naff, “The Status of Law in Contemporary Public Administrative Literature, Education, and Practice,” 211–220.
14 Wamsley, Refounding Public Administration.
15 Newbold and Rosenbloom, The Constitutional School of American Public Administration.
16 Morgan et al., “Recovering, Restoring, and Renewing the Foundations of American Public Administration,” 621–633.
17 Amsler, “Collaborative Governance,” 700–711.
18 Thompson, Without Sympathy or Enthusiasm.
19 Cooper and Reinagel, “The Limits of Public Service Motivation,” 1297–1317.
20 Peabody, “Legislating from the Bench,” 185–232.
21 Rosenbloom, Building a Legislative-Centered Public Administration.
22 U.S. Congress, Congressional Record, 5648.
23 Ibid.
24 Fiorina, Congress.
25 J. W. Hampton, Jr. and Company v. United States, 276?U.S. 394.
26 Industrial Union Department, AFL-CIO v. American Petroleum Institute, 612.
27 Ibid., 681.
28 Ibid., 686.
29 Whitman v. American Trucking Associations, 531?U.S. 457.
30 Chevron U.S.A. v. Natural Resources Defense Council, 467?U.S. 837.
31 Ibid., 843–844.
32 Ibid., 864.
33 City of Arlington, Texas v. Federal Communications Commission, 569?U.S. 290.
34 Ibid., 315.
35 Auer v. Robbins, 519?U.S. 452.
36 Rosenbloom, Administrative Law for Public Managers, 63–86.
37 Pierce, Rulemaking Ossification is Real.
38 Raso, “Strategic or Sincere,” 782–825; Strauss et al., Gellhorn and Byse’s Administrative Law, 190.
39 Strauss et al., Gellhorn and Byse’s Administrative Law, 189.
40 Ibid., 178.
41 Chamber of Commerce v. Department of Labor, 173 F.3d 206.
42 Chu and Garvey, Executive Orders.
43 Ibid., 1.
44 Olson and Woll, Executive Orders and National Emergencies, 13, Table 1.
45 Ibid.
46 Ibid.
47 Olson and Woll, Executive Orders and National Emergencies; Wolley and Peters, “The American Presidency Project.”
48 Executive Order 8802. U.S. Federal Register 6:3109 (June 25, 1941).
49 Civil Rights Act, PL 88-352; 78 Stat. 241 (July 2)
50 Savage, “Shift on Executive Power lets Obama Pass Rivals.”
51 Brady, “Statement by the President on the Affordable Care Act.”
52 Curry, “Frustrated Obama’s Message: I’ll go it Alone.”
53 Ibid.
54 See note 41 above, 7.
55 Ibid.
56 U.S. Federal Register, “Donald Trump Executive Orders.”
57 Carey and McClellan, The Federalist, 362.
58 Ibid., 363.
59 U.S. President’s Committee on Administrative Management, Report with Special Studies.
60 Ibid., 3.
61 Ibid., 40–50.
62 Rohr, To Run a Constitution, 139.
63 Karl, Executive Reorganization and Reform in the New Deal, 24.
64 Schlessinger, The Imperial Presidency.
65 Yoo, Calabresi, and Colangelo, “The Unitary Executive in the Modern Era, 1945–2004,” 601–731; Yoo, Calabresi, and Nee, “The Unitary Executive During the Third Half-Century, 1889–1945,” 1–110; Rosenbloom, “Reevaluating Executive-Centered Public Administrative Theory,” 101–127; Van Bergen, “The Unitary Executive.”
66 Rosenbloom, “Reevaluating Executive-Centered Public Administrative Theory,” 120–121.
67 American Bar Association, Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, 5.
68 Ibid.
69 Delhunty and Yoo, “Dream On,” 783.
70 Ibid., 786.
71 Ibid., 781–858.
72 Heckler v. Chaney, 470?U.S. 831.
73 Ibid.,831–832.
74 Ibid., 832.
75 See note 69 above.
76 Federal Trade Commission v. Ruberoid, 487.
77 Toobin, “Our Broken Constitution.”
78 U.S. Congress, H.R. 76-Separation of Powers Restoration Act of 2017.
79 Ibid.

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