Jerry L. Mashaw

Between the lines: Interpreting welfare rights, by R. Shep Melnick. Washington, DC: The Brookings Institution, 1994, 335 pp.,

In most important cases, judges base their interpretation not on the letter of the law, but on their reading of its history, purpose and spirit. This book explains how this type of judicial interpretation has affected welfare rights in three programmes. Aid to families with dependent children, education for the handicapped, and food stamps, and how what judges discover between the lines of statutes often has major policy consequences.

36.95 cloth,

By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was minimal and congressional statutes were either self-executing or so detailed as to preclude significant administrative discretion. Such administration as there was went on within executive departments under the exclusive control of the President, and judicial review of administrative action was virtually unknown. From this perspective the administrative state of the twenty-first century, with its independent commissions, combinations of legislative, executive, and judicial authority in administrative agencies, broad delegations of administrative discretion, limitations on presidential control of administration, and ubiquitous opportunities for judicial review of executive action, represents a radical transformation of original constitutional understandings. There is much truth in this conventional vision of nineteenth-century governance, but far from the whole truth. This Article begins a project of recovering the lost one hundred years of federal administrative law. For statutory sources, agency practice, and common law actions in the Federalist period reveal a quite different and more nuanced picture. From the very beginning some administrators were clothed with broad statutory authority, made general rules, adjudicated cases, were located outside of departments, and were tightly bound to congressional oversight and direction. And common law actions provided a judicial review that was often more intrusive and robust than we observe in contemporary practice. If there was an original understanding of the structure, function, and control of administration in early federal law, Federalist practices suggest that it was a much more complex and pragmatic understanding than our conventional account admits.

16.95 paper

Jacksonian America was a country in rapid transition, technologically, economically, geographically, sociologically and politically. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political reform. For Jacksonian Democrats the answer to this popular yearning was the reconstruction of American democracy - including a broadened electorate, offices open to all and the elimination of monopoly and other special privileges. Government at the national level was to be kept small and returned to the people. But as is often the case, the institutionalization of democracy demands a corresponding increase in governmental capacities. Destroying the power of the Monster Bank gave new powers and capacities to the Treasury for the management of monetary policy and fiscal transfers. Offices open to all through the new system of rotation in office created the need for bureaucratic systems of control that replaced status-based restraints and personal loyalties. And the side-effects of technological development, in particular the human carnage that accompanied the rapid expansion of steamboat travel, prompted the creation of a recognizably modern system of health and safety regulation. The Democracy established by the Jacksonians both furthered the building of an American administrative state and solidified an emerging, 19th Century, model of American administration law. In that model administrative accountability was preeminently a matter of (1) political oversight and direction and (2) internal hierarchical control. Judicial control of administration featured a cramped vision of mandamus review that found administrative discretion, and therefore non-reviewability, almost anywhere thought by the responsible official was required. Yet, as individuals, officials remained personally responsible for damages whenever a jury determined that their actions were unauthorized pursuant to some standard common law tort or property action. Although administrative law structured in this fashion seems peculiar, indeed almost invisible, to the 21st Century legal imagination, it fit comfortably within Jacksonian democratic ideology. The Democracy did not envision the judiciary as having a mandate to protect errant officials from responsibility to their fellow citizens for compensation, or to interfere with the discretionary authority of an executive branch headed by a popularly-elected President. Internal hierarchical control of administration smacks of bureaucracy, but not when viewed as reinforcing the elected Presidents power to carry out the peoples will. Bureaucracy, understood as hierarchical control of executive branches officials, and democracy, understood in presidentialist terms, were complements, not competitors. Then, as now, competition between the President and Congress for control of administration was mediated almost exclusively by institutional contestation, not by judicial adjudication. But for Jacksonians, more than for us, this generally partisan struggle was the essence of the new democracy that they had fashioned, not a blemish on some non-partisan ideal of democratic deliberation.

Recovering American Administrative Law: Federalist Foundations, 1787-1801

† With apologies to Jurgen Habermas, Between Facts and Norms, trans. by William Rehg (Cambridge, MA: MIT Press, 1996). I owe an enormous debt of gratitude to Josh Rosenstein, Mike Shumsky, and Steven Wu for research assistance in the preparation of this article. The present text is a revision of an article first published as ‘Agency Statutory Interpretation’ in Philip Frickey, ed., Issues in Legal Scholarship: Dynamic Statutory Interpretation (Berkeley, CA: Berkeley Electronic Press, 2002), online: Berkeley Electronic Press . 1 Perhaps the strongest statement of this is John Willis, ‘Canadian Administrative Law in Retrospect’ (1974) 24 U.T.L.J. 225 [‘Retrospect’]. In other writings Willis sometimes characterized the usual approach as ‘conceptual’ – see John Willis, ‘Three Approaches to Administrative Law: The Judicial, the Conceptual, and the Functional’ (1935) 1 U.T.L.J. 53 [ ‘Three Approaches’] – or ‘ideological,’ as in his famous send up of the McRuer Report: John Willis, ‘The McRuer Report: Lawyers’ Values and Civil Servants’ Values’ (1968) 18 U.T.L.J. 351 [‘Lawyers’ Values’]. 2 Willis, ‘Retrospect,’ supra note 1 at 227.

Administration and 'The Democracy': Administrative Law from Jackson to Lincoln, 1829-1861

Chief Justice John Robertss opinion upholding the individual mandate in the Patient Protection and Affordable Care Act has been hailed as an act of judicial statesmanship that saved the Supreme Court from serious criticism as a partisan, political institution. This article argues that any such praise should be tempered by an understanding of just how far outside mainstream legal understandings the chief justices opinion strayed when considering constitutional issues that were unnecessary to the decision of the case and, in one instance, not ripe for judicial review. Except in its narrow result upholding the mandate, the chief justices opinion is heedless of long-standing precedent, aggressive in creating novel grounds for judicial second-guessing of legislative judgments, cavalier with factual assertions, and disrespectful of the position of other governmental institutions.

Between Facts and Norms: Agency Statutory Interpretation as an Autonomous Enterprise

Public choice theory sheds light on many aspects of legislation, regulation, and constitutional law and is critical to a sophisticated understanding of public policy. The editors of this landmark addition to the law and economics literature have organized the Handbook into four main areas of inquiry: foundations, constitutional law and democracy, administrative design and action, and specific statutory schemes. The original contributions, authored by top scholars in the field, provide helpful introductions to important topics in public choice and public law while also exploring the institutional complexity of American democracy.

Legal, Imagined, and Real Worlds: Reflections on National Federation of Independent Business v. Sebelius

The law under which government officials operate permits them to inflict injury on others, under prescribed circumstances, in established ways, and in carefully (and sometimes not so carefully) calibrated amounts. Indeed, the law goes further: it sometimes tells the official that a failure to injure-that is, to coerce compliance with a predetermined rule of conduct-is a dereliction of official duty. For although there may be interminable argument over the social goals that justify the state in using force, all but the most extreme libertarians concede some place to governmental, and therefore official, coercion. The legal systems permitting-or requiring-officially inflicted harms need not, however, be viewed as meaning that official harms have a peculiar legal position. At its most general level the law governing civil liability imposes an obligation to repair any negligent or intentional harm inflicted upon another.1 This liability rule obtains unless the harmful action can be justified by appeal to special circumstances.2 When harmful action is authorized by the statutes, regulations, customs, and interpretations empowering and instructing officials, such authorization may be viewed as merely one form of justification. Neither the constable who enters blackacre pursuant to a valid warrant nor the buyer who enters pursuant to a contract of sale will be held liable for trespass. But in fact, the major legal rules that govern the civil liability of government officers seem to be quite different from the model sketched above that harm requires reparation unless authorized. Indeed, the basic proposition governing official liability might be stated: Harm requires reparation unless

Public Law and Public Choice: Critique and Rapprochement

The gravamen of the constitutional complaint against the individual mandate is its supposed intrusion on personal freedom. But, when all was said and done, no one attacked a state government’s requirement that individuals must purchase health insurance, nor advanced any constitutional limitation on the states doing so. All we have is a holding that if the federal government wishes to do the same, it must exercise its powers to tax and spend, not its power to regulate. The ACA case then is best understood as a legal attack on the means but not the goals of the health care legislation.This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in our 21st Century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen our nation’s social insurance protections. We explain why this is so with regard not only to health insurance, but also unemployment insurance and social security.

Civil Liability of Government Officers: Property Rights and Official Accountability

In 2010, Barack Obama signed the Patient Protection and Affordable Care Act (the ACA), a complex statute of more than nine hundred pages that fulfilled his goal of extending health-insurance coverage to virtually all Americans—an objective that previous U.S. presidents had sought and failed to achieve for a century.2 This legislation was hotly contested in the Congress, passing with the support of very few Republicans in the Senate and none in the House. To broaden access to health insurance, the ACA relies primarily on two devices: (1) an expansion to Medicaid—a joint federal-state healthinsurance program for the poor and certain other persons with disabilities or specified illnesses—to cover adults with incomes up to 133% of the poverty level, and (2) refundable tax credits for families earning up to 400% of the poverty level to subsidize purchases of private health insurance.3 The Medicaid expansion includes a federal requirement that states expand their coverage to meet the new, higher income threshold or face the potential withdrawal of all federal Medicaid funds.4 Private insurers are required to take all applicants, regardless of their health, and are prohibited from increasing premiums based on preexisting medical conditions.5 The ACA also

Constitutional Uncertainty and the Design of Social Insurance: Reflections on the Obamacare Case

BACKGROUND/PURPOSE: All-terrain vehicles (ATV) use by children leads to severe injury and death. Since the US Consumer Product Safety Commission consent decree expired in 1998, there has been little movement in regulating ATV use for children (<16 yr). The authors hypothesized that states with laws and regulations restricting pediatric ATV use may abrogate excess death compared with states without such restrictions. METHODS: Pediatric mortality data reported to the consumer product safety commission from 1982 to 1998 were analyzed as well as state all-terrain vehicle requirements compiled by the Specialty Vehicle Institute of America in August 2001. The authors calculated ATV mortality rate by dividing ATV mortality frequency by 1980-2000 pediatric census results. They compared the top 26 states with the highest ATV mortality rates (TOP) with those of all other states (OTH) in terms of age, ATV type, ATV occupancy, and ATV laws. Chi-square analysis was performed. RESULTS: There were 1,342 ATV pediatric deaths during the 16-year period. The TOP states averaged approximately a 2-fold increase in adjusted ATV mortality rate compared with the national ATV pediatric mortality rate. Ninety-two percent of TOP states have no licensing laws compared with 73% of the OTH states (P <.07). There is no difference between groups with regard to minimum age requirements and safety certification. CONCLUSIONS: Current legal and regulatory standards have low probability of decreasing ATV-related pediatric mortality. States should adopt laws that restrict the use of ATVs for children less than 16 years of age and potentially prevent excess ATV-related pediatric mortality.