The Fourth Branch of Government: The Bureaucracy, political science homework help


Question Description

Even though neither word, “bureaucracy” nor “administration,” appear in the text of the U.S. Constitution, it is precisely these two elements that make it possible for the Constitution to exist. Without the bureaucracy or the administrative state, Congress would be unable to “lay or collect taxes on income” as per the 16th Amendment; nor would the constitutional protection of “due process” be afforded to every citizen. Nor would any of the rights and privileges that the Constitution provides be protected without the existence of the bureaucracy and the administrative state.

For this Discussion, consider the influence of the bureaucracy in contemporary American government and Nigeria.

Post your perspective on whether the growth of federal bureaucracy is a necessary condition for the functioning of the administrative state in the United States. Explain why and provide an example to illustrate your points. Then, explain what you might add to Wilson’s view on “The Bureaucracy Problem,” and defend your suggestions.

Also Post your perspective on whether the growth of federal bureaucracy is a necessary condition for the functioning of the administrative state in the federal republic of Nigeria. Explain why and provide an example to illustrate your points. Then, explain what you might add to Wilson’s view on “The Bureaucracy Problem,” and defend your suggestions.

Please use these materials


  • Shafritz, J. M., Lane, K. S., & Borick, C. P. (Eds.). (2005). Classics of public policy. New York, NY: Pearson Education.
    • Chapter 2, “Public Policymaking”
      • Street-Level Bureaucrats as Policy Makers (1980) (pp. 51–61)
  • Gedid, J. (2013). Administrative procedure for the twenty-first century: An introduction to the 2010 Model State Administrative Procedure Act. St. Mary’s Law Journal, 44(1), 241–280.
  • Moynihan, D. P. (2004). Protection versus flexibility: The Civil Service Reform Act, competing administrative doctrines, and the roots of contemporary public management debate. Journal of Policy History, 16(1), 1–33.
  • Türk, A. H. (2013). Oversight of administrative rulemaking: Judicial review. European Law Journal, 19(1), 126–142. doi:10.1111/eulj.12017
  • Wilson, J. Q. (2012, Spring). The bureaucracy problem. National Affairs, 11, 145–152.

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ARTICLE ADMINISTRATIVE PROCEDURE FOR THE TWENTY-FIRST CENTURY: AN INTRODUCTION TO THE 2010 MODEL STATE ADMINISTRATIVE PROCEDURE ACT JOHN GEDID* I. Foreword 242 II. Backstory: The IViid-Twendedi Century Origin of APAs 243 A. State Administradve Procedure Act Developments 246 B. The Significance of Drafdng a Model Act .247 III. Fundamental Principles of die 1946 IVISAPA 250 A. General Features of the 1946 iVTSAPA 252 IV. General Features of the 1961 IVISAPA 254 A. Definidons 255 B. 1961 MSAPA Rulemaking Provisions 256 C. 1961 MSAPA Contested Case (Adjudicadon) Provisions . . . 256 V. General Features of the 1981 MSAPA 257 VI. Model State Administradve Procedure Act of 2010 263 A. Drafters' Approach to the 2010 MSAPA 265 B. General Features of the 2010 MSAPA 266 Professor of Law, Widener Utiiversity School of Law; Director, Widener Law & Government Institute; ULÇ Comtnissioner Member 2010 Revised Model State Administrative Procedure Act Drafting Committee, 2004-2010. 241 242 ST. MARY'S LAW JOURNAL C. Definitions ? D. Adjudication E. Central Panel Article F. Judicial Review G. Rulemaking H. Legislative Rules Review I. Electrorüc Procedure VII. Conclusion I. : [Vol. 44:241 . 266 267 273 274 275 277 277 278 FOREWORD The National Conference of Commissioners on Uniform State Laws (ULC) approved the Revised Model State Administrative Procedure Act (2010 MSAPA) in 2010. The model state administrative procedure acts have been one of the most successful endeavors of the ULC.^ They have played a major role in encouraging states to incorporate concepts of fairness into state agency procedure statutes and to make express provisions for judicial review of administrative action.^ Those states that adopted the model acts accompUshed these fairness goals .whue bringing efficiency and accuracy into the state administrative process.-^ This Article describes the evolution of earUer state administrative procedure acts (APAs) into the 2010 MSAPA. By providing an overview of the Act's new features, this Article wiü offer guidance that is useful for analysts and legislators seeking to implement sinular models designed to improve state APAs. This overview examines how the development of 1. See Walter Gellhorn, The Administrative Procedure Aa: The Beginnings, 72 VA. L. REV. 219, 2 3 1 32 (1986) (noting the unprecedented unanimous support for the Act when presented to the Senate in March of 1946). 2. See Arthur Earl Bonfield, The Federal APA and State Administrative Law, 72 VA. L. REV. 297, 307 (1986) (quoting the 1961 MSAPA Prefatory' Note and concurring that '"there are certain basic principles of common sense, justice, and fairness that can and should prevail universally' in the administrative process"); Reuel E. Schiüer, The Era of Deference: Couris Expertise, and the Emergence of New Deal Administrative Law, 106 MICH. L. REV. 399, 430-39 (2007) (analyzing the impact of the Roosevelt administration and the makeup of the courts during the 1930s and 1940s on doctrines governing judicial review). 3. The exact number of states that have adopted the model acts is difficult to specify because the Act is designed to be maüeable enough to aüow states to adopt it in full, or use the Act as a resource for drafting state-made administrative law provisions. See MODEL ST. ADMIN. PROC. ACT, Prefatory Note (2010), 15 U.L.A. 2 (West Supp. 2012) (indicating tiie states Arizona, New Hampshire, and Washington have adopted many of the 1981 Act's provisions whue other states have drawn from the Act in drafting their own administrative procedure provisions). 2012] 2010 MODEL STATE ADMINISTRATIVE PROCEDURE ACT 243 the administradve procedure acts as model acts^ made the ultimate goal of fairness achievable, as evidenced in the various revisions of the MSAPA. It includes a descripdon of the progression of poUdcal.and other restraints on agencies, and the evoludonary reladonship between the 1961 MSAPA and the 2010 MSAPA. AddidonaUy, this Árdele discusses the drafters' attempt to adopt administrative procedures to take advantage of developments in the digital realm. II. BACKSTORY: T H E MID-TWENTIETH CENTURY ORIGIN OF A P A S Administradve law is new and administradve procedure did not emerge as a disdnct category of law untü the mid-twentieth century.^ After a long process of development at the federal and state levels, the ULC adopted the first MSAPA in 1946, the same year that the United States Congress adopted the Federal Administradve Procedure Act (FAPA). The first step in the process took place in 1933 when the American Bar Associadon (ABA) estabUshed a Special Committee on Administrative Law.*^ The Special Committee concluded that the then-current exercise of judicial powers was creadng serious fairness problems.^ In a 1938 ABA report. Harvard Law School Dean, Roscoe Pound, attacked agency adjucUcadon procedure, arguing that: Since an administradve agency acted as rule rhaker, prosecutor, judge, and iury, proceedings before the agency were nothing more than a meaningless formality whose purpose "from end to end is ... to give effect to a complaint." Often agencies skipped the hearing process altogether or made decisions based on evidence that was not on the record. Even when they made decisions on the record, [they were] füled -with opinions, hearsay, and even "gossip."® 4. Note the significance of the drafters' choice to create a model act as opposed to a uniform act. Because the drafters sought a flexible solution that could apply despite the irreconcilable differences in state administrations, the Act was drafted as a model act, creating a solution superior to the rigid application inherent in uniform acts. See WALTER P. ARMSTRONG JR., A CENTURY OF SER-WCE: A CENTENNIAL HISTORY OF T H E NATIONAL CONFERENCE O F COMMSSIONERS ON UNIFORM STATE LAWS 57-68 (1991) (designating the characteristics of a model act). 5. i"ie Jerr)' L. Mashaw, Federal Administration and Administrative Law in the Gilded Age, 119 YALE L.J. 1362,1362 (2010) (descdbing the early days of the American Industrial Age). 6. Walter Gellhorn, The Administrative Procedure Act: The Be^nnings, 11 VA. L. REV. 219, 219 (1936). 7. See id. (noting the first formal report and proposed legislation was "aimed at coping with 'the evils notoriously prevalent' among administrative tribunals"). 8. Reuel E. Schiller, The Era of Deference: Gourts, Expertise, and the Emergence of New Deal Administrative Law, 106 MICH. L. REV. 399, 423 (2007) (internal citations omitted) (quoting SPECIAL COMMITTEE ON ADMINISTRATIVE LAW, 1938 ANNUAL REPORT OF T H E SPECLAL COMMITTEE ON ADMINISTRATIVE LAW, at 347). 244 . ST. MARY'S LAWJOURNAL [Vol. 44:241 Foüowing suit, many state bar associadons also formaüy adopted posidons attacking administradve adjudicadon procedure.^ Commentators, as weü as state and federal bar officials, also attacked administradve rulemaking procedure. These opponents argued that agency acdons were fundamentaüy unfair because agencies did not pubHsh, give nodce of, or make avaüable, the rules adopted by the agencies.^^ Specificaüy, the attacks included a separadon-of-powers element; commentators argued that the agencies issued numerous reguladons that had the force of law, some with criminal penaldes, without pubHc nodce or pubHc access to the reguladons either before or after passage.^ ^ Commentators argued this lack of rulemaking procedure consdtuted a serious incursion against the execudve and legisladve branches.^ ^ The arguments both pro and con were harsh and contendous. Some commentators argued that the strong disagreements between proponents and opponents of administradve reforrh were merely "a search for administradve truth and efficiency."^-^ Others argued "the fight over the APA was a pitched poHdcal batde for the Hfe of the New Deal" and that the "central purpose of the proponents of administradve reform was to constrain Hberal New Deal agencies."^'* The debate was intense because it was not merely about administradve procedure, but rather involved impassioned disagreement regarding substandve law and widely divergent.poHdcal posidons.^^ The attempt to 9. See Walter Geühorn, The Administi-ative Procedure Act: The Beginnings, 72 VA. L. REV. 219, 222 (1986) (describing the ABA president-elect's attacks on the procedure as "Hberals" seeking "totaHtarian powers"). • • 10. See Erwin N.-Griswold, Government in Ignorance of the Law—A Plea for Better Publication of Executive Legislation, 48 HARV. L. REV. 198, 204-08 (1934) (ülustrating the potential negative effects that the administrative procedures would have due to the lack of notice and avaüabiüty of the rules). 11. See id. at 202—03 (giving examples of past regulations that have imposed criminal sanctions for violations, such as the National Industrial Recovety Act of 1933 and the Securities Exchange Act of 1934). 12. See id. at 202-04 (denouncing administrative procedure practices as chaotic and comparing practices of the legislature and judiciaty with those of administrative procedure existing at the time). 13. George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges From New DealPolitics, 90 NW. U. L. REV. 1557,1560 (1996). 14. Id. Much of the material on the battle over administrative procedure is based upon Professor Shepherd's comprehensive article, which focused on the poHtical batties concerning the interrelatedness of New Deal poHtics and administrative procedure reform. See generally id. (providing a detaüed analysis of the developmental histOty of MSAPAs). 15. JVe James M. Landis, CrudalIssues in Administrative Law—The Walter-Logan Bill, 53 HARV. L. REV. 1077, 1078 (1940) (describing how the confHct over administrative procedure played out in the ABA's opposition to the National Lawyers Guüd). 2012] 2010 MODEL STATE ADMINISTRATIVE PROCEDURE ACT 245 create and control administrative procedure was an attempt to control the New Deal.^*^ The attacks on administrative procedure were in fact efforts that sought "radicaUy to alter substance."^'' The New Deal indirectiy sparked the creation and rapid growth of administrative procedure because of perceived abuses by newly created agencies.^ ^ In an attempt to remedy quickly the economic problems of the Great Depression, federal and state legislatures delegated extensive discretion to agencies, empowering them with immense rule-making powers and adjudicatory authority without provisions for standards or pubUshed procedures.^^ Critics asserted that this unchecked discretion did "violence to society's concept of justice."^° Despite the recognized importance of administrative law, it remained unsettied. As late as 1963, one observer noted that: [r|t is self-evident that knowledge concerning [administrative law] is indispensable to the maintenance of the rule of law. In view of the tremendous significance of administrative law, the paucity of information regarding it, particularly at the state level, is appalling. Even the term "administrative law" has not been provided any precise definition . . . ?'^ - Furthermore, the relative novelty of administrative procedure contributed to the use of procedural attacks to accompUsh substantive goals.^^ This reaction explains the business and bar associations' strident attacks on agencies in the mid-twentieth century. The principal reason for the creation of APAs was to control agencies. A major breakthrough in the battie over administrative procedure occurred in 1939, when President Roosevelt ordered the attorney general to appoint a comtnittee to investigate the "need for procedural reform" of 16. i'ee George B. Shepherd, Fierce Compromise: TheAdrmnistrative Procedure Act Emerges From New Deal Politics, 90 Nw. U. L. REV. 1557,-1560 (1996) ("[r]he more than a decade of poütical combat that preceded the adoption of the [Administrative Procedure Act] was one of the major political struggles in the war between supporters and opponents of the New Deal."). 17. James M. Landis, Crudal Issues in Administrative Law—The Walter-Logan Bill, 53 HARV. L. REV. 1077,1078 (1940) (emphasis added). 18. i'ee George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges From New Deal Politics, 90 NW. U. L. REV. 1557, 1558-59 (1996) (describing tiie poücy-shaping power of the agencies brought about by the New Deal). 19. 7i/. at 1562. 20. i'ee Wüliam J. Pierce, The Act As Viewed by an Academidan, 16 ADMIN. L. REV. 50, 50 (1963) (recognizing the concern of unchecked exercise of governmental powers). 21. WilUam J. Pierce, The Act As Viewed hy an Academidan, 16 ADMIN. L. REV. 50, 50 (1963). 22. iee James M. Landis, Crudal Issues in Administrative Law—The Walter-Logan Bill, 53 HARV. L. REV. 1077, 1078 (1940) (maintaining that some of the proponents who amended the National Labor Relations Act did so not because of procedural reasons, but rather, because of other substantive goals). 246 ST. MARY'S LAW JOURNAL [Vol. 44:241 agency pracdce.^^ This committee, endded the Attorney General's Committee on Administradve Procedure (AG Committee), issued its final report in 1941.^''^ The majority (seven of eleven members) made recommendadons for procedural reform that included provisions for disseminadon of administradve informadon and .pubüc access to informadon, fair procedure in informal and formal adjudicadon, and Creadon of nüemaking procedure.-^ The members comprising the minority agreed with the majority, but urged that, in addidon to the majority proposals, provisions were necessary on separadon of fancdons, judicial review, and more detailed agency procedure that was consistent with current nodons of fundamental fairness.^'' After World War II ended, many perceived that government administradve acdon had effecdvely accompüshed tasks of enormous scope and complexity during the war.^^ In 1945, the Attorney General proposed a federal administradve procedure act to the United States House and Senate. Both houses were recepdve, and enacted the Federal Administradve Procedure Act in A. State Administrative Procedure Act Developments During the same period, extensive acdon regarding administradve procedure occurred at the state level. In 1937, the American Bar Associadon Secdon on Judicial Administradon created the Special Committee on Administradve Procedure that produced a 1938 report on state administradve procedure.^^ In 1939, the Committee produced a draft administradve procedure act.^° The draft act was referred to the ULC, which began intensive research and drafdng over several years.''^ Although the ULC had prepared and approved a model administradve 23. ADMINISTRATIVE PROCEDURE IN GO'VERNMENT AGENCIES, S. DOC. N O . 8, at l (l 941). 24. Id. at Letter of Submittal 25. See id at 25-26, 35, 61, 101-02, 114-15 (detailing each of the provisions the majority sought in order to reform administrative procedure). 26. Id at 203; 27. See Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72 'VA. L. REV. 219, 2 2 9 30 (1986) (explaining the impact of World War II in subsiding the Committee's goals of creating a generaüy appücable statute whue stUl balancing the need for individual agency action). 28. Id at 230-32. 29. See Bernard Schwartz, The Model State Administrative Procedure Aa, 1 RUTGERS L. REV. 431, 437 (1953) (crediting this committee's report as giving "major impetus to constructive thinking about State administrative action" (quoting E: Blythe Stason, The Model Administrative Procedure Act, 33 IOWA L.REV. 196,198(1948))). 30. Id 31. Id.\ see also 1 FRANK E. COOPER, STATE ADMINISTRATIVE LAW 9 (1965) (noting the extensive and thorough evaluation of the draft act by the ULQ. 2012] 2010 MODEL STA TE ADMINISTRA TIVE PROCEDURE A er 247 procedure act by 1941, when the AG Committee filed a second report that year, the Conference began an exhaustive review of its existing draft act that took into account the new federal report, as weü as the "Benjamin Report" from New York.-^^ After numerous revisions and extensive research, the ULC adopted the Model State Administrative Procedure Act of 1946.^^ Immediately, several states heavüy reUed on the provisions of the 1946 MSAPA to serve as a guidepost in designing their own state B. The Significance of Drafting a Model Act Prior to the adoption of the federal and state APAs, there was considerable discussion on how to draft procedure acts for agencies.^^ Although many analysts argued for comprehensive procedural codes, a substantial number of commentators emphasized that it was impossible to fashion a uniform, comprehensive code to govern the activities of aU agencies.'^'^ This group argued that orüy a general set of basic fairness principles would enable APA drafters to offer guidance to aU entities seeking to create codes of administrative procedure: "What is needed is 32. 4 ROBERT M. BENJAMIN, ADMINISTRATIVE ADJUDICATION IN THE STATE OF NEW YORK—REPORT TO HONORABLE HERBERT H. LEHMAN 1 (1942); see also 1 FRANK E. COOPER, STATE ADMINISTRATIVE LAW 10 (1965) (explaining the significance of the Benjamin Report's critique of state administrative practice and procedure). 33. MODEL ST. ADMIN. PROC. ACT, Historical Notes (1961), 15 U.L.A. 174 (2000). 34. See Arthur Earl Bonfield, The Federal APA and State Administi'ative Law, 72 VA. L. REV. 297, 297 (1986) (pointing out that the states relied on the general concepts of the Model State Administrative Procedure Act when creating their own laws). 35. See Walter Geühorn, The Administi-ative Procedure Act: The Beginnings, 72 VA. L. REV. 219, 225 (1986) (focusing on the extensive research). Indeed, there was no shortage of reports regarding the matter; Altogether, before the Committee concluded its activity', some forty separate agencies and distinct entities within departments were studied; twenty-seven descriptive and evaluative "monographs" were prepared for pubUcation; the fruits of the staffs researches were made avaüable to the agencies involved and were discussed by them with the fuü committee; and, after pubüc notice as weü as individual invitations to [one hundred thousand] persons whose presence on various üsts indicated some measure of interest, pubüc hearings were held to receive oral or written opinions about administrative procedure. Id;, see also MODEL ST. ADMIN. PROC. ACT, Prefatory Note (1961), 15 U.L.A. 175-76 (2000) (summarizing the numerous steps, revisions, and reports considered before adoption of the 1946 MSAPA). 36. See ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, S. DOC. NO. 8, at 2, 28 (1941) (discussing the criticisms faced by the Committee and its plans for addressing potential problems of rigid appUcation across agencies); see also 4 ROBERT M. BENJAMIN, ADMINISTRATIVE ADJUDICATION IN T H E STATE O F N E W Y O R K — R E P O R T TO HONORABLE HERBERT H . LEHMAN 35—36 (1942) (delineating numerous reasons a uniform code would be impractical). 248 ST. MARY'S LAW JOURNAL [Vol. 44:241 not a detaüed code but a set of principles and a statement of legisladve poUcy. The prescribed pattern need not be, and shoiüd not be, a rigid mold. There should be ample room for necessary changes and ñül aüowance for differing needs of different agencies."^^ This descripdon by the AG Committee could serve as a definidon for a model act; the ULC foUowed it in drafdng die 1946 MSAPA.^^ After the ULC enacted the 1946 MSAPA as a model act, the drafters of the 1961 MSAPA foUowed die same drafting technique.^^ This was a cridcaUy important choice. It occurred despite the fact that the ULC inidaUy sought to promiügate a uniform state administrative procedure act: "OriginaUy the Nadonal Conference had thought of its measure as a 'uniform act' rather than a 'model act' . . . . However,... it became apparent that there were wide and . . . irreconcüable diversides in statutory pracdces ki effect ki various states of the Union.'"*° Somethi ...
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School: Purdue University


The Fourth Branch of Government: The Bureaucracy
Thesis statement: The federal bureaucracy is necessary for the government efficiency
that is the demand by the citizens of a developed administrative state such as the United States
and a developing one like the Federal Republic of Nigeria. Although critics of bureaucracy claim
that it creates more problems in these nations than it solves, some methods can be utilized to
address the problem it creates.



Federal bureaucracy is necessary for the administrative state in the United States.


Overlapping functions is an additional bureaucracy problem in the United States.


Federal bureaucracy is not necessary for the administrative state in the Nigeria.


Oversized structure, toxic leadership, and political interference are additional
bureaucracy problems in Nigeria.


The Fourth Branch of Government: The Bureaucracy



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