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Journal of Chinese Governance

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

David H. Rosenbloom

To cite this article: David H. Rosenbloom (2019) Public administration and the erosionof the rule of law in the United States, Journal of Chinese Governance, 4:1, 1-14, DOI:10.1080/23812346.2018.1564490

To link to this article: https://doi.org/10.1080/23812346.2018.1564490

Published online: 19 Feb 2019.

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RESEARCH ARTICLE

Public administration and the erosion of the rule of lawin the United States

David H. Rosenblooma,b

aSchool of Public Administration and Policy, Renmin University of China, Beijing, People’s Republicof China; bSchool of Public Affairs, American University, Washington, DC, USA

ABSTRACTThe failure of public administration theorists, researchers, reform-ers, and practitioners to make the rule of law the foundation ofU.S. public administration has contributed to an erosion of consti-tutionality and legality in the national administration. Prominentcontemporary threats to the rule of law include standardless dele-gations of legislative authority to administrative agencies, theChevron doctrine and related judicial deference, the use of admin-istrative guidance documents in place of rules, presidential legisla-tion by executive order, aggrandizement through unitaryexecutive branch theory, and policymaking by concerted nonen-forcement of statutory requirements. Together, these threats con-tribute to massive constitutional distortion. This raises questionsof whether it is time for public administration theorists, research-ers, and practitioners to consider a ‘rule of law restoration’ initia-tive in the U.S. and use the American case examined here as apotential basis for considering the role of the rule of law in con-temporary public administration worldwide.

ARTICLE HISTORYReceived 16 July 2018Accepted 23 December 2018

KEYWORDSPublic administration; ruleof law; Chevron doctrine;unitary executive branchtheory; constitu-tional distortion

Introduction

Often, when we think of threats to the rule of law, our minds turn towards examplesof military coups, elected heads of government who progressively or suddenly assumedictatorial powers and corruption. We may also think public bureaucracy and bureau-cratization threaten the rule of law.1 Rarely, however, do we consider public adminis-trative doctrine itself to constitute such a threat. However, the historic andcontemporary failure of public administration theorists, researchers, reformers, andpractitioners to ground U.S. public administration in the rule of law has contributed toan erosion of constitutionality and legality that now calls on us to rethink the basicpremises, principles, and practices of the ‘enterprise of public administra-tion’ worldwide.2

In this article, I contend that U.S. public administration has contributed to the ero-sion of the rule of law by grounding itself in the nonpolitical values of efficiency,

CONTACT David H. Rosenbloom rbloom313@hotmail.com School of Public Affairs, American University,Washington, DC, USA� 2019 Zhejiang University

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economy, effectiveness, ‘merit’, and performance; defining itself as a field of manage-ment rather than government; aggrandizing the U.S. presidency by promoting unity ofcommand; and preferring administrative discretion to administration constrained bylaw. My overall objective is to contribute to a reorientation of contemporary publicadministrative doctrine so that its foundational pillar and ‘axiom number one’ are therule of law.

A foundational mistake

For historical reasons, U.S. public administration was founded on management ratherthan constitutionalism or law.3 In his confused foundational essay, ‘The Study ofAdministration’ (1887), Woodrow Wilson famously asserted that ‘The field of adminis-tration is a field of business. It is removed from the hurry and strife of politics; it atmost points stands apart even from the debatable ground of constitutional study’.4

Four decades later, Leonard White’s Introduction to the Study of Public Administration(1926), generally considered the first American public administration textbook,embedded Wilson’s perspective into the field. White’s Introduction assumed ‘that thestudy of administration should start from the base of management rather than thefoundation of law, and is, therefore, more absorbed in the affairs of the AmericanManagement Association than in the decisions of the courts’.5 By 1937, Luther Gulick,a major leader in the field of public administration, could claim that ‘efficiency is...axiom number one in the value scale of public administration’, which in consequencecreates a conflict with the political values.6

As Laurence Lynn argues, Frank Goodnow7 offered the rule of law as an alternativeto management as the foundation of public administration.8 However, U.S. law inGoodnow’s day was largely judge-made common law and the courts were generallyhostile to its supersession by administrative discretion and rulemaking.9 As judged bythe number of pages devoted to it in Public Administration Review, in the mid-twenti-eth century the field paid little attention to enactment of the AdministrativeProcedure Act (APA) of 1946, which is the basic law of federal administration.10

Notably, in 1953, Kenneth Culp Davis, the nation’s leading expert on administrativelaw, could sharply criticize the field of public administration for its neglect, ignorance,and misconceptions of administrative law.11 Although increasing attention has beenpaid to individual statutes, such as the Freedom of Information Act of 1966, and lawgenerally, as late as the aughts leading contributors to the academic field of publicadministration could still ignore the rule of law as a foundational pillar.12 Indeed, as of2008, students in about 60 percent of Master of Public Administration programsaccredited by the National Association of Schools of Public Affairs and Administrationcould graduate without having taken a single law-oriented course.13

There were, of course, exceptions. These included the ‘Blacksburg Group’ at VirginiaPolytechnic Institute and State University (‘Virginia Tech’), which produced RefoundingPublic Administration, also known as ‘The Blacksburg Manifesto’, arguing that the U.S.Constitution was the proper foundation for American public administration.14 Amongthe group was John Rohr, who was a major contributor to what is now known as ‘TheConstitutional School of American Public Administration’.15 Rohr (and I) studied at the

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University of Chicago in the 1960s with Professor Herbert Storing, whose work wasfoundational to the ‘Constitutional School’.16 But in trying to demonstrate that, at leastin some cases, constitutions matter to public administration, the Constitutional Schoolhas always been outside the mainstream of U.S. public administration.

The field continues to pursue research and promote public values with little atten-tion to law. Remarkably, until late 2016, developing a comprehensive legal frameworkfor collaborative governance received scant attention.17 ‘Social equity’, criticized forbeing extra-legal in 1975,18 still lacks an overall legal foundation. Public service motiv-ation is treated as a normative good in the absence of research on its relation tobehaving in concert with the rule of law or even whether it promotes legal (or posi-tive) outcomes.19 Given public administration’s failure to place the rule of law at itscenter, it is not altogether surprising that it has accepted, embraced, and encourageddeviations from the law and lawful implementation in efforts to promote efficient, eco-nomical, and effective management.

Agencies as lawmakers

Standardless delegations of legislative authority: lawmaking in the absence of‘intelligible principles’

It is axiomatic that legislatures should make law. The first sentence after the Preambleto the U.S. Constitution is, ‘All legislative Powers herein granted shall be vested in aCongress of the United States’ (U.S. Constitution 1789, Article I, section 1). Today,accuracy would demand modification to read: all laws must be made by Congress orthrough administrative rulemaking and adjudication, presidential executive orders,memoranda, and other directives and judicial decisions. Leaving the courts and theissue of ‘legislating from the bench’ to others,20 congressional delegations of legisla-tive authority to the executive branch, including the president, became necessary asthe reach of government into the economy and society expanded and public policybecame more complex. After years of questioning the legitimacy of vast delegationsof legislative authority, by 1946, when Congress enacted the Administrative ProcedureAct and Legislative Reorganization Act, delegation became an accepted form of law-making.21 As explained by Congressman Francis Walter, ‘There are the legislative func-tions of administrative agencies, where they issue general or particular regulationswhich in form or effect are like statutes of the Congress’.22 Walter attributed adminis-trative lawmaking to Congress’s lack of ‘time, the staff, and the organization’ to exer-cise ‘all legislative powers’ as constitutionally prescribed.23 Lack of capacity is certainlypart of the rationale for delegating legislative power to agencies. However, as MorrisFiorina24 has demonstrated, lack of will and the political advantages that come withavoiding controversial and often costly standards are also factors.

As a constitutional matter, in 1928 the Supreme Court held that delegations oflegislative authority are acceptable insofar as they are accompanied by ‘an intelligibleprinciple to which [the agency must]... conform’.25 Once applied with a degree ofstrictness, after the mid-1930s the ‘intelligible principle doctrine’ warranted lip serviceonly, if that. For instance, in 1980, the Supreme Court let stand a delegation directingthe secretary of labor, ‘in promulgating standards dealing with toxic materials or

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harmful physical agents’ to ‘set the standard which most adequately assures, to theextent feasible, on the basis of the best available evidence, that no employee will suffermaterial impairment of health or functional capacity even if such employee has regu-lar exposure to the hazard dealt with by such standard for the period of his workinglife’.26Based on the legislative history, Justice Rehnquist called the feasibility require-ment ‘a legislative mirage, appearing to some Members [of Congress] but not toothers, and assuming any form desired by the beholder’.27 Rehnquist called on theother justices step up and exercise ‘our judicial duty to invalidate unconstitutional del-egations of legislative authority’,28 but all declined. In 2001, the Courtdeclined again.29

That appointed officials and employees in agencies, rather than elected legislatorsmake law may constitute a threat to democratic governance and popular sovereignty.However, by itself, if agency lawmaking is regulated by a statute like the APA, prin-cipled, and relatively stable, it does not necessarily diminish the rule of law. Enter the‘Chevron doctrine’.

The Chevron doctrine: empowering agencies to define ambiguousstatutory language

A statute with an intelligible principle may nevertheless have ambiguous terms thatoffer agencies little guidance. Chevron U.S.A. v. Natural Resources Defense Council(1984)30 addressed this aspect of the rule of law by providing agencies with consider-able leeway in defining their statutory missions. At issue were two words, ‘stationarysource’ in 1977 statutory amendments to the Clean Air Act of 1970. TheEnvironmental Protection Agency, which enforces the act, posited different definitionsof stationary source for two parts of the act’s overall objective. For the maintenance ofair quality, it defined stationary source as a ‘bubble’ over industrial plants or group-ings; for the enhancement of air quality, such a stationary source could be a singlepiece of equipment. Later, the EPA switched its definition for enhancement to a bub-ble as well.

In its decision, the Supreme Court set forth the three elements of the Chevron doc-trine: (1) if Congress has directly spoken to the precise issue and its intent is clear, theagency has to implement the statute accordingly; (2) if Congress has not provided pre-cise guidance, then the agency can adopt any ‘permissible construction’ of the statute;(3) guided by APA requirements, the agency’s constructions will be permissible ‘unlessthey are arbitrary, capricious, or manifestly contrary to the statute’.31 Importantly, interms of the rule of law, the Court emphasized that multiple constructions of thesame words may be permissible:

Our review of the EPA’s varying interpretations of the word ‘source’—both before andafter the 1977 Amendments—convinces us that the agency primarily responsible foradministering this important legislation has consistently interpreted it flexibly—not in asterile textual vacuum, but in the context of implementing policy decisions in a technicaland complex arena. The fact that the agency has from time to time changed itsinterpretation of the term ‘source’ does not... lead us to conclude that no deferenceshould be accorded the agency’s interpretation of the statute. An initial agency

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interpretation is not instantly carved in stone. On the contrary, the agency, to engage ininformed rulemaking, must consider varying interpretations.32

Coupled with the weak application of the intelligible principle doctrine, the Chevrondoctrine, turns imprecise statutory language into nothing more than flexible guidelinessubject to multiple and changing agency construction as the basis for administrativerulemaking (i.e. ‘lawmaking’). Chevron’s threat to the rule of law was compounded inCity of Arlington, Texas v. Federal Communications Commission33 in which the Courtapplied the Chevron doctrine to an agency’s definition of its own jurisdiction. In a dis-sent joined by Justices Anthony Kennedy and Samuel Alito, Chief Justice Robertsnoted how much additional lawmaking power City of Arlington conveys by goingbeyond Chevron to give agencies ‘power to decide’ not just on the meaning of impre-cise terms in statutes but also when ‘Congress has given them... power’ to determinewhat they may regulate under an imprecise law.34 In this context, it should be notedthat Chevron deference also applies to an agency’s interpretation of its own rules.35

‘Guidance’ in place of law

The Chevron doctrine mandates judicial deference to agencies’ statutory interpretation.Agency rules following those interpretations can be invalidated by courts for a num-ber of reasons, including being procedurally defective, arbitrary, capricious, in excessof statutory or constitutional authority, and lacking substantial evidence for support.36

In some agencies, such as the Environmental Protection Agency, legal challenges torules are so common as to be essentially part of the rulemaking process. Some admin-istrative law scholars consider rulemaking to be so laden with presidential, statutory,and judicially imposed requirements that it has become ‘ossified’.37 Not surprisingly,encumbrances on rulemaking tempt agencies to find alternative approaches to fulfill-ing their missions.

‘Guidance’ documents are one such alternative.38 For instance, in the 1990s, therewas ‘a striking increase in the number of FDA [Food and Drug Administration]-issueddocuments intended to give guidance to the regulated industry but not adoptedthrough public procedures’.39

In general, guidance documents consist of interpretative (also called interpretive)rules, policy statements, and rules regarding agency procedure, practice, and organiza-tion.40 Guidance documents must be published in the U.S. Federal Register but theyare not required to go through the same notice and comment or adjudicative-likeprocesses required for legislative (substantive) rules because in theory they are non-binding on entities outside the issuing agency. Yet, distinguishing between thesedocuments and binding legislative rules can be difficult and agencies can sometimesachieve their objectives by issuing guidance rather than rules. An entity seeking tosteer clear of agency enforcement may well treat guidance documents as though theyare binding legislative rules. In Chamber of Commerce v. Department of Labor (1999),41

for example, a federal court of appeals, found that although ostensibly based on guid-ance, the Occupational Safety and Health Administration’s Cooperative ComplianceProgram, was essentially coercive in violation of APA requirements for legislative rule-making. As in Chamber of Commerce, substituting guidance documents for rules

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generally enables agencies to avoid the prospect of ‘ossification’—and full compliancewith APA and other legal rulemaking requirements.

The presidency and the rule of law

Article II of the Constitution places the ‘executive power’ in the president and callsupon him (or a future her) to ‘take care that the laws be faithfully executed’. Alongwith these clauses, history, and contemporary ‘unitary executive branch’ theory, presi-dents have joined Congress in compromising the rule of law. Three presidential practi-ces, in particular, do so: governing by executive order rather than statute, advocatingand acting upon ‘unitary executive branch’ theory; and nonenforcement of clear statu-tory requirements.

Executive orders

As the scope of the federal government grew and its reach expanded deeper into theeconomy, society, and state and local governmental levels, executive orders essentiallybecame a form of presidential legislation. Executive orders are extra-constitutional inthe sense that they are not mentioned in the Constitution or explicitly authorized byit. They are formally defined as ‘directives or actions by the President’ that whenbased on constitutional or statutory authority ‘may have the force and effect of law’.42

Although they ‘are generally directed to, and govern actions by Government officialsand agencies’ and cannot reach purely private activity, they can ‘indirectly’ and sub-stantially affect private individuals and entities who interact with or depend on thefederal government for benefits of one kind or another.43

Executive orders were used relative sparingly during the nineteenth century.President Abraham Lincoln (1861–1865) issued three, some presidents issued none,and President Grover Cleveland (1885–1889 and 1893–1897) issued seventy-one, themost of any president up to the twentieth century.44 Their use became more commonduring the first half of the twentieth century, with several presidents issuing morethan 1,000.45 For example, President Theodore Roosevelt (1901–1909) issued 1006;Woodrow Wilson (1913–1921), 1,719; Calvin Coolidge (1925–1929), 1253; and HerbertHoover (1929–1933), 1004.46 Among recent presidents, George H. W. Bush(1989–1993) issued 166, Bill Clinton (1993–2001) 364, George W. Bush (2001–2009)291, and Barack Obama (2009–2017) 276.47 Many executive orders are ceremonial,technical, and not subject to judicial enforcement. Others, however, are a substitutefor legislation. For instance, President Franklin Roosevelt’s executive order 880248

banned discrimination based on race, religion, color, or ethnicity in the defense indus-try, something that could not be accomplished for the private sector as a whole untilenactment of the Civil Rights Act of 1964.49

Perhaps Obama was most candid about using executive orders to circumvent theConstitution’s prescribed legislative process. In 2012, he indicated ‘If Congress refusesto act, I’ve said that I’ll continue to do everything in my power to act without them’.50

The following year, speaking with reference to the Patient Protection and AffordableCare Act (‘Obamacare’), Obama reiterated that ‘Regardless of what Congress does,

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ultimately I’m the president of the United States’ and the public ‘expect[s] me to dosomething about it’.51 Later, he intimated that he would ‘go it alone’ if he could notacquire sufficient congressional support for his policy initiatives.52 Prior to the 2014State of the Union Address, Obama publicly asserted, ‘I’ve got a pen and I can usethat pen to sign executive orders and take executive actions and administrativeactions that move the ball forward’.53

Executive orders further threaten the rule of law due to their inherent instability. Asthe Congressional Research Service explains ‘By their very nature... executive orderslack stability, especially in the face of evolving presidential priorities. The President isfree to revoke, modify, or supersede his own orders or those issued by a predeces-sor’.54 The degree of instability can be expected to swell with changes in the presi-dent’s political party. Bush II revoked several of Clinton’s executive orders and Obamafollowed suit by revoking several of Bush’s.55 In 2017, President Donald Trump issued55 executive orders, several of which revoked or modified Obama executive ordersand initiatives.56

Unitary executive branch theory

Unitary executive branch theory contends that the president has sole final authorityover administration in the executive branch of the federal government. The historicalroots of this theory can be traced back to Alexander Hamilton’s writings in theFederalist Papers (1787–1788). In supporting and defending the constitutional designfor the presidency, Hamilton argued that an ‘energetic’ presidency was ‘essential tothe protection of the community against foreign attacks’ and ‘not less essential to thesteady administration of the laws;... the protection of property... [and] to the securityof liberty’.57 He argued that ‘unity’ was a leading contributor to such energy.58

A century and one half later, the U.S. President’s Committee on AdministrativeManagement (PCAM) (President’s Committee on Administrative Management;59 alsoknown as the ‘Brownlow Report’), sought to unify the executive branch under presi-dential control. The Committee was comprised of Louis Brownlow, Luther Gulick, andCharles Merriam, all of whom were top-level leaders in public administration. TheirReport contended that efficiency requires the ‘establishment of a responsible andeffective chief executive as the center of energy, direction, and administrative manage-ment’.60 In part, this meant that ‘once the Congress has made an appropriation, anappropriation which it is free to withhold, the responsibility for the administration ofthe expenditures under that appropriation is and should be solely upon theExecutive’.61As John Rohr noted, the Committee’s reasoning ‘transforms the presidentfrom chief executive officer to sole executive officer’.62 Not surprisingly, theCommittee’s initial legislative proposal was denounced in Congress as the ‘dictatorbill’.63 In 1939, however, Congress passed a Reorganization Act that enabled PresidentFranklin Roosevelt to establish the Executive Office of the President as a means offacilitating some of the PCAM’s recommendations and the eventual rise of the greatlyaggrandized ‘imperial presidency’.64

Building on this history and its accompanying public administrative doctrine,President George W. Bush introduced a theory of the unitary executive branch. In

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Bush’s version: (1) the president has a constitutional responsibility to protect the con-stitutional powers and authority of the presidency from encroachments by the otherbranches of the federal government; (2) the president’s constitutional responsibility totake care that the laws be faithfully executed and to serve as commander in chief ofthe armed forces require him not to implement statutory provisions that he believesare unconstitutional; and (3) the president has authority to determine whether a law isconstitutional.65 A corollary is that the president may exercise, directly or throughappointees, all legislative authority delegated to executive branch agencies. In otherwords, although Congress delegates its legislative authority to agencies with theexpectation that they will use their scientific, economic, and other expertise to setstandards and establish supplemental policies, as in the Clean Air Act example of‘stationary source’ discussed earlier, the president could directly set and establishthem himself. Bush explicitly referred to ‘the President’s constitutional authority tosupervise the unitary executive branch’ in some of his signing statements regardingmajor legislation.66

Unitary executive branch theory comports with the PCAM’s overall vision of thepresidency at the head of a unified executive branch to the extent that it might placethe president above the law. This is precisely what concerned the American BarAssociation in 2006 when its Task Force on Presidential Signing Statements and theSeparation of Powers Doctrine called on Bush to remember that the ‘Constitution isnot what the President says it is’.67 The Association’s call also urged ‘this Presidentand all his successors to fully respect the rule of law and our constitutional system ofthe separation of powers’.68

Nonenforcement

Bush’s invocation of unitary executive branch theory in signing statements indicatingthat he might not enforce the law as written raised the question whether the presi-dent has constitutional authority to decline to enforce clear statutory provisions. Inconstitutional terms, does the president’s responsibility to ‘take care that the laws befaithfully executed’ (U.S. Constitution 1789, Article II, section 2, clause 3; italics added)convey discretion not to enforce laws which he considers contrary to the nation’sinterests or to prioritize the use of the executive branch’s limited resources by declin-ing to invest them in some enforcement actions and the expense of others?

President Obama introduced nonenforcement as a major means of making domes-tic policy in the areas of marihuana use, same-sex marriage, and immigration. Withrespect to the latter, nonenforcement at least temporarily protected some800,000–1.76 million undocumented immigrants from potential deportation.69 In termsof the rule of law, nonenforcement means that the president, rather than the law isruling. Moreover, other than impeachment and removal of the president from office,there is no clear constitutional check on nonenforcement and the efficacy of politicalchecks is uncertain.70 As with unitary executive branch theory, nonenforcement placesthe president above the law.

To the extent that Obama offered a legally oriented defense of nonenforcement, itwas largely based on his exercise of ‘prosecutorial discretion’ in deciding which legal

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provisions to enforce.71 The clearest precedent for nonenforcement in U.S. federaladministrative law is Heckler v. Chaney.72 The issue there was whether the Food andDrug Administration had to enforce its statutory mandate to approve drugs for humanuse before the drugs used in lethal injection of condemned prisoners could be law-fully administered.

The Supreme Court created a strong presumption against judicial review of agencynonenforcement on the basis that in deciding where to put their resources and ener-gies, an agency is better positioned than courts to balance ‘a number of factors whichare peculiarly within its expertise’.73 In language further supportive of discretionaryadministrative nonenforcement, the Court continued:

we recognize that an agency’s refusal to institute proceedings shares to some extent thecharacteristics of the decision of a prosecutor in the Executive Branch not to indict—adecision which has long been regarded as the special province of the Executive Branch,inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that theLaws be faithfully executed’.74

However, there is a considerable difference in deciding not to enforce law in an indi-vidual case and dispensing with the law or some of its provisions altogether.75 Until thecourts provide clearer guidance on when nonenforcement is unacceptable and Congressdetermines when and how it is worth trying to check, nonenforcement will remain animportant aspect of presidential power and serious threat to the rule of law.

Constitutional distortion, public administration and the rule of law

In 1952, Supreme Court Justice Robert Jackson wrote that administrative agencies‘have become a veritable fourth branch of the Government, which has deranged ourthree-branch legal theories much as the concept of a fourth dimension unsettles ourthree-dimensional thinking’.76 The agencies alone are not responsible for ‘unsettling’U.S. constitutional design and thinking. As reviewed in this article, public administra-tive thinking, doctrine, advising, and advocacy of reforms has played a role along withvast delegations of legislative authority, judicial deference to administrative agencies,and an aggrandized presidency. By now, the government has strayed far from the con-stitutional design. Originally, it was intended that Congress (the subject of Article I)would initiate law, policy, budgets, war, and to some extent administrative organiza-tion and design (through the requirement that all offices must be created by law). Thepresident’s role was to respond either through veto or managing the faithful imple-mentation of law. Today, of course, a great deal is initiated by the president, includingstatutes, budgets, military operations, and administrative change while, if at all,Congress responds. Agencies make law through promulgating rules and make policythrough guidance documents. Presidents legislate via executive order and make policythrough nonenforcement. The courts, originally thought to be the branch definitivelyto say what the law is have abjured from enforcing the intelligible principle doctrine,thereby giving Congress free rein to write unintelligible law. Further, the judiciary hasceded a great deal of responsibility to say what the law is to administrators throughthe Chevron doctrine and related deference. There are a variety of ideas on how tofix the U.S. ‘broken Constitution’77 and restore the separation of powers.78

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Public administration had a significant role in the erosion of the rule of law and dis-tortion of the constitutional design. Defining public administration as a field of man-agement with efficiency as axiom no. 1 and advocating for increased presidentialpower for the sake of cost-effectiveness, continue to have an impact. It is a shortlogical path from the PCAM to Bush II’s version of unitary executive branch theoryand from there to Obama’s nonenforcement. In 2017, Congress began to consider aSeparation of Powers Restoration Act.79 Is it time for public administration theorists,researchers, and practitioners to consider a ‘rule of law restoration’ initiative in theU.S. and use the American case examined here as a potential basis for considering therole of the rule of law in contemporary public administration worldwide?

Notes

1. Nachmias and Rosenbloom, Bureaucratic Government, USA.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,” 506. 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,"99-10913. 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, 276U.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, 531U.S. 457.30. Chevron U.S.A. v. Natural Resources Defense Council, 467U.S. 837.31. Ibid., 843–844.32. Ibid., 864.33. City of Arlington, Texas v. Federal Communications Commission, 569U.S. 290.34. Ibid., 315.

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35. Auer v. Robbins, 519U.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 AdministrativeTheory,” 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, 470U.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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Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes on contributor

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

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