Administrative Law, the Informal Process

Administrative Law, the Informal Process

Administrative Law, the Informal Process

Administrative Law, the Informal Process

Excerpt

There is little doubt in the minds of most that the growth of and present position occupied by administrative agencies presents problems of magnitude to students of the law and of government. Individuals, in their daily lives, come into contact directly or indirectly with such agencies twenty-four hours a day. The administrative process not only affects individuals but also shapes the relationships among governmental departments in a way entirely beyond prediction by those who devised our structure of government.

Under our original scheme of government there was to be a "separation of powers," which, although it permitted the intermixture of functions to some extent among departments, was nevertheless designed to guarantee that each department would retain the primary function assigned to it. Thus Congress was to be the primary legislative authority, the judiciary the judicial authority, and the Presidency was to retain primary control over the execution of the law. Of course, in order to ensure such a system each department had to be given the means of self-protection, the weapons consisting of specific powers falling within the jurisdiction of adversary departments. This original system was designed to effect the constitutionalist's ideal of limited government. Democracy, insofar as it was to be practiced at all, was to be severely limited.

With the rise of the administrative branch many serious questions have been posed both for constitutional government and for the more newly created democratic norms of our society. Constitutional government requires limitation through counterbalancing the departments and through the requirement that governmental agencies act in accordance with traditional legal rights protected by the Constitution. Democratic government requires participation by the people in the formulation of public policy. There is no provision in the Constitution designed to control administrative agencies, and the very ambiguities of the Constitution permit Congress to create a "headless fourth branch, . . . . . ."

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