“Without Which Nothing”: Public Law As the Sine Qua Non of Public Administration

The Constitution: A Necessary But Not Sufficient Foundation for Public Administration

The primary purpose of the Constitution was to create efficacious government and to do so in the face of a disastrous experience under the Articles of Confederation, including the continuing bad behavior by state governments. The framers understood that the task required not only framing a government structurally but also empowering it so that it could be administered effectively. However, the Constitution was necessary but not sufficient by itself to accomplish that task. More law was required.

As George Washington (1786) wrote to James Madison following the Annapolis Convention, “The consequences of a lax, or inefficient government, are too obvious to be dwelt on. Thirteen Sovereignties pulling against each other and all tugging the federal head, will soon bring ruin on the whole.” That reality led those attending the Annapolis meeting to seek a convention in Philadelphia the next year “to advance the interests of the union” (Commissioners to Remedy Defects of the Federal Government, 1786). Indeed, the call for the Philadelphia convention made clear that its purpose was to ensure a government “adequate to the exigencies of government and the preservation of the Union” (Hamilton, Madison, & Jay, 1961, pp. 247-248).

The new Constitution began by making clear that it was a document of the people as compared with the Articles of Confederation which had been a document of the states. ¹ It stated as its first purpose “to form a more perfect union.” It rejected the language of Article II of the Articles of Confederation (1781) which read, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” Instead, it not only provided a list of specific powers but also made quite clear that the authority of the government included others as well. Hence, it provided the necessary and proper clause of Article I that provided, for example, the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (Art. I, §8, cl. 18).

It also made clear that it was not the government but the will of the people in constituent assembly that was sovereign. In making that point, the supremacy clause also states,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. (Art. VI, §2)

Just to ensure that the point was clear, it mandated that the president had a duty to “take Care that the Laws be faithfully executed” (Art. II, §3) and required that he or she take an oath to “preserve, protect and defend the Constitution of the United States” (Art. II, §1, cl. 8). Not content with that, and given the behavior of state officials in the years leading up the creation of the Constitution, the framers also required that

the Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution. (Art. VI, §3)

As John Rohr explained, the framers also made clear from the document, but even more in the discussions of it during ratification, that they understood the importance of an effective administration and not just a frame of government. Indeed, he pointed out that “the word ‘administration’ and its cognates appear 124 times throughout the Federalist Papers; more frequently than Congress, President, or Supreme Court” (Rohr, 1986, p. 1). One of the clearest statements of that awareness came in Federalist 70. “A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government” (Hamilton et al., 1961, p. 423).

However, the Constitution did not establish the departments of government, though it made reference to heads of departments, nor did it make clear who the officers of the United States were going to be, though once again, it referred to them. It did not state their specific authority or jurisdiction or prescribe the ways in which they could conduct their work. For that, legislation was needed.

Statutes and Ordinances: Critical Sources of Administrative Authority and Discretion

Indeed, it was no accident that some of the most important early literature of public administration was about law, but more specifically about legislation. It is legislation that creates agencies, empowers them, and prescribes their jurisdiction. In so doing, it not only mandates a set of obligations but also provides for their funding, creates their human resource capabilities, establishes key procedures, and, last but certainly not least, provides the foundation for administrative discretion. In its modern manifestation, it is often intergovernmental in character and anticipates action not only at the federal and the state levels but also at the local level. This is an essential fact of public service as both the federal and state governments have become increasingly dependent on local governments to do the actual work or to manage contracts with those nonprofit or for-profit agencies who do.

Woodrow Wilson, to whom so many scholars look for public administration foundations, saw Frank Goodnow’s scholarship as essential to public administration education in his day and referred to Goodnow’s (1893) Comparative Administrative Law as the leading text in the field. He wrote, it was “[t]he only systematic work in English devoted distinctly to Administration as a separate discipline” (Wilson’s, 1968-1969, lecture notes, Vol. 7:120; see also Vol. 8:534-535). Goodnow’s (1905) Comparative Administrative Law and later his Principles of Administrative Law in the United States focused heavily on the nature, process, and uses of legislation.

The Principles also explained how it is that legislation ensures administrative discretion. ² He explained in that work that some legislation is so clear and precise that it does not allow for administrative discretion—what he termed unconditional commands (Goodnow, 1905, pp. 323-324). In many other cases, however, legislation cannot be written in that manner, as no legislature can possibly anticipate all future circumstances and the statutes cannot be drafted with sufficient precision to cover all situations even if it could be so prescient. He wrote,

There are many duties which the government is called upon to perform in a complex civilization which cannot be performed under a system of unconditional commands. No legislature has such insight or extended vision as to be able to regulate all the details in the administrative law, or to put in the form of unconditional commands rules which will in all cases completely and adequately express the will of the state. It must abandon the system of unconditional commands and resort to conditional commands which vest in the administrative officer large powers of a discretionary character. The legislature, therefore, enacts a series of general rules of administrative law which in distinction from those we have just considered may be called relative or conditional statutes. (Goodnow, 1905)

When that happens, “the administration has not merely to execute the state’s will, but has as well to participate in its expression as to the details which have not been regulated by the legislature” (Goodnow, 1905, p. 325). In those situations, agencies issue rules for the interpretation and application of the statute. Second, they must exercise administration discretion as to the manner in which the legislation and the rules are to be administered. That is a necessary condition, though one in which it becomes important to be alert for the dangers of arbitrariness.

Ernst Freund was Goodnow’s student. Again there should be no surprise that his two major works Standards of American Legislation (Freund, 1917) and Administrative Powers Over Persons and Property (Freund, 1928) both focused on legislation. The title of the first is obvious enough, but the second also was a study of the manner in which legal authority and discretion are conveyed to administrators and their agencies, in this case as a comparative study. Whereas Goodnow had been principally focused on statutes and administrative law as means to ensure the effective performance of administration, attainment of policy goals, and simultaneously protection of citizens against arbitrariness or abuse, Freund focused more on the means of constraining what was already (before the New Deal) dramatically expanding administrative authority. Even as Freund (1928) pointed out that if unchecked discretion could lead to arbitrariness so extreme as to manifest a “principle of unfreedom” (p. 74), the lack of adequate discretion in the hands of administrators would lead to a rigid and impersonal system of rules that would also be damaging to those who must live and work under it (p. 72).

Freund also knew, even by 1917, that Congress was under pressure to meet the needs of a changing society, including the impacts of rapid industrialization and urbanization. Along with that was a growing recognition that common law methods involving private lawsuits as a means of regulation and protection were simply not adequate in the modern context (Freund, 1917, p. 70, see generally, Chapter 3). Administration and the legislation needed to create and empower it were essential.

Sadly, today the centrality of effectively developed legislation is too often ignored, even in public administration. Although public administrators are created by statute and have as their first task its implementation, there is reason to doubt whether all public service professional students learn how legislation is written (not how it becomes a law but how it is actually constructed) and how to work with it effectively. There are at least two common problems.

First, there is a tendency to see legislation enacted by Congress or a state legislature as only or principally about that level of government. However, in the contemporary environment, whether the statute is adopted at the federal or state level, it is often intergovernmental in character. Much of federal legislation, whether it emanates from regulatory authority under the commerce clause of the Constitution or from the taxing and spending powers through the use of grants and contracts, is heavily intergovernmental and relies upon state and local governments and their administrators as well as on contractors working with or for them.

The second factor is that it matters how the legislation is written and enacted. A battle over four words in the Affordable Care Act (ACA) concerning the health care markets to be created under the ACA threatened to scuttle the entire policy and had to go all the way to the Supreme Court for resolution (King v. Burwell, 2015). That ACA example points to the fact that there has been a lack of attention to—some would say a total abandonment of—what was for so long known as the “regular order” in Congress to enact legislation. It was the process by which bills moved through the committee processes and markups to the point of debate and passage. With so much important legislation being written on the floor without the full committee process, it is an open secret that legislators too often vote on bills about which they have limited knowledge concerning their actual design and content. The practice of amendments in the nature of substitutes (known by the inelegant phrase “gut and stuff”) often means that dramatic changes are made as a result of 11th hour political negotiations that are not adequately examined and amended before passage. In an era when it is so difficult to get the Congress to agree to anything, the idea of fixing that problem by simply taking the legislation back for technical corrections—a common practice in years gone by—is now regarded as inviting disaster, as, instead of correcting the legislation, that is likely to lead to efforts to undo the work and block action. It should be clear even from these brief examples that public administration students and practitioners need to understand both the process and the structure of legislation well. Both set the boundaries of the law and the conditions of its implementation and administration.

One of the most widely overlooked aspects of legislation, but one that is far more important that might be apparent, is the matter of local government ordinances. Their increasing importance stems in part from the fact that federal and state policies are so often dependent upon implementation at the local government level. Those units implement the federal or state law in organizations, with people, and through processes, that are shaped by local ordinances. That reality, in turn, means not only that those at other levels need to be aware of ordinances but also that local government professionals need to understand the effective drafting of ordinances for consideration by the local governing body. Even so, the public administration literature on this subject is extremely limited (see Corliss, 1997).

Administrative Rules as Essential Elements of Action

On a day-to-day basis, administrators deal with administrative rules more often than they do statutes or the Constitution. As Goodnow explained, these rules are essential to implement statutes and involve a considerable range of choice for administrators. Unfortunately, the issuance of administrative rules has been made far more complex and difficult than it had been before the late 1970s and more challenging than it should be if agencies are to meet the requirements of legislation and changing conditions in the field. This problem arose not only because of the technical complexity of the subject matter but also because legislatures and chief executives have deliberately and unnecessarily burdened the process that must be used to issue the rules that those same elected officials require either by statute or executive order. The processes for promulgating these rules, for adjudicating cases under them, and for judicial review of these administrative actions are the stuff of administrative law. And, as fundamental as discussion of constitutional issues is, without an inclusion of all of these pieces, including administrative rules, that discussion is inadequate and incomplete for understanding the legal foundations of public administration or what is required for effective implementation of policy.

Judicial Opinions and Support for or Constraints on Administrative Action

Much of the law that shapes what administrators can do is not stated in the Constitution, statutes, executive orders, or administrative rules, but comes from judicial opinions. Administrators often think of such rulings as constraining their actions, but the fact is that courts often support administrative action rather than limiting it. Whether they support or limit administrative action, these opinions are an essential part of the law of public administration.

Consider just a few cases that have supported administrative action. The most frequently used test to judge administrative action is the arbitrary and capricious standard, but the Supreme Court’s explanation of that standard is deferential and allows that an administrator need not be correct or even make a good choice to be sustained (see Motor Vehicle Manufacturers Association v. State Farm Mutual Ins. Co., 1983). The Supreme Court’s standard for reviewing administrative agencies’ interpretations of the statutes they administer is also deferential (see Chevron U.S.A. v. Natural Resources Defense Council, 1984). Similar deference is mandated for an agency’s interpretation of its own rules (Auer v. Robbins, 1997; see also Decker v. Northwest Environmental Defense Center, 2013). With respect to adjudication, at least since the mid-1970s, the Supreme Court has applied a balancing test in administrative adjudications that means that challengers have a difficult time demanding more or enhanced due process protections in agency decision making (Mathews v. Eldridge, 1976).

This is not to say that these were all good rulings. Nevertheless, it remains true that courts often add to administrative discretion and sometimes make challenges to administrative action difficult. There are many examples in the past few decades in which the Supreme Court has even made access to court to challenge administrative actions more difficult, but consider just one. Many federal statutes, particularly those related to civil rights, were designed with the idea that citizens would bring suit to enforce the provisions of the legislation. The Supreme Court has long recognized that these statutes often allowed so-called private attorney general suits (formally known as implied private rights of action) in such cases. However, in Alexander v. Sandoval (2001), a 5-4 majority in an opinion by Justice Scalia concluded that Title VI of the Civil Rights Act of 1964 did not authorize such a citizen suit even by one who could clearly show that she had suffered a personal injury as a result. The dissenters were quick to point to previous precedents that ruled precisely the opposite, but that did not change the fact that from that point on, it would be difficult for anyone to bring such challenges. Again, this was a bad decision in many respects, but the point is that it is one of many in which courts have affected the range of discretion that administrators have and have even limited the ability to challenge their actions.

Supreme Court Constraints on the Commerce and Taxing and Spending Powers

The vast majority of federal programs enacted by Congress and administered not only at the national level but also throughout the intergovernmental system are grounded in the authority of the interstate commerce, taxing and spending, and necessary and proper clauses of Article I of the Constitution (Section 8, Cl. 3, 1, and 18). The Supreme Court, through the Rehnquist years and now in the Roberts era, has been constraining what had been understood to be extremely broad powers of Congress under these provisions. Few observers in the public administration community have appeared to recognize, in what appeared to be a victory for federal authority in general and the Obama administration’s and the congressional policy efforts in particular, that Chief Justice Roberts’s opinion in the first ACA case (National Federation of Independent Business v. Sebelius, 2012) was a dramatic attack on both the commerce and taxing and spending powers as well as the scope of the necessary and proper clause.

There was a significant irony in the way that Roberts achieved this outcome. Roberts learned from Chief Justice John Marshall, someone he has long admired, the tactic of giving adversaries a temporary victory while using an opinion to create broad constitutional doctrine (see, for example, Marbury v. Madison, 1803). Although he admires much about Marshall, Roberts’s ideology and politics are far different. Where Marshall consistently read federal authority broadly, Roberts has moved in precisely the opposite direction.

The challenges to the ACA were so blatantly partisan and ideological that it seemed impossible to see them as anything other than a major political battle to be fought out in the Supreme Court. Republican governors and attorneys general immediately filed suits with the clear hope of generating a conflict among the circuit courts of appeals that would virtually guarantee an early Supreme Court review.

Within the Court, the Chief Justice’s normal allies on the right dissented from the ruling that upheld the so-called individual mandate that required individuals to purchase insurance, if they did not already have it through their employer, under Medicare, or through Medicaid, or face a tax penalty. The Chief Justice’s opinion also allowed the Medicaid extension in the legislation for those states that chose to do it, but let states that did not wish to take that step to avoid losing any of their existing federal Medicaid funding. He received four votes for upholding the individual mandate from those who are often referred to as the Court’s less conservative members, but they dissented from the part of the opinion allowing states to opt out of the Medicaid extension without penalty. The dissenters would have voided the whole statute since; in their view, any acceptable provisions were not severable from the unconstitutional elements.

Although the Obama administration was in no mood to complain, given that the president’s signature policy goal had been upheld, there was little recognition that Congress and the White House had won the battle but faced a long-term loss in the war for effective and essential federal authority. Given the focus on the particular policy, few appeared interested in reading the opinion closely. If they had done so, they would have recognized that the Chief Justice had not only placed dramatic limits on the commerce power and taxing and spending power but also laid the foundation for further constraints in the future.

The introduction to the opinion was not just, as some media outlets called it, a basic civics lesson. It was a very careful recasting of the fundamental principles of constitutional law, one that took language from classic precedents and then represented them as being far more constraining of federal government authority than they actually were, even to the point of making it appear, as in the case of McCulloch v. Maryland (1819), that a precedent constrained authority when it did precisely the reverse. Indeed, McCulloch was one of the most sweeping of historical cases on the broad scope of national government authority. As an extremely skilled advocate, he carried out this transformation in such a manner that unless one knew the case law, it would not be obvious what he was doing. However, it is language that not only was useful in his ACA opinion but also can be used going forward to support a radically different understanding of authority and its limits than has been seen since the laissez faire era.

Proceeding from these newly reformulated principles, the opinion marks a radical undermining of federal commerce powers, including not only the nature and scope of the power but also such key aspects of the doctrine of cumulative effects. As Justice Ginsburg for the four justices who disagreed with the rejection of commerce clause authority for the ACA indicated, the Chief Justice did not apply any existing standard for assessing commerce clause cases and absolutely rejected the broad deference granted to Congress until at least the late 1990s. In part, he rested his rejection on the claim that Congress could regulate action, but that requiring someone to purchase insurance was regulation of inaction not supported by the commerce clause. To assert that argument he had to come to grips with the well know doctrine of cumulative effects which traces back decades and particularly the case of Wickard v. Filburn (1942). Cumulative effects is the idea that although the actions or refusal to act of an individual or business may not by itself have a significant impact on interstate commerce, the fact that many such individuals or businesses may do the same plainly does have an effect.

As Ginsburg and her colleagues point out, he deliberately misread Wickard as well as other cases on the doctrine to get around the obvious conclusion that Congress clearly did have authority under the commerce clause for the ACA. The whole purpose of the rule that the farmer in Wickard was contesting was to force farmers to purchase feed on the market rather than growing their own to stabilize the market and move it forward. This farmer was not prevented from growing grain for sale, but to feed for his own animals. The reason for that was to pressure him to buy feed in the marketplace. It was the lack of participation as a purchaser in the marketplace that mattered.

Even if Roberts’s distinction had been an accurate statement of Wickard, it certainly was not adequate to counter the rulings that upheld the Civil Rights Act of 1964 (Heart of Atlanta Motel v. United States, 1964; Katzenbach v. McClung, 1964). In these cases, the Court made clear that the Congress was authorized to enact the statute on the basis of the commerce clause both because the refusal to do business with people on the basis of race had a clear impact on interstate commerce and because it burdened individuals in their ability to function effectively in the environment. In the process, the Court made clear that a barbecue restaurant in Birmingham, Alabama, presented exactly the kind of cumulative effects problem the Court had referenced in Wickard and United States v. Darby (1941). One restaurant may not be seen to have a significant effect on interstate commerce, but all of the other restaurants and hotels engaged in discrimination certainly did (Katzenbach v. McClung, 1964, pp. 300-301). Among other things, Ollie’s Barbecue purchased meat from interstate sources. The Court, citing Senate hearings, said,

This diminutive spending springing from a refusal to serve Negroes and their total loss as customers has . . . a close connection to interstate commerce. The fewer customers a restaurant enjoys the less food it sells and consequently the less it buys. (Katzenbach v. McClung, 1964)

As Justice Ginsburg and her colleagues pointed out, the situation in the ACA was just this kind of refusal to participate in the market or reduced participation in the market that the Court had addressed in its cumulative effects cases. The statute made it possible for those not otherwise covered to be able to afford coverage through the health care marketplace with subsidies in the form of tax credits and other supports. However, those who choose not to purchase will at some point need care and their unwillingness to participate in the marketplace has serious and significant impacts on interstate commerce. Not only do they not participate in the sharing of risk by being part of the larger pool, but they will need care at some point and, without insurance, will have to be provided that care by imposing costs on others. Beyond that, because those without insurance wait longer to seek medical assistance have particularly high impacts. “Because those without insurance generally lack access to preventative care . . . [w]hen sickness finally drives the uninsured to seek care, once treatable conditions have escalated into grave health problems, requiring more costly and extensive intervention . . .” (National Federation of Independent Business v. Sebelius, 2012, pp. 2611-2612). Indeed, she wrote, several states had disastrous experiments with trying to provide universal care without individual mandates.

At the end of the day, it was not the individual mandate about which the Chief Justice was concerned, as he found another way to uphold it. In fact, under the Court’s normal rules of self-restraint, if the justices find authority for an action of the coordinate branches under one provision of the Constitution, they should not reach others. Justice Ginsburg put it as follows:

Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend “for the . . . general Welfare of the United States.”. . . which makes the Chief Justice’s Commerce Clause essay all the more puzzling. Why should the Chief Justice strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion. (National Federation of Independent Business v. Sebelius, 2012, p. 2629)

The answer was clear. It was to lay down a foundation to limit national authority not only in this use of the commerce power and the necessary and proper clause but in other cases to come. Indeed, Ginsburg wrote,

In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. See e.g., Carter Coal Co. (1936); [Hammer v.] Dagenhart (1918); Lochner v. New York (1905). The Chief Justice’s Commerce Clause opinion . . . bear[s] a disquieting resemblance to those long-overruled decisions. (National Federation of Independent Business v. Sebelius, 2012, pp. 2628-2629)

Limiting the Federal Government’s Spending Power

As Ginsburg explained, the Chief Justice upheld the individual mandate on the basis of the taxing and spending power. Even as he did that, however, he struck a dramatic blow to the spending powers in his rejection of the mandatory character of the Medicaid extension. As noted above, much of intergovernmental relations involves federal programs that go as grants to states and then down to local governments who either deliver services directly or, more often, contract with nonprofit or for-profit service providers. The federal government directs policy in these cases by placing conditions on the grants to ensure that recipients achieve the desired policy goals. Roberts knows that if the Court limits the commerce power and the taxing and spending power, it will have gone a long way in limiting federal government authority. The ruling on the Medicaid extension was a dramatic step in that direction.

The starting point here is that the Supreme Court has long recognized that the federal government has the authority not only to offer grants but to set conditions on those grants, including, as Ginsburg noted, in cases involving the Medicaid statute (Arkansas Dept. of Health and Human Servs. v. Ahlborn, 2006, p. 275; Atkins v. Rivera, 1986, pp. 156-157; Frew v. Hawkins, 2004, p. 433; Harris v. McRae, 1980, p. 301). It had also been clear that there are significant differences between the expenditure of funds in the form of contracts as compared with grants (Bennett v. Kentucky Bd. of Ed., 1985, p. 669). Indeed, the Court’s explanation of those differences has been written into statute, specifically 31 U.S.C. §§ 6301-6308. Section 6303 states that federal agencies shall use a contract when “the principal purpose of the instrument is to acquire (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government. . . .” Section 6304 provides that the federal government shall use a grant when

the principal purpose of the relationship is to transfer a thing of value to the State or local government or other recipient to carry out a public purpose of support or stimulation authorized by a law of the United States.

The former is an agreement between parties under federal contract law, and either parties has the kinds of rights that contracting parties are expected to have. A grant is a use of the spending power to support an activity but it is not a contract and the recipients do not have rights like a contracting party would. Beyond that, the Court has made clear that when Congress places provisions in federal grants

“a clause expressly reserving to it ‘[t]he right to alter, amend, or repeal any provision’ of the Act,” we held, Congress put States on notice that the Act “created no contractual rights.” Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 51-52 (1986). (National Federation of Independent Business v. Sebelius, 2012, pp. 2638-2639)

Roberts’s suggestion to the contrary is problematic now and for the future.

The ACA Medicaid extension amended the Medicaid program to provide for eligibility for Medicaid up to 133%, with the federal government paying 100% of the cost in the first year declining thereafter to an ongoing support level of 90%. Even at that, the Congressional Budget Office estimate of the increase in cost to the states for the program would be 0.8% (National Federation of Independent Business v. Sebelius, 2012, p. 2632). There have been more than 50 amendments to the Medicaid program, including very substantial changes, as it was created and each time it applied to all states receiving Medicaid with the requirement that to continue to receive any Medicaid funds, they would have to comply with the amended requirements.

Congress chose to make the extension an amendment to the Medicaid legislation rather than a separate program. Nevertheless, Roberts concluded that it was not an amendment but a new program and states needed to be able to choose whether to participate. Critically, a decision not to participate could not be used to change the Medicaid funds the states were receiving. In so doing, Ginsburg pointed out, “The Chief Justice therefore—for the first time ever—finds an exercise of Congress’ spending power unconstitutionally coercive” (National Federation of Independent Business v. Sebelius, 2012, p. 2630, emphasis in original).

Ironically, Roberts referred to—but did not actually use—the four part standard developed by no less a conservative than William Rehnquist to determine whether the requirements of a federal grant program exceed the spending power (South Dakota v. Dole, 1987). In a well-known case involving the federal requirement that states raise the drinking age to 21 or face the loss of highway funds, Rehnquist required that

the conditions placed on federal grants to States must (a) promote the “general welfare,” (b) “unambiguously” inform States what is demanded of them, (c) be germane “to the federal interest in particular national projects or programs,” and (d) not “induce the States to engage in activities that would themselves be unconstitutional.” (National Federation of Independent Business v. Sebelius, 2012, p. 2634)

Rehnquist upheld the drinking age requirement even though it addressed a field in which states have specific authority under the Twenty-First Amendment. That program was, if anything, far more challenging than the Medicaid extension in terms of the boundaries of the spending power. As Ginsburg wrote, under the Medicaid extension,

Congress has not threatened to withhold funds earmarked for any other program. Nor does the ACA use Medicaid funding to induce States to take action Congress itself could not undertake. The Federal Government undoubtedly could operate its own health-care program for poor persons, just as it operates Medicare for seniors’ health care. (National Federation of Independent Business v. Sebelius, 2012, p. 2634)

As four justices pointed out, Roberts’s opinion will certainly invite more challenges to federal spending actions. If his opinion permits states to select bits and pieces of federal programs, it will not only dramatically limit the spending power of Congress in ways that are unprecedented, but will create a crazy quilt of program pieces making coherent administration extraordinarily difficult if not, in many circumstances, nearly impossible.

There is a postscript to the ACA case with respect to the spending power and it came in a surprising context. The Court’s opinion in Agency for International Development v. Alliance for Open Society (2013) was not recognized for what it really was except, perhaps ironically, by Justice Scalia whose dissent called out the Chief Justice for masquerading a dramatic limitation on the spending power in the guise of protection for freedom of expression. That is not to suggest that there was not a legitimate concern on the part of the grant recipient, but rather that the Chief Justice used First Amendment rhetoric while actually employing the case to establish a new standard for setting boundaries on grant conditions in a way that can be used widely in the future to constrain congressional authority. The Chief Justice concluded that if congressional requirements on a grant appeared to be attempting to leverage activity beyond the specific program that was being funded, it would reach the limits of the spending power. In this case, the Court found that the requirement leveraged conduct beyond the HIV education and treatment program and conflicted with a First Amendment rights. The new spending clause standard is a next step beyond the limitations imposed by the Sebelius case on the spending power.

One More Critical Constraint on Federal Authority

Limitations on the commerce and taxing and spending powers are dramatic restrictions on the authority of the federal government to establish and set in motion the administration of federal programs. There are numerous other limiting opinions during the Rehnquist and Roberts eras that cannot be addressed here due to space limitations, but at least one ruling requires mention. It is Shelby County v. Holder (2013), striking down the covered states provision (§4) of the Voting Rights Act of 1965, which all but nullified the critically important §5 preclearance requirement for voting changes. Much could be said about this dramatic ruling, but there is one point that has been generally missed in what has been written about the case. Like Rehnquist, Roberts has developed the art of squirreling away language in opinions that can be dug up in another season to make it appear that a radically new or changed point of law is in fact a long-supported principle. Roberts did that in the Shelby County opinion in a way that rewrites the Constitution in a manner that moves backward toward the Articles of Confederation.

As noted earlier, Article II of the Articles left to states any power not “expressly delegated to the United States, in Congress assembled” (Articles of Confederation, 1801). In creating a Constitution for effective governance, the framers deliberately eliminated that “expressly delegated” phrase. It did so first when the Constitution was written and again at the time of the addition of the Tenth Amendment. To make clear that authority was not limited to those items specifically listed, they added the necessary and proper clause. And to be clear about the relationship of federal powers to the states, they added the Supremacy Clause.

Fast forward to 2013 and Chief Justice Roberts’s foundation for his Shelby County ruling. He wrote, “Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens” (Shelby County v. Holder, 2013, p. 2623, emphasis added). He cites the Tenth Amendment, which of course does not say that. The framers deliberately did not include that language. Immediately thereafter, Roberts provides a quote from a 2011 ruling, but that quote does not say what the Chief Justice said, nor does that language appear anywhere in the Bond v. United States (2011) case he cited. He follows that with a quote from Gregory v. Ashcroft (1991), but again neither the quoted language nor the opinion uses the specifically delegated language. As he has so often, the Chief Justice was making radical changes in constitutional jurisprudence and pretending that he has made no change at all. This particular language dramatically constrains the authority of the federal government to create public policy and to provide for its administration.

Constraints on State and Local Government Policy and Administration

It would be tempting to conclude that the Chief Justice and his colleagues were limiting federal authority because they favor of state and local authority, but a careful analysis of the case law suggests otherwise. The Rehnquist and Roberts Courts have used preemption, the dormant commerce clause, and regulatory takings rulings as vehicles to carve out a kind of space reminiscent of the laissez faire era of the late 19th and early 20th centuries with barriers to either national or state and local action. Space prevents a full development of the subject but considers just one recent example that dramatically constrains what had long been understood to be state and local authority under the Tenth Amendment police powers.

This attack on state and local authority came in an opinion on a Florida case that received virtually no media attention or reaction from the public administration community, Koontz v. St. Johns River Water Management District (2013). In Florida, development on a property that contains a wetland requires a Management and Storage of Surface Water permit under the state Water Resources Act. State legislation also provides that one could not “dredge or fill in, on, or over surface waters without a Wetlands Resource Management (WRM) permit” (Koontz v. St. Johns River Water Management District, 2013, p. 2592).

This litigation began when in 1972, Mr. Koontz bought 14.9 acres for development east of Orlando. The property was a wetland area under state law, so he needed a permit. The St. Johns River Water Management District that managed the area requires that impacts be fully remediated on site or that the developer, as the Court put it, “offset the resulting environmental damage by creating, enhancing, or preserving wetlands elsewhere” (Koontz v. St. Johns River Water Management District, 2013).

Koontz said he would create a conservation easement for the rest of the land, apart from the 3.7 acres that he wanted to develop. However, the district replied that his plan was not adequate and that his development would create a variety of problems, including storm water and drainage issues in addition to its impacts on the wetlands. The district indicated that it could only approve the project if he reduced the size of the planned development and took other actions to address the problems or if he agreed to pay for wetlands mitigation and improvement off-site. If he chose that option, he could elect to pay for mitigation at projects on a list maintained by the district or it would consider other locations and work that Koontz proposed. Koontz refused and brought suit in state court under a Florida statute, claiming that this was a regulatory taking of his property without just compensation in violation of the Fifth Amendment. The Florida Supreme Court found that there was no taking.

The issue that went to the Supreme Court was whether the requirement that a developer pay for wetland mitigation off-site to obtain a development permit was a taking of his property for public use without just compensation in violation of the Fifth Amendment? Justice Alito wrote for a 5-4 Court. He jumped right past what should have been the core question and instead assumed that there was a taking even though no part of his property had actually been taken for public use. He then promptly applied the extremely constraining test invented by Justices Scalia in Nollan v. California Coastal Commission (1987) and Chief Justice Rehnquist Dolan v. Tigard (1994) to suggest that virtually any significant land use regulation might face a challenge as a regulatory taking. “We hold that the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money” (Dolan v. Tigard, 1994, p. 2603). He could hardly contain his own rhetoric, repeatedly referring to the wetland remediation fee as “extortionate” (Dolan v. Tigard, 1994, p. 2595).

Despite his attempt to suggest otherwise and as the dissenters made clear, the reality of this ruling was as extreme as Justice Alito’s rhetoric. Alito claimed that the opinion “does not affect the ability of governments to impose property taxes, user fees, and similar laws and regulations that may impose financial burdens on property owners” (Dolan v. Tigard, 1994, p. 2601). He then promptly ensured that the ruling would indeed have that effect as the Court rejected any obligation to explain the line between an acceptable taxes or fees and others that would be regarded as a taking (Dolan v. Tigard, 1994).

As Justice Kagan pointed out for the four dissenters, the only thing at issue in the case was the charging of a fee which the Court had held was not a taking. Alito’s opinion, she wrote,

runs roughshod over Eastern Enterprises v. Apfel [1998] which held that the government may impose ordinary financial obligations without triggering the Takings Clause’s protections. The boundaries of the majority’s new rule are uncertain. But it threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny. (Dolan v. Tigard, 1994, pp. 2603-2604)

As she explained,

By applying Nollan and Dolan to permit conditions requiring monetary payments—with no express limitation except as to taxes—the majority extends the Takings Clause, with its notoriously “difficult” and “perplexing” standards, into the very heart of local land-use regulation and service delivery. . . . Cities and towns across the nation impose many kinds of permitting fees every day. Some enable a government to mitigate a new development’s impact on the community, like increased traffic or pollution—or destruction of wetlands. . . . Others cover the direct costs of providing services like sewage or water to the development. . . . Still others are meant to limit the number of landowners who engage in a certain activity, as fees for liquor licenses do. . . . All now must meet Nollan and Dolan’s nexus and proportionality tests. . . . And the flexibility of state and local governments to take the most routine actions to enhance their communities will diminish accordingly. (Dolan v. Tigard, 1994, p. 2607)

As she explained, as the majority would not make clear the legal standards that will govern the boundary between normal taxes and fees and those which are held to constitute takings, there is an open invitation to challenge all manner of standard land use and development related fees.

As noted above, there are many other areas in which other doctrines have been used to constrain what were long considered essential and fundamental police power regulation by state and local governments. Another developing weapon with the Roberts Court has been willing to use in creative ways to constrain legislative and administrative authority is the First Amendment. A ruling on something as seemingly mundate as temporary street-front signs set the context for the decision in Reed v. Town of Gilbert (2015) which provided a recent example of constraints on authority and the discussion of the HIV case earlier (Agency for International Development v. Alliance for Open Society, 2013 is another case in point). It was not so much the decision in Reed that was dramatic as it was the scope of the language used by the Court, this time in an opinion written by Justice Thomas for the Court, that warned local government than another of its traditional powers was going to face the likelihood of more challenges under extremely stringent standards.

The point here is that administrators and the elected officials who enact policies to be administered require legal authority and legal processes to do the job, but the availability of those legal foundations can never be taken for granted. There is a need for ongoing attention not just as to whether a particular policy can survive challenge, but for public service professionals to pay attention to what the courts are doing to those essential foundations.

Similarly, it is important in the education of professions entering the field to avoid making assumptions about legal authority and to ensure that students are seeing developing trends in legal rulings in terms of support for or contraints on their authority and their discretion. The legal community may discuss these matters among themselves, but too often not in effective two-way communications with administrators, unless they are involved in a particular case. There is a need for public administration professionals to acquire the skills to read and understand legal materials. Administrators and students need to be able to understand changes and the way they affect the policies and programs for which they are or will be responsible. In so doing, they will understand not only their roles, options, and constraints, but also the kinds of questions they need to pose to their attorneys for resolution. One might ask how many public administrators or students of the profession are aware of what the Roberts’s Court has been doing with respect to powers and limits discussed above. As that discussion showed, the changes are of major importance and yet have received little attention in public administration.