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 “Rosenbloom crafted a compelling narrative . . . Students SECOND

ROSENBLOOM
like Administrative Law for Public Managers because it is EDITION
straightforward and easy to understand. I teach a wide range
of students—mid-level managers to students with no work
experience—both are relieved that the content and examples
are easily digestible. It’s an excellent book!”
—Lorenda Ann Naylor, University of Baltimore
“This book presents a profound, as well as comprehensive,
knowledge base of administrative law.”

ADMINISTRATIVE LAW FOR PUBLIC MANAGERS

—Public Administration Review

Administrative Law for Public Managers is an accessible and comprehensive guide to

the fundamentals of administrative law—why we have administrative law, the constitutional
constraints on public administration, and administrative law’s frameworks for rulemaking,
adjudication, enforcement, transparency, and judicial and legislative review. Rosenbloom
explains administrative law from the perspective of administrative practice, emphasizing
how various administrative law provisions promote their underlying goal of improving the fit
between public administration and US democratic-constitutionalism.

The second edition includes more coverage of state administrative law, as well as an
expanded discussion of judicial review. It has also been updated to include the major
statutes, court cases, executive orders, and other major executive initiatives since 2003.
The addition of discussion questions makes this an even more valuable resource for public
administration classrooms and students.

Administrative Law
David H. Rosenbloom is Distinguished Professor of Public Administration at American
University. A major contributor to the field and a Fellow in the National Academy of Public
Administration, he has received numerous awards, including the Gaus Award for exemplary
scholarship in political science and public administration, the Waldo Award for outstanding
contributions to the literature and leadership of public administration, the Levine Award

for Public Managers

for excellence in public administration, and the Brownlow Award for his book, Building
a Legislative-Centered Public Administration. He edited Public Administration Review,
coedited the Policy Studies Journal, and is now on the editorial boards of about twenty
academic journals.
SECOND
EDITION

Cover Image © Shutterstock

Cover Design: Miguel Santana & Wendy Halitzer

DAVID H. ROSENBLOOM
A Member of the Perseus Books Group
www.westviewpress.com
 Administrative Law for Public Managers

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 Administrative Law for
Public Managers

second edition

David H. Rosenbloom
American University

A Member of the Perseus Books Group

9780813348810-text.indd 3 5/20/14 1:25 PM

 Westview Press was founded in 1975 in Boulder, Colorado, by notable publisher
and intellectual Fred Praeger. Westview Press continues to publish scholarly titles
and high-quality undergraduate- and graduate-level textbooks in core social science
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Copyright © 2015 by Westview Press

Published by Westview Press,
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All rights reserved. Printed in the United States of America. No part of this book may
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Library of Congress Cataloging-in-Publication Data

Rosenbloom, David H., author.

Administrative law for public managers / David H Rosenbloom. -- Second edition.
  pages cm
ISBN 978-0-8133-4881-0 (paperback) -- ISBN 978-0-8133-4882-7 (e-book) 1.
Administrative law--United States. 2. Public administration--United States. I. Title.

KF5402.R669 2014
342.73'06--dc23
2014015458
10 9 8 7 6 5 4 3 2 1

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 Contents

Preface to the Second Edition xiii

1 What Is Administrative Law? 1

2 The Constitutional Context of US Public Administration 19
3 Administrative Rulemaking 63
4 Evidentiary Adjudication and Enforcement 89
5 Transparency 123
6 Judicial and Legislative Review of Administrative Action 151
7 Staying Current 185
References 195
Index 209

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 Detailed Table of Contents

Preface to the Second Edition xiii

1 What Is Administrative Law? 1

Introduction: What Is Administrative Law? 1
Why We Have Administrative Law Statutes: Delegation and
Discretion, 4
Delegation, 4
Discretion, 7
Administrative Decisionmaking, 8
Procedural and Substantive Review of Administrative
Decisions, 10
The Development of US Administrative Law, 12
Conclusion, 16
Additional Reading, 16
Discussion Questions, 16

2 The Constitutional Context of US Public Administration 19

The Separation of Powers, 22
Congress, 22
The President, 23
The Judiciary, 32
Federalism, 35
The Commerce Clause, 36
The Tenth Amendment, 40
The Spending Clause, 41
The Eleventh Amendment, 41
Individuals’ Constitutional Rights in Administrative
Encounters, 43

vii

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 viii Detailed Table of Contents

Relationships with Clients and Customers, 43

Equal Protection, 43
New Property and Procedural Due Process, 46
Unconstitutional Conditions, 47
Public Personnel Management, 48
First Amendment Rights, 49
Fourth Amendment Privacy, 51
Procedural Due Process, 51
Equal Protection, 52
Substantive Due Process Rights, 52
Relationships with Contractors, 53
Public Mental Health Patients, 54
Prisoners’ Constitutional Rights, 55
Street-Level Regulatory Encounters, 56
Fourth Amendment Constraints, 56
Equal Protection Constraints, 57
Public Administrators’ Liability for Constitutional Torts, 58
Conclusion, 60
Additional Reading, 60
Discussion Questions, 61

3 Administrative Rulemaking 63
Introduction: Smoking Whitefish, 63
Rulemaking: Definitions and General Concerns, 64
Rulemaking Processes, 71
Limited or No Procedural Requirements, 71
Informal Rulemaking, 72
Formal Rulemaking, 74
Hybrid and Negotiated Rulemaking Processes, 75
Hybrid Rulemaking, 75
Negotiated Rulemaking, 76
Additional Features of the Idealized Legislative Model for
Rulemaking, 78
Representation: Advisory Committees, 78
Protecting Specific Interests and Values, 79
Executive Efforts to Influence Federal Agency Rulemaking, 82
Conclusion: The Philosopher’s Stone Versus the Bubble Effect,
85
Additional Reading, 86
Discussion Questions, 86

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 Detailed Table of Contents ix

4 Evidentiary Adjudication and Enforcement 89

Adjudicating Cinderella: A Case of Deceit, Abuse, and Due
Process, 89
What Is Evidentiary Administrative Adjudication? 91
Criticisms of Adjudication, 93
Legal Perspectives, 94
Administrative Perspectives, 95
Why Adjudicate? 99
Agency Convenience, 99
Advantages Presented by Incrementalism, 100
Conduct and Application Cases, 101
Equity and Compassion, 102
Procedural Due Process, 106
Caveat Estoppel, 107
Adjudicatory Hearings, 108
Presiding Officers, 110
Administrative Law Judges, 110
Other Presiding Officers, 113
Decisions and Appeals, 113
Alternative Dispute Resolution, 115
Enforcement, 117
Conclusion: Should Adjudication Be Reformed? 120
Additional Reading, 121
Discussion Questions, 121

5 Transparency 123
Introduction: The Central Intelligence Agency’s Budget? What
Budget? 123
The Administrative Law Framework for Transparent
Government, 125
Public Reporting, 126
Freedom of Information, 128
The Freedom of Information Act, 128
The Presidential Records Act, 138
Privacy, 139
Open Meetings, 142
Whistle-Blower Protection, 145
Qui Tam, 148
Conclusion: An Opaque Fishbowl? 148

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 x Detailed Table of Contents

Additional Reading, 149

Discussion Questions, 150

6 Judicial and Legislative Review of Administrative Action 151

Introduction: The Drug Companies’ Acetaminophen, Salicylic
Acid, and Caffeine Headache, 151
Judicial Review of Administrative Action, 153
The Court System, 154
Reviewability, 159
Standing to Sue, 160
Mootness, 162
Ripeness, 163
Political Questions, 165
Timing, 165
Primary Jurisdiction, 165
Exhaustion of Administrative Remedies, 166
Finality, 167
Deference to State Courts, 167
The Scope of Judicial Review, 168
Agency Rules, 169
FOIA Requests, 172
Rulemaking Procedures, 172
Agencies’ Statutory Interpretations, 173
Agency Nonenforcement, 175
Discretionary Actions, 177
Adjudication, 178
Legislative Review of Administration, 178
Oversight by Committees and Subcommittees, 179
Reporting Requirements, 179
Research, Evaluation, Audit, and Investigation, 180
Sunset Legislation, 181
Casework, 181
Strategic Planning and Performance Reports, 182
Congressional Review Act, 182
Conclusion: Checks, Balances, and Federal Administration, 183
Additional Reading, 184
Discussion Questions, 184

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 Detailed Table of Contents xi

7 Staying Current 185

The Primary Function of US Administrative Law, 186
Constitutional Contractarianism, 186
Public Administrative Instrumentalism, 187
Periodicals and Websites, 190
Talk Administrative Law Talk, 191
Administrative Law Audits, 192
The Next Level, 192
Discussion Questions, 193

References 195
Index 209

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 Preface to the Second Edition

It may come as a surprise that the Encyclopedia of Life Support Systems,

which is sponsored by United Nations Educational, Scientific, and Cul-
tural Organization (UNESCO), contains an entry on administrative law. I
was certainly surprised when asked to write it.1 I immediately had a sci-
ence fiction inspired vision of earthlings boarding a spacecraft clutching
the Encyclopedia in hand as they went to off to colonize a distant planet.
Administrative law? Life support? At first, the connection seemed dubious
at best. On reflection, however, I realized that the inclusion of administra-
tive law is, in fact, necessary for life as we know it in modern, complex
political systems. All governments in developed countries have mature
administrative components. Public administration is the institutional
means through which contemporary governments deliver public services
and regulate aspects of economic, social, and political life. Administrative
law is the regulatory law of public administration. It regulates public ad-
ministrative activity. Without administrative law, public agencies could go
about their business as they saw fit, perhaps routinely emphasizing ad-
ministrative convenience and self-interest over other values and the public
interest. In the United States, administrative law infuses public adminis-
tration with democratic-constitutional values, including stakeholder repre-
sentation, participation, transparency, fairness, accountability, and limited
government intrusion on private activity. Life was once, and still could be,
supported without it. However, other than perhaps some administrators
themselves, few, if any, who know the history of US public administration
would want to return to the days before the federal Administrative Proce-
dure Act of 1946 went into effect.

1. See David H. Rosenbloom, “Administrative Law,” UNESCO-EOLSS, http://www.eolss

.net/sample-chapters/c14/e1-34-05-07.pdf.

xiii

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 xiv Preface to the Second Edition

To appreciate the importance of administrative law, one has to bear in

mind that although students and scholars in the field of public administra-
tion tend to view administration as providing valuable public services, the
rest of the world doesn’t necessarily see it this way. Many in legislatures,
small businesses, the health, medicine, industrial, and research sectors, and
myriad other walks of life think of administration as bureaucracy impos-
ing red tape and unwanted, often unnecessary, and even seemingly bizarre
regulations. This is why administrative law books may contain chapters
on “getting into court” and “staying in court” (W. Fox 2000). Looking from
the outside in, administrative law constrains public administration, guards
against abuses, and enables chief executives, legislatures, and courts to
keep administrators in check. From the inside looking out, administrative
law seeks to guide administrators and agencies in achieving their objec-
tives within the framework of the nation’s democratic-constitutional val-
ues and practices.
A solid grounding in administrative law is a prerequisite for under-
standing a substantial amount about the internal administrative processes
used on a daily basis by public agencies in the United States. As with other
aspects of public administrative practice, it is better to learn administra-
tive law in the classroom than to be bewildered by its pervasiveness upon
entering a public-sector job. Students already working in the public sector
will need no reminder of the importance of administrative law. Neverthe-
less, they will benefit from gaining a systematic understanding of how and
why it developed as it did.
Administrative law has such a major impact on what administrators and
agencies do on a daily basis that it cannot be treated as tangential or as a
specialization best left to lawyers. It needs to be integrated into day-to-day
practice. For some administrators, such as those engaged in rulemaking,
adjudication, and processing freedom-of-information requests, administra-
tive law defines the fundamental structure and activity of their jobs.
This book aims to make administrative law accessible to public admin-
istration students, both those new to the subject and those already in prac-
tice. The book focuses on the essentials that public managers should know
about administrative law—why we have administrative law; the broad
constitutional constraints on public administration; administrative law’s
frameworks for rulemaking, adjudication, enforcement, and transparency;
and the parameters of internal executive and external judicial and legisla-
tive review of administrative action. The book views public administration
from the perspectives of managing, organizing, and doing administration
rather than lawyering. It is far more concerned with staying out of court
than getting into it.

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 Preface to the Second Edition xv

The discussion is organized around federal administrative law. Where

appropriate, state approaches are noted as alternatives or parallels to fed-
eral designs and requirements. After reading this book and grappling with
the discussion questions at the end of each chapter, readers should have
a firm grasp of federal administrative law and no difficulty learning the
administrative law of any state.
Unlike most administrative law texts, the book neither contains legal
cases nor devotes much attention to the development of case law. Federal
court decisions are readily available on the Internet, and instructors can se-
lect them flexibly to augment the text. Books dealing comprehensively with
case law tend toward dysfunctional excess in general public administrative
education, sometimes exceeding 1,000 pages of material that is apt to go
largely unused and soon be forgotten. This book also differs from others
by including a chapter on the constitutional context of US public adminis-
tration, which explains the constitutional constructs and doctrines within
which today’s public administration and administrative law operate.
The book is intended for classroom use in three ways. First, as a supple-
ment, it will efficiently cover the main dimensions of administrative law
in introductory public administration classes and courses on bureaucratic
politics or the political context of public management. Second, it can serve
as a core text in public administration courses dealing with administrative
law or the legal basis or environment of public administration. As a core
text, it can be coupled with selected legal cases of the instructor’s choice.
Third, in constitutional law courses, it can serve as a supplement to explain
how abstract constitutional concerns such as delegations of legislative au-
thority and procedural due process are transformed in concrete action by
administrative agencies. It is unlikely that the book will be used in law
school classes, though law students may find it refreshingly concise and
helpful in explaining the political and administrative contexts in which ad-
ministrative law is applied and the larger purposes it serves.
The challenge in writing the first edition was to explain the essentials
of administrative law clearly and accurately, in nontechnical terms, with
sufficient depth to provide readers with a sophisticated, lasting under-
standing of the subject matter. That there is now a second edition is testa-
ment to the success of that effort. The new edition thoroughly updates the
previous one, adding discussion of new statutes and law cases, as well as
developments during the first five years of Barack Obama’s presidency.
It also fine-tunes the earlier discussion for clarity. I hope those familiar
with the first edition will view this one as fresh and refreshing and those
new to the text will find in it a welcome alternative to other treatments of
administrative law.

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 xvi Preface to the Second Edition

This edition continues to benefit from those acknowledged in the earlier

one. I continue to extend my thanks to them. I would also like to thank the
reviewers who gave such thoughtful feedback on the first edition for this
revision, including Bradley Bjelke (California Lutheran University), Lo-
renda Ann Naylor (University of Baltimore), Stephanie Newbold (Ameri-
can University), Cindy Pressley (Stephen F. Austin State University), Susan
E. Zinner (Indiana University Northwest), and others who wished to re-
main anonymous. Special mention should go to my American University
colleague Jeffrey Lubbers, who is always generous with his time and pa-
tient in sharing his encyclopedic knowledge to explain the finer points of
US federal administrative law to me.

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 1
What Is Administrative Law?

Introduction: What Is Administrative Law?

Administrative law can be defined as the body of constitutional provisions,
statutes, court decisions, executive orders, and other official directives that,
first, (a) regulate the procedures agencies use in adjudicating, rulemaking,
and adopting policies, (b) control the exercise of their authority to enforce
laws and regulations, and (c) govern the extent to which administration is
open to public scrutiny (i.e., transparent); and, second, provide for review
of agency decisions, rules, orders, policies, actions, and other aspects of
their operations. In short, administrative law is the regulatory law of pub-
lic administration. It regulates how public administrative agencies do what
they do and why, as well as their authority to do it. As such, it is among
the most important aspects of modern government. We are all affected by
administrative law in myriad ways in our daily lives.
Food may present the best example of why administrative law is so
important. What did you eat today? Is that all? Well, probably not. The
US Food and Drug Administration (FDA) regulates the “maximum lev-
els of natural or unavoidable defects in food for human use that present
no health hazard.” Known as the FDA “Rat Hair List,” these regulations
specify the amount of rodent hair that can be in one hundred grams of var-
ious foods such as apple butter, oregano, and peanut butter. The list also
regulates the number of insect fragments and eggs, milligrams of mamma-
lian excreta, maggots, and other unappetizing impurities in the foods that
Americans consume every day (FDA, periodic). Chocolate can have up to

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 2 1. What Is Administrative Law?

sixty insect fragments per hundred grams (about two bars) and one rodent
hair. On average, Americans eat 1.2 pounds of spider eggs and 2.5 pounds
of insect parts annually.1
The FDA is empowered to set such standards by law. It would have
no power to do so without statutory authorization. However, it does have
considerable discretion in deciding what levels are unavoidable and do not
pose health hazards and what to do about products that exceed the speci-
fied limits. An initial question is whether “unavoidable” should be deter-
mined based on technology or economics. Although the agency maintains
that some defects cannot be completely screened out, removing from pizza
sauce more fly eggs and maggots than are allowed is probably technolog-
ically feasible. Some producers may already do so. But is it economically
feasible for the entire industry of large and small, relatively financially
strong and weak firms to do so? Determining unavoidability also involves
economic feasibility, which is related to the cost of producing products,
their market price, and consumer demand for them. Some balance between
purity and cost must be struck. The FDA seeks a desirable trade-off by
testing products nationwide and determining the levels of defects present
under the best production processes in use. This approach assumes that
requiring investment to make the best practices even better is economically
infeasible, or at least undesirable, and ultimately unnecessary because,
while unappetizing, the acceptable levels are deemed safe to consume.
Safety is a second issue. Clearly, if people are not getting sick from the
allowable defect levels in regulated foods, then these product levels are
probably safe. Yet it is possible that the cumulative effect of the permit-
ted impurities over one’s lifetime takes a toll on health, even though the
harm may not be traceable to them. It is also possible that the defects af-
fect people differently based on age, allergies, and other factors. No doubt,
aside from looking at best production practices, the FDA takes the views
of health experts and research into account in considering where to set and
maintain defect levels.
A third issue is transparency. As a consumer you may wonder if the
FDA’s regulations provide adequate information and protection. We are
all familiar with the nutrition labels on food products sold in the United
States. Peanut butter lists calories, fat calories, total fat, saturated fat, trans
fat, polyunsaturated fat, monounsaturated fat, cholesterol, vitamins A
and C, sodium, total carbohydrates, fiber, sugars, protein, calcium, and
iron. The average number of insect fragments and rodent hairs is missing.

1. Data from http://www.spydersden.worldpress.com/2010/page/78; www.chacha.com/

question/does-the-average-american-really-consume-1.2-pounds-of-spider-eggs-a-year-and
-eat-2.5-pounds-of-insect-parts-a-year.

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 Introduction: What Is Administrative Law? 3

Should this be identified? Who should decide—Congress, which is elected

by “We the People”; an administrative agency like the FDA, which is
not; or the food industry itself? If it were decided to require information
about “unavoidable defects,” would it be sufficient to indicate compliance
with FDA allowable levels? Should that level be specified on the product?
Should the average number of various impurities be indicated? If Congress
makes such decisions, it will hold hearings and receive testimony from
representatives of the food industry such as the Snack Food Association,
Pizza Industry Council, US Potato Board, National Confectioners’ Associ-
ation, Whole Grains Council, and other groups. If an agency makes these
decisions, how should its decisionmaking process be structured? Should
it be open to input from the same kinds of stakeholders, and if so, how?
Regardless of where the decision is made, what role, if any, should health
experts, hospitals and other care providers, health insurance companies,
and consumer advocates play?
Finally, how should the FDA’s defect levels be enforced? Should the FDA
test products already in the marketplace, inspect production facilities, or
both? If a firm’s product exceeds the allowable defect levels, what steps
should be taken? What opportunities should the firm have to contest the
FDA’s finding? Such questions are the stuff of administrative law. Although
they focus largely on process, as they suggest, process can affect substance.
Administrative policymaking often involves a wide range of consider-
ations and complex trade-offs like those involved in establishing the FDA’s
Rat Hair List. Administrators make a great number of decisions that di-
rectly affect the health, safety, and welfare of the population or sections
of it. They have to address difficult issues regarding transportation, envi-
ronmental protection, economic practices, labor relations, and much, much
more. Their decisions are of fundamental consequence to the nation’s qual-
ity of life and attract a great deal of political and media attention. Equally
important to our constitutional democracy, though generally less visible
and interesting to the public, is how administrators should make and en-
force their decisions.
The how rather than the what is the essence of administrative law. What
steps should an administrator and an agency take before regulating impuri-
ties in food? What values should be weighed and how heavily? How much
evidence should be adduced to support agencies’ conclusions? How open to
public scrutiny and participation should decisionmaking be? How should
the costs and benefits of agency action be weighed? How can an agency
assess the impact of greater transparency on consumers’ behavior? Would
including the FDA’s allowable defect levels on nutrition labels change
Americans’ diets, and if so, how—toward more or less healthful diets?

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 4 1. What Is Administrative Law?

Additional administrative law questions focus on accountability and re-

view of agency decisionmaking. How should the FDA be held accountable
for whatever levels it sets? Should its standards be subject to review by
Congress and/or a unit within the executive branch, such as the Office
of Management and Budget (OMB)? Presuming that one or more of its
standards is challenged in court, should the FDA have to show statistically
that its maximum levels are safe, that lower levels would not be safer, or
that the defects are unavoidable? Should the data relied on to reach its
decisions be available to the public? Concerns like these are the crux of
administrative law, and they are of recurring importance.
For the most part, administrative law is generic in the sense that one
size fits all. Although there are apt to be exceptions, it more or less applies
across the board to administrative agencies within a government, as op-
posed to being tailored to match each agency’s mission individually. The
phrase “administrative law,” as used in the United States, makes an im-
perfect distinction between the procedures agencies use to make rules, set
standards, and adjudicate and the substantive content produced by those
actions. In other words, how the FDA sets maximum defect levels is a mat-
ter of administrative law, whereas the levels themselves are not. Similarly,
how the Environmental Protection Agency (EPA) makes rules for clean air
and water is a matter of administrative law; the actual regulations, such as
parts per billion of arsenic allowed in groundwater, are not. The distinc-
tion is imperfect because administrative law provides for judicial review
of agencies’ rules, standards, and adjudicatory decisions, which may be
found unlawful if their content is irrational or their scope is beyond the
law. Moreover, administrative law, with the exception of some forms of
adjudication, is not concerned with agency decisions regarding internal
personnel, organizational, budgetary, outsourcing, and similar administra-
tive matters. All levels of government in the United States rely on some
form of administrative law to regulate their administrative activities. In
the absence of US Supreme Court constitutional law decisions applying to
all jurisdictions, the requirements of federal, state, and local administrative
law need not be uniform. In fact, there is substantial variation.

Why We Have Administrative Law Statutes:

Delegation and Discretion

Delegation
Administrative law statutes regulate administrative procedures and the
review of agency actions. In the United States such statutes were adopted

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 Why We Have Administrative Law Statutes: Delegation and Discretion 5

largely to control agencies’ use of delegated legislative authority and their

exercise of discretion. Although administration is usually associated with
the executive branch of government, administrative activities nowadays
also involve legislative functions. Rulemaking is the preeminent example.
Agencies’ legislative rules (also called “substantive” rules) are the equiv-
alent of statutes and are essentially a substitute for them. Administrative
rulemaking is sometimes called “supplementary lawmaking.” For instance,
legal standards for clean air and water can be imposed by statute as well
as by EPA rules. But at the federal level, where agencies have no indepen-
dent constitutional authority, such rules can be issued only pursuant to a
congressional delegation (i.e., grant) of legislative authority to an agency.
At first thought, it may seem odd that legislatures would relinquish their
own lawmaking authority to public administrators. After all, bureaucrats
are hardly popular among the American public. Legislators and the media
often deride them for usurping power and issuing undesirable rules writ-
ten in impenetrable gobbledygook. However, legislatures find it necessary
or desirable to delegate legislative authority to administrative agencies for
several reasons. First, as the scope and complexity of public policy increase,
legislatures have difficulty keeping abreast of the need to adopt and amend
legislation. Legislative processes are typically cumbersome, especially in bi-
cameral legislatures such as the US Congress and those of forty-nine of the
fifty states (Nebraska being the sole exception with a unicameral legislature).
A bill typically has to work its way independently through each house. It
has to win majority support in both before being submitted to the president
or governor for approval or veto. Legislative procedure is intended to pro-
vide ample checks and balances, but where the workload is heavy, it can
overwhelm a legislature’s capacity to deal with all the demands it faces. By
delegating legislative authority to administrative agencies, legislatures can
shed some of the lawmaking burden onto administrators.
Second, legislatures cannot be expected to have the level of detailed
technical expertise often required in contemporary public policymaking.
Environmental, health, and safety regulation can involve setting standards
based on elaborate scientific analysis. Trade-offs, such as balancing tech-
nology, economics, and health concerns in setting the FDA’s maximum
defect levels, are also complex. Available science and statistical evidence
may be inconclusive. For example, it may take years of technical analysis
to determine how many parts per million or billion of a substance can be
considered safe in drinking water, in the ambient atmosphere at a factory,
or in our bodies, for that matter. In time, new information may require re-
evaluation of that determination. Expert administrators are in a better po-
sition than legislators and their staffs to deal with such matters. Moreover,

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 6 1. What Is Administrative Law?

the range of regulatory standards and related policy concerns is too broad
for legislatures to address. It takes the attention of numerous, specialized,
and frequently large agencies.
Third, legislators may find it politically advantageous to delegate leg-
islative authority to administrative agencies in order to avoid taking firm
stands on controversial issues. It is easier to maintain constituents’ favor
by supporting broad objectives that are widely shared, such as protecting
the environment, than by setting regulatory standards that will raise prices
or cause unemployment in one’s home district. Legislators may even score
points with voters by denouncing decisions made by the very agencies and
administrators that their legislation has empowered (Fiorina 1977, 48–49).
As necessary and convenient as delegations of legislative authority are,
they raise a number of political questions. Constitutionality is one. The
separation of powers at the federal level and in the states is intended to es-
tablish checks and balances as a means of protecting the people against the
aggregation of power in one branch of government. Parliamentary systems
fuse legislative and executive powers, but the framers of the US Constitu-
tion thought such a combination could produce tyranny. Following their
lead, Americans have preferred to keep these powers separate, though less
so at the local government level. Consequently, when legislative author-
ity is delegated to administrative agencies, even though voluntarily on the
part of legislatures, this can be seen as a threat to the constitutional order.
As the US Supreme Court once summarized the problem, “The Congress
is not permitted to abdicate or to transfer to others the essential legislative
functions with which it is . . . vested,” and there must be “limitations of
the authority to delegate, if our constitutional system is to be maintained”
(Schechter Poultry Corp. v. United States 1935, 529–530). Yet modern govern-
ment requires at least some delegation. Large-scale administration would
be impossible without it.
At the federal level, the formal constitutional solution to the tension
between the separation of powers and the vesting of legislative author-
ity in administrative agencies requires delegations to be accompanied by
“an intelligible principle to which [an agency] . . . is directed to conform”
(J. W. Hampton, Jr. & Co. v. United States 1928, 409). In theory, this intelligible
principle doctrine ensures that Congress will clearly establish the broad
objectives of public policy, relying on the agencies, when necessary, only
to fill in the details. In practice, however, finding an intelligible principle
in some delegations may be impossible. For instance, the federal Occupa-
tional Safety and Health Act of 1970 provides that the secretary of labor, “in
promulgating standards dealing with toxic materials or harmful physical
agents . . . shall set the standard which most adequately assures, to the

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 Why We Have Administrative Law Statutes: Delegation and Discretion 7

extent feasible, on the basis of the best available evidence, that no employee
will suffer material impairment of health or functional capacity even
if such employee has regular exposure to the hazard dealt with by such
standard for the period of his working life” (Industrial Union Department,
AFL-CIO v. American Petroleum Institute 1980, 612 [emphasis added]). With
obvious frustration, Justice William Rehnquist parsed this language in an
unsuccessful quest for an intelligible principle: “I believe that the legisla-
tive history demonstrates that the feasibility requirement . . . is a legislative
mirage, appearing to some Members [of Congress] but not to others, and
assuming any form desired by the beholder” (Industrial Union Department,
AFL-CIO v. American Petroleum Institute 1980, 681).
Rehnquist called the feasibility requirement “precatory,” meaning that
it essentially entreated the secretary of labor to take a balanced approach
(Industrial Union Department, AFL-CIO v. American Petroleum Institute 1980,
682). Such “legislative mirages” are not unusual. Statutes are loaded with
key “standards,” such as “‘adequate,’ ‘advisable,’ ‘appropriate,’ ‘beneficial,’
‘convenient,’ ‘detrimental,’ ‘expedient,’ ‘equitable,’ ‘fair,’ ‘fit,’ ‘necessary,’
‘practicable,’ ‘proper,’ ‘reasonable,’ ‘reputable,’ ‘safe,’ ‘sufficient,’ ‘whole-
some,’ or their opposites” (Warren 1996, 370). The Federal Communications
Commission (FCC) is charged with regulating communications by wire
and radio in the “public interest”—a term with no fixed meaning that can
accommodate any reasonable action (Office of the Federal Register 1999,
524). The greatest certainty regarding the meaning of the phrase “stationary
source” in the Clean Air Act Amendments of 1977 is that such a source of
pollutants is not mobile. The EPA has interpreted these same words very
differently in different programs and at different times (Chevron U.S.A., Inc.
v. Natural Resources Defense Council, Inc. 1984; see Chapter 6).

Discretion
Delegations of legislative authority call on administrators to use discretion
in formulating standards and policies. The weaker the intelligible principle
in the statutory delegation, the greater the potential range of administra-
tive discretion. However, administrative discretion also goes well beyond
the rulemaking function. Agencies may exercise a great deal of it in imple-
menting or enforcing laws, rules, other regulations, and policies. They of-
ten lack the resources to do everything legally required of them. Universal
enforcement may be impossible or impracticable. It is an uncomfortable
fact that selective application of the law is often inevitable. Equally import-
ant, the legal acceptability of many matters is determined by the discretion
of “street-level” administrators, such as safety and health inspectors, or

9780813348810-text.indd 7 5/14/14 4:09 PM

 8 1. What Is Administrative Law?

weighed on a case-by-case basis through adjudication within administra-

tive agencies.
The use of discretion by thoroughly trained, professional, expert ad-
ministrators can be highly beneficial—society has come to depend on it.
We have master’s programs in public administration or policy to provide
public managers and policy analysts with the tools and ethical and legal
grounding to exercise discretion soundly. We rely on merit systems and
career civil services to reduce the likelihood that discretion will be abused
for political gain. From a public administrative perspective, discretion is
essential to the implementation of laws and the successful achievement of
a government’s policy objectives.
There is also another view. The motto “Where law ends tyranny begins”
is prominently engraved on the US Department of Justice’s headquarters
building in Washington, DC. From the vantage of US democratic constitu-
tionalism, then, discretion is often at war with the bedrock principle of the
rule of law (Warren 1996, 365). The Supreme Court has even called uncon-
strained discretion in law enforcement an “evil” (Delaware v. Prouse 1979).
Administrative law is a major means of checking the exercise of admin-
istrative discretion to ensure that its use is rational and fair. It does this
primarily in two ways: by structuring administrative decisionmaking pro-
cesses and by providing for procedural and substantive review of admin-
istrators’ decisions.

Administrative Decisionmaking
The federal Administrative Procedure Act (APA) of 1946 is representative
of US administrative law statutes in trying to promote rationality and law-
fulness in agency decisionmaking without imposing overly encumbering
procedural requirements. It specifically seeks to prevent decisions that are

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accor-

dance with law; (B) contrary to constitutional right, power, privilege, or
immunity; (C) in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right; (D) without observance of procedure required
by law; (E) unsupported by substantial evidence . . . ; (F) unwarranted by
the facts. (sec. 706)2

2. Citations to codified statutes in the text are to their section number in the United States Code
(U.S.C.). Rather than repeat the title number of the Code in which the statute is found in each
citation, this information is provided in the References section at the end of the book. The full
citation to this section of the APA is 5 U.S.C. 706.

9780813348810-text.indd 8 5/14/14 4:09 PM

Another random document with
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 INSURRECTIONARY STATES.

Rejected—Ten States.

Virginia—Senate, January 9, 1867, unanimously; House, January

9, 1867, 1 for amendment.
North Carolina—Senate, December 13, 1866, yeas 1, nays 44;
House, December 13, 1866, yeas 10, nays 93.
South Carolina—Senate —— ——; House, December 20, 1866,
yeas 1, nays 95.
Georgia—Senate, November 9, 1866, yeas 0, nays 36; House,
November 9, 1866, yeas 2, nays 131.
Florida—Senate, December 3, 1866, yeas 0, nays 20; House,
December 1, 1866, yeas 0, nays 49.
Alabama—Senate, December 7, 1866, yeas 2, nays 27; House,
December 7, 1866, yeas 8, nays 69.
Mississippi—Senate, January 30, 1867, yeas 0, nays 27; House,
January 25, 1867, yeas 0, nays 88.
Louisiana—Senate, February 5, 1867, unanimously; House,
February 6, 1867, unanimously.
Texas—Senate, —— ——; House, October 13, 1866, yeas 5, nays
67.
Arkansas—Senate, December 15, 1866, yeas 1, nays 24; House,
December 17, 1866, yeas 2, nays 68.
The passage of the 14th Amendment and of the Reconstruction
Acts, was followed by Presidential proclamations dated August 20,
1866, declaring the insurrection at an end in Texas, and civil
authority existing throughout the whole of the United States.

PRESIDENTIAL ELECTION OF 1864.

The Republican National Convention met at Baltimore, June 7th,

1864, and renominated President Lincoln unanimously, save the vote
of Missouri, which was cast for Gen. Grant. Hannibal Hamlin, the old
Vice-President, was not renominated, because of a desire to give part
of the ticket to the Union men of the South, who pressed Senator
Andrew Johnson of Tennessee. “Parson” Brownlow made a strong
appeal in his behalf, and by his eloquence captured a majority of the
Convention.
The Democratic National Convention met at Chicago, August 29th,
1864, and nominated General George B. McClellan, of New Jersey,
for President, and George H. Pendleton, of Ohio, for Vice-President.
General McClellan was made available for the Democratic
nomination through certain political letters which he had written on
points of difference between himself and the Lincoln administration.
Two of these letters are sufficient to show his own and the views of
the party which nominated him, in the canvass which followed:
 Gen. McClellan’s Letters.

On Political Administration, July 7, 1862.

Headquarters Army of the Potomac,

Camp near Harrison’s Landing, Va., July 7, 1862.

Mr. President:—You have been fully informed that the rebel army
is in the front, with the purpose of overwhelming us by attacking our
positions or reducing us by blocking our river communications. I
cannot but regard our condition as critical, and I earnestly desire, in
view of possible contingencies, to lay before your excellency, for your
private consideration, my general views concerning the existing state
of the rebellion, although they do not strictly relate to the situation of
this army, or strictly come within the scope of my official duties.
These views amount to convictions, and are deeply impressed upon
my mind and heart. Our cause must never be abandoned; it is the
cause of free institutions and self-government. The Constitution and
the Union must be preserved, whatever may be the cost in time,
treasure, and blood. If secession is successful, other dissolutions are
clearly to be seen in the future. Let neither military disaster, political
faction, nor foreign war shake your settled purpose to enforce the
equal operation of the laws of the United States upon the people of
every State.
The time has come when the government must determine upon a
civil and military policy, covering the whole ground of our national
trouble.
The responsibility of determining, declaring, and supporting such
civil and military policy, and of directing the whole course of national
affairs in regard to the rebellion, must now be assumed and exercised
by you, or our cause will be lost. The Constitution gives you power,
even for the present terrible exigency.
 This rebellion has assumed the character of a war; as such it
should be regarded, and it should be conducted upon the highest
principles known to Christian civilization. It should not be a war
looking to the subjugation of the people of any State, in any event. It
should not be at all a war upon population, but against armed forces
and political organizations. Neither confiscation of property, political
executions of persons, territorial organization of States, or forcible
abolition of slavery, should be contemplated for a moment.
In prosecuting the war, all private property and unarmed persons
should be strictly protected, subject only to the necessity of military
operations; all private property taken for military use should be paid
or receipted for; pillage and waste should be treated as high crimes;
all unnecessary trespass sternly prohibited, and offensive demeanor
by the military towards citizens promptly rebuked. Military arrests
should not be tolerated, except in places where active hostilities
exist; and oaths, not required by enactments, constitutionally made,
should be neither demanded nor received.
Military government should be confined to the preservation of
public order and the protection of political right. Military power
should not be allowed to interfere with the relations of servitude,
either by supporting or impairing the authority of the master, except
for repressing disorder, as in other cases. Slaves, contraband under
the act of Congress, seeking military protection, should receive it.
The right of the government to appropriate permanently to its own
service claims to slave labor should be asserted, and the right of the
owner to compensation therefor should be recognized. This principle
might be extended, upon grounds of military necessity and security,
to all the slaves of a particular State, thus working manumission in
such State; and in Missouri, perhaps in Western Virginia also, and
possibly even in Maryland, the expediency of such a measure is only
a question of time. A system of policy thus constitutional, and
pervaded by the influences of Christianity and freedom, would
receive the support of almost all truly loyal men, would deeply
impress the rebel masses and all foreign nations, and it might be
humbly hoped that it would commend itself to the favor of the
Almighty.
Unless the principles governing the future conduct of our struggle
shall be made known and approved, the effort to obtain requisite
forces will be almost hopeless. A declaration of radical views,
especially upon slavery, will rapidly disintegrate our present armies.
The policy of the government must be supported by concentrations
of military power. The national forces should not be dispersed in
expeditions, posts of occupation, and numerous armies, but should
be mainly collected into masses, and brought to bear upon the
armies of the Confederate States. Those armies thoroughly defeated,
the political structure which they support would soon cease to exist.
In carrying out any system of policy which you may form, you will
require a commander-in-chief of the army, one who possesses your
confidence, understands your views, and who is competent to
execute your orders by directing the military forces of the nation to
the accomplishment of the objects by you proposed. I do not ask that
place for myself. I am willing to serve you in such position as you
may assign me, and I will do so as faithfully as ever subordinate
served superior.
I may be on the brink of eternity; and as I hope forgiveness from
my Maker, I have written this letter with sincerity towards you and
from love for my country.
Very respectfully, your obedient servant,

George B. McClellan,
Major-General Commanding.

His Excellency A. Lincoln, President.

IN FAVOR OF the ELECTION OF GEORGE W.

WOODWARD AS GOVERNOR OF PENNSYLVANIA.

Orange, New Jersey, October 12, 1863.

Dear Sir:—My attention has been called to an article in the

Philadelphia Press, asserting that I had written to the managers of a
Democratic meeting at Allentown, disapproving the objects of the
meeting, and that if I voted or spoke it would be in favor of Governor
Curtin, and I am informed that similar assertions have been made
throughout the State.
 It has been my earnest endeavor heretofore to avoid participation
in party politics. I had determined to adhere to this course, but it is
obvious that I cannot longer maintain silence under such
misrepresentations. I therefore request you to deny that I have
written any such letter, or entertained any such views as those
attributed to me in the Philadelphia Press, and I desire to state
clearly and distinctly, that having some days ago had a full
conversation with Judge Woodward, I find that our views agree, and
I regard his election as Governor of Pennsylvania called for by the
interests of the nation.
I understand Judge Woodward to be in favor of the prosecution of
the war with all the means at the command of the loyal States, until
the military power of the rebellion is destroyed. I understand him to
be of the opinion that while the war is urged with all possible
decision and energy, the policy directing it should be in consonance
with the principles of humanity and civilization, working no injury to
private rights and property not demanded by military necessity and
recognized by military law among civilized nations.
And, finally, I understand him to agree with me in the opinion that
the sole great objects of this war are the restoration of the unity of
the nation, the preservation of the Constitution, and the supremacy
of the laws of the country. Believing our opinions entirely agree upon
these points, I would, were it in my power, give to Judge Woodward
my voice and vote.
I am, very respectfully, yours,

George B. McClellan.

Hon. Charles J. Biddle.

The views of Mr. Lincoln were well known; they were felt in the
general conduct of the war. The Republicans adopted as one of their
maxims the words of their candidate, “that it was dangerous to swap
horses while crossing a stream.” The campaign was exciting, and was
watched by both armies with interest and anxiety. In this election, by
virtue of an act of Congress, the soldiers in the field were permitted
to vote, and a large majority of every branch of the service sustained
the Administration, though two years before General McClellan had
been the idol of the Army of the Potomac. Lincoln and Johnson
received 212 electoral votes, against 21 for McClellan and Pendleton.
 Lincoln’s Second Administration.

In President Lincoln’s second inaugural address, delivered on the

4th of March, 1865, he spoke the following words, since oft quoted as
typical of the kindly disposition of the man believed by his party to
be the greatest President since Washington: “With malice toward
none, with charity for all, with firmness in the right, as God gives us
to see the right, let us strive on to finish the work we are in, to bind
up the Nation’s wounds, to care for him who shall have borne the
battle, and for his widow and orphans—to do all which may achieve a
just and lasting peace among ourselves and with all nations.”
Lincoln could well afford to show that generosity which never
comes more properly than from the hands of the victor. His policy
was about to end in a great triumph. In less than five weeks later on
General Lee had surrendered the main army of the South to General
Grant at Appomattox, on terms at once magnanimous and so briefly
stated that they won the admiration of both armies, for the rebels
had been permitted to retain their horses and side arms, and to go at
once to their homes, not to be disturbed by United States authority
so long as they observed their paroles and the laws in force where
they resided. Lee’s surrender was rapidly followed by that of all
Southern troops.
Next came a grave political work—the actual reconstruction of the
States lately in rebellion. This work gave renewed freshness to the
leading political issues incident to the war, and likewise gave rise to
new issues. It was claimed at once that Lincoln had a reconstruction
policy of his own, because of his anxiety for the prompt admission of
Louisiana and Arkansas, but it had certainly never taken definite
shape, nor was there time to get such a policy in shape, between the
surrender of Lee and his own assassination. On the night of the 15th
of April, six days after the surrender, J. Wilkes Booth shot him while
sitting in a box in Ford’s theatre. The nation stood appalled at the
deed. No man was ever more sincerely mourned in all sections and
by all classes. The Southern leaders thought that this rash act had
lost to them a life which had never been harsh, and while firm, was
ever generous. The North had looked upon him as “Father
Abraham,” and all who viewed the result of the shooting from
sectional or partisan standpoints, thought his policy of “keeping with
the people,” would have shielded every proper interest. No public
man ever felt less “pride of opinion” than Lincoln, and we do believe,
had he lived, that he would have shaped events, as he did during the
war, to the best interests of the victors, but without unnecessary
agitation or harshness. All attempts of writers to evolve from his
proclamation a reconstruction policy, applicable to peace, have been
vain and impotent. He had none which would not have changed with
changing circumstances. A “policy” in an executive office is too often
but another name for executive egotism, and Lincoln was almost
absolutely free from that weakness.
On the morning of Mr. Lincoln’s death, indeed within the same
hour (and very properly so under the circumstances), the Vice-
President Andrew Johnson was inaugurated as President. The
excitement was painfully high, and the new President, in speeches,
interviews and proclamations if possible added to it. From evidence
in the Bureau of Military Justice he thought the assassination of
Lincoln, and the attempted assassination of Secretary Seward had
been procured by Jefferson Davis, Clement C. Clay, Jacob
Thompson, Geo. N. Saunders, Beverly Tucker, Wm. C. Cleary, and
“other rebels and traitors harbored in Canada.” The evidence,
however, fully drawn out in the trial of the co-conspirators of J.
Wilkes Booth, showed that the scheme was hair-brained, and from
no responsible political source. The proclamation, however, gave
keenness to the search for the fugitive Davis, and he was soon
captured while making his way through Georgia to the Florida coast
with the intention of escaping from the country. He was imprisoned
in Fortress Monroe, and an indictment for treason was found against
him, but he remained a close prisoner for nearly two years, until
times when political policies had been changed or modified. Horace
Greeley was one of his bondsmen. By this time there was grave doubt
whether he could be legally convicted,[32] “now that the charge of
inciting Wilkes Booth’s crime had been tacitly abandoned. Mr.
Webster (in his Bunker Hill oration) had only given clearer
expression to the American doctrine, that, after a revolt has levied a
regular army, and fought therewith a pitched battle, its champions,
even though utterly defeated, cannot be tried and convicted as
traitors. This may be an extreme statement; but surely a rebellion
which has for years maintained great armies, levied taxes and
conscriptions, negotiated loans, fought scores of sanguinary battles
with alternate successes and reverses, and exchanged tens of
thousands of prisoners of war, can hardly fail to have achieved
thereby the position and the rights of a lawful belligerent.” This view,
as then presented by Greeley, was accepted by President Johnson,
who from intemperate denunciation had become the friend of his old
friends in the South. Greeley’s view was not generally accepted by the
North, though most of the leading men of both parties hoped the
responsibility of a trial would be avoided by the escape and flight of
the prisoner. But he was confident by this time, and sought a trial.
He was never tried, and the best reason for the fact is given in Judge
Underwood’s testimony before a Congressional Committee (and the
Judge was a Republican) “that no conviction was possible, except by
packing a jury.”
 Andrew Johnson.

On the 29th of April, 1865, President Johnson issued a

proclamation removing all restrictions upon internal, domestic and
coastwise and commercial intercourse in all Southern States east of
the Mississippi; the blockade was removed May 22, and on May 29 a
proclamation of amnesty was issued, with fourteen classes excepted
therefrom, and the requirement of an “iron-clad oath” from those
accepting its provisions. Proclamations rapidly followed in shaping
the lately rebellious States to the conditions of peace and restoration
to the Union. These States were required to hold conventions, repeal
secession ordinances, accept the abolition of slavery, repudiate
Southern war debts, provide for Congressional representation, and
elect new State Officers and Legislatures. The several constitutional
amendments were of course to be ratified by the vote of the people.
These conditions were eventually all complied with, some of the
States being more tardy than others. The irreconcilables charged
upon the Military officers, the Freedmen’s Bureau, and the stern
application of the reconstruction acts, these results, and many of
them showed a political hostility which, after the election of the new
Legislatures, took shape in what were in the North at the time
denounced as

“THE BLACK CODES.”

These were passed by all of the eleven States in the rebellion. The
codes varied in severity, according to the views of the Legislatures,
and for a time they seriously interfered with the recognition of the
States, the Republicans charging that the design was to restore
slavery under new forms. In South Carolina Gen’l Sickles issued
military orders, as late as January 17, 1866, against the enforcement
of such laws.
 To assure the rights, of the freedmen the 14th amendment of the
Constitution was passed by Congress, June 18th, 1866. President
Johnson opposed it, refused to sign, but said he would submit it to
the several States. This was done, and it was accepted by the required
three-fourths, January 28th, 1868. This had the effect to do away
with many of the “black codes,” and the States which desired
readmission to the Union had to finally give them up. Since
reconstruction, and the political ousting of what were called the
“carpet-bag governments,” some of the States, notably Georgia, has
passed class laws, which treat colored criminals differently from
white, under what are now known as the “conduct laws.” Terms of
sentence are served out, in any part of the State, under the control of
public and private contractors, and “vagrants” are subjected to
sentences which it is believed would be less extended under a system
of confinement.
 Johnson’s Policy.

While President Johnson’s policy did not materially check

reconstruction, it encouraged Southern politicians to political effort,
and with their well known tact they were not long in gaining the
ascendancy in nearly every State. This ascendancy excited the fears
and jealousies of the North, and the Republicans announced as their
object and platform “that all the results of the war” should be secured
before Southern reconstruction and representation in Congress
should be completed. On this they were almost solidly united in
Congress, but Horace Greeley trained an independent sentiment
which favored complete amnesty to the South. President Johnson
sought to utilize this sentiment, and to divide the Republican party
through his policy, which now looked to the same ends. He had said
to a delegation introduced by Gov. Oliver P. Morton, April 21, 1865:
“Your slavery is dead, but I did not murder it. As Macbeth said to
Banquo’s bloody ghost:
‘Never shake thy gory locks at me;
Thou canst not say I did it.’

“Slavery is dead, and you must pardon me if I do not mourn over

its dead body; you can bury it out of sight. In restoring the State,
leave out that disturbing and dangerous element, and use only those
parts of the machinery which will move in harmony.
“But in calling a convention to restore the State, who shall restore
and re-establish it? Shall the man who gave his influence and his
means to destroy the Government? Is he to participate in the great
work of reorganization? Shall he who brought this misery upon the
State be permitted to control its destinies? If this be so, then all this
precious blood of our brave soldiers and officers so freely poured out
will have been wantonly spilled. All the glorious victories won by our
noble armies will go for nought, and all the battle-fields which have
been sown with dead heroes during the rebellion will have been
made memorable in vain.”
In a speech at Washington, Feb. 22nd, 1866, Johnson said:
“The Government has stretched forth its strong arm, and with its
physical power it has put down treason in the field. That is, the
section of country that arrayed itself against the Government has
been conquered by the force of the Government itself. Now, what had
we said to those people? We said, ‘No compromise; we can settle this
question with the South in eight and forty hours.’
“I have said it again and again, and I repeat it now, ‘disband your
armies, acknowledge the supremacy of the Constitution of the United
States, give obedience to the law, and the whole question is settled.’
“What has been done since? Their armies have been disbanded.
They come now to meet us in a spirit of magnanimity and say, ‘We
were mistaken; we made the effort to carry out the doctrine of
secession and dissolve this Union, and having traced this thing to its
logical and physical results, we now acknowledge the flag of our
country, and promise obedience to the Constitution and the
supremacy of the law.’
“I say, then, when you comply with the Constitution, when you
yield to the law, when you acknowledge allegiance to the
Government—I say let the door of the Union be opened, and the
relation be restored to those that had erred and had strayed from the
fold of our fathers.”
It is not partisanship to say that Johnson’s views had undergone a
change. He did not admit this in his speeches, but the fact was
accepted in all sections, and the leaders of parties took position
accordingly—nearly all of the Republicans against him, nearly all of
the Democrats for him. So radical had this difference become that he
vetoed nearly all of the political bills passed by the Republicans from
1866 until the end of his administration, but such was the
Republican preponderance in both Houses of Congress that they
passed them over his head by the necessary two-thirds vote. He
vetoed the several Freedmen’s Bureau Bills, the Civil Rights Bill, that
for the admission of Nebraska and Colorado, the Bill to permit
Colored Suffrage in the District of Columbia, one of the
Reconstruction Bills, and finally made a direct issue with the powers
of Congress by his veto of the Civil Tenure Bill, March 2, 1867, the
substance of which is shown in the third section, as follows:
Sec. 3. That the President shall have power to fill all vacancies
which may happen during the recess of the Senate, by reason of
death or resignation, by granting commissions which shall expire at
the end of their next session thereafter. And if no appointment, by
and with the advice and consent of the Senate, shall be made to such
office so vacant or temporarily filled as aforesaid during such next
session of the Senate, such office shall remain in abeyance without
any salary, fees, or emoluments attached thereto, until the same shall
be filled by appointment thereto, by and with the advice and consent
of the Senate; and during such time all the powers and duties
belonging to such office shall be exercised by such other officer as
may by law exercise such powers and duties in case of a vacancy in
such office.
The bill originally passed the Senate by 22 to 10—all of the nays
Democrats save Van Winkle and Willey. It passed the House by 112
to 41—all of the yeas Republicans; all of the nays Democrats save
Hawkins, Latham and Whaley. The Senate passed it over the veto by
35 to 11—a strict party vote; the House by 138 to 40—a strict party
vote, except Latham (Rep.) who voted nay.
The refusal of the President to enforce this act, and his attempted
removal of Secretary Stanton from the Cabinet when against the wish
of the Senate, led to the effort to impeach him. Stanton resisted the
President, and General Grant took an active part in sustaining the
War Secretary. He in fact publicly advised him to “stick,” and his
attitude showed that in the great political battle which must follow,
they would surely have the support of the army and its great
commander.
 Impeachment Trial of Andrew Johnson.

[33]
The events which led to the impeachment of President Johnson,
may be briefly stated as follows: On the 21st of February, 1868, the
President issued an order to Mr. Stanton, removing him from office
as Secretary of War, and another to General Lorenzo Thomas,
Adjutant-General of the Army, appointing him Secretary of War ad
interim, directing the one to surrender and the other to receive, all
the books, papers, and public property belonging to the War
Department. As these orders fill an important place in the history of
the impeachment, we give them here. The order to Mr. Stanton
reads:
“By virtue of the power and authority vested in me as President by
the Constitution and laws of the United States, you are hereby
removed from office as Secretary for the Department of War, and
your functions as such will terminate upon the receipt of this
communication. You will transfer to Brevet Major-General Lorenzo
Thomas, Adjutant-General of the Army, who has this day been
authorized and empowered to act as Secretary of War ad interim, all
records, books, papers, and other public property now in your
custody and charge.”
The order to General Thomas reads:
“The Hon. Edwin M. Stanton having been this day removed from
office as Secretary for the Department of War, you are hereby
authorized and empowered to act as Secretary of War ad interim,
and will immediately enter upon the discharge of the duties
pertaining to that office. Mr. Stanton has been instructed to transfer
to you all the records, books, and other public property now in his
custody and charge.”
These orders having been officially communicated to the Senate,
that body, after an earnest debate, passed the following resolution:
 “Resolved, by the Senate of the United States, That under the
Constitution and laws of the United States the President has no
power to remove the Secretary of War and designate any other
officer to perform the duties of that office.”
The President, upon the 24th, sent a message to the Senate,
arguing at length that not only under the Constitution, but also
under the laws as now existing, he had the right of removing Mr.
Stanton and appointing another to fill his place. The point of his
argument is: That by a special proviso in the Tenure-of-Office Bill the
various Secretaries of Departments “shall hold their offices
respectively for and during the term of the President by whom they
may have been appointed, and for one month thereafter, subject to
removal by and with the advice of the Senate.” The President affirms
that Mr. Stanton was appointed not by him, but by his predecessor,
Mr. Lincoln, and held office only by the sufferance, not the
appointment, of the present Executive; and that therefore his tenure
is, by the express reading of the law excepted from the general
provision, that every person duly appointed to office, “by and with
the advice and consent of the Senate,” etc., shall be “entitled to hold
office until a successor shall have been in like manner appointed and
duly qualified, except as herein otherwise provided.” The essential
point of the President’s argument, therefore, is that, as Mr. Stanton
was not appointed by him, he had, under the Tenure-of-Office Bill,
the right at any time to remove him; the same right which his own
successor would have, no matter whether the incumbent had, by
sufferance, not by appointment of the existing Executive, held the
office for weeks or even years. “If,” says the President, “my successor
would have the power to remove Mr. Stanton, after permitting him
to remain a period of two weeks, because he was not appointed by
him, I who have tolerated Mr. Stanton for more than two years,
certainly have the same right to remove him, upon the same ground,
namely that he was not appointed by me but by my predecessor.”
In the meantime General Thomas presented himself at the War
Department and demanded to be placed in the position to which he
had been assigned by the President. Mr. Stanton refused to
surrender his post, and ordered General Thomas to proceed to the
apartment which belonged to him as Adjutant-General. This order
was not obeyed, and so the two claimants to the Secretaryship of War
held their ground. A sort of legal by-play then ensued. Mr. Stanton
entered a formal complaint before Judge Carter, Chief Justice of the
Supreme Court of the District of Columbia, charging that General
Thomas had illegally exercised and attempted to exercise the duties
of Secretary of War; and had threatened to “forcibly remove the
complainant from the buildings and apartments of the Secretary of
War in the War Department, and forcibly take possession and
control thereof under his pretended appointment by the President of
the United States as Secretary of War ad interim;” and praying that
he might be arrested and held to answer this charge. General
Thomas was accordingly arrested, and held to bail in the sum of
$15,000 to appear before the court on the 24th. Appearing on that
day he was discharged from custody and bail; whereupon he entered
an action against Mr. Stanton for false imprisonment, laying his
damages at $150,000.
On the 22d of February the House Committee on Reconstruction,
through its Chairman, Mr. Stevens, presented a brief report, merely
stating the fact of the attempted removal by the President of Mr.
Stanton, and closing as follows:
“Upon the evidence collected by the Committee, which is hereafter
presented, and in virtue of the powers with which they have been
invested by the House, they are of the opinion that Andrew Johnson,
President of the United States, should be impeached of high crimes
and misdemeanors. They, therefore, recommend to the House the
adoption of the following resolution:
“Resolved, That Andrew Johnson, President of the United States
be impeached of high crimes and misdemeanors.”
After earnest debate, the question on the resolution was adopted,
on the 24th, by a vote of 126 to 47. A committee of two members—
Stevens and Bingham—were to notify the Senate of the action of the
House; and another committee of seven—Boutwell, Stevens,
Bingham, Wilson, Logan, Julian, and Ward—to prepare the articles
of impeachment. On the 25th (February) Mr. Stevens thus
announced to the Senate the action which had been taken by the
House:
“In obedience to the order of the House of Representatives we
have appeared before you, and in the name of the House of
Representatives and of all the people of the United States, we do
impeach Andrew Johnson, President of the United States, of high
crimes and misdemeanors in office. And we further inform the
Senate that the House of Representatives will in due time exhibit
particular articles of impeachment against him, to make good the
same; and in their name we demand that the Senate take due order
for the appearance of the said Andrew Johnson to answer to the said
impeachment.”
The Senate thereupon, by a unanimous vote, resolved that this
message from the House should be referred to a select Committee of
Seven, to be appointed by the chair, to consider the same and report
thereon. The Committee subsequently made a report laying down the
rules of procedure to be observed on the trial.
On the 29th of February the Committee of the House appointed for
that purpose presented the articles of impeachment which they had
drawn up. These, with slight modification, were accepted on the 2d
of March. They comprise nine articles, eight of which are based upon
the action of the President in ordering the removal of Mr. Stanton,
and the appointment of General Thomas as Secretary of War. The
general title to the impeachment is:
“Articles exhibited by the House of Representatives of the United
States, in the name of themselves and all the people of the United
States, against Andrew Johnson, President of the United States, as
maintenance and support of their impeachment against him for high
crimes and misdemeanors in office.”
Each of the articles commences with a preamble to the effect that
the President, “unmindful of the high duties of his office, of his oath
of office, and of the requirements of the Constitution that he should
take care that the laws be faithfully executed, did unlawfully and in
violation of the laws and Constitution of the United States, perform
the several acts specified in the articles respectively;” closing with the
declaration: “Whereby the said Andrew Johnson, President of the
United States, did then and there commit and was guilty of a high
misdemeanor in office.” The phraseology is somewhat varied. In
some cases the offense is designated as a “misdemeanor,” in others
as a “crime.” The whole closes thus:
“And the House of Representatives, by protestation, saving to
themselves the liberty of exhibiting at any time hereafter any further
articles or other accusation or impeachment against the said Andrew
Johnson, President of the United States, and also of replying to his
answers which he shall make to the articles herein preferred against
him, and of offering proof to the same and every part thereof, and to
all and every other article, accusation, or impeachment which shall
be exhibited by them as the case shall require, do demand that the
said Andrew Johnson may be put to answer the high crimes and
misdemeanors in office herein charged against him, and that such
proceedings, examinations, trials, and judgments may be thereupon
had and given as may be agreeable to law and justice.”
The following is a summary in brief of the points in the articles of
impeachment, legal and technical phraseology being omitted:
Article 1. Unlawfully ordering the removal of Mr. Stanton as
Secretary of War, in violation of the provisions of the Tenure-of-
Office Act.—Article 2. Unlawfully appointing General Lorenzo
Thomas as Secretary of War ad interim.—Article 3 is substantially
the same as Article 2, with the addition that there was at the time of
the appointment of General Thomas no vacancy in the office of
Secretary of War.—Article 4 charges the President with “conspiring
with one Lorenzo Thomas and other persons, to the House of
Representatives unknown,” to prevent, by intimidation and threats,
Mr. Stanton, the legally-appointed Secretary of War, from holding
that office.—Article 5 charges the President with conspiring with
General Thomas and others to hinder the execution of the Tenure-of-
Office Act; and, in pursuance of this conspiracy, attempting to
prevent Mr. Stanton from acting as Secretary of War.—Article 6
charges that the President conspired with General Thomas and
others to take forcible possession of the War Department.—Article 7
repeats the charge, in other terms, that the President conspired with
General Thomas and others to hinder the execution of the Tenure-of-
Office Act, and to prevent Mr. Stanton from executing the office of
Secretary of War.—Article 8 again charges the President with
conspiring with General Thomas and others to take possession of the
property in the War Department.—Article 9 charges that the
President called before him General Emory, who was in command of
the forces in the Department of Washington, and declared to him
that a law, passed on the 30th of June, 1867, directing that “all
orders and instructions relating to military operations, issued by the
President or Secretary of War, shall be issued through the General of