Administrative Regulation Within Federal Departments

• DOI: 10.1177/000271624222100111
• Published date: 01 May 1942
• Date: 01 May 1942
• Subject Matter: Articles

Administrative Regulation Within Federal
Departments
By GEORGE C. S. BENSON
WHEN we think of Federal regu- Social Security Board, the Public Health
latory activities we tend to think
Service, and the Food and Drug Ad-
immediately of the large independent
ministration, in the Federal Security
agencies-the Interstate Commerce Com-
Agency; the fraud-order and other regu-
mission, the Federal Communications
latory activities of the Post Office De-
Commission, the Federal Trade Com-
partment ; the Office of the Chief of
mission. Yet the traditional &dquo;depart-
Engineers, in the War Department; the
ments&dquo; conduct a substantial amount of
Passport Division, the Visa Division,
regulation, and if we follow the rea-
and the Foreign Funds Control Divi-
sonable procedure of classing the works,
sion, in the State Department; and the
loan, and security agencies and the one-
Agricultural Marketing Service, the
man-controlled wartime agencies as de-
Commodity Exchange Administration,
partments, we find that the major part
the Bureau of Animal Industry, the
of Federal regulation falls within the
Bureau of Entomology and Plant Quar-
departmental sphere.
antine, the Surplus Marketing Admin-
Of the forty-nine regulatory agencies
istration, and the Sugar Division, in
appraised by the Attorney General’s
the Department of Agriculture.
Committee on Administrative Procedure
DIFFERENCES
in
BETWEEN DEPART-
1940, thirty-three operated more or
less within the framework of
MENTAL AND COMMISSION
a depart-
REGULATION
ment or agency.’- These included the
Public Contracts Division, the Children’s
On the whole, it may be said that
Bureau, and the Wage and Hour Divi-
the regulatory activities entrusted to
sion, of the Department of Labor; the
departments differ somewhat from those
Federal Alcohol Administration, the Bu-
entrusted to independent commissions.
reau of Internal Revenue, the Bureau
The former usually involve less broad
of Customs, the Comptroller of the Cur-
discretionary power and are largely con-
rency, and the Processing Tax Board of
fined to interpretation and application
Review, in the Treasury Department;
of laws in which fairly definite standards
the Bureau of Marine Inspection and
have been set by Congress. This is not
Navigation, the Patent Office, and the
to say that the departmental work is
Civil Aeronautics Administration, in the
insignificant; the Social Security Board
Department of Commerce; the Grazing
activities are vitally important, and to
Service, the Bureau of Fisheries, the
the Wage and Hour Division has been
Bureau of Biological Survey, the Office
delegated the substantial reformation of
of Indian Affairs, the General Land Of-
a large part of American business. In
fice, and the Bituminous Coal Division,
both cases, however, the appropriate
in the Department of the Interior; the
statutes clearly defined the standards
to be followed. In a very few instances
1
The reader should not exaggerate the im-
broad discretionary power has been
portance of these figures. Some independent
given to a departmental agency, but
agencies, like the Interstate Commerce Com-
then the
mission, far exceed most of the departmental
regulation concerns individuals
agencies in volume of work.
rather than large property interests.
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For instance, such powers are possessed
to the independent agencies, although
by the Immigration and Naturalization
extensive powers over persons may be
Service, by the Passport and Visa Divi-
possessed by the departments.
sions, and by the Post Office Depart-
APPRAISAL OF DEPARTMENTAL
ment. In all these instances it is civil
REGULATION
liberties, not property rights, that are
involved.
Certain questions must be asked-
Conversely, where a departmental
and if possible answered-before any
agency-like the Bureau of Internal
satisfactory appraisal of departmental
Revenue-supervises substantial prop-
regulation can be ventured. The fol-
erty rights, it does not have nearly the
lowing questions will be discussed in
discretionary power entrusted to the
this article, but unfortunately evidence
Interstate Commerce Commission or the
is too fragmentary on every point to
Federal Communications Commission.
justify definitive conclusions. The ap-
In the rare cases where this latter gen-
proach may prove suggestive and useful,
eralization does not hold, other restric-
even though no &dquo;principles&dquo; are derived
tive elements enter in.
The Grazing
therefrom:
Service and the General Land Office
act almost in a proprietary capacity;
1. Are departments more or less likely
their relations to important community
than independent agencies to evolve
groups are partially regulatory, partially
a fair administrative procedure?
contractual.
While the Bituminous
2. Are they more or less likely to carry
Coal Division possesses extensive powers
out their activities with administra-
over property interests, it is hobbled by
tive dispatch?
an extraordinarily involved industrial
3. Are they more or less likely to depart
advisory procedure.
from the policies which Congress out-
Of course, the Office for Emergency
lined for them?
Management and other wartime agencies
4. Are they more or less likely to co-
are exceptions to this rule of lesser pow-
ordinate their programs with those
ers in the departmental agencies. Few
of other departments or agencies?
men have ever, as individuals, possessed
5. Can departments so organize them-
more substantial regulatory powers than
selves as to do regulatory work well?
have been conferred on Leon Henderson
and Donald Nelson.
FAIR PROCEDURE
However, there is
little reason to believe that emergency
The Report of the Attorney General’s
measures reflect a permanent trend in
Committee on Administrative Procedure
American government, or that the at-
furnishes much valuable data on the
mosphere in which the activities are per-
first question. The fact that the staff
formed resembles the normal peacetime
was not assembling evidence with this
functioning of politically controlled de-
particular comparison in mind promises
partments.
a greater degree of objectivity, since
In subsequent comparisons between
previously held hypotheses do often,
departmental and commission regula-
though unconsciously, affect...