Book Reviews

• Date: 01 March 2001
• Published date: 01 March 2001
• DOI: 10.1177/02750740122064857
• Subject Matter: Articles

ARPA/March2001BOOKREVIEWS

BOOK REVIEWS

THE ENDURING NEED FOR

CONSTITUTIONAL COMPETENCE

AMONG PUBLIC ADMINISTRATORS

Constitutional Competence for Public Managers: Cases and Commentary.By

David H. Rosenbloom, James D. Carroll, and Jonathon Carroll. Itasca, IL: F. E.

Peacock, 2000. 221 pp., Hardcover.

Rulemaking (2nd ed.). By Cornelius M. Kerwin. Washington, DC: Congressional

Quarterly, 1999. 294 pp., Hardcover.

The Law of Democracy. By Samuel Issacharoff,Pamela S. Karlan, and Richard H.

Pildes. New York: Foundation Press, 1998. 788 pp., Hardcover.

The book by Rosenbloom, Carroll, and Carroll is one of those rare examples of a

piece that is succinct, informative, and masterful. Chapter 1, “Constitutional Com-

petence, Interpretation, and Structure,” begins by showing many contemporary

instances of administrative action that were found to be unconstitutional, from rou-

tine actions to firing the “old” crew of political appointees. The underlying premise

is that public administrators must understand the Constitution and the individual

rights of their employees, clienteles, and external constituencies.

Flagrant disregard should lead to loss of positions, as well as liability suits. They

remind us again that the Constitution is the supreme law of the land and that U.S.

Supreme Court decisions are definitive. Also, long by now a settled constitutional

point, the Bill of Rights binds not only federal action but state and local action as

well. They also suggest that there are different approaches to constitutional adjudi-

cation adopted by different scholars and Supreme Court justices. These fall into the

following categories: the textual approach, the historical approach, the precedent

approach, and the structural approach.

Chapter 2 is concerned with the major constitutional dilemma facing public

administration; namely, howdo we make constitutional rights relevant to adminis-

trative practice? In the 1880s, of course, Wilson negated that the Constitution had

any real relevance to administrative practice. He indicated that public administra-

tion stands free from constitutional inquiry. White (1926) compounded the

AMERICAN REVIEW OF PUBLIC ADMINISTRATION,Vol. 31 No. 1, March 2001 87-114

© 2001 Sage Publications, Inc.

87

confusion by suggesting that administration should be absorbed by a new paradigm

devotedto management. This design advocated complete disregard for the law. The

new paradigm of economics also dominated new public administration research.

Even the federal judiciary lost its way, to some extent, deferring for some time to

administrative expertise.

However,we have a major new shift to the attitudes of the Court and its relevance

to public administration as a result of two major cases, Brownv. Board of Education

(347 U.S. 483, 1954) and Craig v. Boren (429 U.S. 190, 1976). Public benefits are

no longer privileges but entitlements and the federal judiciary would expand itself

into state and local affairs when constitutional rights were affected. No public

agency has been unaffected. The more direct challenges were to highly placed

administrators as they saw absolute immunity switch to qualified immunity, and

found themselves defendants in multi-million-dollar constitutional torts cases.

Chapter 3 deals with privatization and out-sourcing. In the early 1990s, a new

intellectual sentiment crystallized in English-speaking democracies toward rein-

venting government. Governments were admonished to “steer” rather than “row.”

The new concept that emerged was that governmentmight contract out some of its

preexisting roles where they might be more efficientlyperformed by another entity.

Of course, new constitutional challenges arose centering around the dichotomy

between state action and non-state action. And specifically,where does the liability

stand for constitutional torts?

Chapter 4 is concerned with decision making, which is identified as a central

administrative activity. Furthermore, administrators must exercise considerable

discretion. As always, there exists a certain level of discomfitin terms of constitu-

tional circles with those who are sworn to uphold the rule of law. Contemporary

scholars of public administration (Lowi), unfortunately,view public administration

in practice as “lawless.”

Chapter 5 deals with administrativeeffectiveness. One of the key concerns has to

do with the supervision of nongovernmental organizations (NGOs). Specific con-

cerns have to do with the extentto which they “fit” in terms of our policy objectives.

The chapter also deals with the history of the Court’s disposition toward the “fourth

branch” of government lasting from 1880 to 1930 where, for the most part, it

opposed administrative action. This all changed with the Great Depression and

Roosevelt’s Court-packing scheme (though not successful) through which he was

able to appoint new Supreme Court justices, which tipped the balance in his favor.

These new justices decided to take the unwieldy beast of bureaucracy head on,

though with the assurance that doing so was dealing with a necessary evil.

Post-1937, the Court became an effective overseer of agencies. The new justices

undoubtedly sensed the enormous benefits of an enduring role to all courts in

actively reviewing agency decisions. The Court, in this role, continues to be the

most significant policy maker in the United States.

Chapter 6 deals with efficiency. Orthodox public administration was the over-

whelming goal of efficiencyin the narrow sense of achieving the least expenditures

of manpower and materials. However, efficiency must at all times be subordinated

88 ARPA / March 2001