Confining Administrative Regulations Within the Law

• DOI: 10.1177/000271624222100116
• Published date: 01 May 1942
• Date: 01 May 1942
• Subject Matter: Articles

Confining Administrative Regulations Within the Law
By OLIVER PETER FIELD
No PROBLEM in administrative
law
validity of a statute as a primary issue
is more exasperating and con-
is likewise reflected in the organization
fusing to the Anglo-American bench and
and the jurisdiction of our courts. Con-
bar than that of administrative regu-
stitutional cases are handled along with
lations. The American lawyer has been
the general mine-run of cases, no dis-
taught that legislatures exist for the pur-
tinction being made between cases in-
pose of enacting statutes, and that ad-
volving the validity of a statute and
ministrators exist to execute the policies
those not involving such a question.
formulated in the statutes.
He feels
Only in appeals and in advancement
that judicial review of a statute is natu-
for hearing, and not always even here,
ral enough, because a statute may be
is there any sign of recognition that
either constitutional or unconstitutional.
the problem of constitutionality in and
But the idea that there should be judi-
of itself is a major problem deserving
cial review of rules or regulations is
particular attention.
preposterous to him, because there
ought to be
AN EXOTROPIC VIEW
no administrative statutes,
whatever they may be called. All ad-
The incidental character of constitu-
ministrative laws are unconstitutional,
tional questions is a natural result of
so why have them? But, even if we
the common-law technique of judicial
are forced to admit that administrative
decision when applied to the determina-
regulations exist, and must be accepted
tion of a constitutional question. The
as a part of the legal order, the problem
lawyer has a client who claims to have
remains a vexing one because the com-
been injured by an officer. The officer
mon law has no adequate technique for
claims to have acted in reliance on a
controlling regulations. When a com-
statute. The client maintains that the
mon-law lawyer is without a remedy,
statute is unconstitutional. The court
he is in a bad way. And, it might be
is asked to focus one eye upon the mer-
added, that is precisely the bad way
its of the litigation as between the par-
that Anglo-American lawyers are in at
ties, and to focus the other eye upon
the present time with respect to this
the text of the constitution and the
entire subject.
text of the statute. The court is never
American lawyers are accustomed to
able to use both eyes in its compari-
think of the problem of the constitu-
son of the two texts, nor is it ever able
tionality of statutes as one that is
to focus both eyes upon the litigants.
incidental to the litigation of cases
So we never get a clear case of inter-
between private parties, between the
pretation of either the constitution or
government and private parties, or
the statute, and we never get a clear
between governmental units or officers.
case of the relationship of the two par-
The procedure of our American com-
ties. We are always reading the statute
mon-law courts does not recognize that
and the constitution in the light of the
the question of constitutionality is, in
actions taken by the officer and the citi-
and of itself, a major issue, but recog-
zen.
Nor do we ever read the statute
nizes it only as incidental to the settle-
to see what it means, and the constitu-
ment of other questions involved in the
tion to see what it means. The inevi-
litigation. This failure to think of the
table result is that we find out what the
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constitution means by finding out what
question rarely can occur in a well-
a decision given under these circum-
regulated legal order. The question
stances means, and we find out what
which ought naturally to suggest itself
the decision means by having another
is: Did the officer act within the au-
litigation that accomplishes precisely
thority given him by the regulation?
what the previous one accomplished.
The next question which ought to be
The implicit hope apparently is that
asked is whether the regulation is within
if we continue uncertainty long enough,
the authority granted by the statute
we may in desperation obtain certainty.
authorizing the regulation. True, the
But we will never learn what the statute
order of the questions should be in-
or the constitution means. The fact is
verted in an adequate remedial system,
that the courts adhere to the doctrine
but they are put as they are here be-
that the constitution is all things to all
cause their significance will appear the
men, depending upon the circumstances,
more readily when asked in this order.
and that the statute is all things to all
When a client complains that a regu-
men, depending upon the circumstances.
lation threatens his rights, the lawyer
&dquo;The statute is constitutional as to Mr.
asks himself: Can I get an injunction
Roe, but invalid as to Mr. Doe&dquo;-illus-
to prevent the enforcement of the regu-
trates the point.
lation against my client? The answer,
This process of reading has become
as he reasons on the problem, is gen-...