Public Management in the Shadow of the Constitution
| Author | Anthony M. Bertelli,Laurence E. Lynn |
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
| DOI | http://doi.org/10.1177/0095399705284201 |
| Subject Matter | Articles |
Bertelli, Lynn / PUBLIC MANAGEMENT
10.1177/0095399705284201
PUBLIC MANAGEMENT IN THE
SHADOW OF THE CONSTITUTION
ANTHONY M. BERTELLI
University of Georgia
LAURENCE E. LYNN, JR.
Texas A&M University
An unresolved issue in American constitutional governance is the role of public officials in a
Madisonian scheme of separated institutions sharing power. Proposed answers range from
broad delegation with reliance on expertise and professionalism to minimal delegation with
formal checks on official discretion. In between are various pragmatic or realist views that
accept discretion as both necessary and inevitable and offer normative principles of admin-
istrative conduct to guard against official abuse of power. None of these answers, however,
satisfies criteria of constitutional legitimacy. The authors argue that such criteria can be de-
rived by combining insights from traditional, normative literatures of public administration
and from positive political theory and political economics. If the role of public managers is
defined as maintaining a credible commitment to performing their duties pursuant to a pre-
cept of managerial responsibility that incorporates accountability, judgment, balance, and
rationality, then, the authors argue, the Madisonian scheme of government embraced in the
Constitution is complete.
Keywords:
public management; public administration; managerial responsibility;
bureaucracy
Students of the American administrative state have long sought to
establish the legitimacy of public administration and management within
our constitutional scheme (e.g., Appleby, 1952; Carpenter, 2001; Cleve-
land, 1913; Dickinson, 1927; Dimock, 1936a; Frederickson, 1997; Gaus,
1936; Goodnow, 1900; Mosher, 1968; Redford, 1969; Rohr, 1986; Skow-
ronek, 1982; Wamsley et al., 1990; J. Q. Wilson, 1989).1 Though only
obliquely addressed by the founders,2 the issue of legitimacy arises with
all legislative delegations of authority to executive agencies and in all
ADMINISTRATION & SOCIETY, Vol. 38 No. 1, March 2006 31-57
DOI: 10.1177/0095399705284201
© 2006 Sage Publications
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ADMINISTRATION & SOCIETY / March 2006
deliberations in which judicial deference to administrative judgment is at
issue.3
Prescriptions for good delegation have varied from broad, generalized
discretion combined with a reliance on official expertise and professional-
ism (Friedrich, 1940) to specific delegations of legislative power with for-
mal measures of control and oversight over whatever official discretion
must be tolerated in the name of effective governance (Finer, 1940). In
between lie various pragmatic or realist views that combine acceptance of
the inevitable—considerable official discretion cannot be precluded and
is a practical necessity—with various normative principles to protect
against bureaucratic abuses of power (Frederickson, 1980; Moore, 1995;
Wamsley et al., 1990). The problem with such prescriptions, however, is
that they are invoked in the manner of a deus ex machina rather than
derived from a consideration of constitutional (or, to be precise, Madi-
sonian) theory.
Theoretical ambiguity concerning the legitimacy of public manage-
ment is manifest in the lack of clarity with which the field addresses issues
of delegation that arise in policy making, administrative reform, and judi-
cial review. Such ambiguity both reflects and helps to perpetuate ineffi-
cient competition for control of the administrative state among the three
branches of government. The costs of such competition in terms of or-
derly administration, responsible public management, and public confi-
dence in government are often high.
In this article, we argue that a constitutionally legitimate role for public
management can be derived from the literatures of public administration,
positive political theory, and political economics. In the following section,
we describe how traditional public administration scholarship identified
the theoretical problem of public management as ensuring a balance be-
tween administrative capacity and democratic control through what was
widely termed responsible public management. Using concepts from
information economics, we then show how solving the problem of legiti-
macy can be interpreted as a creating a retrospective solution to an un-
solved, constitutional-level mechanism design problem: a game theoretic
dilemma in which a principal wishes to design a game such that agents, by
playing that game, truthfully reveal those of their characteristics relevant
to the principal’s desires (an approach intuitively recognized by Harold
Laski as early as 1923).
We then show that if the role of public management is understood as
maintaining a credible commitment to the exercise of delegated authority
Bertelli, Lynn / PUBLIC MANAGEMENT
33
according to what we term a precept of managerial responsibility—
encompassing accountability, judgment, balance, and rationality—then
our Madisonian scheme of government is complete. We briefly apply the
precept to the managerial implications of institutional reform litigation,
an issue for which the issue of managerial legitimacy is particularly
important. Finally, we discuss the implications of our theory for the prac-
tice of public management.
STATE BUILDING
AND PUBLIC MANAGEMENT
Beginning late in the 19th century, the creation of a “permanent gov-
ernment” (Friedrich, 1940; Mosher, 1968) staffed by professional civil
servants (a) whose appointments were based on their qualifications, (b)
who performed specialized functions, and (c) who, in time, came to be
protected by tenure raised a clear issue for democratic governance at all
levels. How might citizens, legislators, judges, and administrators them-
selves be assured that the operations of the emergent administrative state
reflect the public will? In Politics and Administration: A Study in Govern-
ment, Frank J. Goodnow (1900) stated the problem astutely:
Detailed legislation and judicial control over its execution are not sufficient
to produce harmony between the governmental body which expresses
the will of the state, and the governmental authority which executes that
will . . . . The executive officers may or may not enforce the law as it was
intended by the legislature. Judicial officers, in exercising control over such
executive officers, may or may not take the same view of the law as did the
legislature. No provision is thus made in the governmental organization for
securing harmony between the expression and the execution of the will of
the state. The people, the ultimate sovereign in a popular government,
must . . . have a control over the officers who execute their will, as well as
over those who express it. (pp. 97-98)
Separation of powers, Goodnow recognizes, creates a discontinuity in the
constitutional scheme such that the people cannot be fully assured that
their wishes will be carried out or enforced. The problem is one of coordi-
nation between law and implementation—the central, multibranch rela-
tionship in American public policy making—without creating unaccount-
able power in executive agencies.
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ADMINISTRATION & SOCIETY / March 2006
THE PUBLIC MANAGER’S ROLE
Early public administration literature recognized as problematic the
role of administrators (White, 1926), a role barely insinuated in the Con-
stitution.4 Particularly under the New Deal, administrative officials were
increasingly being assigned responsibility for accomplishing complex
and controversial goals of public policy with few reliable protections
against abuses of power. Public administration scholarship began to
focus on issues of administrative discretion and accountability.5 Marshall
Dimock (1936a), for example, put forth an expansive view of the public
manager’s role: “Those who view administrative action as simple com-
mands . . . fail to comprehend the extent to which administration is called
upon to help formulate policy and to fashion important realms of discre-
tion in our modern democracies” (p. 127).
Yet administrative discretion, and hence what was early termed the
art of administration, was recognized as a double-edged sword. Dimock
(1936c) noted that “the important problem is the manner in which discre-
tion is exercised and the safeguards against abuse of power which are pro-
vided” (p. 60). In the same vein, Pendleton Herring (1936) argued that
the bureaucrat . . . does not suffer so much from an inability to execute the
law unhampered as from an uncertainty in direction. . . . Within the system
of which he is but a subordinate part, his contribution to the total adminis-
trative responsibility is left largely to his own judgment. (p. 22)
How shall that judgment be exercised? To whom is the public manager
responsible? In his famous dispute with Carl Friedrich, Herman Finer
(1940) argued that responsible administration in a democracy can only be
ensured through external control:
The servants of the public are not to decide their own course; they are to be
responsible to the elected representatives of the public, and these are to
determine the course of action of the public servants to the most minute
degree that is technically feasible. (p. 336)
Friedrich (1940), in contrast, took a dim view of the ability of courts
and legislatures to control administration. He argued that any movement
toward democratic responsibility required that officials have the right ori-
entation toward their work. The public has a right to call a policy irrespon-
sible, he said,
Bertelli, Lynn / PUBLIC MANAGEMENT
35
if it can be shown...
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