CENTRAL MICHIGAN UNIVERSITY OFF-CAMPUS PROGRAMS COURSE SYLLABUS

I. IDENTIFYING INFORMATION Course: PSC 522 Course Title: Regulatory Processes and Administrative Law Location: Online Instructor: Dr. James P. Hill Address: 301K Anspach Hall, CMU Department of Political Science Email: hill1jp@cmich.edu Telephone: 989-774-7415 Office Hours: Tuesdays, 2-5 pm Blackboard Blackboard is CMU's web-based course management system. To access Blackboard, open a web browser (such as Internet Explorer) and go to http://blackboard.cmich.edu. When the site loads, click the "login" button and enter your CMU Global ID and CMU email password in the spaces provided. Click the "login" button again to enter Blackboard. A welcome screen will appear with a list of available courses on the right hand side. Click the link to the appropriate course to enter the courses Blackboard site. If you do not know your CMU global ID or password, or experience difficulties logging in, contact the IT Helpdesk at 989-774-3662 / 800-950-1144 x. 3662. Prerequisites: None II. TEXTBOOKS AND INSTRUCTIONAL MATERIALS Textbooks: Title: Administrative Law and Politics Author: Harrington, Christine and Carter, Lief Edition: Fourth ISBN: 978-0-87289-934-6 Publisher: CQ Press Required: Yes Title: Rulemaking Author: Kerwin, Cornelius Edition: Fourth (2010) ISBN:978-0-87289-337-5 Publisher: CQ Press Required? Yes PSC 522 Coursepack of supplemental materials Additional Instructional Materials:

Students will be asked to read background material for chats and to supplement their text reading with emerging new issues information. Accordingly, this material will be drawn from the Congressional Research Service (a Library of Congress service for Members of Congress) and available to the public from the following site: http//:opencrs.com/. The reports to be read will be identified by title and issue brief number. For example, for information on unauthorized aliens, you will be directed to opencrs.com and Issue Brief number R41221: State efforts to deter unauthorized aliens. III. COURSE DESCRIPTION Survey of the principles of administrative law and the politics of the U.S. regulatory processes. Supplemental course description and discussion of the goals of PSC 522 Question: Why do I care about agencies and regulators since they are not a real branch of our constitutional government? Since the earliest days of the American republic, there have been agencies and there have been bureaucrats. However, the growth of the administrative state as we know it today has been primarily a twentieth century phenomenon, characterized by sprawling administrative structures and millions of bureaucrats at the local, state and federal level. The story of our regulatory state can be presented in somewhat prosaic legal terms or dynamically in political terms. This course tries to blend both the legal and political into a course that hopefully will be compelling enough to encourage students to become engaged in this increasingly important and powerful unofficial fourth branch of government. The three official branches of government have sought to control these agencies to pursue their own agendas, but in a system of checks and balances such sole control has been futile. From President Reagans enhanced gatekeeper role of the Office of Management and Budget to President Bushs signing statements to President Obamas push for more transparency in government decision-making through his December 8, 2009 Open Government Directive . Presidents seek to control the administrative structure under their respective administrations. However, members of Congress, judges, and external interest groups also compete for control of agencies and their regulator authority and resources. Together this tug of war makes for a dynamic administrative politics and a vital (and to many an invisible) battlefield where many of our individual rights and resources are being allocated. It is a world of issue networks and iron triangles, of civil servants and their political leaders, and a world of simple laws and complex red tape. OK, so there is this big battle over control of the federal bureaucracy. Why do I care when we have so many major issues facing the nation that the President and Congress are trying to tackle like war, health care, and economic recessions? Recent events have only reinforced the importance of our administrative fourth branch of government. Passage of the massive Health Care legislation will likely spawn thousands of pages of new regulations to administer this major change in the health care industry. Issues ranging from mandatory insurance coverage to stopping individuals from being dropped from health care insurance due to pre-existing

health conditions are now in the laps of our regulators. The infusion of 700 billion dollars in stimulus funds to handle the economic crisis which emerged at the end of the Bush presidency was also accompanied by new legislation that will need to be translated into significant new regulation of investment banks and insurance companies alike. To put this financial crisis legislation in focus, President Obamas nominee for Secretary of Treasury (which oversees the IRS), who was found to have some serious tax problems during the confirmation process, was deemed by Senators of both parties to be too important to not confirm. It has been a long time since the head of the Department of the Treasury merited such deference, but these are not normal times. The infamous 9/11 attack in 2001 resulted in the creation of the Department of Homeland Security and the reorganization and merger of at least 22 distinct agencies. Hailed as the largest intelligence and military reorganization since 1947, this creation of the 9/11 attack has had ripple effects throughout the federal bureaucracy. Changes in the Freedom of Information Act, federal employee hiring practices, and greater insulation of intelligence activities are but a few of the impacts of this Act. This Department creation alone will continue to generate significant new regulation dealing with security concerns that still grip our nation, including passage of the controversial USA Patriot Act. An acronym for Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act, this act significantly enhanced federal regulatory authority in the areas of electronic surveillance, money laundering, and even library privacy issues. Yes the big issues may be first addressed by our three formal branches of government, but it is up to the informal fourth branch to implement them. And by the term implement, I mean have them impact you and me. Alright, so tell me, where what I can expect from this course? I hope you will find this course helpful not only from the standpoint of describing some of the major changes that have occurred in the administrative law and regulatory processes of the U.S., but also to put these changes into perspective and how important it is for all citizens to not only understand this critical administrative law and regulation process, but also to more fully engage in the significant rules and regulations (in both quantity and importance) that our federal bureaucracy issues annually and which affect virtually every aspect of our daily lives. The entity we call our bureaucracy is a resilient organization which is not easily displaced or reformed by the transient political winds that continue to buffet in its turf, but it can be an important force in realizing our national goals if we engage in the politics of this regulatory process. Keep in mind that some of the most important decisions made since we entered the 21 st century have revolved around the decisions of bureaucrats in our sprawling U.S. bureaucracy. We began the 21 st century with a decision by a state regulator, the Florida Secretary of State, regarding recounts in the 2000 Presidential election which shaped the outcome of our Presidential election, and a policy used by admissions officials at the University Michigan shaped our national affirmative action policy. Now, with concern about the viability of our financial community and the growing unemployment and house foreclosure rates, we again turn to our bureaucrat experts in the Treasury Department as well as the Federal Reserve System. Welcome to the mysterious world of U.S. administrative law and regulation. Supreme Court Justice Jackson called these American agencies the fourth branch of government. This phrase has stuck as the code name for our American bureaucracy, and a number of misleading stereotypes as well. It also has increased its mystique, as there are of course only three branches identified in the U.S. Constitution. Yet, identified directly in the Constitution or not, the bureaucracy not only exists but is a dominant force in the everyday lives of most American citizens.

Let me state from the start that the terms agency, bureaucracy, commission, bureau, administration, and department are all terms that describe entities that are part of the American bureaucracy. These terms, especially agency, bureaucracy, and commission, will be used interchangeably with the word bureaucracy, so do not be confused by this terminology. However, you should be aware that there are important structural and political differences between these bureaucratic variations that affect the decision-making processes of U.S. bureaucracies. This so-called fourth branch of government is presumed to consist of faceless bureaucrats. However, now the faces of Federal Reserve chairs and government economists are playing a front and center role in testifying before Congress and in daily political television shows. Bureaucrats are a force to be reckoned with by all U.S. citizens, whether it is the feared IRS agents seeking to audit a citizens tax return (or uncover Swiss bank account funds) or the Department of Justice hauling billionaire Bill Gates and giant Microsoft corporation to court on anti trust violations. There is even the issue of bureaucrats using deadly force to implement agency enforcement actions, such as was used by federal agents at Waco. However, besides these obvious visible events that you see on the news, every day more and more regulations are emerging that will affect you much more intimately than some Act of Congress or court decision. So, what can I expect to take away from this course that will be of future value to me? The unfortunate aspect of this continued rise in regulatory growth and importance is not just that it goes largely unnoticed to all but the most organized interests. It is also the fact that so many people do not know politically how to engage in the administrative process, even if they are aware of the impact that many of these regulations will have on their everyday lives. The focus of this course is to empower you to become part of the administrative process by alerting you to the significance of this process as well as how bureaucracies act and can be controlled. In short, this course will help you understand the who, what, and why of the politics of the administrative process. Whether you know it or not, you are no doubt a client of a number of agencies. The question is, do you want the process to control you or do you want to control the process? If your answer is the latter, read on. Much has been written about the discretion that bureaucrats have, as though they make decisions largely in isolation. Nothing could be further from the truth. An agencys actions are scrutinized internally and externally, and those citizens or groups with the most effective input are likely to be the ones who receive the more favorable outcomes. The beginning point for being effective before an agency is understanding the internal and external points of discretion in the system, the factors impacting the regulators, and understanding the regulatory process as it now stands in terms of agency responsiveness. This course will start you down the road to becoming a more effective citizen. Right now you might still be saying to yourself, I still dont think I need to learn this stuff. Think of your future pension, social security (hopefully), student loans (past or present), tax audits (hopefully not), licenses you hold, stocks or bonds you own, etc., and you will get the picture. Enough said! Dont panic if this is your first political science course or your first law-related course. The reading and study guide should be sufficient whether or not you have a background in law or politics.

Keep in mind that we are talking about regulators who are not elected officials. For graduate students, I also recommend that you read the assigned court cases carefully, but dont get caught up on minor jurisdiction issues. Just focus on the facts and legal issues raised related to the federal agency involved. And look upon the Kerwin rulemaking book as your roadmap through the administrative maze. I have taught this course for a number of years and find that what causes students eyes to blur is reading the entire Administrative Procedures Act (APA). Dont do that! We will highlight those sections of most importance to this course and save the rest for law schools. Rather, consider portions of the act as Kerwin or court opinions address it in order to understand its place in the formal and informal aspects of the regulatory process. Just remember the APA is simply Congress minimum instructions to agencies for how to operate, as well as an outline of how you can participate in this process. When reading court cases, keep in mind that in each case the court is trying to convince you that the decision it reached was the only legally correct one. However, as you read the opinions of those who dissent (disagree with the majority) you will find an equally compelling legal argument to the contrary. Now you have learned the first lesson of administrative law; namely, that there necessarily is a degree of discretion in administrative law that permits bureaucratic values to enter an agency decision, but so is there also discretion in the hands of another unelected institution; the courts. Indeed, agency discretion is one of the key issues facing control of this unofficial and unelected branch of government. When you complete this course, you should feel comfortable not only understanding the administrative process proper, but also in terms of how to be an effective participant, at least in terms of decisions of importance to you. If you come away from this course with this feeling, you have become a party who can help shape future public policy.

IV. COURSE GOALS AND OBJECTIVES Upon completion of this course, students should be able to:

1. Distinguish between U.S. federal regulatory and administrative law processes and explain the
importance of each in ensuring an effective and accountable bureaucracy. 2. Describe the origins and development of both administrative and regulatory law in the American political system and explain how these historical and political influences have shaped the development of our modern day regulatory processes.

3. Demonstrate an understanding of key portions of the U.S. Administrative Procedures Act, as well
as the important interpretive role played by the courts of this act through analysis of court cases which have more fully circumscribed the parameters of agency actions.

4. Identify the tradeoffs between procedural fairness and regulatory efficiency presented by the
constraints of regulatory decision-making imposed by political and legal actors in the American federal system in order to better explain why agency actions are not necessarily the optimum solutions what might expect in a private bureaucracy. 5. Identify the difficulties in the legal system when regulators are asked to review administrative agency decisions involving complex scientific and technical issues, and how courts rely on process rather than substantive resolutions to such issues.

6. Identify the importance of political subsystems and interest groups and how they impact agency decision-making.

7. Identify and evaluate the effectiveness of various agency controls and reforms that have been
proposed for the administrative process by executive and legislative branches of government.

8. Demonstrate an understanding of how to participate in the regulatory process system by

describing the formal and informal administrative and regulatory steps involved in implementing a command for regulation by one of the three constitutionally created branches of government. V. METHODOLOGY FOR ON-LINE VERSION As an on-line course, this class can be as interactive or individualized as your schedule will allow. We will meet once each week in the chat room to discuss any aspect of the reading for that week or any other course related issues. Questions will be posted occasionally to prompt chats and students will have access to these postings to discuss questions among classmates. An emerging topic in regulation may be added for each week to the chat (or a discussion board question be posted) to supplement and apply the required text readings, using CRS Issue briefs to provide the necessary factual information to provide a useful class discussion. The chat participation is voluntary but should be useful to clarify the readings and prepare for the exams. There is a required paper and two exams for all students; and a court case assignment for those taking this course for graduate credit. The required paper seeks to challenge students to critically analyze the

implications of certain important administrative court cases, while the graduate student paper requires students to examine and compare the outcomes of certain classic administrative law cases to understand the judicial reasoning process.
VI. COURSE OUTLINE/ASSIGNMENTS Pre-class Assignment: For the first class, complete the reading for the first week, view the videos assigned related to the reason for regulation, and be prepared to discuss your personal experiences with a governmental bureaucracy. Please view the Frontline video: A Dangerous Business with 2003 and a 2008 sequel. There will be a narrated audio power point presentation to assist students in their reading of court cases and constitutional issues. Further information is also included in the course pack. Outline of Session Reading Topics: Course Schedule of Chapter Readings, Exams and Papers Readings should be done prior to each week's chat.

Weekly assignments may be supplemented by CRS briefs assigned for chat topics Week 1 A discussion of the origins of administrative law: Harrington and Carter: Chapters 1 and
2

 Week 2 The legal parameters, limitations, and impact of administrative law on society: Harrington
and Carter: Chapters 3 and 4.

Week 3 The elements of an administrative hearing: Harrington and Carter Chapters 5,6, and 7
(pp. 194-199 and 210-219 only)

Week 4 Midcourse review and midterm exam (Graduate court cases due) Week 5 - The rulemaking process and its contradictions: Kerwin- pp. 1-121 Week 6- Management and participation in rulemaking: Kerwin (pp. 122-268) and Harrington and Carter Chapter 6 Week 7-Ambiguities, enforcement, and judicial review of rulemaking and administrative policy:

Harrington and Carter Chapter 8 (pp. 237-242, 248-250, 258-265), Chapter 9 (pp. 266-272) and Chapter 10. (Critical essays due) Week 8- Overview of Regulatory reform, critical thinking paper discussion, and course review: Kerwin Chapter 7. (Final exam due) Student Guidance: Please note that exams are scheduled to occur in the 4th and 8th week of the term and are given online in Blackboard. Court cases (graduate students only) are due on the 4th week; your critical essay should be submitted by the 7th week. Papers are to be submitted electronically. End of the week is to be interpreted for assignment purposes at by 11:59 pm on Saturday. Critical Essay Requirements: Every student will be required to write a critical essay analyzing one of the issues below. Each student will respond to the question posed with information drawn from the assigned readings. The paper should be 3-5 typed, double-spaced pages, and be sent in under the Assignment button in Bb by the end of the seventh week of class.

1. The Chevron USA v. Natural Resources Defense Council has been the most cited U.S. administrative
law decision of all time. Briefly describe this case, including the origin of the bubble concept, and explain what aspects of this case make it such an important decision. Identify and describe a case in the reading where Chevron deference was not applied by the court. (Assigned to students whose last names begin with the letters A-G)

2. Refer to the Vermont Yankee case. Despite the outcome of this case, the Court still left an
opportunity for future courts to impose additional requirements on agencies beyond the requirements of the APA. Identify the language that created this loophole and describe under what circumstances hybrid rulemaking could still continue despite this decision. Then describe what is meant by the phrase adjudicatory rulemaking. (Assigned to students whose last names begin with the letters H-N)

3. Refer to the Motor Vehicles Manufacturers v. State Farm Insurance case. Explain the impact of the
outcome of this case in terms of limiting the Presidents ability to respond quickly to unpopular regulatory decisions. Is there any inconsistency in terms of court deference to agency decisionmaking between the Chevron case and the Motor Vehicle Manufacturers Association v. State Farm case? Why or why not? (Assigned to students whose last names begin with the letters O-Z) Court Case Paper (Graduate credit only)

For Graduate Students (one of the following pairs of court cases) 1. Myers v. U.S. and Humphreys Executor v. U.S. 2. Marshall v. Barlow and Dow v. U.S. 3. Goldberg v. Kelly and Mathews v. Eldridge

You will be assigned to write an essay analyzing, justifying, and harmonizing the results of one of these three pairs of classic administrative law U.S. Supreme Court cases. You will be assigned one of the following pairs of court cases:

1. Myers v. U.S. and Humphrey's Executor v. U.S.

(Students whose last name begins with the letters A-L) 2. Marshall v. Barlow and Dow v. U.S. (Students whose last name begins with the letters M-P) 3. Goldberg v. Kelly and Mathews v. Eldridge (Students whose last name begins with the letters Q-Z) Your paper must respond to all three of the following elements: 1. Describe the common legal issue raised in the two court cases assigned. 2. Describe the legal basis for the court arriving at seemingly different outcomes. 3. Justify the differing outcomes as the correct outcome in each case on the basis of stare decisis (legal precedents). Supplemental Assistance in Court Case Preparation: This information will highlight the legal controls, primarily those imposed by court interpretation, that are intended to reduce arbitrary agency decision-making. Your case assignment will require you to read two important U.S. Supreme Court cases handling similar legal issues. If you have never read a court case before, keep in mind that a U.S. Supreme Court decision is the last word of the courts on an issue. Generally speaking, if the U.S. Supreme Court interprets an agency action as one that violates the U.S. Constitution, the agency action is determined to be invalid for nonConstitutional reasons, then Congress can override the Courts decision by passing new legislation authorizing the action. Dont be intimidated when you see Latin phrases like pro se or legal terms like venue. Dont be overly concerned with procedural and jurisdictional issues raised in both cases. Focus on (1) the facts of the case, (2) the legal issue raised in both the majority opinion (which is the only legally binding part of the case) and the concurring and dissenting opinions (which are not legally binding), (3) who won, and (4) the legal arguments that convinced the judges that one sides position was legally stronger than the other. A few additional words of introduction for those who have never had a law-related course; Remember that the focus of this course is federal law and therefore we are only looking at federal court cases, not state cases (where there are 50 different state court systems that handle state administrative law issues). Also remember that most of the cases you will read are cases that are appeals from an agency decision. In

general, all the appellate courts (the U.S. Supreme Court in this case) are doing is reviewing the agency records and either affirming (agreeing) or reversing (disagreeing) with the agency or court of appeals decision. The U.S. Supreme Court consists of nine justices and it takes a majority opinion of five justices to set a legal precedent (or stare decisis, which is the legal reasoning of the majority opinion that binds all federal courts who hear a similar case in the future). Any opinion that is not part of the majority opinion

(the first opinion you read) such as the concurring opinion (one or more justices agree with the outcome
of the case but not with the majoritys legal reasoning) or the dissenting opinion (one or more justices disagree with both the outcome and the reasoning of the majority) does not set a precedent. Exams: The midterm exam will have both objective and short essay sections. Objective questions largely will be drawn from the terms listed at the end of each unit. However, you are responsible for major concepts in the text even if they are not explicitly mentioned in the terms or concepts aspect of the unit as well as any CRS briefs assigned for the chats, so read carefully. Secondly, issues raised in the discussion questions of each unit will form the basis many of the short essay questions in both the midterm and final exams, so make certain that you can answer all of these questions before you take an exam. The final exam will consist of many essay questions drawn directly from the discussion questions at the end of each week. There also will be a short objective section involving issues raised from the key terms and concepts primarily from weeks 5-8. The final will be comprehensive in terms of information to be tested, but the primary emphasis is on the readings for the last half of the class. Overview of the first half of the course: We begin the course with an overview and history of the development of administrative law. In this module you will learn the peculiar politics that have shaped American administrative agency actions in what Justice Jackson calls the fourth branch of government. We begin with some basic issues of due process, followed by a discussion of the external factors impacting agency performance. Pay particular attention to the variety of agency structures in the U.S. bureaucracy, as different structures result in agencies with different degrees of bureaucratic power. Also be familiar with the different types of policies that agencies administer, as well as societal expectations versus the reality of bureaucratic pursuance of these policies. Then, pay attention to the constitutional and statutory constraints that also constrain bureaucratic behavior. The issue of bureaucratic discretion will continue to emerge as a theme revolving around efforts to control American bureaucracy by other branches of government as well as by interest groups. Finally significant attention will be directed to what is termed subsystem politics in our less than monolithic U.S. administrative system, examining how decisions are influenced and/or controlled by external factors. This portion of the course requires that you clearly understand the political landscape and the constitutional and statutory factors that significantly complicate what may appear to you to be a simple agency decision. This information sets the stage and puts into context the reading involving the rulemaking and internal administrative procedure aspects of the remainder of the course. Narrated power points will provide more details about this aspect of the course. CRS reports are to be read and some will be discussed during chat sessions to further elaborate upon specific issues raised in the reading. The CRS reports should be read prior to any chats and are also fair game for examination purposes.

Hopefully, this half of the course will help you understand why an agency makes a decision which you feel is wrong, inefficient or even defies common sense, and also why an agency does not always take the action you feel appropriate (or does not take any action at all) on issues which appear to be in the best interests of the nation.

Week One: The structure, nature and constraints on Bureaucratic Power Learning Objectives for Week One: In this week you should be able to make the following distinctions: 1. Distinguish between the goals and objectives of regulatory versus administrative law 2. Understand the role of the APA in governing agency actions 3. Be able to distinguish between the goals and objectives of social versus economic regulation 4. Describe the role of regulatory agencies in a free market economy, as well as the inadequacies of the market system that led to the development of regulatory agencies 5. Identify the due process considerations that restrict arbitrariness in government agency actions Reading Assignments: Harrington and Carter: Chapters 1 and 2 Student Guidance: There also will be a narrated power point presentation to provide students with a more detailed explanation of the politics of administrative law and the regulatory process. Information from this power point will be part of the midterm examination and also is included in the course pack. Key Terms and Concepts: Due process hearing tests in Goldberg and Mathews cases 3 general categories of public policy regulatory distributive redistributive Administrative power 4 major government organizational forms Executive Departments Department agencies Independent agencies Government corporations Clientele departments Politics/ administration dichotomy Administrative Procedures Act (APA) role regarding: adjudication, rulemaking, discretion of agencies and judicial review Chat topic: Why do we still need regulation?

For the first chat, we will review the Frontline video on A Dangerous Business in order to discuss whether we continue to need government regulation or whether a non-regulatory approach would be more appropriate in light of the concern about a growing government bureaucracy. Reading Consideration Questions: 1. Under what circumstances do you think agency action is not appropriate when dealing with a market deficiency? 2. How do the goals of government programs and bureaucracies differ from the goals of private bureaucracies in terms of the issues of efficiency, equity, justice, and fairness? Which bureaucracy has the more complex task and why is efficiency a poor barometer to measure a government bureaucracy? Note: Remember the goals of the government programs that bureaucracies administer are set by policymaking bodies outside of the agency and are a product of compromise and are often intentionally vague due to their controversial nature. Consider former EPA Director Costles comment about the efficient way to handle the Washington Monument was to tear it down and build condominiums. 3. Why is a bureaucracy not simply a neutral instrument of legislative policy? Note: It is important to keep in mind the function of a bureaucracy in terms of allocating societal resources and values and the inevitable discretion in implementing policies. 4. How would you measure the administrative power of two very diverse agencies, such as the IRS and the Social Security Administration? Keep in mind the two requisites of an agencys administrative power (defined as the ability to allocate scarce societal resources) are the amount of resources and autonomy it has. The more it has of each, the more administrative power it has. 5. Can you provide a rationale for having the American bureaucracy divided into four major organization forms: executive departments, department agencies, independent agencies, government corporations, as well as the lesser known advisory committees, and minor boards, committees and commissions? Of being an executive department confers prestige on the organization and its clientele, why arent they all executive department? Consider the evolution of each of these organizational types when answering this question as well as the reason for creating clientele agencies and independent agencies. Also consider the rationale for creating government corporations. 6. Explain why the best way to control government growth lies in the hands of U.S. citizens and not their elected leaders. 7. Explain how Congress improves its political position by sharing policy question powers with bureaucracy. Week Two: Controlling the Bureaucracy Learning Objectives for Week 2 In this week, you should be able to determine: 1. The different ways agency discretion can be controlled by the legislature 2. The Presidents direct and indirect ways to control agency actions

3. The importance of the public choice movement 4. The relevant constitutional provisions that impact upon bureaucratic actions 5. Formal and informal congressional controls on agencies Reading Assignments: Harrington and Carter: Chapters 3 and 4 Student Guidance: In this unit, you will discover the means used by external political institutions to control bureaucratic discretion and ensure that the policies they implement serve the public as a whole. You will also examine some of the constitutional, political, and legal checks that will be further elaborated upon in the next module. This unit will focus on the formal and informal means of controlling bureaucracies. Pay particular attention to why some obvious formal controls (e.g. sunset legislation) are ignored in favor of more informal controls like OMB review. You should also assess the popularity of public choice approaches to traditional government functions like education (e.g. vouchers). What is the drawback to this alternative approach to government regulation? Key Terms and Concepts Legislative veto Appropriation rider Sunset legislation Going native Cost benefit analysis Preemption Representative bureaucracy Participative administration Public choice Delegation of power CBO vs. OMB Appointments Clause Unfunded Mandates Reform Act Commerce Clause Due Process Clause of 5 and 14 amendments Taking clause of 5th amendment Separation of Powers Clause Enabling Acts Chevron case Report and wait law Chat topic: Campaign contributions The second week chat will require students to access the opencrs.com website and download and read CRS issue brief R41096: Legislative Options after Citizens United v. FEC: Constitutional and Legal Issues. We will be discussing the options available to regulate campaign contributions to political campaigns after the Citizens United U.S. Supreme Court Decision. Reading Consideration Questions 1. Explain may Congress not want to use any of its formal or informal controls to control agency actions? Do you think a claim and intervention post action strategy is really a rational strategy as the author suggests, or really just an expedient way to dispose of controversial issues?

2. Provide a strategy for how an agency can avoid the five legislative controls available to Congress. Remember that casework is indeed a control, albeit an incremental one. It does however, change bureaucratic priorities in terms of where it expends its resources because of the amount of Congressional casework generated. 3. What are the problems that the legislative veto creates in terms of the quality of the legislation it encourages and the door it opens to further influences on agency decision-making? Keep in mind that it is similar to the problem that OMB review creates in terms of another quasi closed door negotiation that occurs after a regulatory action has concluded and another point of discretion in the policy-making process. 4. It is said that the prime reason sunset legislation does not work is because Congress does not have the motivation to undertake it. Do you understand why that motivation does not exist? If Congress is so concerned about controlling agencies, isnt sunset legislation an easy way to kill an agency by inaction or at least force the agencies to pay attention to the needs of Congress or die? Or is Congress really not interested in being a policeman but only in being a fireman in terms of regulatory intervention? 5. What has been the traditional Presidential alternative to agency control when his appointees go native? 6. Explain why Presidential persuasive powers are more powerful in general than the direct orders he issues. Under what conditions is Presidential control of an agency strongest? 7. Explain the policy consequences of the following statement: A lack of control over the bureaucracy usually reflects a lack of political consensus on the goals for bureaucracy. Note: Do you think this statement implies that the issue is not the lack of agency controls but rather the lack of resolve by Congress to exercise these controls? If so, what does this mean in terms of the types of regulatory reforms that are likely to be effective? 8. Are independent regulatory commissions (IRC) truly independent? If so, independent from whom? How do they differ from department regulatory agencies? Consider the origin of IRCs when you answer this question and the issues of Congressional, clientele, and Presidential influences. 9. Why are some forms of legislative vetoes still used today after the Chadha case? Learning Objectives for Week 3 In this week, student should be able to determine: 1. How the courts have shaped constitutional doctrines to address the activities of governmental agencies. 2. How agency information is controlled but also available for public inspection and use. 3. How agency hearing procedural requirements differ between rulemaking and adjudication. 4. The element of fairness and legal assistance imposed by the courts in the administrative process.

Reading Assignment:

Carter Chapters 5, 6, and 7 (pp. 194-199 and 210-219 only) There will be a third narrated audio power point presentation: this one dealing the external and internal politics of agency regulating activity. Further information is also included in the course pack. Key Terms and Concepts (In addition to what is provided in the course pack and narrated power point presentation): Sunshine laws FOIA and its coverage and exceptions Warrant requirements for administrative law purposes (Marshall case) Due process requirements in administrative law (Wyman case) GAO role in government Public interest movement Criminal law rights and administrative law (Lopez-Mendoza case) Rulemaking versus adjudication (Bi-metallic case) Informal rulemaking Court deference to agency decision-making (Horowitz case) No Constitutional right to an attorney in agency adjudication Substantial evidence test for judicial review The role of the Administrative Law Judge Three laws that control agency discretion (Constitution, enabling statutes, and the APA) Quasi-judicial proceedings and the Marathon Oil v. EPA case Chat Topic: Dont Ask, Dont Tell policy The third week chat topic will be the impact of repeal of the Department of Defenses Dont Ask, Dont Tell policy. Students should access the opencrs.com site and download issue brief R40795: Dont Ask, Dont Tell: A Legal Analysis and be prepared to discuss the difficulties of an agency like the DOD attempting to meet the contrasting demands of Congress, the President, and the courts, along with its morale and recruitment concerns. Reading Consideration Questions: 1. What is the lesson to be learned in the FCIC v. Merrill case in terms of your dealings with a federal agency? 2. How does the Marathon Oil case expand the applicability of adjudicatory protections to agency attempts to handle issues by the more informal rulemaking process? 3.Explain the importance of impartiality and ex parte communications in the agency decision-making process. 4.How does an agency inspection warrant differ from the warrant requirements described in the Fourth Amendment? 5.Can welfare benefits be conditioned upon waiver of ones constitutional rights? (Wyman case) 6.Are aliens given less constitutional protection than U.S. citizens in the administrative law process? 7.Why do agencies sometimes attempt to block access to government information and decision-making by invoking strained interpretations of exemptions to the disclosure of information under the FOIA and

the Sunshine Act? 8.Why do courts sometimes refuse to review agency decisions with adjudicatory implications like Horowitz? 9.What is the difference between formal and informal rulemaking and how does an ALJ differ from a judge in the judicial branch of government? Week 4: Review chat session, midterm exam, and graduate court case papers due Student guidance: The midterm examination will cover material from the texts, course pack, chats, appropriate CRS issue briefs and power point materials. Chat Topic: Midterm overview Our chat for this week will be an open chat permitting students to discuss questions about materials for the first half of the course in preparation for the examination. Assignment: Take Midterm examination

-----------------------------------------------------------------------------------------------------------------Second half of the course: Introducing the rulemaking process: Student Guidance: Despite efforts to avoid, minimize, reform, or judicialize the rulemaking process, rulemaking remains the dominant theme of the administrative state and the reason why an entire book is devoted to this subject. It would appear that our major political institutions, despite their criticisms of individual agency decisions, find rulemaking an indispensable element of the public policy process. Having said this, I do not mean to imply rulemaking is perfect or even close to perfect. However, you will soon discover that sometimes the medicine employed to cure the perceived regulatory ills is worse than the problem they are meant to cure; namely agency accountability. You will also discover that rulemaking often mirrors or fills gaps in our formal democratic system better than any other institution or process yet devised. Follow the route to, around, and through the rulemaking provisions of the Administrative Procedures Act and ask yourself what is right and wrong with the process. Perhaps you will conclude, as Kerwin does, that before you can reform rulemaking, you need to reform our formal political institutions. Students also are advised to study carefully Table 2-1 on pages 76-77 of the Kerwin book, as it provides a great visual of the basic steps in the rulemaking process. As you begin this half of the course, please remember the following basic information about administrative law discussed in part in the earlier readings and power point presentations: Administrative agencies have no inherent or residual authority but can act only to pursuant to authority delegated to them in the statues enacted by Congress. If any agency acts beyond the scope of its delegated authority, its action is illegal and void. Agencies opinions in interpreting their own regulations and the statues they administer will, particularly if consistently held over a substantial period of time, be granted deference by courts. Agencies must act in accordance with the procedures specified in their enabling legislations, or, if no other procedures are specified in accordance with the Administrative Procedure Act. The

required procedures normally entail publication in the Federal Register, opportunity for public comment, sometimes a public hearing response to public comment and final publication. Agencies must act in accordance with their own rules and regulations. Failure to follow those rules results in invalid actions. Agencies must maintain a docket or record in support of their action and there must be evidence in that record to support the agency action. The record must be open or public examination throughout the period when public comments are being received. Agency actions may not be arbitrary and capriciouswhich means that there must be at least some evidence in the record to support the agency decision. When a statue specifically requires so, agencies must support their decision with substantial evidence. Although the difference between some evidence and substantial evidence is somewhat obscure, agencies hate substantial evidence requirements. Agency decisions may be appealed to the courts under either specific judicial review provisions in the enabling statutes or the general provision in the Administrative Procedure Act. You cant go to court; however, unless you have standing, the issue is ripe, you have exhausted administrative remedies and a Final agency decision has been issued. On appeal, administrative agency actions are generally upheld in the absence of some glaring procedural defect or a clearly inadequate record. However, these circumstances occur frequently and successful appeals, while not the rule, are far from a rarity.

Week Five: The Reasons, Processes, and Issues of Rulemaking Learning Objectives: When reading this unit, also consider the following: 1. Agency rules and agency bureaucrats are much more likely to affect you directly than any other unit of federal government (social security, Pell grants, etc.). Shouldnt you know as much as you can about how they operate? 2. Are current procedural protections sufficient to ensure fair agency rules? 3. How can individuals increase their influence over agencies? Reading Assignment Kerwin pp. 1-121 Kerwin hereafter will be referred to as K in this manual. Student Guidance: Students also should consult the website http//:regulations.gov. to see how regulations, comments, and other rulemaking information are now electronically available to the public through e-rulemaking. Key Terms and Concepts Definition of a rule Code of Federal Regulations Brownlow Committee Downs categories of bureaucrats Sick Chicken and Hot Oil cases Risk assessment Executive order Regulatory Flexibility Act Paperwork Reduction Act

Hammers Information power of interest groups Information statutes Stages of the rulemaking process Factors affecting the quality of a rule (p.97) Student Guidance: Why use rulemaking as opposed to other ways of making law, and how does rulemaking operate from the perspective of a formal means of making policy? This week, we will explore the rationale and the operation of our administrative rulemaking process, as well as selected issues that arise as rulemaking is undertaken. Pay particular attention to the overall operation of rulemaking so you understand the standard sequence of events. Chat topic: Immigration Students should access the opencrs.com and read issue brief R41221: State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizonas S.B. 1070. This chat will discuss the problems of regulating an issue in a federal system of state and federal legislators and regulators. Reading Consideration Questions 1. Kerwin identifies many techniques that agencies use to avoid rulemaking. Why do agencies not want to engage in a relatively simple notice and comment process and instead bargain behind closed doors? 2. It might be claimed that the policy process has always been a circle with no beginning and no end. Kerwin implies that rulemaking has expanded that circle. Do you think that American democracy has benefited or been harmed by this expansion of policy making influences? 3.Kerwin argues that an understanding of the rulemaking process is more important than the size of an organization or the amount of money it has to spend on public affairs. Do you agree? Why or why not? 4.What triggered the burst of regulatory activity in the 1930s and the 1960s and 1970s? 5.Examine the role and stage that formal public participation enters the rulemaking process. How does this late entrance affect the ability of the public to influence the rulemaking process? 6.Congress often makes vague delegations of power to agencies to avoid tough decisions. Is this an appropriate exercise of Congressional power and whose fault is it if some interests are harmed by subsequent discretionary agency rulemaking? 7. The President and the Courts also like rulemaking, but for different reasons. Is there any reason to believe that when any of these three branches criticize agency power, they are doing so tongue in cheek? 8. Consider Downs categories of bureaucrats. How useful are these classifications in explaining internal agency actions? Are they too simplistic? 9. Consider the U.S. Supreme Courts retreat from its decisions in the Sick Chicken and Hot Oil cases. Did the Court just cave in to political pressure (FRR court packing threat) and open their door to wholesale federal regulation or was there a logical and legal reason for their change in attitude? 10. Why was Reagans Executive Order 12291 considered the most significant Presidential incursion into

core rulemaking? How was it different from Carter or Clinton? Remember the consistently most important external review of draft rules is done by the OMB. 11. Attempts to judicialize or even de-legitimize administration agencies failed, so New Deal expansion of the administrative state was met by a new strategy described in the following sentence; Procedural victories took the sting out of substantive regulation. Explain what this sentence means. 12. Is the concern about corporate capture a recent concern? Consider the fact that rulemaking in the 1930s was similar to regulatory negotiation today. Is the coziness that reg-neg invites a logical political reason why reg-neg is viewed with concern by public interest groups? Week Six: Agency Management and Accountability Under Rulemaking Learning Objectives:

1. Describe the techniques for rulemaking and avoidance of rulemaking

2. Describe how rhe rulemaking process had evolved into a much more complex method of producing regulations 3. Explain how Congress and the Courts have transformed the rulemaking process informally through management and control techniques. Key Terms and Concepts Ways rules can be initiated Interest group representation Police patrol and fire alarms National Performance review Pressure group politics Legislative versus interpretive rule Types of regulatory information (p.152) Presidential signing statements Electronic rulemaking Corrections Day OIRA review powers Hybrid rulemaking Scope of Judicial Review (section 706) and de novo review Reading Assignment Kerwin pp. 121-268 Student Guidance: The issue of who manages and oversees the agencies and their accountability to and attitudes toward public participation under rulemaking are the key issues of this unit. Pay particular attention to formal limits on agencies imposed by major political institutions, especially Congress, and the type of control that is realistic for an entity that purposely has been given tremendous discretion to handle the tough issues that the President and Congress want to avoid. Keep in mind that much of what is done in the bureaucracy is influenced by informal actions, despite the existence of the APA, Congress, the President, and the courts. Is the move to establish informal regulatory negotiation and OMB review a positive or negative event in terms of the general public interest? If your answer to this question is equivocal, ask who gains in informal actions.

Chat topic: Regulatory Negotiation For this week, students should access opencrs.com and download and read Issue Brief RL32452; Negotiated Rulemaking. This information can supplement text discussion as we explore the value and limitations of substituting negotiated rulemaking for informal rulemaking. Reading Consideration Questions 1. What advantages does rulemaking offer Congress? 2. What is the primary value of public participation that strengthens the rulemaking process. and when is public participation most effective? 3. Rulemaking is not as simple as notice and comment. The process of initiating a rule and the types of information involved in rulemaking indicate the complexity of the process, not to mention that politics involved. Add to this situation the additional general statutory reforms or checks imposed by Congress (NEPA) and by executive order (cost benefit analysis). How does this process explain the delays in getting new drugs approved by U.S. agencies versus approval rates in other nations? Is it the bureaucracys fault for those delays? 4. Consider the dilemma in terms of the efficiency of an unelected bureaucracy creating rules instead of Congress. Has democracy lost to efficiency? If so, why did the court not pick efficiency over democracy in the legislative veto decision in INS v. Chadha? 5. Two recent events have altered rulemaking since 1960: the participation revolution and the explosion of social regulation. Have these two events positively or negatively impacted the legitimacy of rulemaking? In your response, consider the two events individually and then together. 6. Is the current role of the OMB appropriate under APA? Under the Constitutional notion of separation of powers? Under the notion of ex parte communications? Lowi talks about the OMB being another point of discretion. What does the role of the OMB in rulemaking do to its legitimacy and to the notion of public participation? Keep in mind that your authors feel the OMB has become a potent source of bureaucratic control and accountability. 7. Explain why agencies have turned to the avoidance strategies to reduce public participation. Explain agency distaste for democratic input from the public through the avoidance strategies. Note public participation is considered to be one of the most important influences on rulemaking. 8. Consider the following issues in rulemaking: a. What impact will the internet have on rulemaking? b. What are the pros and cons of reg neg as an alternative to rulemaking? c. What are the most frequent and fully effective tactics for monitoring rulemaking? d. Why does Congress not exercise its control over agencies? e. Why are social regulations so controversial? f. What are the problems associated with cost/benefit oriented reforms? 9. What do the group-oriented prerequisites for rulemaking tell you about the power of an individuals voice and opinion to be considered in rulemaking? 10. Describe the congressional strategy for using the courts as a means for agency accountability. Isnt

this strategy just substituting one accountability problem for another? 11. Consider the following statements in terms of the need for bureaucracy: Strong bureaucracies are a prerequisite for effective public policy and the health of our democracy now hinges in no small part on how well rulemaking works Have our reform efforts weakened public policy if they have resulted in weakened bureaucracies? 12. Kerwin identifies the major forces (dimensions and players) that determine the contents of rules. The public is not specifically mentioned in these forces. However, the public does not have resources to impact the bureaucracy; namely information, litigation, and consistent intervention. What can be done to strengthen these resources in order for the public to match the influence of subsystem politics? 13. Discuss the role of the following in affecting the quality of rulemaking: a. Political appointees b. Casework handled by Congressional ombudsmen 14. If we are truly a government by the interest as Kerwin would suggest, is there any hope of procedurally reforming our administrative process in order to approach more universal participation in rulemaking? If not, is our current system anti-democratic and should it be scrapped? Week Seven Learning Objectives In this week students should be able to: 1. Describe the role of the court in restraining agency behavior and actions 2. Distinguish between the conflicting goals of governmental bureaucracies and the courts. 3. Describe the various legal doctrines that limit access to the court Reading Assignment: Harrington and Carter: Chapter 8 (pp. 237-242, 248-250, 258-265), 9 (pp.266-272) and all of Chapter 10. Key Terms and Concepts Intelligible principle Hammer Provisions Executive Privilege Scope of judicial review Substantial evidence and arbitrary and capricious court tests De novo review Case or controversy Standing Finality Exhaustion of remedies Ripeness Primary jurisdiction Rule recission ALJ versus Article III judge Types of agency sanctions Fairness issue in the Sangamon Valley case Chat topic: Invasive species regulation in the Great Lakes For this week, students should access the opencrs.com site and download and read issue brief R41082:

Asian Carp and the Great Lakes Basin. This issue of how to regulate an invasive species in an interstate resource like the Great Lakes working around a water diversion project regulated by a U.S. Supreme Court decree describes the complexity of political and legal issues through which an agency must navigate in addition to the informational issues it faces. Who is the public in this case when states disagree? Reading Consideration Questions 1. What is the difference between the concepts of ripeness and exhaustion of remedies? Does the difference really matter in terms of the outcome of the case? 2. Do agree with Ken Davis that rulemaking is one of the greatest inventions of modern government? 3. What is the primary difference in terms of the proof necessary for the substantial evidence versus the judicial standards used in so-called hybrid rulemaking? 4. Under what circumstances do courts defer to agencies? Why?
5. Are lawsuits the best avenue to redress special interest influence on agencies? What advantages do

they offer over lobbying Congress? 4. How do court procedures frustrate attempts to improve political accountability of agencies? 5. Should courts adopt a new approach to administrative law perhaps even a separate administrative court to decide agency appeals? 6. Who do you think generally wins a lawsuit against an agency? How often do you think agency actions go unchallenged in court? 7. How does the Constitutional doctrine of separation of powers exacerbate efficiency problems in bureaucracies? Week Eight: Regulatory Reform and Course Summary Learning Objectives: In this week, students should be able to: 1. Describe areas of the regulatory process in need of reform 2. Identify past and current regulatory reforms and their strengths and weaknesses 3. Propose additional reforms that might improve the rulemaking process. Reading Assignment: Kerwin: Chapter 7 Take final exam Chat Topic: Is the new Health Care Law Unconstitutional? We will use our last chat to review the regulatory process and try to identify areas in need of reform and the means to reform them. We will also take a look at legal challenges to the new health care law;

particularly, the issues of requiring individuals to obtain health insurance. Reference CRS brief R40725 Requiring individuals to obtain health insurance: a Constitutional analysis in opencrs, in order to prepare for this discussion. We will also take time to answer any questions you have about the overall course and preparation for the final examination. Post-class Assignments: None Assignment Due Dates: Reading assignments are due on or before the chat scheduled for the week of the assignment. Student Involvement Hours: Students are expected to spend 9-12 hours per week to read textbooks and supplemental materials, work on court case assignments, participate in weekly chat sessions, prepare for exams, etc. 500-Level Courses: Graduate students must complete the court case assignment to receive credit for this course. VII. CRITERIA FOR EVALUATION Type of Performance: An incomplete will be given for the class only if the student has completed more than 50% of the class assignment. Evaluation Criteria: Grades and Grading Policy Your course grade will be based upon one midterm exam, one court case assignment (which must be done only if you are seeking graduate credit for this course), a critical essay, and a final exam (based upon the readings of the last half of the class). There are 200 possible points in the course for undergraduate students. 160 points are on the two module tests.

There are 220 possible points for graduate students.

Midterm Examination 80 points Court Case assignment 20 points (graduate credit only) Critical Essay 40 points Final Examination 80 points Total class points 200/220 points Late Assignments: Late assignments will not be accepted without the prior consent of the instructor. Make-ups and Rewrites: No make-up or rewrites of assignments will be available for this course. Chat Participation: The instructor reserves the right to increase the grade of a student for outstanding contributions to on-line

chats and/or discussion board contributions. Grading Scale: Undergraduate: Grade Points A 180-200 A- 175-179 B+ 170-174 B 155-169 B- 150-154 C+ 145-149 Graduate: Grade Points A 200-220 A- 195-199 B+ 190-194 B 175-189 B- 170-174 C+ 165-169 C 150-164 C- 145-149 Other: 1. Incomplete: [d1] The (I) Incomplete is a temporary grade used in cases when a student is unable to complete course requirements because of illness or other justifiable circumstances. An (I) Incomplete is assigned in cases in which the student has completed satisfactorily the major portion (50%) of the course requirements and has the ability to complete the remaining work without re-registering for the course. Further information on (I) Incompletes can be found in the current Bulletin. 2. Copies of Assignments: [d1] Attention CMU students: It is your responsibility to retain a copy of any materials that you mail or hand in to a center or to your instructor. This includes, but is not limited to, exams, assignments, cases, or reports. VIII. SUPPORT SERVICES AND OTHER REQUIREMENTS OCLS [d1] CMU offers you a variety of library services through Off-Campus Library Services. Check the OCLS website, http://ocls.cmich.edu, for more information and our current hours. Reference Librarians provide help using research tools such as: the library catalog and research databases and help you find information related to your research topic. Document Delivery provides the specific books and journal articles you request. You can order up to 50 items per class, per week from Document Delivery. However, only 20 requests will be taken over the phone. Requests over 20 can be faxed or e-mailed. Reference Librarians contact information: 1. Toll-free phone: 1-800-274-3838 2. Ask OCLS request form at http://ocls.cmich.edu/reference/index.html Document Delivery contact information: 1. Toll-free phone: 1-800-274-3838 2. Toll-free fax: 1-877-329-6257 3. Email: oclibsvc@cmich.edu

C 140-144 C- 135-139 D+ 130-134 D 127-129 D- 124-126

4. Document Delivery request forms at http://ocls.cmich.edu/delivery/index.html General: 1. Academic Dishonesty: [d1] Written or other work which a student submits must be the product of her/his own efforts. Plagarism, cheating and other forms of academic dishonesty, including dishonesty involving computer technology, are prohibited. Further information on Academic Dishonesty can be found in the current Bulletin. 2. ADA [d1] CMU provides individuals with disabilities reasonable accommodations to participate in educational programs, activities and services. Students with disabilities requiring accommodations to participate in class activities or meet course requirements should contact Ms. Carmen Ceja-Blohm, at (800) 950-1144, extension 2199 or email her at cejab1c@cmich.edu, at least 3 weeks prior to registering for class. Students may find additional ADA information and forms at http://www.cel.cmich.edu/ada/default.html Note to faculty: CMU Administration will notify you if applicable; otherwise, the student will provide a Notification Letter to the Instructor outlining the accommodations the student is approved to receive. Student's Rights and Responsibilities: http://www.cmich.edu/policies-procedures/code-studentrights.htm IX. BIBLIOGRAPHY Allison, Graham. 1971. Essence of Decision. Boston: Little, Brown. Anderson, James E. 1997. Public Policymaking: An Introduction. Boston: Houghton Mifflin. Bawn, Kathleen. 1995. Political Control Versus Expertise: Congressional Choices About Administrative Procedures. America Political Science Review 89 (March): 62-73. Bendor, Jonathon. 1995. A Model of Muddling Through. American Political Science Review 89 (December): 819-840. Bohte, John, and Kenneth J. Meier. 2000a. The Marble Cake: Introducing Federalism to the Government Growth Equation. Publius 30 (Summer): 35-46. Bozeman, Barry. 2000. Bureaucracy and Red Tape. Upper Saddle River, N.J.: Prentice-Hall. Bryan-Jones, Katherine, and Lisa A. Bero. 2003. Tobacco Industry Efforts to Defeat Occupational Safety and Health Administration Indoor Air Quality Rule. American Journal of Public Health 9: 585592. Canes-Wrone, Brandice. 2003. Bureaucratic Decisions and the Composition of Lower Courts. American Journal of Political Science 47 (April): 205-214. Carpenter, Daniel P. 2001. The Forging of Bureaucratic Autonomy. Princeton, N.J.: Princeton University Press. Cohen, Steven. 2001. A Strategic Framework for Devolving Responsibility and Functions from Government to the Private Sector. Public Administration Review 61 (July/August): 432-440. Gajduschek, Gyorgy. 2003. Bureaucracy: Is it Efficient? Is it Not? Is that the Question? Uncertainty Reduction: An Ignored Element of Bureaucratic Rationality. Administration and Society 34: 700-723.

General Accounting Office. 2003. Electronic Rulemaking: Efforts to Facilitate Public Participation Can b Improved. (GAO-03-901). Washington, D.C.: General Accounting Office. Golden, Marissa Martino. 2000. What Motivates Bureaucrats? New York: Columbia University Press. Dudley, Susan E., and Melinda Warren. 2005. Upward Trend in Regulation Continues: An Analysis of the U.S. Budget for Fiscal Years 2005 and 2006. Regulators Budget Report 27. Mercatus Institute, George Mason University and Weidenbaum Center, Washington University St. Louis, MO. Epstein, David, and Sharyn OHalloran. 1996. Divided Government and the Design of Administrative Procedures: A Formal Model and Empirical Test. Journal of Politics 58 (May) 373-397. Hall, Thad E., and Laurence J. OToole, Jr. 2004. Shaping Formal Networks Through the Regulatory Process. Administration and Society 36 (2): 1-22. Heclo, Hugh. 1978. Issue Networks and the Executive Establishment. In The New American Political System, ed. Anthony King, 87-124. Washington, D.C.: American Enterprise Institute. Hedge, David M., and Michael J. Scicchitano. Regulating in Space and Time: The Case of regulatory Federalism. The Journal of Politics 56: 134-153. Hefetz, Amir, and Margaret Warner. 2004. Privatization and Its Reverse: Explaining the Dynamics of the Government Contracting Process. Journal of Public Administration Research and Theory 14 (April) 171-190. Howell, William G. 2003. Power Without Persuasion: The Politics of Direct Presidential Action. Princeton, N.J.: Princeton University Press. Lasswell, Harold D. 1936. Politics: Who Gets What, When, How? New York: McGraw-Hill. Mayer, Kenneth R. 2001. With a Stroke of a Pen: Executing Orders and Presidential Power. Princeton, N.J.: Princeton University Press. McCubbins, Mathew D., Roger G. Noll, and Barry R. Weingast. 1989. Structure and Process, Politics, and Policy: Administrative Arrangements and Political Control of Agencies. Virginia Law Review 75 (March): 431-482. Meier, Kenneth J. 1997. Bureaucracy and Democracy: The Case for More Bureaucracy and Less Democracy. Public Administration Review 57 (May/June): 193-199. Meier, Kenneth J., and Jill Nicholson-Crotty. 2005. Gender, Representative Bureaucracy, and Law Enforcement: The Case for Sexual Assualt. Public Administration Review (forthcoming). Newcomer, Kathryn E. 1998. The Changing Nature of Accoutability: The Role of the Inspector General in Federal Agencies. Public Administration Review 58 (March/April): 129-136. Rauch, Jonathon. 1985b. Grace Commission Is Still Wooing Converts. National Journal 16 (April 6):

727ff. Ringquist, Evan, Jeff Worsham, and Marc Allen Eisner. 2003. Salience, Complexity, and the Legislative Direction of Regulatory Agencies. Journal of Public Administration Research and Theory 13: 141-164. Salisbury, Robert H. 1984. Interest Representation: The Domination of Institutions. American Political Science Review 78 (March): 64-76. Stokey, Edith, and Richard Zeckhauser. 1978. A Primer for Policy Analysis. New York: Norton. Teske, Paul. 2004. Regulation in the States. Washington: The Bookings Institute. Thompson, James R. 2000. Reinvention as Reform: Assessing the National Performance Review. Public Administration Review (Nov./Dec.) 60: 508-521. White, Lawrence J. 2004. Fannie Mae, Freddie Mac, and Housing Finance: Why Privatization Is Good Public Policy. Policy Analysis: Cato Institute: #528, Oct 7 2004, 2-24. Wilkins, Vicky M., and Lael R. Keiser. 2005. Linking Passive and Active Representation by Gender: The Case of Child Support Agencies. Journal of Public Administration Research and Theory (forthco