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The Administrative Thought of Supreme Court Justice Byron White

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The Administrative Thought of Supreme Court Justice Byron White Meeting the Demands of Modern Governance: The Administrative Thought of Supreme Court Justice Byron White John M. Aughenbaugh A Dissertation submitted to the faculty of Virginia Polytechnic Institute and State University, in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Public Administration and Public Affairs. Dissertation Committee: John A. Rohr, Chairperson Larkin S. Dudley Karen M. Hult Gary L. Wamsley 30 June 2008 Blacksburg, Virginia Keywords: Byron White, Administrative Law, Regime Values, Constitutional Competence, and Judicialization of Administrative Processes Copyright, 2008, John M. Aughenbaugh Meeting the Demands of Modern Governance: The Administrative Thought of Supreme Court Justice Byron White John M. Aughenbaugh Abstract This dissertation examines the administrative principles found in retired Supreme Court Justice Byron White’s administrative law case opinions. The purposes of the dissertation are to explore and identify the dominant themes found in White’s administrative law opinions and to discover what public administration can learn from a Supreme Court justice who took more than a passing interest in governance matters. This study has the following research expectations: • There is an identifiable White administrative law jurisprudence; • Within this jurisprudence, there are principles that recognize and are sensitive to the demands of modern governance; and • White’s administrative thought can be translated and used by public administrators to guide and instruct their work. The first part of the dissertation is descriptive as the dominant themes in White’s administrative law jurisprudence are identified and examined. Standard case briefing analysis is used for this exploration. The second half of the project is normative, wherein Rohr’s “regime values” framework is used to explore what public administrators may learn from studying White’s administrative law opinions. Moreover, this section of the dissertation will explore the extent to which White’s conception of modern governance incorporates what scholars have referred to as the judicialization of the modern administrative state by the federal courts and what is White’s conception of a constitutionally competent civil servant. Dedicated to all civil servants who attempt to run a constitution iii ACKNOWLEDGEMENTS For a project that took many years to complete, a number of thanks are due. First, I thank my committee members – Doctors Rohr, Dudley, Hult, and Wamsley. They all probably felt, at times, that I would never complete this last step in my doctoral education, but their continued support throughout assisted me greatly. In particular, my chairperson, Doctor Rohr, was always available whenever I came back to the project, and his charge that I never short-change the quality and rigor of my writing, though often frustrating, ensured that what follows is the best work I could do. Additionally, Doctor Hult deserves special mention, for it was her mentoring when I was a master’s student that led me to consider pursuit of a doctoral education. I will forever be in her debt for whatever good I do as a teacher and scholar. A number of my colleagues in the doctoral program deserve mentioning, including now Doctors Shane, McCreary, Long, Stich, and Miller. We took classes together, complained of our lots in life, and supported each other through the process of completing our “little book reports.” While I may have eventually persisted, they certainly made the road an easier one to travel. Much obliged fellow travelers! My current colleagues at the L. Douglas Wilder School at Virginia Commonwealth University have also been very supportive in my efforts to finally finish this project. Chris Saladino, Deborah Brock, Judy Twigg, Bill Newmann, Robyn Lacks, and Susan Gooden have been the most encouraging colleagues, exhibiting extraordinary patience the past few years while I have attempted to write the last few chapters of this project. Of note, Chris has been a very good friend in diverting my attention from administrative law matters to the simple joys of discussing the Yankees and the joys/pains of our shared love of teaching. I also thank Susan Gooden for bringing me to the attention of VCU, indirectly forcing me to jump off the career fence I had been straddling for years. Last, my sincerest apologies to my family and friends who have had to endure years of me ruminating about Justice Byron White. They listened without (usually) complaint as I prattled on about White’s opinions and what they meant for public administration. Someday I hope to repay the friendship demonstrated by Mick Collins, Ryan Link, Chris Couples, Lisa Joyner, and Mark Johnson. And to my wife, Colleen Wilhelm, I only hope that the finished project was worth the lonely nights and weekends you had to suffer alone. iv TABLE OF CONTENTS ABSTRACT .………………………………………………………………………... ii DEDICATION …………………………….…………………………………………. iii ACKNOWLEDGEMENTS …………………….……………………………………. iv TABLE OF CONTENTS ……………………………………………………………… v LIST OF TABLES ……………………………………………………………………. vii CHAPTER I: INTRODUCTION ……………………..……………………………….. 1 A. Background of Study ………………………………………………………. 1 B. Objectives and Purposes .………………………………………………….. 3 C. Theoretical Grounding and Research Expectations ………………………. 7 D. Research Design and Methodology ………………………………………. 9 Case Selection ………………………………………………………… 9 Research Design ..…………………………………………………….. 12 Chapter Summary …………………………………………………………… 16 CHAPTER II: THE LITERATURE ………………….……………………………… 19 Introduction .……..…………………………………………………………... 19 White’s Jurisprudence .………………………………………………………. 19 Legal Realism ……………………………………………………………….. 24 Analytical Frameworks .……………………………………………………... 28 Rohr’s Regime Values ………………………………………………. 28 Constitutional Competence .…………………………………………. 32 Judicialization of the Administrative Process .………………………. 34 Chapter Summary …….……………………………………………………… 37 CHAPTER III: WHITE’S ADMINISTRATIVE LAW OPINIONS, PART I ……..... 39 Introduction ………………………………..…………………………………. 39 White as Constitutional Schoolmaster ………..……………………………… 40 Separation of Powers: Supporting Political Innovations …………………….. 49 Official Immunity: The Reasonably Should Have Known Standard ………… 59 Chapter Summary ……………………………………………………………. 70 CHAPTER IV: WHITE’S ADMINISTRATIVE LAW OPINIONS, PART II …….... 74 Introduction …………………………….…………………………………...... 74 v Administrative Due Process: A Balance of Competing Interests ……….…… 75 Administrative Discretion ………….………………………………………… 88 Administrative Searches: Flexible Standard of Reasonableness ……………. 95 Chapter Summary …………………………………………………………… 103 CHAPTER V: ANALYSIS ……………………….……………………………….... 107 Introduction ….…………………………………………………………….... 107 Regime Values ……………………………………………………………… 108 Constitutional Competence ………………………………………………..... 123 Judicialization of the Administrative Process ……………………………... .. 127 A Final Note…on Legal Realism …………………………………………… 131 CHAPTER VI: CONCLUSION …………………………………………………...... 136 Introduction ………………………………………………………………..... 136 A Revisiting: Purpose of Study and Research ………………………………. 137 Themes in White’s Administrative Law Jurisprudence …………………….. 142 Limitations of Study ………………………………………………………… 144 Future Research …………………………………….……………………….. 146 CASES CITED ……………………………………………………………………… 149 WORKS REFERENCED …………………………………………………………… 151 vi LIST OF TABLES Table 1: Identifiable Themes in White’s Opinions, Chapter III ……………………... 71 Table 2: Identifiable Themes in White’s Opinions, Chapter IV …………...……..…. 104 Table 3: Identifiable Themes in Justice White’s Opinions ………………….....…..... 142 vii Chapter I: Introduction The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only axioms and corollaries of a book of mathematics. Oliver Wendell Holmes, Jr., 1881. A. Background of Study In 1972, Jagdish Chadha, an alien in the United States on a student visa, was informed by the Immigration and Naturalization Service (INS) that he had to leave the country or be deported due to his visa having expired. After Chadha made various appeals within the agency, an INS administrative law judge granted Chadha’s appeal to have his deportation order suspended, on the grounds that Chadha had no country to which he could return. As required by law, the U.S. Attorney General reported this recommendation to both Houses of Congress. This immigration law also had a provision that allowed either House of Congress to veto the Attorney General’s recommendation, which the House of Representatives did to Chadha and five other aliens. The INS once again began deportation proceedings against Chadha, which he contested administratively on the grounds that the House of Representatives’ action (a legislative veto of an agency action) violated the Constitution’s separation of powers doctrine. The INS dismissed Chadha’s appeal, claiming it did not have the authority to hear such a challenge. Chadha next took his claim to the federal courts, wherein eventually the Ninth Circuit Court of Appeals held for Chadha, stating that the legislative veto employed by the House of Representatives violated the separation of powers doctrine. As the Reagan administration (it was now 1981) refused to appeal the Ninth Circuit’s ruling to the Supreme Court, the Supreme Court asked both Houses of Congress to represent the U.S. 1 federal government in challenging the Ninth Circuit’s ruling. Ultimately, the Supreme Court held for Chadha, ruling the legislative veto did violate the separation of
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