When the U.S. Constitution was formally adopted, the drafters envisioned a government essentially consisting of three branches: executive (President), legislative (Congress), and judiciary (Supreme Court).
It was obvious that the three branches would need administrative assistance to operate, but until early in the Twentieth Century the administrative branch of government was modest. Things changed dramatically a couple of decades into this Century; the fourth or “stealth” branch, that of the administrative agencies, took on a life of its own and quietly became a very important factor in the lives of all of us.
As Congress adopted ever more complex (and some would argue invasive) legislation, the alphabet soup of government was ubiquitous. The IRS, FAA, FCC, SEC, EPA, SSA, FBI, CIA and DOT are all familiar products of this explosion; what in government affects you more directly than the Internal Revenue Service (the IRS).
Because these agencies have tentacles that can extend into every nook and cranny and have such a lasting impact upon us, it was inevitable that a separate body of law would develop to guide and control them. If the Environmental Protection Agency (the EPA) determines that real estate you own has been badly polluted with toxic waste material which might cost a vast sum to correct, what are your rights? By what standards was the determination made. Was there due process invoked in making the ruling? What are your remedies?
The way it works generally is as follows: Congress creates by legislation an agency to perform a particular function; typically the legislation will create the agency (number of people, how chosen, length of terms, etc.), define its purposes and goals, attempt to build in procedural and substantive safeguards, and provide for relief where citizens feel there is abuse.
Often separate administrative hearing boards are created to act as quasi-courts where appeals are initially lodged; in almost all cases there is provision for appeal to the regular courts if a person is dissatisfied with the result of an administrative hearing. The purpose of the administrative hearing board is to expedite resolution of issues since the courts are notoriously backlogged; to further expedite the process the formal rules of pleading and evidence are often more relaxed than they are in court.
The result of all of this has been a burgeoning of governmental employees over the past 70 years or so, to a point where this fourth branch of government has rather quietly overwhelmed the other three branches. This development has not been limited to the federal government; the states have an infinite number of agencies which have become such an integral part of our existence, that we can hardly imagine life without them. Think of Medicaid, PennDOT, and Public Welfare.
But remember, unlike people in the other branches of government, administrative employees never have to run for office, and often they are protected civil servants who can be fired only for serious misdeeds. It does not matter who wins elections; these folks just go on and on.
The impact on the practice of law has been dynamic; it is no secret that the number of lawyers has multiplied at a rate which is vastly greater than the rate of increase of the general population. What are they all doing, you might ask. In vast numbers they are specializing to meet the challenge of all of these administrative agencies. Who challenges a bad tax ruling of the IRS? Who appeals Medicare’s refusal to cover Aunt Emma’s claim for liposuction surgery? And it should not surprise you to know that within these agencies are a multitude of legal jobs; most agencies have lawyers advising them and a high percentage of the people who sit on appeal boards are (naturally) attorneys.
Should we condemn this hidden branch as a bloated, costly bureaucracy; or is it worthy of our esteem because in a world of ever-increasing complexity, it puts a human face on government? As usual, it is a little bit of both. Not having to run for office and being protected by civil service acts, the people who populate these agencies can become arrogant and lazy. But we routinely run into agencies which are well-run and perform enormous services efficiently. Life is so much more complex than it was at the turn of the last century (how about at the end of the last millennium?), and government growth is another of those inevitable but necessary evils. It is for us to challenge the system continually to be more efficient, more reasonable, and more effective. Write your congressman.
It was obvious that the three branches would need administrative assistance to operate, but until early in the Twentieth Century the administrative branch of government was modest. Things changed dramatically a couple of decades into this Century; the fourth or “stealth” branch, that of the administrative agencies, took on a life of its own and quietly became a very important factor in the lives of all of us.
As Congress adopted ever more complex (and some would argue invasive) legislation, the alphabet soup of government was ubiquitous. The IRS, FAA, FCC, SEC, EPA, SSA, FBI, CIA and DOT are all familiar products of this explosion; what in government affects you more directly than the Internal Revenue Service (the IRS).
Because these agencies have tentacles that can extend into every nook and cranny and have such a lasting impact upon us, it was inevitable that a separate body of law would develop to guide and control them. If the Environmental Protection Agency (the EPA) determines that real estate you own has been badly polluted with toxic waste material which might cost a vast sum to correct, what are your rights? By what standards was the determination made. Was there due process invoked in making the ruling? What are your remedies?
The way it works generally is as follows: Congress creates by legislation an agency to perform a particular function; typically the legislation will create the agency (number of people, how chosen, length of terms, etc.), define its purposes and goals, attempt to build in procedural and substantive safeguards, and provide for relief where citizens feel there is abuse.
Often separate administrative hearing boards are created to act as quasi-courts where appeals are initially lodged; in almost all cases there is provision for appeal to the regular courts if a person is dissatisfied with the result of an administrative hearing. The purpose of the administrative hearing board is to expedite resolution of issues since the courts are notoriously backlogged; to further expedite the process the formal rules of pleading and evidence are often more relaxed than they are in court.
The result of all of this has been a burgeoning of governmental employees over the past 70 years or so, to a point where this fourth branch of government has rather quietly overwhelmed the other three branches. This development has not been limited to the federal government; the states have an infinite number of agencies which have become such an integral part of our existence, that we can hardly imagine life without them. Think of Medicaid, PennDOT, and Public Welfare.
But remember, unlike people in the other branches of government, administrative employees never have to run for office, and often they are protected civil servants who can be fired only for serious misdeeds. It does not matter who wins elections; these folks just go on and on.
The impact on the practice of law has been dynamic; it is no secret that the number of lawyers has multiplied at a rate which is vastly greater than the rate of increase of the general population. What are they all doing, you might ask. In vast numbers they are specializing to meet the challenge of all of these administrative agencies. Who challenges a bad tax ruling of the IRS? Who appeals Medicare’s refusal to cover Aunt Emma’s claim for liposuction surgery? And it should not surprise you to know that within these agencies are a multitude of legal jobs; most agencies have lawyers advising them and a high percentage of the people who sit on appeal boards are (naturally) attorneys.
Should we condemn this hidden branch as a bloated, costly bureaucracy; or is it worthy of our esteem because in a world of ever-increasing complexity, it puts a human face on government? As usual, it is a little bit of both. Not having to run for office and being protected by civil service acts, the people who populate these agencies can become arrogant and lazy. But we routinely run into agencies which are well-run and perform enormous services efficiently. Life is so much more complex than it was at the turn of the last century (how about at the end of the last millennium?), and government growth is another of those inevitable but necessary evils. It is for us to challenge the system continually to be more efficient, more reasonable, and more effective. Write your congressman.
– Ken Butera