1. 2. 3. 4. 5. FOOTNOTES TO PAGES 136-166 Carl H. Monsees, "Industry Advisory Committees in the War 56 Stat. 24 (1942), 50 U.S. C. Sec. 902 (a) (1946). Kenneth Culp Davis, Administrative Law (St. Paul: West Publishing Co., 1951), p. 238, note 33. Roscoe Pound, "Minority Report," 27 American Bar Association Bernard Schwartz, American Administrative Law (London: Pitman, 1950), p. 36. 7. 8. 9. 10. 11. Avery Leiserson, "Interest Groups in Administration, ' in Fritz David B. Truman, The Governmental Process (New York: Knopf, 1955), p. 458. Ralph F. Fuchs, "Procedure in Administrative Rule Making," Elements of Public Administration, op. cit., p. 318. Don K. Price, "Democratic Administration," in Elements of Public Administration, op. cit., p. 79. 12. Elements of Public Administration, op. cit., p. 318. 13. John A. Vieg, "The Growth of Public Administration," in Elements of Public Administration, op. cit., p. 16. 17. Kenneth Culp Davis, Handbook on Administrative Law (1951), pp. 232-233. 40216 0-59-pt. 2-10 18. Eeiserson, op. cit., pp. 322-323. 19. Davis, Handbook on Administrative Law (1951), pp. 234-238. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. Arthur A. Maass and Laurence I. Radway, "Gauging Administrative Schwartz, op. cit., p. 39. Act of June 19, 1934, c. 653, Sec. 1, 48 Stat. 1105, amended. Act of August 1, 1956, c. 811, Sec. 10, 70 Stat. 779; 22 U.S.C.A. Act of August 4, 1949, c. 393, Sec. 1, 63 Stat. 510; 14 U.S. C.A. 193. Act of May 7, 1941, c. 87, Title 1, Sec. 108, 55 Stat. 179, amended July 16, 1952, c. 877, Sec. 4 (3), (5), 66 Stat. 710; 30 U.S. C. A. 458. Act of September 27, 1950, c. 1054, Sec. 4, 64 Stat. 1068; 16 U.S. Act of June 4, 1956, c. 358, Sec. 4, 70 Stat. 242; 16 U.S. C. A. 933. Act of September 7, 1950, c. 907, Sec. 4, 64 Stat. 778; 16 U.S. C. A. 953. Same as Footnote No. 17. Act of August 7, 1956, c. 1029, Title I, Sec. 104 (d), 70 Stat. 1093; 12 U.S. C. A. 1701h-I. Act of August 7, 1956, c. 1025, Sec. 16, 70 Stat. 1085; 12 U.S. C.A. 2415. Act of August 30, 1954, Sec. 1, 68 Stat. 948, as amended 42 U.S. Act of January 12, 1951, c. 1228, Title I, Sec. 102, 64 Stat. 1247; 50 App. U.S. C. A. 2272. Act of September 9, 1950, c. 939, Sec. 1, 64 Stat. 826; 50 App. U.S. Department of Health, Education, and Welfare: Annual Report, 1957, p. 13. is everywhere conceded that, as stated in American Administrative Law, "the authority of administrative agencies to make rules and regulations having statutory effect is a power of enormous consequences. In its effect upon the community, its exercise is of scarcely less importance than the actions of the legislature itself. Rules and regulations, no less than statutes, lay down patterns of conduct to which those affected must conform. "5 With the recognition of the necessity for far-reaching administrative rulings, the concern of legislators and administrators has shifted from questions of whether such delegation of authority is desirable to how such delegation is to be controlled and made responsive to the public need. The same publication described this trend: "The focus of inquiry has therefore shifted from the question of the desirability of delegation few would dispute that today to that of control. If we agree, as we must, that delegations of authority to administrative agencies are necessary, the problem then becomes largely one of safeguards. From the point of view of the citizens affected, the primary safeguard to insure the proper exercise of powers of delegated legislation lies in the development of adequate procedures to be followed by the administrative process in the formulation of rules and regulations.... [The purpose of these procedures] broadly speaking, has been to insure some participation to those affected by delegated legislation in the rule-making process. " Few principles of democratic government are more firmly established or more widely recognized than this principle of the right to be heard; that is, the right of groups with a common interest to be consulted in the formulation and administration of programs directly affecting them. In the words of an eminent authority in public administration, Avery Leiserson: "There are always either formal or informal relationships between group organizations and official bureaucracies. Furthermore, it is perfectly clear that in the sense of the right to be heard, to be consulted, and to be informed in advance of the tentative basis of emerging policy determination, group participation is a fundamental feature of democratic legislation and administration. "7 Another authority on government, David B. Truman, has pointed out that the fundamental "rules of the game" which operate to preserve the public interest in the democratic process "prescribe that individuals and groups likely to be affected should be consulted before governmental action is taken. Such consultation is in most cases a prerequisite to the action's being accepted as 'fair'." Professor Truman continues: "It is an acknowledged part of our jurisprudence, and the courts have been exceedingly reluctant to sustain administrative actions that do not provide interested parties with proper notice and an opportunity to be heard. Not only is the requirement of consultation likely to be more or less automatically observed by administrative agencies in order to maximize support; the obligation is frequently explicitly written into particular authorizing statutes or into laws of general application, such as the Administrative Procedures Act of 1946. The latter, partly in consequence of the prestige of judicial processes and the judicialization of such bodies as the Interstate Commerce Commission extends many of the requirements of traditional court procedure to the actions of administrative agencies. 18 Consultation with affected groups was among the first of these safeguarding procedures developed by the administrative agencies. The complexity of the problems faced by administrative agencies, according to Professor Fuchs, made "consultation with those who are 'on the inside' virtually a necessity." Professor Fuchs has shown that these consultative procedures have "grown out of the practice, to which legislative and rule making agencies have resorted increasingly, of receiving opinions, advice, and suggestions from groups whom their work affects. It is inevitable, on the one hand, that such groups should seek to make their wishes known and, on the other hand, that officials should turn to them for information upon the problems to be solved." 10 The principle of group representation and consultation finds expression in the structure of government, as Professor Leiserson has noted, "When an agency is created to benefit a special category of citizens, or to promote the welfare of a group having some specified interest or attribute in common. These are the so-called clientele agencies, organized not on the basis of a function serving all categories of citizens, as exemplified by a public library or fire department, but rather one serving the needs and problems of a specific group. The purpose and authority of such government agencies have been described by Don K. Price in an authoritative essay on "Democratic Administration": "Most administrative policies, however, do not touch the public as a whole. Administrative agencies are, therefore, usually more interested in the opinion of one or another special group that is principally affected by their programs. The formal advisory committee is one means of keeping in touch with such opinion... The relationship between the agency and the affected interests, however, will not depend primarily on such procedures or even on the existence of formal machinery for consultation. Far more important will be the degree of public support for the purpose of the agency, the effectiveness of its organization and operations, and the cohesiveness of the private interests and their willingness to cooperate with government. If these conditions are favorable, a governmental agency may be more intimately in touch with the private interests than any advisory group itself could be." Perhaps the best known examples of clientele agencies, according to Professor Leiserson, "are the services and financial aids to ex-servicemen by the Veterans Administration; the research, promotional, and advisory functions of the Women's Bureau in furthering equal opportunities and non-discrimination between wage earners of both sexes; the comparable activities and grant-in-aid responsibilities of the Children's Bureau for improving the health, education, and welfare of mothers and children; the regulation and constructive development of Indian life by the Office of Indian affairs." Moreover, even where government agencies are organized on a functional rather than on a clientele basis, "a function may be so defined that, in effect, it is restricted to a major industrial or economic group. The Federal Reserve System operates through reserve banks whose operations in turn are restricted to banks. The Se curities and Exchange Commission's jurisdiction is restricted to security issues, traders, and organized exchanges engaged in security transactions. The Interstate Commerce Commission dealt for many years solely with the railroads and their custom ers. In a broader but no less meaningful sense, at least three of the major departments of the Federal Government have been classified as "clientele de13 partments" by Professor John Vieg." The first of these in point of origin, and perhaps still the largest in the scope of its activity, is the Department of Agriculture, established in 1862 at the urging of the United States Agricultural Society. The second major clientele department was that of Commerce and Labor, created in 1903 and divided ten years later into a separate Department of Commerce and a Department of Labor. "The unit within the original Department of Commerce and Labor which has aided the American business community most directly came into being as the Bureau of Foreign and Domestic Commerce. Established in 1912, by an act of Congress, it was charged specifically with the 'promotion and development of the foreign and domestic commerce of the United States.' Organized business worked actively for the passage of the measure setting up the new bureau and has since then looked upon the department, not unreasonably, as its special source of sympathetic governmental 1,14 assistance. The formation of a separate Department of Labor in 1913 wa was brought about by similar considerations of the desirability of representation and consultation on the part of a definite group of the citizen population with distinct needs and problems. "With organized labor's increasing success in making the public aware of the problems of the working class, it appeared to be both 'good politics' and sound administrative grouping to accord labor the same kind of recognition which had already been given to agriculture and business. 15 The crucial point concerning the structure and function of such clientele agencies is that they have institutionalized the principle of direct consultation with those citizen groups particularly affected by the work of the agency. It should be emphasized that this principle of consultation is wholly independent of other devices which may be adopted by the agency to obtain the opinion of the broader public or of nonclientele groups such as scholarly and professional societies. Thus the principle of consultation within the Department of Agriculture simply means consulting regularly and systematically with organized groups of farmers, although the Department may also seek the advice of academic specialists or other nonfarm experts. Similarly the departments of Labor and of Commerce have respectively developed formal and informal methods of consultation with organized labor unions and with trade associations, chambers of commerce and other groups of businessmen. In short, the principle of consultation (the right to be heard) means consultation with the particular groups directly affected --not with external individuals or agencies, in or out of government, which may profess an indirect interest of their own in such policies. The result has been that consultation with the clientele or affected interests has become a regular feature in our governing process. Professor Bernard Schwartz has noted that "this has been expecially true where the interests |