Establishment of a new United States Court of Appeals for Administration, to review rulings of the government's independent quasi-judicial administrative agencies, and of department heads, was urged today by J. Harold DoNike '28, instructor in Public Business Administration.
In an article in the Business Review, published today, DoNike urged businessmen to support the bill of Senator Logan, of Kentucky, now before the Senate Judiciary Committee, which would establish the new court between the executive commissions and the Supreme Court.
Too Technical for High Court
It has been unsatisfactory for the Supreme Court to rule directly on the highly technical questions arising from the administrative agencies, in DeNike's opinion.
Through such appeals the Court has been overloaded, and "has not only been forced to take sides in essentially political controversies, but also to decide technical, economic, and business problems in what is bound to seem to the defeated interests and artificial and legalistic way," he said.
Besides removing this burden from the Supreme Court, the new Court of Appeals for Administration, which should be experienced in both legal and administrative matters, "could do what neither the Congress nor the Supreme Court has none: regularize the procedure of the quasi-judicial administrative agencies and evolve a common law of administration," he said.
Business Fears Politics
For businessmen much of the distrust and difficulty of commission regulation arises from the fact that there is much variation in procedure between the agencies, DeNike held. Businessmen also have a "feeling that politics all too often dictates the allegedly judicial decision of such executive agencies," he said.
"No satisfactory formula has been devised by the Supreme Court for holding administrative discretion within limits appropriate both to progress," DeNike said.
The ancient "law and fact" formula, which the court has applied to the administrative cases, breaks down in the confusion of quasi-judicial and quasi-legislative duties of the commissions, he asserted. The expert commissions are not analogous to juries, DeNike stated.
"The commissions were created not merely to find facts but to formulate standards and impose duties which may go so far as to destroy a man's livelihood. Whatever jurists may say, to businessmen the imposition of duties is tantamount to adjudication of rights, while the writing or rules is legislation to all practical purposes. At the very least these functions are more than fact-finding."
Misrepresentation of the agencies as "fact-finding" has postponed "a needed reform in commissions, particularly in their quasi-judicial character," he said.
Need Realistic Line
This is one of the grave consequences of the "failure of Congress and the Supreme Court to find a more realistic and determinate line between judicial and executive discretion," he said.
"Many of the arbitrary and irresponsible acts of administrators are traceable to the apparent attitude of Congress and commissions that guaranteeing the legality of their acts is the Supreme Court's business, not theirs," he added.
"Too much reliance on the federal courts, particularly the Supreme Court, has weakened the judiciary without improving the administration. Somewhere in the administrative machinery itself we must develop and maintain that tradition of fairness and impartial justice which has been the strength of the ordinary law courts."
Senator Logan's proposed new Court of Appeals for Administration, with a chief justice and ten associate justices, selected for their competence in dealing with administrative matters and appointed for life, would "preserve the businessman's state in judicial review.