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Administrative Law
Faulkner Law - Thomas Goode Jones School of Law
DeBoer, Michael J.

Administrative Law


Schwartz, Corrada & Brown, Eighth Edition


Fall 2015


What Is Administrative Law?

Administrative Law deals with: (1) the ways in which power is transferred from legislative bodies to administrative agencies; (2) how administrative agencies use power; and (3) how the actions taken by administrative agencies are reviewed by the courts.
Administrative Law à keep administrative powers within their legal bounds and protect individuals against abuse of those powers

This definition divides administrative law into three parts:

The powers vested in administrative agencies;
The requirements imposed by law upon the exercise of those powers; and
Remedies against unlawful administrative action.

Administrative Agencies

§551. Definitions. (HANDOUT)
Administrative agencies typically have both legislative and judicial powers concentrated in them.

They have authority to issue rules and regulations that have the force of law (power that is legislative in nature) and authority to decide cases (power that is judicial in nature).

The Supremacy Clause of the Constitution provides that federal law preempts conflicting state requirements; Agency rules can have the same effect.

Types Of Agencies

Congress often adopts legislation that amounts to a template and assigns to the agencies the authority to develop the specific requirements.
Functions of Federal Regulations

Protection of public health and safety and the environment.
Direct control of commerce and trade, i.e., traditional “economic” regulation.

Regulatory Agencies v. Social Welfare Agencies

Regulatory agencies are vested with authority to:

Prescribe generally what shall or shall not be done in a given situation;
Determine whether the law has been violated in particular cases and to proceed against the violators;
Admit people to privileges not otherwise open to members of the public; and
Impose fines and render what amount to money judgments.

Social welfare agencies are vested with the authority to dispense benefits for promoting social and economic welfare, such as pensions, disability and welfare grants, and government insurance.

Includes programs of old age, survivors, disability insurance, Medicaid and Medicare, aid to families with dependent children, supplementary security income, veteran’ pensions and other benefits, and workers’ compensation.

Agencies And Accountability

Checks and balances for each branch on an agency:

Legislative Branch

Delegate/Repeal Authority
Remove Funding
Review/Judicial Review/Oversight Hearings
Adopt legislation that supersedes regulation

Judicial Branch

Judicial Review

Executive Branch

Appointment/Removal of officials
Executive Orders

Agency Accountability and Congress

Legislation providing Congress with a veto over an action of the executive branch does not meet the constitutional requirements of presentment and bicameralism. Immigration and Naturalization Service v. Chadha

Legislative action?? Does it contain matter in which it is properly to be regarded as legislative in its character and effect? Is the effect of the action altering the legal rights, duties, and relations of persons outside the Legislative Branch? Is there a presumption of power delegated by the Constitution?

“Midnight regulations”: dramatic spike of new regulations promulgated at the end of presidential terms, especially during new transitions to an administration of the opposite party

“Midnight period”: time after November election and before Inauguration Day

Congressional Review Act: creates an expedited process for Congress to repeal any regulation by a simple majority vote in each house

In order for repeal procedures to control, joint resolution of disapproval must be introduced in Congress within 60 days of continuous session after a rule has been submitted to Congress or published in the Federal Register, whichever is later.
Resolution of disapproval must move through both houses and the President must sign to be repealed
Typically, only works if the majority is the same political party.
It should ne noted, Congress has the inherent power to repeal federal regulations at any time and the CRA exists only to facilitate and expedite the process of congressional

Agency Accountability and the Courts

When a court sets aside an agency decision and remands, the agency has the opportunity to reconsider its decision in light of the court’s ruling.
Even when a court upholds an agency decision, the agency considers the court’s decision as precedent that may be relevant to other agency actions.

In considering the precedent, the agency is not merely a passive recipient of judicial dictates. The agency must decide whether to follow the court’s precedent.

Acquiescence: the reluctant acceptance of something without protest

Agency Accountability and the President

The President has broad authority to ensure accountability through his/her power of removal. Heads of agencies are susceptible to removal, by the President, at will.
The President cannot remove officials whose agency functions are quasi-legislative and quasi-judicial in nature, and not merely extensions of the Executive Branch of government. Humphrey’s Executor v. U.S

However, the President can unilaterally remove an administrator whose function is purely executive in nature. Myers v. U.S

Thus, the President’s removal power depends upon the character of the office involved.

Independent, means “independent of the President” in regards to independent agencies
The Constitution does NOT require that an independent counsel be terminable at will by the President.

A law vesting the judiciary with the power to appoint an inferior executive officer (an independent counsel) and prohibiting removal without cause does not violate separation of powers principles. Morrison v. Olson
The Appointments Clause requires principal officers be appointed by the President and approved by the Senate, but allows inferior officers to be appointed by the President, department heads, or the judiciary.

Approaches to separation of powers:

Formalist view: each branch of our government has been assigned different powers, and it violates the constitutional road map if one branch undertakes tasks assigned to any other

Separation of powers means that the executive branch is exclusively responsible for executive activity, the legislative power is limited to those powers specifically enumerated in the Constitution, and the judiciary retains the judicial power.

Functionalist view: argues that Congress may, by statute, adjust or alter the tripartite division of federal power so long as it does not undermine a core function or responsibility of one of the branches

The President may not be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, because such multi-level protection from removal prevents the President from fulfilling his Article II duty to ensure that the laws are faithfully executed. Free Enterprise Fund v. PCAOB
Appointments Clause, Article II, Section 2, clause 2 (HANDOUT)

Permissible Method of Appointment


Must be appointed by President with consent of the Senate

Cabinet officials; agency heads


Statute may vest appointment in President, heads of departments, or courts of law. Senate consent NOT needed. Subject to control by superior officers.

Courts-martial judges who can be removed without cause; special prosecutors


May be appointed in any manner Congress prescribes.

ALJs who cannot make final decisions; computer technicians for government agencies who have no power to engage in law enforcement, rulemaking, or adjudication.


Key Exam Issues

The most important issue for purposes of exam questions is whether the legislature invalidly delegated legislative or adjudicative power in violation of the separation of powers doctrine.
If an agency rule is challenged, consider whether the legislature invalidly delegated legislative power. While federal courts virtually never overturn rules on this theory, the issue must still be discussed. Factors to consider in discussing delegation issues are:

Does the statute contain meaningful standards to constrain agency discretion? If so, this points toward a valid delegation.
Are there safeguards on agency action, such as rights for the public to participate and judicial review? This too improves the chances the delegation will be upheld.
Does the statute delegate to private parties the power to regulate other private parties? This makes the delegation m

thority to an administrative agency is constitutionally valid if the enabling statute:

Contains a clear expression of legislative policy;
Prescribes sufficient standards to guide the agency in the execution of that policy; and
Accompanied by adequate procedural safeguards to protect against abuse of discretion by the agency.

Judicial Power

The United States Constitution and Judicial Power

Article III, §1 provides that “[t]he judicial power of the U.S., shall be vested” in courts whose judges enjoy tenure “during good behavior” and compensation that “shall not be diminished during their continuance in office.”
“[N]either the Court nor Congress has read the Constitution as requiring every federal question arising under the federal law…to be tried in an Article III court before a judge enjoying life tenure and protection against salary reduction.”

Instead the Court has long recognized that Congress is not barred from acting pursuant to its powers under Article I to vest decision-making authority in tribunals that lack the attributes of Article III courts

Public rights v. Private rights

Public rights: matters arising between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments
Private rights: the liability of one individual to another under the law defined

Congress CAN assign to non-Article III courts the power to adjudicate claims of “public rights.” Moreover, Congress cannot dispense with a jury trial in cases of private rights that are actions at law or the sort that generally would require jury trials.
The adjudication of claims involving “private rights” generally CANNOT be assigned to a non-Article III court.

However, the Court has made exceptions to that principle:

Congress can create a new statutory right between private individuals and assign the adjudication to agencies (with sufficient judicial review). Crowell v. Benson[involving workers’ compensation claims] Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, may create a seemingly “private” right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by Article III judiciary. Thomas v. Union Carbide Agricultural Products Co.

State Constitutions and Judicial Power

An administrative agency may constitutionally hold hearings, determine facts, apply the law to those facts, and order relief—including certain types of monetary relief—so long as:

Such activities are authorized by statute or legislation and are reasonably necessary to effectuate the administrative agency’s primary, legitimate regulatory purposes; and
The “essential” judicial power remains ultimately in the courts, through review of agency determinations. McHugh v. Santa Monica Rent Control Board

An agency’s authority to impose penalties for the violation of a regulation or statute generally depends on whether the penalty is a criminal sanction or a civil penalty.

Imprisonment for violating a regulation can be imposed ONLY by the courts, and not by an agency. Wong Wing v. U.S.
Many state and federal statutes allow agencies to impose civil penalties for violations of statutes or regulations. Although agencies can be empowered to award both damages and civil penalties, they cannot be empowered to award punitive damages against one private litigant in favor of another.

Normally, the imposition of civil penalties plus criminal penalties is not a violation of double jeopardy. Hudson v. U.S.