ADMINISTRATIVE LAW OUTLINE
Amy Moore; Administrative Procedure and Practice by Funk, Shapiro, and Weaver; 3rd Edition
INTRODUCTION
1. What is Administrative law and why should we study it
a. What is an agency?
i. Administrative Procedure Act (APA) – Foundation of Admin Law
ii. Departments are agencies with the highest status
1. Headed by a secretary, appointed by the President with advice/consent of the Senate
a. Most agency heads are appointed in this way as well
iii. Agencies not a part of a department – independent agencies
1. Agencies are within the executive branch
a. The EPA and SSA are two important free-standing executive agencies
iv. Headed not by a single person but by a board or commission
v. Can only be removed from office for cause (instead of on presidential whims)
vi. Serve a term of years
2. Administrative Law measures power against:
a. Constitution
b. Statutes
c. Agency Rules and Regulations
d. Judge Made Law
3. Statutory Guides
a. APA
b. Enabling Act
4. Agencies do 2 things
a. Rulemaking – same as a law from Congress
i. Formally
ii. Informally
b. Adjudication – same as a court would
i. Formally
ii. Informally
5. Rulemaking
a. 2 Types
i. Informal – establishes a three step process
1. Publish a notice
2. Opportunity to participate
3. Agency must incorporate in the rules adopted a concise general statement of their basis and purpose
ii. Formal
1. Required when “rules are required by statute to be made on the record after an opportunity for agency hearing”
2. More like a trial hearing
iii. Hybrid
b. Core-Function Test
i. Agencies can grab power as long as it doesn’t affect the core function of another branch
6. Adjudication
a. 2 Types
i. Informal
1. APA does not set rules for this type of adjudication
ii. Formal
1. Resembles a trial
2. Requires notice
3. Bars ex parte communications
4. Authorizes an ALJ
5. Places burden of proof on agency
6. Allows oral and written evidence
7. Judicial Review
a. 701 – a person is not entitled to review if “statutes preclude review” or if “agency action is committed to agency discretion by law”
b. Standing is required
8. Fund for Animals, Inc. v. Rice
a. Facts – Plaintiff challenges FWS’s decision to issue a landfill permit for a site they claim would threaten an endangered species
b. Holding – D.C. did not act arbitrary and capricious in approving the permit or in relying on the biological opinion issued by FWS
c. Rule – no real rule; just an example of an administrative law case
9. Delegation of Legislative Power – Rulemaking
a. Article I, § 1 – “all legislative Powers . . . shall be vested in a Congress of the United States . . . .”
i. This does not mean Congress cannot give away some of its power to a more expert agency
ii. Congress is to make all laws which shall be “necessary and proper”
b. Non-Delegation Doctrine – limits Congress’ power to delegate rulemaking authority
c. Phase 1:
i. Brig Aurora (S. Ct.)
1. Rule – the non-delegation doctrine tells Congress not to delegate. Yet, the court adopted the “Named Contingency Test” for delegation by Congress
a. Congress is required to name every possible contingency of how power can be delegated
ii. J.W. Hampton, Jr. & Co. v. United States (S. Ct.)
1. Holding/Rule – the court replaced the “named contingency test with the “Intelligible Principle Test” to determine whether the President acted within delegated authority
a. Courts can only delegate decision-making power, not legislative power
d. Phase 2:
i. Panama Refining Co. v. Ryan (S. Ct.)
1. Facts – Congress delegated to prevent oil producers from evading state restrictions limiting the amount of oil sold, without a policy, rule, standard, etc…
2. Holding – court found no intelligible principle in the NIRA
ii. A.L.A. Schechter Poultry Corp. v. United States (S. Ct.)
1. Facts – Congress delegated and provided boundaries but did not limit them or explain what the boundaries involved
2. Holding – The court found no intelligible principle in the NIRA
3. Rule – Congress may not delegate authority to the President to approve codes of fair competition without supplying an intelligible principle that limits Pres authority
iii. Carter v. Carter Coal Company (S. Ct.)
1. Holding – Congress cannot delegate legislative power to private parties
e. Phase 3:
i. Since the 1930s the court has approved all of the legislation it has reviewed for compliance with the non-delegation doctrine – no statutes struck down for excessive delegation since
ii. Whitman v. American Trucking Associations, Inc. (S. Ct.)
1. Rule – Congress must include an intelligible principle to guide the agency in the delegation of power
a. Congress cannot delegate legislative power – can delegate policy choices
b. Strong presumption in favor of IP if there is any kind of guidance
i. Delegations affecting a small area require less guidance
ii. Delegations affecting the nation require a lot more
iii. Mistretta v. United States (S. Ct.)
1. Rule – Congress cannot give judicial power away
2. Trend – Court tend to find an intelligible principle in most delegations
f. State Practice
i. Some state have precisely defined an “intelligible principle”
ii. Lincoln Dairy Co. v. Finigan (Neb.) – the power to define crimes and criminal offenses is in the Legislature and may not be delegated to an administrative agency
iii. Ohio v. Acme Scrap Iron & Metal (Ohio) – Legislature may delegate power to list violations of air pollution regulations as criminal offenses
iv. Stofer v. Motor Vehicle Casualty Co. (Illinois) – court outlines a very specific test for what an intelligible principle is:
1. The persons and activities potentially subject to the regulation,
2. The harm sought to be prevented, and
3. The general means intended to be available to the administrator to prevent the identified harm
v. Warren v. Marion County (Oregon) – court outlines a very specific procedure to determine an intelligible principle. Procedural protections
g. Statutory Interpretation
i. International Union v. OSHA (D.C. Cir.)
1. Facts – plaintiff challenged OSHA’s “Lockout/Tagout” regulation which made it difficult for companies to get any work done. OSHA says they can make rules if they show a significant risk and prevention of that risk is feasible
2. Holding – The statute is constitutional, but ISHA must conform to its reasonable interpretation. OSHA regulations were struck down as being unreasonable in context of the statutory limits
3. Rule – court will narrowly construe a statute to include the interpretation, where at least one interpretation is reasonable and conforms with non-delegation doctrine
4. Agencies
members of the FEC were using executive powers and were appointed Congress, even though they were subject to the executive/President
3. Rule – an “Officer of the United States” is anyone exercising any executive power, including administrative agencies since they act as executive branches
a. Congress has no power to appoint Principal Officers
b. Appointment of Inferior Officers of the U.S.
i. Article II, § 2 – Congress “may by Law vest the appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments”
ii. Morrison v. Olson (S. Ct.)
1. Holding – The ICA was constitutional and Olson was an inferior officer
2. No clear line between principal and inferior – But, Olson was an inferior officer
3. 4 Factors Test for Inferior Officers (more likely than not)
a. Subject to removal by a higher Executive Branch official – Anyone working under the Secretary is inferior
b. Empowered by the Act to perform limited duties
c. Office was limited in jurisdiction
d. Office was limited in tenure
13. Removal
a. Article II – impeachment by the House and trial by the Senate, only undertaken for treason, bribery, or other high crimes and misdemeanors
b. Constitution is silent concerning the President’s authority to remove Officers of the US
i. It is implied the President has a vested executive power and must take care that the Laws be faithfully executed – Article II
c. Limitations on Presidential Removal
i. Myers v. United States (S. Ct.)
1. Facts – President dismissed the postmaster before his term was up. Sued for back pay
2. Holding – President’s dismissal was upheld. Congress cannot have a role here
3. Rule – President can remove at will anyone who is performing executive functions
4. He must be able to faithfully execute his power, carry out his duties, and have power over those in the executive branch – this is done through the power of removal
a. Once in office, Congress’ job/control is over
ii. Humphrey’s Executor v. United States (S. Ct.)
1. Facts – President fired Humphreys (FTCommissioner) in contravention of a statute
2. Holding/Rule – Quasi-legislative/Judicial officials cannot be removed by President
iii. Morrison v. Olson (Part II)
1. Holding/Rule – President has at will removal for purely executive officials, but there can be a “good cause” restriction in place, as long as it does not impede the President from doing his job
2. Question – Does the Act obstruct the President from executing the Law
a. Core Function Test – does it interfere with another branch’s core function
iv. Distinction Myers, Humphrey, and this case
1. Myers and Humphrey – At will firing
2. Morrison – Good Cause Firing, which limits the Presidents power
d. Legislative Removal
i. Bowsher v. Synar (S. Ct.)
1. Holding – Congress can remove Comptroller General who is purely legislative
2. Rule – Congress can only hold removal power over an executive officer by impeachment; otherwise it would violate the separation of powers
