Mathews, Administrative Law, Spring 2015
o Is it something described under the APA (5 USC S 551):
§ (A) Congress; (B) courts of the US; (C) govts of the territories or possessions of the US; (D) govt of DC; (E) agencies composed of rep of the parties or of rep.s of organizations of the parties to the disputes determined by them; (F) courts martial and military commissions; (G) military authority exercised in the field in time of war or in occupied territory?
· YesàNot an agency
o Does it lack substantial independent authority (FOIA test, broader def. of agency than APA)?
§ Does it just advise Pres?
· YesàNot agency
§ All of entity’s services are subject to Pres’ oversight?
· YesàNot agency
§ Make decision indep. Of Pres?
· Yesà agency
§ Yesànot agency (sub. Indep. Auth. is required under the freedom of info act; Citizens for Responsibility/DC Cir/09 – Office of admin (which just provides Pres w operational and admin support) held not an agency under FOIA so couldn’t obtain info about missing emails)
o YesàWhat type of agency?
§ Include and/or are sited in one of the Cabinet-level dept.s?
· Yesà Traditional or exec branch agencies (Indiv. Dept heads are appointed by Pres w/ advice and consent of the Senate; also agencies w/in these agencies)
§ Exist and function outside the control of the traditional exec branch dept.s?
· Yesàindep agency (Tend to be headed by multimember commissions, boards or councils; Still require appointment by Pres and advice and consent of Senate)
§ wide variety of institutional arrangements that do not fit either of the previous two categories above?
· Yesàfed govt agency
· Does APA apply?
o Is there a provision in the APA that sets out procedures that agency must follow?
§ Yesàis there an agency specific legis?
· YesàAPA is overridden (it is only a default statute)
o What does specific legis. Say?
§ Power (can agency only issue reports and rec.s (Chemical Safety Bd), can it inspect, can sanction violators)?
§ Structure (how many indiv.s head agency (Chemical Safety Bd is weak and has 5 indiv.s heading)
o Of legis power (policymaking authority)?
§ By Con to agency (under Art I Sec I which vests Con w all legis powers)?
· Intelligible principle (some limit on power to accomplish goal)?
o No criterion, no policy, no findings to govern actions?
§ àUncon (I guess under nondelegation doc. Even though it hasn’t been used since Panama Refining/1935 – gave Pres power to prosecute hot oil moving interstate when “excessive” BUT doesn’t say when to do so; ALA Schechter Poultry/1935 – uncon delegation of power to industrial groups to “make fair standards” to promote “fair competition” bc too vague (not enough limit), also even worse bc delegation to private actors (not pres)
o Standard that says what agency’s goal is?
§ YesàCon (Whitman/2001 – told EPA to set standards for air to levels that are requisite to protect public health, shows SC being functionalistic rather than formalistic, don’t need a determinative standard (cong could just pass rule), Scalia says- giving away a small power, they can give a broader principle, vice versa when it is a large power)
§ Subdelegation by agency of decision-making authority?
· To subordinates?
o Was subdelegation contrary to congressional intent?
· To outside entity (either private or sovereign) not accountable to agency?
o Did Congress expressly give agency power to do this?
§ NoàUncon (US Telecom Association – FCC allows state telecom commissions to change their rule about which features telecom providers must share w new providers, held uncon)
§ By Congress to private entity (ct.s are usually permissive)?
· Private entity just has power to advise, not make rules?
· Private entity has power to make rules?
o àUncon (violation of nondelegation doc; association of american railroads/2013 – Amtrak was given reg power but was deemed a private entity (despite quasi-public feautures) so uncon
o Of adjudicatory power (Art III Sec 1 vests judicial power in SC and inferior ct.s but to execute laws you need to interp them sometimes)?
§ Old law (Crowell/1932)
· Factual determinations by agency tribunal?
o Is review by art III ct required (Crowell analysis)?
§ Private right?
· Question of fact?
§ àAgency can decide (Crowell/1932 – fact finding by agency was ok)
o Jurisdictional (determination of a fact that is essential to agency tribunal’s jur.)?
§ YesàMust have indep judicial review by Art III ct. (under jur. fact doctrine)
o Constitutional (factual finding dictates whether agency has exceeded its con. limit)?
§ Yesà Must have indep judicial review by Art III ct. (under constitutional fact doctrine)
· Question of law?
o à Must have indep judicial review by Art III ct.
· Under act can agency make final determinations of fact?
o Is there a determination of a fact regarding the constitutionality of agency’s power?
§ YesàMust have indep judicial review by Art III ct. (under constitutional fact doctrine)
o YesàCon (
o Noà con (but gives little reason for agency)
· Under Act can agency make final determinations of law?
o Can an Art III ct. decide questions of law if there is an appeal from
· Tax ct?
o àct of law (Freytag/1991 – ct – ct. of law win the meaning of Art II bc Cong wants to call it a ct. and they enacted legis to make it an art. I ct. (tax ct. created by cong) rather than an agency, it uses the judicial power of the US, CJ was therefore not a head of a dept, AND appts by CJ of Tax Ct were con bc special trial judges were inferior officers)
o Who appoints?
§ Principal officers?
· àPresident, with Advice & Consent of Senate (Art II, Sec 2)
§ Inferior officers?
· àCongress’s can choose either:
o (1) President, with Advice & Consent of Senate; OR
o (2) President, head of dept, OR courts of law w advice and consent of S (Art II, Sec 2)
o Recess appointment (Art II Sec 2)?
§ Appt when vacancy, by Pres, of a senior federal official while the U.S. Senate is in recess (includes intersession AND Noel Canning/2014 – intrasession breaks (presumptively of 10 days or more, pro forma sessions count as sessions; here Pres’s appts were uncon)?
o YesàRecess appointment (allows Pres to circumvent the Senate’s power to give advice and consent)
§ Stay in effect?
· approved by the Senate by the end of the next session of Congress?
· Removal of officers?
o Old Law
§ Pres wants to fire?
· Did Congress try to stop Pres from doing so?
o exec officer?
§ YesàCan’t, Pres has that power under the Con (Myers/1926 – also Senate cant veto Pres’s removal of exec officer)
o Quasi-judicial, quasi-legis (aka quasi agency)?
§ àCan (Humphrey’s Executor/1935 – Pres wants to dismiss member of FTC but Act says he cant for a member unless “inefficiency, neglect of duty, or malfeasance in office”, ct – act valid, SoP)
o More New Law?
§ Pres Wants to fire quasi-judicial official?
· Did he have good cause?
o YesàCant restrict
o NoàCan restrict (Wiener/1958 – Ct – cong implied that they intended to limit the Pres’s removal power (through congressional silience), War Claims Commission looks like a judicial body so surely Congress didn’t intend the Pres to remove these officals, here Cong doesn’t even have to explicitly say they want to restrict)
o New law?