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Administrative Law
Penn State School of Law
MacRae, Leslie M.

Administrative Law Outline
Fall 2008
Agencies: Their Origins, Forms, and Functions
·         What is an agency?
o       Executive agency made to carry out the laws of Congress
o       Legislative agencies help Congress pass and make laws
o       Judicial agencies help judicial branch decide and interpret laws, sometimes make them too
·         An agency run by a commission is usually independent; the commission can’t be removed by the president
o       Agencies run by one person are usually executive agencies – removable by the president
o       Independent and executive agencies have the same powers though
·         Agencies…
o       Pass regulations and legislate – power to create laws in confines of Congressional grant
o       Adjudicate a dispute; judicial functions
o       Investigate, research, figure out to what degree the agency should exercise the other powers it has
o       Enforce the regulations and laws they have made
·         Administrative Procedures Act – an Agency is an authority of the government even if it’s within another authority
Rulemaking and Adjudication
·         Rulemaking à General policies that affect unspecified groups of people; applied proactively for the future
o       Affects the rights of broad classes of people
·         Adjudications à Dealing with a narrow number of people for activities they have done in the past; takes place immediately
o       Specific groups of people invovled
o       Go to the statute first to see if there are any special procedures that you have to follow, then go to § 554 to see procedure
·         Administrative procedures act as blueprint for rulemaking and adjudication
·         Agencies and parties have lots of times for appeal
Bi-Metallic Investment Co. v. State Board of Equalization of Colorado à When a rule of conduct applies to a group of people, it’s impractical that everyone should speak; the government has to work somehow
·         Π said they weren’t given an opportunity to be heard and so their property would be taken without proper due process
·         Question: If all individuals have a constitutional right to be heard before a matter can be decided in which all are equally concerned – NO
Yesler Terrace Community v. Cisneros à HUD made rules, not adjudicated, and so tenants had their rights to be heard taken away, which they shouldn’t have
·         When HUD made new rules, it was interpreted as rulemaking, which requires some kind of notice and comment, which the tenants didn’t have in this case
Londoner v. City and County of Denver à Constitutional issues arise when people are not allowed due process; homeowners needed their day in court regarding new assessments
·         Different from Bi-Metallic because the process is different
Theories of Agency Behavior
·         Capture Doctrine à Where the government or private interests “capture” agencies and make them into puppets of the companies or the government
o       After some time, agencies become close with the industry they regulate – where capture occurs
·         2 philosophies:
o       Agency does everything it can so that every procedure possible should be afforded so the public and those arguing for/against has the opportunity for hearings
o       Examine substance of what the agency is doing and the decision its making, info it’s basing its decision on; if we don’t they they’re correct, then we should say so
·         Agencies exist because:
o       Legislature created them and gave them the power to check Congress
o       Reduce some of the workload for Congress
o       Need to provide expertise to industries
o       Even if you had super-educated legislature, couldn’t manage and figure out some things
Agencies and Article I
Mistretta v. US à Congress used intelligible principle in creating Sentencing Commission, and so agency was properly created
·         Mistretta – guidelines used by the Sentencing Commission unconstitutional because they were something that Congress should have made up itself
·         Congress directed goals, specific tools to use, consider factors, guidelines, prohibitions
·         Scalia Dissent – agencies are just being jv congress, unique case where Congress has provided the ability to legislate to another group, which isn’t constitutionally cool L

Statutory Constraint on Agency Procedure
The Administrative Procedures Act
·         Agency Action constrained by a wide range of legal forces that regulate substance and procedure
·         Origins: Came after WWI and crazy New Deal agency expansion, fierce compromise
o       Panama Refining and ALA Schecter Poultry gave Congress idea that agencies too powerful
·         Regulations adopted are either gap-fillers or SCourt’s modern articulation of doctrine

informal rulemaking):
o       Notice of the procedure – can just describe
o       Comment by interested parties
o       Basis and Purpose Statements given by agencies
o       Publish rule
·         2 Major developments in 1960’s and 70’s:
o       Agency Capture Theory à Agencies really just instruments of big business
o       Emergence on DC circuit of activist liberal judge majority
§         Judges would 2nd-guess substantive decisions of agencies, concentrate agency’s decisionmaking procedures
§         Judges forced agencies to look at the 3 required segments of § 553 and made sure they followed them and did more – no minimalist statements
§         Required lots of procedure; people could appeal at every stage of the process
§         Invented Hybrid rulemaking
·         2 Dominant principles emerged:
o       Agency who wants informal rulemaking has obligation to make views known to the public concretely
o       “Concise and general statement” à record must enable court to see what the major issues of policy were by the informal rulemaking and why the agency did what it did
·         Statement of Basis and Purpose
o       Statement included in final rulemaking report, responding to every contention raised by parties
o       Don’t have to address each comment every time
o       Should respond to things that were actually complained about – can’t spring it on people
·         Statutory Hybrid Rulemaking
o       More requirements for Notice and Comment – expansion of the rules
o       Basis and Purpose statements in the Notice section – respond BEFORE actually hearing any comments to explain statutory basis and why adopting rules
o       Result of activist DC circuit
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. à As long as a commission does the statutory minimum, it’s not up to the courts to override that and require more procedure