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Administrative Law
Penn State School of Law
Colburn, Jamison E.



Fall 2011

This outline covers the basic introduction to Administrative Law by focusing on an agency’s connection to each branch of government as described and defined in the U.S. Constitution.

Admin Law Outline

I. What is Administrative Power?

a. What is an agency?

i. Definition: any public body that exercises gov authority other than Cong, Exec., or Judicial

ii. Reasons for agencies

1. Neither Cong nor Courts have capacity to carry out all laws

2. Allows for some separation of these processes from politics

a. All secretaries removeable by Pres at will

b. Cong ca delegate, so tough decisions can be made by someone else

c. Some interest in party unity, so can’t really place all blame on admin agency

d. Allows expertise to make some decisions instead of what is politically popular, but can be hijacked by politics

3. Bureaucracy constantly stays on issue after it leaves political realm,

iii. Down side

1. Elections bring accountability, so have less

2. Past politicians will constantly be influencing the future

iv. NBC v. U.S.

1. Commun Act of 1943 empowered FCC to regulation radio waves through licensing

2. First time court defers to the agency’s interpretation of the statute, allowing Cong to pass vague law and then letting agency determine what it means as long as it is reasonable

v. Morton v. Ruiz

1. Agencies have to create rules that affect individual rights and obligations, so courts have responsibility to ensure these rules remain constant with legislation and conform to law

b. Modes of Agency Action

i. Five Modes of Agency Action

1. Binding regs or legislative rules

2. Policy-making adjudications that interpret and apply statutes and regs with precedential effect

3. Mass adjudication of claims

4. Informal actions that affect policy

5. Enforcing statutes and regulations

ii. Environmental Protection Agency (EPA)

1. Created by Executive Order to protect the environment

2. Enforces the Clean Air Act among others

iii. National Labor Relations Board (NLRB)

1. Implements federal labor laws concerning collective bargaining

2. Created by the National Labor Relations Act

3. Purpose

a. Prevent labor unrest by recognizing right to organize

b. Combat wage depression caused by unequal bargaining power

4. Independent agency

5. Must petition courts for enforcement of orders

iv. Social Security Administration

1. Administers Social Security

2. Within Health and Human Services

3. 5 Step Sequence for claiming disability

a. If currently engaged in gainful activity, not disabled

b. If mental/physical impairment severe enough to interfere with work, disabled

c. If “disabled” according to lists

d. Could still return to past work, if yes, then not disabled

e. Other work could perform, if yes not disabled

v. Internal Revenue Service (IRS)

1. Executes revenue code

2. Within Dept of Treasury

vi. Federal Communications Commission (FCC)

1. Created by Communications Act of 1934

2. Independent agency

vii. Administrative Procedures Act

1. Key Principles

a. Applies generally unless statute creating agency specifically says so

2. Rulemaking

a. Section 553

b. 3 categories of rules

i. Rules made pursuant to requirements of 553 of notice and comment

ii. Rules made using trial-like hearing of 556 and 557

iii. Rules exempt from 553

c. Formal Rulemaking: on the record hearing

3. Adjudication

a. Any agency action that isn’t rulemaking

b. 554, 556, 557

c. Wong, Yang Sugn v. McGrath: 554 applies to deportation issues, must have a trial

d. Hearing Requirements

i. Personal notice of hearing

ii. Legal authorit

statute if done so expressly

5. Class

a. 553(b) exception to notice and comment apply is statute expressly says it does

b. 554 adjudication applies if the statute says need a hearing on the record

c. Places of Agencies in Separation of Powers

i. Import to admin law in two ways

1. Constrains structure and operation of agencies

2. Proper relationship between agencies and other branches aspect of every admin law decision

ii. Agencies all three powers of gov and court has allowed it

iii. Two approaches to applying separation of power

1. Formalistic: each branch mutually exclusive can only exercise delegated power

2. Funcationalist: accepts some overlap of powers, look to see if “essential powers” usurped

iv. Functionalist says agencies ok cause each branch has some control over them

1. Cong: statutes that create them

2. Pres: appoint and removal power

3. Judicial: review power

v. Cong has controlled in two ways

1. Create independent agencies insulated from pres control

2. Leg veto (invalidated in Chadha), replaced with report and wait

vi. FCC v. Fox (What did this establish?)

1. Question: whether decision to impose fines for “fleeting expletives,” which reversed longstanding policy, was arbitrary and capricious

2. Holding:

3. Reasoning

a. Rulemaking not subject to heightened scrutiny, only needs to pass arbitrary and capricious and did so here

b. Whether or not long-standing doesn’t matter

c. Changed after significant pressure from Cong