APA = minimal procedural requirements when a federal agency takes action
Anything or anyone who can take final actions that affect rights
Agency or not? Amtrak case: the Supreme Court is going to decide based on actions rather than what Congress says.
Timeline, US History
Founding
Agencies were in the executive
i. Single-headed
ii. Not much rulemaking authority
iii. Small, limited scope
Courts did most of what we consider administrative law today
Parties and the spoils system, no civil service system
Rise of the railroads
US very dependent on the system
The system was fragmented
Granger Movement
Rural/farmer/anti-big business/anti-wall street political movement
Lots of commerce clause cases
Interstate Commerce Commission, 1887
First modern federal agency
Formed mainly to regulate railroads
Independent Commission
Progressive Movement: late 1800s to early 1900s
Get away from spoils system
Get politics out of agencies
Create non-political / non-judicial bodies
Civil Service Reform
FTB, FTC created on the same ICC model, 1910s
Multi-member commissions
New Deal, 1930s continues this movement
SEC, NLRB, FCC
i. Independent
ii. Professional
iii. Broader mandate… act in the public interest
National Recovery Administration “NRA” – now gone
i. Some Con Law poultry cases got rid of this agency
1946 – APA
controversial… these agencies are not in the Constitution
enacted right after the war
i. a compromise between those who wanted agencies and those who did not
1. How will the public participate in rulemaking by agencies?
1960-70s: EPA, OSHA, NHTSA
Congress drops the independent commission form
These agencies are headed by people who are directly under the President
Congress no longer trusted the agencies to act in the public interest
i. Wanted the President and the heads to be accountable for their actions
ii. Wanted to keep agencies from becoming the tools of corporations
iii. Action Forcing – Given specific mandates, less broad than the earlier “public interest” mandates
80s to Present – Cost-Benefit analysis / Deregulation
Conceptual views of agencies:
Madison
separation of power
checks and balances
Eastman
Expertise theory
Experts will forget affiliation and ideology and rule as philosopher kings
Landis
Judges are experts at policing the boundaries, the procedural component of agency actions
Deference in any review of substantive decisions because not experts
Bernstein
Capture Theory
Advocate of political accountability, greater executive power to combat the power of the regulated parties and industries
Noll
Mechanical like bernstein
Wilson
Lets be more empirical
Cautions against rigid rational actor models like Bernstein and Noll
Ideal Types
Legislation —————————————————————————- Adjudication
Speed limit —————————————————————————- prosecution
Generally Applicable —————————————————————- specific people
Prospective —————————————————————————- retrospective
Requires actual application to deter ——————— concrete application of law to facts
Gray-area examples
ICC – Railroads – Ratemaking
Pond/Sawdust – Massachusetts – order given to specific sawmill with no hearing
When does it matter?
Procedural Due Process
If it is legislation, no process is due
Adjudication, yes
Question: Is it a rulemaking or an adjudication?
Londoner, 1908 (Holmes dissents)
Cul-de-sac road improvement
Paid for by special assessment to people who live on cul-de-sac
No hearing given, violates due process
This is an adjudication
Bi-Metallic, 1915 (Holmes writes majority opinion)
40% increase in property valuations
Holmes says that the question is “whether all individuals have a constitutional right to be heard before a matter can be decided in which all are equally concerned.”
no hearing given, no violation of due process
impracticable to have more than a few people have direct voice
Necessity – There must be a limit to individual argument for government to go on
Londoner distinguished b/c it was concrete application of law to specific people not general legislation
This is a Rulemaking
Lincoln v. Vigil, 1993
The definition of “rule” under the APA is barely less than arbitrary
Yessler Terrace, 1994 (9th Cir)
HUD changes policies to allow for easier evictions when criminal activity is involved
Wash. State applies the policy to its rules/laws as applied to tenan
on v. US, 1928
President can alter amount of a duty of imports “to equalize … the costs of production”
Court upholds the delegation
Intelligible principle doctrine:
As long as such direction is given by congress, then the delegation is OK
The New Deal
Panama Refining v. Ryan, 1935
New Deal, Congress and Roosevelt want to control oil prices by regulating interstate commerce, this is to raise the price by controlling supply
Not completely open-ended delegation b/c everyone wanted to confront deflation and depression
Court strikes down delegation saying that there would be no barriers left blocking legislative delegation
Cardozo dissents saying that this delegation is corralled
Schecter Poultry v. US, 1935
Idea was to get industries to overcome competition and find a consensus on a Code for their industry to be regulated by
The President would OK this code
He can also make changes in his discretion
Limitations:
1. the industry group proposing must be truly representative, no unfair barriers to membership
2. not designed to promote monopolies or to oppress small businesses
Other than these two, the President is left to his discretion, that which is necessary “to effectuate the policy”
The goal was to increase wages
Decrease hours of some
Same total needed, gets more people working
Also increase minimum wage so that the new hires are making a living wage
Court strikes down on delegation grounds
Cardozo concurs saying that the code is not canalized within banks that keep it from overflowing
Modern Doctrine
Non-Delegation cases will not be well received:
Mistretta v. US, 1989
US Sentencing Commission has power to promulgate sentencing guidelines for every federal criminal offense
Intelligible Principle?
Majority says there is more than an intelligible principle
Also says: “Congress simply cannot do its job absent an ability to delegate power under broad general directives”
Especially, when dealing with complex, changing, and technical subjects
Question: Has SCOTUS given up on enforcing non-delegation completely?
Scalia dissents, saying no agency should be created to create laws, that is Congress’s job
