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Administrative Law
Rutgers University, Newark School of Law
Ho, Christina S.

FALL 2015

I:  Agencies and the Structural Constitution
A.    What is Administrative Law?
(Administrative law is the branch of law that regulates the exercise of authority by executive officials including officials of independent agencies. Admin law comprises the body of general rules and principles governing administrative agencies-governing both how they do their own work, and how the results of how that work will be viewed, or reviewed, by the President, Congress, and the Courts. )
-The Constitution says very little about the details of the structure of the federal g
gov’t, so each agency is basically organized by the “organic statute”
-Administrative rulemaking begins w/ a decision on the part of an agency to do
something to carry out one of its statutory responsibilities. The archetypal
procedure is to conduct “notice and comment” rulemaking; staff then review that
rulemaking record before making any rule final. Assuming that the proper
procedures have been followed, and that the rule is substantively within the
agency’s statutory authority, final administrative rules have full legislative force,
binding cours, agencies and citizens alike to their terms.
-Administrative agencies decide cases informally (application of statutes or rules
to individual circumstances) (i.e. passing through customs w/o paying duty)
-sometimes formal (some agency cases are heard before admin law judges in
relatively formal proceedings that lead to final determinations of important
matters and form precedents for future agency action)
-intermediate level (sub- informal?)
-sometimes the head of an agency just makes the decision
-Almost every organic statute that delegates authority provides for the major final
decisions of the agency- the rules it makes and cases it decides- to be reviewed by
a federal court. (occasionally the review is de novo; but usually the court will
defer to the agency’s initial judgment)
–deference to the agency is often grounded on the belief that on many
matters the agency may have made a better decision than the judges
would if they substituted their own judgment. This might be b/c the
agency understands the factual matrix better b/c of its daily involvement
with the problem at hand; or b/c the agency gets more political input
on a matter that turns on a value- laden choice among possible policies;
or b/c the agency has a set of experts who understand the science or
economics of the problem better than generalist judges; or perhaps some
other reason.
—what the grounds of deference are, and how far they go, are a
matter of considerable debate among scholars and among the
judges themselves (i.e. Chevron- defer if statute is ambiguous)
1.      Londoner
2.      Bimetallic                               
B.  The Structural Constitution: Sources and Limits of Administrative
Power/Grounds to Challenge agency
1.      U.S. Constitution Articles I, II and III and assorted provisions
(due process, Art. 1, sec. 1)
2.      APA (procedural, substantive)
3.      Organic Statute (the statute itself may have extra requirements)
4.      Federal Common Law
5.      General Federal Statutes
6.      Agency rules (rulemaking)
C. The Study of Administrative Law
1.      Identify the Source of agency power: (usually the enabling act) (understand the terms of the agency’s power including any apparent or implicit limits on that power. Be aware of the substantive terms of the agency’s use of its delegated power- under what circumstances is the agency authorized or req’d to act?
2.      Constitutional limits on agency power
(be aware of potential constitutional limitations on agency power. The
Constitution may limit the agency’s power, either, through specific
provisions or through doctrines derived from the principle of separation
of powers)
3.     The procedural requirements on the agency
(This is the heart of administrative law. Procedural requirements arise
from the Constitution, the APA, administrative common law, the agency’s
particular statute, other statutes that place obligations on administrative
agencies, and the agency’s own procedural rules) 
4.     When is judicial review available?
(The availability of judicial review is determined by application of the
APA and the agency’s particular statute, and it is important to be aware of
when review is available and what actions are reviewable. Constitutional doctrines such as standing and ripeness, as well as administrative common law, can also influence the availability of judicial review)
5.     What is the scope of judicial review?
(The APA and the agency’s particular statute determine the scope of
judicial review- the standard of review the court applies. The scope of
judicial review determines how deferential the reviewing court will be to
the agency’s decision)
6.     What enforcement mechanisms are available for the agency and for
private parties?
(Agency enforcement power may be limited by a particular statute, the
APA, and the Constitution. Private parties may attempt to force agencies
to bring enforcement actions or they may attempt to enforce regulatory
norms themselves, without agency involvement)
(a).       When language is between vague and specific what do
agencies usually do?
(1)   advisory committees (i.e. CASAC)
(2)   procedure- statute says what to do
(3)   Important how extensive rule is because it affects everyone
(4)   cost- Benefit analysis (do more good than harm?)
(5)   you have to do everything to protect public health (i.e. significance of Clean Air Act)
D. The Functions of Administrative Agencies
1.      Distribution of Benefits (agencies often adjudicate disputes that arise in these areas)
2.      Granting of licenses and permits (agencies rule on requests for licenses and permits in a wide variety of areas and also enforce

ys to draw the line to distinguish b/t agencies inherently rule-  like and those inherently adjudicating disputes (difficult) but can depend on numerosity and what are the procedural constraints on the agency which will depend on what kind of actions the agency takes
— ex about going to the bathroom and employer
why can’t it be solved through common law?
—numerosity, generality
—its more efficient to have the standard first rather than
make law every time after a dispute
— scale: transactional costs, bargaining power
—baseline standards, social expectations

Tradition/ Managerial Discretion
Trial by Ordeal/Democracy
Political Philosophy

***if all formalities are in place then the law is said to be rational whereas, something that is substantive rational like a political philosophy taking into consideration social principles and whether they are regulatory
***trial by ordeal (like Salem witch trials), in Democracy, whatever gets the most votes is more correct and it doesn’t have to be rational as long as the process is formal
***substantive irrational: you judge the standard based on the outcome. Like if we gave the field sanitation problem to a sanitation czar and whatever they come up with is what we go with

d. Nondelegation: Congress Ceding to Executive?
-The nondelegation doctrine prohibits excessive delegation of
discretionary powers by the Congress to federal agencies and the
–          Const. basis= Art. I: “All legislative powers herein granted shall be vested in a Congress of the U.S.”
–          Implicit in Art. I’s vesting clause is the separation of powers notion that no other federal entity may exercise legislative power.
E. The intelligible principle test
–          J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928): – Investigative powers. SCOTUS upholds the delegation of investigation to agencies because if Congress assigns a duty to the President, as long as there is an intelligible principle underlying the assignment, then it’s not legislation and thus doesn’t violate the Constitution.  The Court attempted to create a general standard for distinguishing lawful and unlawful delegations.  In this case, the Court stated that a delegation is permissible when Congress “lays down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform.”
–          The intelligible principle standard appears to substantially loosen the constraints placed on agencies by the nondelegation doctrine.