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

Administrative Law Ho Fall 2016

Introduction
Administrative law is the body of law that defines and guides the behavior of agencies.
Introduce agency and place them within our system of governance in terms of their source of authority, types of activities they undertake, limits on their actions, and possibilities they permit.
Administrative law is fairly young that is more recent than 18century common law cases, which means it is still being formed and changing to the times. It is messy because doctrines will likely conflict meaning there is need for reconciliation between the different sources of law. Open textured joints make for opportunities to be a lawyer and argument and defend
Hierarchy of law that legitimates government action in post-industrial modernity:
The United States Constitution 

Administrative Procedure Act (APA) 

Organic Statutes Enacted by the Legislative Branch 

An “organic” statute is those statutes which form under a higher statute such as the APASocial Security Act
FederalCommonLawDecidedbytheJudicialBranch 

Executive Orders issued by the Executive Branch 

Regulations(knownaslawproducedbyAgencies) 

Adjudicatory Orders (Issued by administrative judiciaries) 

Part 1: AGENCIES AND THE STRUCTURAL CONSTITUTION
What is administrative law?
General rules and principles governing administrative agencies—how they do their own work and how the result of that work will be viewed, or reviewed, by the Prez, Congress and courts.
What are administrative agencies?
All the authorities and operating units of the government except for the constitutionally established entities: Prez, Congress, courts. Referred to as either “agencies”, “departments”, “boards”, or “commissions” 

Because administrative agencies are not established by the Constitution, they have to be created by statute 

Procedural Frameworks for Administrative Action
Fundamental Procedural Categories Of Administrative Action: Rulemaking And Adjudication

The Constitution
Londoner v. Denver (1908) (Moody, J) Action to relieve lands from assessment of a tax
: Due Process rights under the Constitution attach to administrative agency hearings that involve adjudication, but not those that involve legislation.
Bi-Metallic Investment Co. v. State Bd. Of Equalization (1915) (Homles, J) Order of the boards to increase the valuation of all table property in Denver by 40 percent
: members of the public at large or general taxpayer population do not all have standing to challenge government action
When a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution hoes not require all public acts to be done in town meeting or an assembly by the whole.
What differentiates these two cases?

So what is the nature of the Londoner/Bi- Metallic Distinction? “Generally speaking, it is based on the people affected by the order”
HOW A DECISION MAY BE LEGITIMATED?


SUBSTANTIVE (TRUTH)

FORMAL (MAGIC)
IRRATIONAL
“Rule by Man” “Czar”
“Rule by Vote” Democracy
RATIONAL
“Rule by Brain” Experts
“Rule by Law” Judges/Politicians

THE STRUCTURAL CONSTITUTION: SOURCES AND LIMITS OF ADMINISTRATIVE POWER
U.S. Constiution: Article 1 Legislature
All legislative powers herein granted shall be vested in 
a Congress of the United States, which shall consist of 
a Senate and House of Representatives. Art. I, § 1 

The Congress shall have power to make all laws which 
shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof. Art. I, § 8, cl. 18 

Nondelegation: Congress Ceding to Executive?
The doctrine of nondelegation describes the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is explicit or implicit in all written constitutions that impose a strict structural separation of powers.
The principle in administrative law that congress cannot delegate its legislative powers to agencies.  Rather, when it instructs agencies to regulate, it must give them an “intelligible principle” on which to base their regulations. 
American Trucking Assns., Inc. v. Environmental Protection A

Occupational Safety and Health Act of 1970
Section 3(8), standards must be “Reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 

Section 6(b)(5) sets the principle of creating the safety regulations, directing the secretary to “set the standard which post adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity.” 

Powell, J: Cost/Benefit analysis prior to setting a standard 

Stevens, J: (Threshold finding of significant risks) secretary must first find that the workplace in question are not safe. Safe does not mean “risk free” though—unsafe in the sense that significant risks are present and can be eliminated or lessened by a change in practices. 

Rehnquist, J: nondelegation doctrine serves three functions: (1) ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our government most responsive to the popular will. (2) the doctrine guarantees that, to the extent congress finds it necessary to delegate authority, it provides the recipient of that authority with an “intelligible principle” to guide the exercise of the delegated discretion. (3) and derivative of the second, the doctrine ensures that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards. (intelligible principle must provide judges with a measuring stick for judicial review.)
if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is base don a permissible construction of the statute.