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Administrative Law
Rutgers University, Newark School of Law
Volkert, Susan E.

Volkert Administrative Law Outline Fall 2009

Administrative Agencies & Admin Law.. 3
What is Admin Law?. 3
Warren, Admin Law in the Political System… 3
Types of Agencies. 3
Davis & Pierce, Admin Law Treatise. 3
Warren, Admin Law in the Political System… 3
Wilson’s Four Periods of Bureaucratic Growth. 3
Regulatory Program in the U.S. Government3
Heifetz, The Future of Admin Adjudication. 3
Agencies & Independence. 3
Separation of Powers. 4
Independent agencies. 5
Congress encroaching on Executive. 5
Congress encroaching on Judiciary. 5
The Future of Administrative Law.. 5
Freedman, Crisis & Legitimacy: The Admin Process and American Government5
Commoner, Perspective of Ecology, American Law: the 3d Century. 5
Schwartz, Lions Over the Throne: Judicial Revolution in English Admin Law.. 5
Jaffe, The Illusion of the Ideal Admin. 5
Sargentich, Teaching Admin Law in the 21st Century. 5
Merrill, Capture Theory & the Courts. 5
Delegation of Powers. 5
Legislative Power6
In General6
Separation and Delegation. 6
Panama & Schechter cases. 6
Post-1935 Federal cases. 6
Federal Delegation: A Caveat6
Industrial Rights and Liberties. 7
Delegation and Standards – coda. 7
Judicial Power7
The U.S. Constitution & Judicial Power7
Debate on the FTC Act9
Remedies & Penalties. 9
Rules and Rulemaking. 9
Terminology and Rulemaking. 9
In General9
Warren, Admin Law in the Political System… 10
Rules. 10
Substantive (Legislative) Rules. 10
Other Types of Rules. 11
Legal Effect11
Substantive (Legislative) Rules. 12
Other Types of Rules. 12
Cost-Benefit Analysis. 13
In General13
Publication. 13
Rulemaking Procedure. 14
Federal APA.. 14
Rules vs. Orders. 16
Precedence. 17
Legislative Review.. 17
Negotiated Rulemaking. 17
Coglianese, Assessing Consensus: The Promise & Performance of Negotiated Rulemaking 17
Rulemaking and the Internet17
Right to be Heard. 17
Admin Due Process Overview.. 18
Legislative v. Judicial Function. 18
Privileges. 19
Entitlements. 19
In General19
Brennan, Reason, Passion and the “Progress of the Law”. 22
Friendly, Some Kind of Hearing. 22
Schwartz, A Decade of Administrative Law.. 22
Friendly, Administrative Law in Britain & U.S.22
Exceptions to the Hearing Process. 22
Narrowing the Scope of the Liberty & Property Interests. 22
Postponed Hearings. 23
Emergency Cases. 23
Postponement in Emergency Situations. 23
Flexible Due Process. 24
Flexible Due Process in a school context24
Evidentiary Hearings and Decisions. 24
Parties in Interest and Intervention. 24
Notice and Pleadings. 25
From Examiners to ALJ. 26
Federal APA.. 27
Notice of Change of Title. 27
Admin Conference of the U.S., Federal ALJ Hearings. 27
Bias. 27
Combination of Functions. 28
Admin Conference of the U.S., Proposed recommendation: Separation of Function and Staff Communications with Decisionmakers in Agency proceedings. 29
Evidence. 29
APA, 5 U.S.C. § 556(d)29
Hearsay. 29
Legal Residuum Rule. 29
Exclusiveness of Record. 29
Burden of Proof. 30
Exclusiveness of Record. 30
Official Notice. 30
Judicial Review.. 32
Statutory Silence. 32
In General32
Statutory Preclusion. 32
APA and Review of Discretion. 33
Standing. 33
Primary Jurisdiction. 34
Exhaustion of Administrative Remedies. 35
In General35
Ripeness for Review.. 37
Scope of Review.. 37
Substantial Evidence Rule. 37
Chevron Doctrine. 38

Administrative Law Outline

Handout: B.SCHWARTZ, ADMINISTRATIVE LAW 466-77 (4th Ed. 1994);
J. Dubin, Torquemada Meets Kafka, 97 COLUM.L.REV. 1289,1300-06 (1997)
Handout: GELLHORN & BYSE’S ADMINISTRATIVE LAW 963-71 (9th Ed. 1995)

Assignment: 1-6(n.3); 14(C)-22; 23(D)-28; 49-60 (briefs )
Assignment: 28-48 (briefs )
Administrative Agencies & Admin Law

What is Admin Law?
In the real world, procedure is substance. Is the agency following its procedures? Are courts available to prevent the agency from doing that.
Regulatory agencies: Regulate social conduct across the board.
Benefactory agencies: SSA, Veterans Administration, etc.
Organizational distinction: 1) Executive – part of the president’s cabinet; 2) Independent agencies – heads removable only by cause. Appointed for years beyond the pres’ terms. Not beholden to the president. 7 yr terms.

Gilmore v. Lujan, 947 F.2d 1409 (9th Cir. 1991) [p.1] · Signature on BLM lease invalid because it was faxed, not an original signature.

Warren, Admin Law in the Political System

Types of Agencies

Davis & Pierce, Admin Law Treatise
Warren, Admin Law in the Political System
Wilson’s Four Periods of Bureaucratic Growth
Regulatory Program in the U.S. Government
Heifetz, The Future of Admin Adjudication

Agencies & Independence
(see discussion for 8-30-2005)

Bowsher v. Synar, 478 U.S. 714 (1986) [p.23] · Congress retained removal authority over the Comptroller General è he may not be entrusted with executive powers.
· Congress cannot reserve for itself removal power of an officer charged with the execution of the laws except by impeachment. Otherwise, would reserve in Congress control over the execution of the laws.
Þ Officer controlled by Congress executing laws ≈ congressional veto. Threat of removal.
· Critical factor here: Removability. Pres nominates the Comptroller General from a list of 3 persons recommended by the Speaker of the House, the President the Senate, and confirmed by the Senate, he is removable only at the initiative of Congress. (26b)
Þ Supreme Court: Comptroller General’s duties weren’t just ministerial & mechanical. Plainly entails execution of the law in constitutional terms.
Ø (Interpreting a law to implement the legislative mandate) ≡ “execution” of the law.
Ø Exercises judgment concerning application of the Act to facts.
Ø Interprets the Act to determine budgetary calculations.
Þ Comptroller General’s executive nature revealed by giving him the ultimate authority to determine the budget cuts to be made. President must then carry out, without variation, the Comptroller General’s budget reductions directives. (27b)
Þ Chadha: Once Congress enacts legislation, its participation ends. Only indirect control over execution, by new legislation. Responsibility for execution of the Act are in the hands of an officer who is subject to removal only by itself. (28m)

Morrison v. Olson, 487 U.S. 654 (1988) [p.410] · Challenge to the independent counsel provisions of the Ethics in Government Act of 1978.
· ISSUE: May Congress restrict the termination of an inferior executive official, appointed by the judiciary under a delegation from Congress, who exercises executive power?
Rehnquist opinion
· Whether the Act is invalid under the constitutional principle of separation of powers. Two related issues:
1. Whether the provision of the Act restricting the AG’s power to remove the independent counsel to only those instances in which he can show “good cause,” taken by itself, impermissibly interferes with the President’s exercise of his constitutionally appointed functions.
Ø Real question: Whether the removal restrictions impede the President’s ability to perform his constitutional duty. Analyzed officials’ functions in that light. (p.412 mid)
2. Whether the Act as a whole violates the separation of powers by reducing the President’s ability to control the prosecutorial powers wielded by the independent counsel.
Ø The Act does not impermissibly undermine the Executive Branch, or disrupt the proper balance by preventing the President from accomplishing his constitutional functions. Act è less control by AG over a certain class of crimes. But the AG still has several means of controlling the independent counsel. 1) May remove independent counsel for “good cause.” 2) Specific request by the AG needed to appoint an independent counsel. 3) AG’s determination of “no reasonable grounds” to request initial appointment is unreviewable. 4) Limited jurisdiction. 5) The Act requires that counsel abide by Justice Department policy unless it is not “possible”
Scalia dissenting opinion
· The President gets all executive power, not just some of it. Supreme Court must uphold the Court of Appeals (invalidating the statute) on separation-of-powers principles if the following two questions are answered affirmatively: (p.414 top-mid)
1. Is the conduct of a criminal prosecution, and the decision to prosecute, an exercise of purely executive power?
Ø Court conceded that

e of Administrative Law

Freedman, Crisis & Legitimacy: The Admin Process and American Government
Commoner, Perspective of Ecology, American Law: the 3d Century
Schwartz, Lions Over the Throne: Judicial Revolution in English Admin Law
Jaffe, The Illusion of the Ideal Admin
Sargentich, Teaching Admin Law in the 21st Century
Merrill, Capture Theory & the Courts

Assignment: 61-99(n.4) (briefs )
Delegation of Powers

The basic principle governing administrative power is to limit agencies to the authority delegated by statute. Ultra vires: if within the statutory limits, then valid; outside (ultra vires) à invalid.

Legislative Power

In General
· Need an “intelligible principle” (Whitman v. ATA).
· Only 2 statutes lacked the requisite “intelligible principle”: 1) Panama Refining v. Ryan (293 U.S. 388 (1935)) (literally no guidance for the exercise of discretion); 2) Schechter Poultry (conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition”).
· Catch-all sanction provisions upheld in U.S. v. Grimaud, 220 U.S. 506 (1911).
· Follow-up issues on delegation – if ever necessary to challenge: 1) Was the delegation valid? Did it provide the intelligible principle? 2) Did the agency act within the scope of the delegation – did it stretch the delegation too far – did it stretch the delegation ultra vires. P.98-99: Court is more likely to find too much delegation where it involves personal, rather than property rights. Kent v. Dulles (p.98). Travel, liberty, free speech involved there. The Sec or President had not been delegated power purely on political reasons.
· Alternate limits to delegation: Sunset laws; oversight committees; appropriations; narrow enabling statutes.

Separation and Delegation
A rigid maxim against delegation is not workable. Nondelegation doctrine.

Panama & Schechter cases

Post-1935 Federal cases
Mistretta (Sentencing Commission)
· ISSUE: May Congress delegate legislative functions to the Judiciary on matters that affect only the Judiciary?
· Separation of Powers Principles: The branches need not be entirely separate & distinct. Flexible understanding. Carefully crafted checks & balances a better safeguard against tyranny than hermetic divisions between branches. (p.417 mid)
Þ Supreme Court has struck down laws that 1) Accrete to a single Branch powers that should be diffused. 2) Undermine the authority & independence of one Branch relative to another. Example: Chadha. (p.417 bot)
Þ Supreme Court has upheld statutory provisions that somewhat commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment. Example: Morrison (independent counsel) (p.417 bot)
· CONCLUSION: Sentence Reform Act of 1984 was constitutional because Congress did not delegate excessive legislative power or upset the constitutionally mandated balance of powers among the coordinate branches of government.
Scalia dissenting opinion (p.419 mid-bot)
· (delegation is uncontrollable) è (rigorously preserve Constitution’s structural restrictions that deter excessive delegation)
Þ Power to make law only by Congress, except in conjunction with the lawful exercise of executive or judicial power.
Þ This Act is a pure delegation of legislative power.