Administrative Law Outline

Administrative Law – Professor Dorothy Glancy – Fall 2012

I. ADMINISTRATIVE LAW

A. Introduction:

1. What is an Agency: Categories of Federal Agencies Include …

a. Departments(cabinet/agencies; headed by a Secretary): have the highest status

b. Independent Exec Branch Agency(EPA, SSA): serve terms & more independent from Pres

c. Independent Regulatory Agency(FTC, SEC, FCC): various bureaus, bds & commissions

àinternational agencies(UN) are NOT admin agencies

2. What do Agencies Do: Federal Agencies execute laws of the US

a. Regulate private conduct(regulatory agencies): country has private market system, but market subject to imperfections that gov can remedy/mitigate

b. Administer entitlement programs: dispense fed/state funds for specified purposes to peeps

c. Everything else: impacts on welfare of person/cos giving rise to concern about gov action

3. Types of Agency Action:

a. Rulemaking(§553): corresponds to a legislative action

b. Adjudication(§554): corresponds to judicial functions of cts

c. Investigation: part of the exec branch function of law enforcement

d. Separation of Powers: leg, exec & jud functions should be separated to safeguard liberty

i. APA: intended to regularize & proceduralize agency action by accepting degree of political influence on agencies making them accountable

ii. Const gives Congress power to make all laws N&P to exercising the 3 separate powers

iii. Formalism: draws bright lines btwn functions of each branch(allocate power v direction)

iv. Functionalism: evaluate core function/independence using balancing-type test(minority)

B. Agency Structure:

1. APA: defines procedural right of persons outside gov & structures inside gov decisionmaking

2. Delegation of Legislative Power: what are the limits to Congress’ power to delegate such rulemaking authority?

a. Congress delegates power to agencies via statutes(agency power comes from/limited to §)

b. Congress gets to decide scope of agency’s RM powers

c. Congress controls funding for agencies

3. Delegation Doctrine: Congress may delegate leg power so long as gives agency “intelligible principle” to follow; must give specific reqs(procedure, substance, &purpose) for exec/jud

a. Concerns fed § that delegate quasi-leg power(power to make rules that have legal effect)

i. Since 1930s, Ct has approved all leg reviewed for compliance w/ nondelegation doctrine

ii. However, use statutory interpretation under doctrine to give narrow constructions to § that might otherwise have violated doctrine

b. Ct will interpret § grants of power very narrowly if necessary to survive nondelegation test

i. International Union, et al. v. Occupation Safety & Health Admin: P(labor industry reps) challenged D(OSHA) lockout reg. Held: By giving narrow construction to §delegation otherwise unconst, ct considered possible construction to hold § reasonable necessary or appropriate criteria can reasonably be read as requiring cost-benefit analysis.

c. Whitman v. American Trucking Assoc, Inc: CAA§ interpreted as requiring EPA to set air quality standards at level that is requisite, therefore delegating legis power to adminstor of EPA. Words of §, although broad, sufficed as ‘intelligible principle’.

d. Addressing Nondelegation Doctrine Question:

i. Try to show statute does not have an intelligible principle;

ii. Secretary’s/agency’s discretion does not allow him/it to apply the law this way

4. Legislative Veto: allowed either house of Congress to nullify exec actions by passing veto

a. Legislative Vetoes are Unconstitutional bc have Art. I action controlling an Art. II Activity. (i)INS v. Chadha(1983, CJ Burger): Res. opposing grant of Ps residency by jud sub-com on ICIL chair passed w/out debate. Held: One-house veto unconst bc leg character but was not subjected to bicameralism & presentment requirements under Art. I. Formalist arg: put action in leg box & applied rules of leg to show it doesn’t comply.

(ii)Test for Exercise of Legislative Power: whether action contains matter, which is properly regarded as legislative in its purpose/character & effects

(iii)Bicameral Req[Art I §1,7(Cl 2)]: leg not passed unless majority from both houses

(iv)Presentment Req[Art I §7(Cl 2,3)]: requires all legislation be submitted to President before becoming law

b. Congressional Options for Exercising Supervisory Control Over Agency Action:

(i)report & wait; (ii)sunset provisions;

(iii)corrections day: method to expedite review of agency orders/rules(counterpart to veto)

(iv)congressional review of agency RM: requires agency to submit all rules to congress for review & stays effective date of major rules to permit leg review

5. Appointment Powers:

a. Art. II §2: Pres appoints, w/ consent of senate, ambassadors, SC justices, & US officers.

àbut Congress can vest appointment of inferior officers in Pres, fed cts, or dept heads

b. Congress cannot appoint/grant agencies executive functions: Const permits Congress to appoint officers whose function is limited to investigative/informative nature, but does not allow leg appointment of officers who engage in adj, leg, or enforcement functions.

(i)Buckley v. Valeo: Congress enacted FECA & created FEC w/6 members(2 appointed by Pres, 2 by house, 2 by senate, w/ 2 ex officio); Ps argued that bc Congress gave FEC broad RM/enforce powers, Congress cannot appoint. Held: FECs functions relating to compliance & fleshing out §, at first blush seem investigative, but are actually prosecutorial & executive, exceeding Const power; only officers of US can do that.

(ii)FEC v. NRA Political Victory Fund: After Buckley decided, later case found ex officio members unconst bc ct believed even they would exercise influence.

c. The Appointment Clause(Art. II §2) authorizes Congress to appoint “inferior officers”.

(i)Morrison v. Olson(1988, CJ Rehnquist): Ethics in Gov Act allows appointment of Independent Counsel to prosecute gov officials: if needed, AG applies to special ct divsn who appoints IC. IC only removed by AG for good cause. D(EPA) challenged interbranch appoint/removal power. Held: Appointmnt cl not violated when congres vests IC Appointment in special jud dvsn bc IC is an “inferior officer”(functionalist)

Dissent(Scalia): all exec power should vest in Pres; accountability issue(formalist)

(ii) Principal v. “Inferior Officer” Test:

(1)is officer subject to removal by higher exec branch official?

(2)does officer perform only limited/certain duties? (3)is office is limited in jx? And,

(4)is office is limited in tenure?

d. Appointment cl gives Congress discretion in vesting appointment “as they think proper”.

(i)Morrison v. Olson: ‘Excepting clause’ admits no limit on inter-branch appointments. Exec branch investigating own officers would create conflict of interest.

6. Control & Supervisorial Powers:

a. Legislation may not undermine supervisorial powers of executive control.

(i)Morrison: if person subject to ‘enough’ control of Pres, satisfies exec power. Not seen as transferring power, just taking exec power& giving to IC(not party of Congress/jud)

7. Removal Powers

a. No constitutional provision addresses re