Administrative Law
Professor Jacobi | Summer 2016
Part 1: The Nature and Functions of Administrative Agencies
What is Administrative Law?
Governs organization, functioning, and exercise of authority by executive officials in administrative agencies and how their actions are reviewed by courts.
Sources
US Constitution – Establishes that agencies cannot act legislatively
Administrative Procedure Act (APA) – set of laws that specifies
how agencies carry out basic functions
Enabling Acts – statute passed by Congress to establish an agency
Administrative Common Law
Nature and Functions
What are Agencies?
Agencies are the entities that actually execute the laws Congress passes
Most federal agencies are in the executive branch of govt, with some in the judicial and legislative branches or independent
Two Kinds of Agencies:
1) Executive Agencies
Cabinet-level departments of the Executive Branch and their sub-departments
Have a single agency head that runs it
Appointed by and directly answerable to President
2) Independent Regulatory Agencies
Agencies outside the major executive departments
Consist of Boards or Commissions – this signals that agency run by multi-members rather than one head
Theories of Agency Origin:
Public Interest: agencies act to benefit the general welfare of society
Welfare Economics – justifies govt regulation of the marketplace (regulate public utilities, goods, etc.)
Moral Theory – principles of human dignity, autonomy, and equality to justify govt programs (that help out the public)
Public Choice: focuses on the way that individual preferences will be aggregated and expressed through public decisionmaking processes, rather than the way in which overall social welfare will be advanced
Informal Decision Making:
When a lawyer calls an agency to ask if certain thing fits within the regulation, and a decision is made between them, but does not get written down anywhere
Manuals/FAQ: put together by staff of agency to explain the regulations in more detail; this tells you what that agency’s interpretation of the law is
Agency Functions
Administer govt programs established by Congress, agencies simulate all 3 branches of govt in a “quasi” form (i.e. agency does all 3, no separation of powers like the Govt has, but is subject to limitations by Congress/courts)
Quasi-Legislative: enact admin rules and regulations (formal and informal rulemaking)
engage in investigation, issue subpoenas, etc. to carry out rules
engage in adjudication (hear cases, examine evidence, decisions to determine individual’s legal rights)
OSHA: a case study
Federal regulation programs consist of either:
Instructional regulation – education with encouragement of certain behaviors to make the workplace safer
Commanding control regulation – sets out what the law is and requires (commands) that agencies follow the law; this is done through a binding set of rules
Congress gave broad policymaking to OSHA
Legislature did not want to go too far and lets the law read different ways so that the agency can make determination on how to read it
Lack the expertise to go farther and too expensive/burdensome to bring in experts to figure it out, so let agencies do that
Congress lays out the framework, agencies fill in the gaps
Legislative Control of Agencies
Authorization: Legislatures (Congress) creates an agency to implement public policy in a particular area where they lack the expertise to determine what policy should be
Non-delegation Doctrine: Congress may not just delegate legislative power to agencies in any form – need intelligible principle to do so
Intelligible Principle: standards/directions to guide an agency’s discretion (required for delegation to be found constitutional)
Cases that establish intelligible principle:
Schechter Poultry – standard was set by chicken farmers and the president signed it into law; no clear standard that the President was bound by and gave farmers power to decide rules
HELD: unconstitutional delegation when president allowed authority of private entity (farmers) to control; too sweeping delegation of power without any limit
Benzene – dispute about OSHA and how they should set exposure limits of certain toxins that workers are exposed to
HELD: adds standard that so long as OSHA considers the exposure levels and finds that there is a significant risk of harm to the workers over the amount set (1 part per million) Congress has the ability to delegate this bc there is now an intelligible principle guiding it (significant risk standard)
Ensure important choices of social policy are made by Congress
Provide intelligible principle to exercise delegated discretion
Enable reviewing courts to oversee/test agency decisions against ascertainable standards
Whitman – concerns the Clean Air Act that is regulated by the EPA which sets the standards about air quality; challenged that the EPA had such too much power with no determinative criteria for drawing lines to say how much is too much so it was an unconstitutional delegation of legislative authority
: Court found the intelligible principle in “the amount necessary that is requisite to protect the public health”
Scalia applied his Mistretta dissent to this case saying that since the bar for IP is low, then requisite is enough to satisfy it
Concurrence, Thomas: Not convinced that the intelligible principle serves to prevent all cessions of legislative power – he’s not totally comfortable with the IP doctrine
Concurrence, Stevens: Legislative power must start with congress (vested) and then they can delegate to agencies. Should define power by its nature, not by who is exercising it
Mistretta – dealt with sentencing act executed by the Sentencing Commission (independent agency) to avoid judge shopping; issue of whether there was an intelligible principle
HELD: upheld the act bc it had sufficient standards (guidelines to be followed when determining the prison sentences) to provide for an intelligible principle
Dissent, Scalia: Irrelevant whether the standards are adequate bc they are legislative powers; and it does not say what the Commission should do with the factors just that they need to “consider” them
Revision – The Legislative Veto: Congress must approve (by majority vote) before
s, Commission appointed Board members.
: Court determined how to classify principal and inferior officers (see below). The board’s work is overseen by the Commission, who are principal officers, so the board members are inferior
Principal: those who exercise significant authority pursuant to the laws of the US
Heads of all executive agencies (Secretary of State, Attorney General, Secretary of Defense, etc.)
Heads of all independent agencies (FCC, FTC, etc.)
Appointed by the President with consent of Senate only
those who need to report to a superior, but have enough authority to not be simply “employees” of US who fall outside the appointment clause altogether
Includes:
Anyone who reports to a principal officer
Special trial judges in Tax Court
Congress vets their appointment in the president alone, Courts of law, or heads of departments
Bukley – Federal Elections Commission was made to enforce the Federal Election Campaign Act which limits on presidential campaigns and elections. Commission had wide-ranging rulemaking and enforcement powers. Neither the President, Courts, nor head of a dept. had a voice in 4 of the members’ selection – challenged on whether the fact that these members were conducting civil litigations was constitutional.
HELD: Unconstitutional bc those functions may only be performed by Officers of the US, here they were Officers but were not appointed correctly.
Appointment of Congress members to an Executive Agency
Incompatibility Clause – those who are in legislative positions cannot serve a position in executive functions too
Ineligibility Clause – no legislative member can be appointed to any civil office (i.e. Congress cannot create executive positions for themselves as legislative members)
Recess Appointment Clause
Recess Appointment – when the President fills vacancies that happen during a recess of the senate, the term of the appointed official will then expire at the end of the next session
(Ex: appoint during 2016 year, and Senate session goes until end of 2017, person’s term will continue until end of 2017)
Noel Canning – NLRB needed more members to make decisions and President appointed them during a pro forma session.
HELD: Appointments were invalid, Determined three issues:
Is a recess only the inter-session (between sessions/years) or are intra-sessions included too (small breaks by Congress)?
Both are included when it is a substantial length of time, 10 days or more.
