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Administrative Law
South Texas College of Law Houston
Stevenson, Dru

Stevenson, Fall 2015

Administrative Law

Introduction to Administrative Law (MIDTERM Notecards: 1-148 & 201-280)

· FC1: Administrative Law is the body of statutes, constitutional limitations, and judicial precedents governing the public bureaucracies and government agencies

· FC2: How to Analyze a problem in Admin Law

o FC2

· The role of Administrative Agencies is to carry out government programs, usually established by Congress, but sometimes by executive order from the President

· Federal Government is split into three branches

o Legislative – make the law

o Executive – enforce/execute the law

o Judicial – interpret the law

· Agencies either fall under the executive branch or are independent agencies(FC25)

o Independent agencies are not under the direct supervision of the President or his cabinet

§ Congress creates these Independent agencies to insulate them from Presidential control or to enhance their own power over that field (FC97)

§ No list over what agencies are independent but there are typically 15 accepted agencies as independent (SEC, FTC, FCC, NLRB, Federal rEserve Board)

§ Congress will often state in an agency’s enabling statute that it is an independent agency, although not always

§ If Congress does not say whether an agency is independent or not, there are a variety of factors to look at to determine where an agency falls (Humphrey’s Executory v. U.S.) (FC25)

· Limitations on the President’s power to remove appointees

· Leadership by a board of commissioners rather than a single administrator

· Mandatory bipartisan membership of the board of commissioners

· Staggered terms

§ Important distinction is that Independent agencies are protected at the top and exempt from certain EOs (FC100)

· Agency Functions & Purposes

o Purposes (FC26)

§ Development of the nation’s infrastructure and economy

§ Social welfare

§ Regulation of private transactions

§ Public health and public safety

§ Internal government management

§ Defense Industry

o Typical functions (FC27)

§ Distribution of benefits (FC28)

· Agencies distribute all the direct benefits that citizens receive from the government

· Most of these agencies also adjudicate disputes that arise with citizens pertaining to these benefits

o Usually over the recipient’s eligibility for the benefits in question

§ Granting licenses and permits (FC29)

· These agencies often promulgate rules about eligibility requirements for the licenses and permits and procedures for applications and revocations

· They process applications, issue revocations, and adjudicate disputes with denied applicants or revoked licenses

§ Making policy through promulgation of regulations (FC30)

· One of two major functions of administrative agencies

· These regulations are just as binding on the citizen as statutes and most are codified in the CFR

· Typically, Congress gives the agency some vague mandates to regulate a particular are to achieve certain overarching policy goas, and the agency decides how to do that by creating specific rules

§ Enforcement and adjudication (FC31 & FC32)

· These agencies are typically entrusted with the responsibility of monitoring those to whom certain regulations apply and detect and commence enforcement proceedings

· Usually these proceedings begin within the agency and can be appealed to regular courts

o Otherwise, the enforcement proceedings start at the Department of Justice

· The other most important function is adjudication

o Agencies adjudicate eligibility disputes over public benefits and etc.

o Agency adjudications are reviewable in court

§ Gathering, analyzing, and reporting data (FC33)

· Most agencies collect enormous amounts of data, analyze it, and either report their findings publicly or use this information in formulating technical regulations

· Agencies have aspects of each of the three branches

o Pros of Agencies

§ Not enough time for Congress to make rules

§ Free from political pressures

§ Specialization and expertise

o Cons of Agencies

§ Over-regulation

§ No accountability

§ Tunnel vision

§ Agency Capture: when the President appoints a well-known industry insider to direct an agency that regulates that same industry

· Some cases this appointee proceeds to implement policies favorable to the industry rather than serving the public interest

· Sometimes this leads to lackluster attempts to get legislative policy objectives effectuated

· History of Agency Law

o There are 3 phases of Agency History

§ Phase I: the introduction of the New Deal by FDR, coinciding with the introduction of the APA

· Explosion in the number of agencies and the scope of their jurisdiction (FC17)

· Really though started by the introduction of the APA in 1946 which guaranteed judicial oversight of agency actions (FC18)

o Decision before this (1946) are treated quite skeptically

§ Phase II: Increases in regulation and increases in the amount of agencies (60s-80s)

§ Phase III: Deregulation phase started by Regan in the 80s and still continues (FC19)

· Move to control by President through the use of t

society, Clinton built on this and required new considerations for cost-benefit analysis

· Give huge power to the President because they kind of control the OMB

· Technically, Independent agencies are exempt. The president typically asks nicely for them to volunteer

§ Agencies can even be created by Executive Order

§ Procedure for Executive Orders (FC110 & FC 111)

· Content of the order may originate with the President, his cabinet or within on of the agencies

· The EO is submitted to the OMB for regulatory review and check for conflicts with existing law

· EO then goes to the DOJ when an assistant attorney general reviews its legality

· President signs the EO

· EO is published in the Federal Register

o Some internal policy manuals, especially those followed very strictly, can be a source of agency law, and therefore binding

§ The general rule however is that internal policy manuals are not judicially enforceable (FC16)

· APA Notes

o APA enhanced judicial review of agency actions, which allowed the courts to keep agencies in line

o APA also created uniform, time-consuming procedures for agencies promulgating regulations and adjudicating claims, which improved the final regulatory product and made the processes more transparent, democratic, and fair (FC22)



Non-delegation Doctrine (TC34) [aka Delegation Doctrine]

· The Non-Delegation Doctrine says that the three branches of government cannot delegate their constitutionally assigned powers to others (including other branches of government)

o This idea stems from the Vesting Clauses in the Constitution, which created the Separation of Powers

· The lines of the Separation of Powers have become blurred due to the increased abilities of administrative agencies (FTC v. Ruberoid) (FC35)

· History of the Non-Delegation Doctrine (FC36)

o Pre-New Deal Era cases held that the Constitution strictly prohibited Congress from delegating its legislative authority to the Agencies

§ This left agencies to fill in or interpret the laws of Congress but could not actually engage in rulemaking