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Administrative Law
Southern Illinois University School of Law
McCubbin, Patricia Ross

Administrative Law
Law (legislature) v. Rule (promulgated by an agency)
All agencies do:
1) Rulemaking (quasi-legislative activity)
2) Adjudicatory (quasi-judicial activity) [hearing] Procedural Requirement
How do courts oversee agency actions?
Standards of Review?
Administrative Procedure Act (APA)
What is an agency?
Governmental entity responsible for governing day to day operations in US
Creature established by legislature
Overseen by courts
Citizens oversee via participation
4th branch of government – not legislative, executive or judicial
Why agencies?
Legislature may lack expertise in an area
Legislature doesn’t have time to deal with complexities
Politically unsavory choices
Agencies fill in the interstices (gaps or spaces) left by legislature
Fight monopolies – fair market for consumer
Types of Agencies
Headed by a commission that is more politically balanced
Leg. limits Pres. power to remove
Aligned with executive branch,
Head of agency can be appointed/removed by President “at will”
Proscribe behavior
Restrict private acts/rights
Give out benefits (SSA)
Separation of Powers
Function of Checks and Balances
Issue basically is “who controls agencies?”
Removal Power
Bowshar – legislature delegated authority to Comptroller; but leg. kept removal power
Congress cannot retain removal power over agency head because the legislature makes laws and the exec. implements them
The Comptroller implemented laws
Thus the leg. was “implementing” laws via control…CANNOT DO
Congress only has the impeachment power
Morrison – independent counsel
Congress limited Pres. power to remove the indep. counsel
It is CNal for the leg. to limit Pres. removal power
Concerned more with the leg. taking power
Indep. counsel is inferior officer
1) removable
2) limited tasks
3) limited jurisdiction
4) limited tenure
Limitation on removal power doesn’t unduly trammel exec. authority
Goal of SOP is to diffuse power to better secure liberty
Nondelegation Doctrine
Congress can delegate power to agency to make rules
Agency can only act within the bounds given by Congress
“Ultra vires” = beyond statutory limits
Maxim against delegation of power
As a delegate (via CN) of power, leg. cannot re-delegate any of its power
BUT if the delegation is “not excessive” it can be CNal
Legislative Power
Congress delegates “quasi-legislative” power (rulemaking)
When Congress delegates power it must have reasons/situations
Congress can delegate 4 situations
1) Sufficiently specific delegation w/ gap
2) general delegation
3) “make rules necessary to….”
4) regulate in “the public interest”
Cannot leave “too much” of a gap in the statute for agency
Congress must provide an INTELLIGIBLE PRINCIPLE to guide agency’s discretion (comprehensible statement of policy)
If no IP, then UNCNal delegation
1) Subject Matter – general policy
2) Agency to apply rule – Give a name to the Agency
3) General articulation of a general policy to guide the agency – Boundries
Current Cases
Mistretta – sentencing commission to set guidelines for sentences
Intelligible Principle factors:
1) general policy (deter X or Y)
2) agency to apply
3) boundaries of delegated authority
Congress cannot do their job w/o delegating (it’s not practical)
Unless there is an absence of standards, it passes NDD
American Trucking v. EPA – clean air act, limit pollutants
must: requisite to protect public health and safety
Leg. had EPA choose what standard is necessary
How did the agency choose?
EPA TENSION: health and protection v. lots of costs
Requisite = Necessary = IP
Doesn’t require determinate criterion
Past Cases
Panama – Pres. can prohibit
This is UNCNal delegation of power to Pres. violates NDD

inished during office
Policy: independent judiciary; 1 step removed from political pressure
3 Exceptions to Article 3 mandate that judges hear
1) Military tribunals
2) Territorial courts
3) Public rights doctrine
1) Matter between gov’t and people dealing w/ exec. or leg. authority
gov’t must be P or D (Northern Pipeline)
[if both private or neither public, then under
Northern, cannot be assigned to agency…..not exception to Art. 3] 2) Seemingly private right may be a public right if closely integrated into public regulatory scheme (Thomas rule)
Argue: 1) Congress sets up national scheme w/ law
2) 1 law is not a scheme
is it closely related w/ public regulatory scheme
2) 7th Amendment
Right to jury trial in civil suits at common law more than $20
1) Suit at common law
COA recognized at common law in the 18th Century
2) Legal remedies or Equitable remedies
If 7th Amend. analysis doesn’t equal jury trial, then no exception
3) Public right
If ALJ (delegation) okay, then what remedies can be provided?
Enjoin (cease & desist order)
Fines & Penalties
1) make fines/penalties self-executing
(to enforce, must go to Art. 3 court)
2) impose criminal sanctions
(deportation = civil) fraud = jury
Can INS impose fines on those who violate INS laws by falsfying docs?
Public or Private Right
Art. 3
If public, leg. can delegate to non-Art. 3 tribunal
1) Gov’t v. person = public right Northern Pipeline
2) Seemingly private…..etc….. Thomas
Art. 3 allows delegation
7th Amend.