ADMINISTRATIVE LAW
Professor Matthew Bruckner
Summer 2013
Agency Procedure Act (APA): p. 982
I: OVERVIEW OF THE REGULATORY PROCESS AND STRUCTURE OF ADMIN LAW
· Administrative law: all of government other than parts in constitution (3 branches); agencies, etc.
· Agencies have all 3 types of power (Executive, legislative, judicial)
· Agencies overseen by 3 branches:
o Executive: power to appoint and remove agency heads
o Courts: review agency decisions
o Congress: creates agencies
· Agency Decision-Making Procedures
o Rulemaking: what rules control how agencies make law?
§ taking a legislative mandate and turning it into rules and regulations
· every agency must provide NOTICE to all interested parties before making a new law and a COMMENT PERIOD (time period to provide input for proposal)
§ E.g., EPA setting a max permissible threshold for benzene exposure
o Adjudication: what rules control how agencies try cases?
§ E.g., hearing before EPA to determine if the max permissible threshold for benzene exposure has been exceeded
§ Agencies can make rules through adjudication (e.g., NLRB: Can make forward-looking rules through adjudication)
o Due Process: what rules control when and how the agency can do one or the other (i.e., rulemaking vs. adjudication) consistent with due process?
§ What process is due in a rulemaking in adjudication? Are there situations where the agency must adjudicate or must issue a rule?
· How do you Sue Agencies? (Judicial Review of agency Decision-Making)
o When is judicial review available?
§ Actions not committed to agency discretion
§ Ripeness
o Judicial review when agencies make rules
o Judicial review when agencies interpret statutes
o Judicial review when agencies hear cases
· Two General Kinds of Agencies
o Executive Agencies: headed by single person that serves at the pleasure of President (Dept of Treasury or DOJ)
o Independent agencies: Multi-person boards that can only be removed for “cause.”
· Theories of Agency Action
o Public Interest Theory: Designed to more expertly and effectively respond to:
§ Monopoly power: Prevent people from taking advantage of monopolistic markets to encourage market efficiency
§ Asymmetric information: For information disclosure so market can work more effectively
§ Public goods: Encourage positive externalities
§ Public bads: Discourage negative externalities
o Public Choice Theory: allows special interests to take “legislative prizes” at the expense of broader and more diffuse laws
OSHA
· Occupational Safety and Health Act: designed to respond to growth in workplace accidents; applies to any private employer engaged in a business affecting commerce
· Public Interest Theory for OSHA:
o Monopolistic Power: Employer may have unusual bargaining power, particularly in monopolistic or oligopolistic markets where it is only one of a few players, so that workers lack ability to demand “risk premium”
o Asymmetric info: employees may lack information about other sources of pay, the nature of the risk, or be able to fully appreciate the trade-off between distant risks and immediate returns
o Public Goods: coordination problems may limit ability to organize to raise wages and workplace safety, when they benefit more than just one person and present greater costs for individuals to demand more without assurance that others will do the same
o Public Bads: The full “cost” of workplace accidents, lost productivity, and greater costs tot he consumer, not born only by workers and employers
Why Agencies?
· Advantages (of agencies)
o Legislature: agencies act faster and more efficiently than congress and have more specific expertise
§ Congress lacks time/expertise to tackle every regulation
o Class Actions: Regulations are prospective while tort law is retrospective
§ Tort law (“reasonably necessary”) standards not as clear as agency regulations
§ Courts and juries lack expertise to determine what is safe
§ May produce inconsistent results
o Criminal law: prosecutors lack competence to regulate workplace safety
· Disadvantages (against agencies)
o Legislature: legislative discourse increases public participation and transparency in process
§ Could product more targeted legislation
o Class Actions: Directly respond to concerns of people hurt by workplace hazards
§ πs may have more resources and cts more independent
o Criminal Law: Less beholden to “special interests” and wouldn’t require as many burdensome rules
II. THE PLACE OF THE ADMIN STATE IN THE GOVT – THE CONSTITUTIONAL FRAMEWORK
A. THE RELATIONSHIP BETWEEN CONGRESS AND THE AGENCIES
1. Non-Delegation Doctrine (p. 15-33)
· Congressional oversight of agencies
o Authorization: creates agencies and defines their powers
§ Enabling statutes: passed by congress: creates agencies and determines their form and function
§ Authorization inevitably confers lawmaking power on the agency
o Revision: ability to alter the agency’s mandate through legislation
o Appropriations: the power of the purse
o Oversight: congressional monitoring (i.e., hearings)
· The Delegation Problem
o Constitution provides that “all legislative powers herein granted shall be vested in a congress of the United States” (Article I, 1).
§ Non-Delegation Doctrine: Congress may not constitutionally delegate its legislative power to another branch of government
o Executive actions sometimes have some legal interpretation that looks like legislative “policymaking”
o Initially, non-delegation was vague constraint on congressional power sharing
§ Courts struggle to determine what constitutes Congress’ non-delegable legislative power
§ Doctrine interpreted in Panama Refining and Schecter Poultry
· Only 2 cases that have ever found delegation inappropriate
· Represent the high water mark
· Questionable if same result would happen today – both from 1930’s
· Schecter Poultry
o National Industrial Recovery act (NIRA) allowed local codes for trade to be written by private trade and industrial groups. The President could choose to give some codes the force of law.
o TAKEAWAY: Standard-less (broad) delegations inappropriate
§ Delegation not allowed when no standard to weigh action against in courts
· This gives association too much discretion
· Emergency doctrine doesn’t apply here
§ Can’t transform industry association as legislative body just bc they have expertise
· American Trucking
o Under Clean Air Act, EPA had to write air quality standards for ozone: “Administrator determines standards “requisite to protect public health” with an “adequate margin of safety”
o Supreme Ct: This is an intelligible principle
§ The scope of discretion the statute allows is within the outer limits of non-delegation precedents
§ Always look to SCOPE of the power being delegated and the SPECIFICITY of the language to see if broad
· Delegation as Interpretative Tool
o E
le reviewing courts” to test that standard
o “Intelligible Principle” Doctrine applies broadly, even if the law only generally requires that agency regulate “in the public interest”
o Degree of agency discretion allowed may depend on:
i. the scope of power conferred
§ Always look at: Is the language in the statute specific enough, compared to the amount of responsibility that is delegated to the agency
· The more narrow/specific the responsibility delegated the more broad (less specific) congress's statute has to be; the more broad the responsibility delegated is the more specific congress’s statute has to be
· See AMERICAN TRUCKING
ii. whether an emergency exists
iii. who is the delegee/the role of private industry
iv. whether the delegation may be more narrowly interpreted: Courts may interpret the statute more narrowly to limit the agency’s power and avoid a non-delegation problem
· Court it be interpreted more narrowly?
· See Gonzales and Benzene
· Constitution prevents Congress from policing agencies unless it follows BICAMERALISM and PRESENTMENT, or follows appropriation or informal oversight
o When congress uses appropriation or informal oversight, it cannot delegate authority to president to control them even if he is a more accountable actor, but it may delegate those decisions to an agency
· Supreme Court takes a FUNCTIONAL approach to DELEGATION DOCTRINE
o Congress may delegate virtually all of its power under Article I to make new regs, so long as it follows an “intelligible principle”
· Supreme Court takes a FORMALISTIC approach to CONGRESSIONAL REVIEW of AGENCY POWER
o Acts of Congress must adhere to bicameralism and presentment
B. THE RELATIONSHIP BETWEEN THE PRESIDENT AND THE AGENCIES – Presidential Oversight
· The Executive Power Problem
o Constitution provides:
§ “Executive power shall be vested in a President of the U.S.”
§ “President shall take care that laws be faithfully executed”
§ President empowered to exclusively appoint “Officers of the US” with advice and consent of Senate
o Congress has held that there are LIMITS to how much Congress may interfere with President’s ability to hire and fire agency officials
o Court has also permitted Congress to delegate the execution of some laws to agencies with various degrees of independence from presidential control
o Inferior Officers can be appointed by President, Courts of Law, and Heads of Departments
§ Courts have held there are LIMITS to how much Congress may interfere with President’s ability to hire and fire agency officials
§ Courts also permit Congress to delegate execution of some laws to agencies with various degrees of independence from presidential control
