Administrative Law Williams Summer 2014
Efforts to create a uniform set of administrative procedures or provisions for judicial review of agency action – 1946 Administrative Procedure Act (APA)
What is an administrative agency: Score of the APA
· APA 551(1): each authority of the Government of the United States
· But NOT
o Congress
o Article III courts
o The President
Why are agencies created?
· Two basic orientations
o Public Interest Explanations
o Public Choice Explanations
Public Interest Explanations for Regulation: “Market Failures”
· Natural monopolies
· Provision of Public Goods
· Prevent Spillovers or “Externalities”
· Address Asymmetrical Access to Information
· Redistributive or Paternalistic Goals
Regulation by Agencies
· Neutral Application of Expertise
· Efficiency
· Flexibility Needed to Respond to the Complexity and Dynamic Character of the Marketplace
Public Choice Explanations
· Legislators respond to “special interests” in an effort to maximize electoral prospects
· “Capture” Theory
· Agencies are a device to gain acclaim for legislators and to deflect blame
The OSH Act: Institutional Architecture
· Secretary of Labor: Through OSHA, exercises Rule-Making and Enforcement Functions
· OSHRC: adjudicative power over enforcement actions initiated by OSHA
· NIOSH: Research
Authorization: The Delegation Problem
· Art I, §1 vests “all legislative power” in Congress
· The “non-delegation doctrine”: Congress may not delegate “legislative” power to another entity
Functions of Non-Delegation Doctrine
· Accountability: Ensure elected officials make basic policy choices, so preferences of electorate matter
· Control of Agency Discretion
· Permit meaningful judicial review of agency action
Rulemaking v. Legislative Power
· Rulemaking must be pursuant to legislative authorization (no inherent rulemaking authority)
· Legislative Authorization must include an ascertainable “intelligible principle” that limits agency’s discretion
· Are there distinctions adequate to meet the functional concerns behind the doctrine?
The only cases in which Court found laws unconstitutional under Non-Delegation Doctrine
· Panama Refining Co. v. Ryan
· Schechter Poultry v. US
Whitman v. American Trucking
· The delegation: CAA authorizes EPA to establish National Ambient Air Quality Standards.
· Legislation says that NAAQS must be requisite to protect the public health and welfare with an ample margin of safety
· Court of Appeals: CAA violates the non-delegation doctrine because it lacks determinate criteria that EPA must satisfy in promulgating NAAQS
· Rule was remanded back to EPA to establish a determinate criteria
Whitman in the SCOTUS
· Bottom Line: In the absence of an extreme circumstance, the chances of prevailing on a non-delegation challenge in the Supreme Court is incredibly low
· Reaffirms “intelligible principle” test, rejects determinate criteria
· Rejects idea that agency itself can cure non-delegation problem by limiting its own discretion
· CAA standard is an intelligible principle
· Deference to legislative judgment” We have almost never felt qualified to second guess Congress about how much discretion to vest in an agency
Policy Formation by Agencies: The Choice between Rulemaking and Adjudication
General Overview
· Deference given to Congress under the non-delegation doctrine means that agencies typically enjoy a significant amount of policy making discretion
· Two methods agencies use to make policy
o Case-by-case adjudication (analogous to common law)
o Rules (analogous to legislation)
o A variety of informal methods, such as guidance, handbooks, memoranda of understanding
Sources of Procedural Constraints on Policy-Making Methods
· Constitutional Requirements of Due Process
· The Enabling Act
· Agency Rules of Procedure
· APA (Administrative Procedure Act)
· Federal Court decisions
Procedural Due Process
· 5th amend applies to federal agencies; 14th amend applies to state and local agencies.
· The requirement of the amendments are the same
· When is Due Process required?
o When federal or state government deprives an individual of life, liberty, property
· Limited, if any, applications to rule making
· In adjudication, basic elements of due process are notice and opportunity to be heard
D
decisions may be limited or overruled in the face of unique, unusual, or changed circumstances
Policymaking by Order and the Choice Between Rulemaking and Adjudication
Making Policy Case by Case: The Adjudicative Model and the NLRB
· NLRB administers the National Labor Relations Act
· NLRA protects employees efforts to organize and bargain collectively with employers
· NLRB is charged with duty to direct and election by secret ballot and certify the results
· But how should elections be conducted? What rules govern the campaigns?
· NLRB could promulgate election rules
o Authorized under Section 6
· NLRB has not done this. Instead it adjudicated disputes about the conduct of elections and adopts standards in the process
o Also authorized to do so
Excelsior Underwear: Demonstrating the Adjudication Model
· Challenge to company’s refusal to supply campaigning union with list of employee’s addresses.
· No NLRB precedent at this time
· NLRB notes that rules are not fixed and immutable, endorses higher standard of disclosure
· New disclosure rule is to be applied only prospectively
· 30-day delay to ensure that all parties are fully aware of their rights and obligations
Challenging the Adjudication Model: NLRB v. Wyman-Gordon
· Wyman-Gordon refuses to supply Excelsior list
· Board orders production and seeks judicial enforcement
· Wyman-Gordon defends on grounds that Excelsior rule is invalid
o NLRB did not follow rulemaking procedures
· Plurality concludes that Excelsior is not a valid rule, in the sense that they must, without more, be obeyed by the affected public
· What is the “more” the Court has in mind?
· Excelsior was adopted as a legitimate incident to the adjudication of a specific case and proper adjudicative procedures were followed
