Administrative Law Outline

ADMINISTRATIVE LAW

RIZZARDI

FALL 2013

Roadmap:

1. Intro and History

2. The constitutional setting of the regulatory process

3. The constitutional problems of accommodating the process

a. Authority

b. Unfairness

c. Unaccountability

4. Administrative law defined

· We are dealing with government and with the power that gov’t exercises.

o How gov’t instrumentalities got power,

o How they exercise that power, and

o How it is controlled.

· We are looking principally at power questions relating to that part of government that is engaged in regulating private conduct.

· Admin Law Course

o Discusses the procedures the agencies must follow in carrying out their substantive tasks.

o Covers judicial review of agency action – a process raising especially delicate interbranch issues, since the job of the courts is to “police” the other branches, insuring their compliance with the constitution and with any relevant legislative or executive requirements.

· Regulatory Bodies of US:

o Can be part of the Executive Branch, or Free Standing.

· Executive Departments:

o War, State, Treasury, Post Office, Attorney General

· Cabinet Level Departments:

o Agriculture Dept.

o Labor Dept.

· Independent Executive Brnahc Agencies:

o Environmental Protection Agency

· So-Called Independent Agencies:

o Typically collegial in form,

o FCC,

o NLRB,

o FTC – has industry-wide authority, not limited to 1 industry like FCC or to 1 aspect of industry ct like NLRB.

§ Small agency (barely 1000 employees),

§ Created in 1914

§ Regulate, e.g., deceptive and unfair commercial advertising (p. 7)

§ Headed by 5-person body – all appointed by Prez (confirmed by Senate) for 7 year terms.

§ Separation of Power – all 3 functions are combined in 1 agency:

· The agency writes the rules,

· Prosecutes alleged violators, and

· Judges the guilt or innonece of the alleged violator.

o SEC

· Schecter v. US – general regulation of labor relatiosn was begun in the Labor Act (1935) though President Roosevelt’s broader attempt to regulate prices and business practice was declared unconsistutional by the SC.

· Agencies today

o make rules that for all intents and purposes have the force and effect of legislative enactments.

o Adjudicate cases that have the force and effect of judicial decisions

· Morrison v. Olson – Court sometimes takes a functional view and concludes that necessity requires some combination of functions.

· INS v. Chadha – Court sometimes takes a very formal approach, which insists on strict and literal application of the principle of separation. Recall the temperament here.

· NOTE: a central piece of that settlement is the development of a body of legislative, executive, and judicial principles that minimize the problems of combining inconsistent functions. That body of principles is an important part of Administrative Law. Dealing with these separation of powers shortfalls is one of the functions that admin law is intended to serve. (p. 10)

· When the FTC issues a rule that a particular advertising practice is misleading, businesses are affected in a way that is virtually indistinguishable from the effect of a stuatory enactment: a legislative power has been exercised.

· When the FTC prosecutes a company for engaging in a practice which violates the rule and issues an order requiring the company to cease and desist from using it, the company is affected in a way virtually indistinguishable from enforcement in a court of law: a judicial power has been exercised.

· Court has stated that a delegation to an administrative agency will pass constitutional muster if the statute contains an “intelligible principle.” JW Hampton v. US (1928).

o If there is such a criterion in the statute, then the authority to the administrative agency is lawfully delegated.

o The intelligible principle will guide agency discretion and will allow a court to determine when the agency is acting within the authority granted.

· All agency action must be grounded on some form of statutory authority, that the courts can and do resolve disputes about the adequacy of that authority. Mass. v. EPA (2007)(EPA does have authority to regulate greenhouse gasses); FDA v. Brown (2000)(FDA does not have authority to regulate tobacco)

· THE BEST PLACE TO BEGIN THINKING ABOUT THE LEGALITY OF ANY AGENCY ACTION IS WITH THE EXACT LANGUAGE OF THE AUTHORIZING STATUTE.

· FTC:

o Parties dissatisfied with the rulings of the ALJ can appeal, but the appeal goes to the Commission itself—the very body that developed, investigated, prosecuted, and judged the case initially.

o True, any final order of th