Admin Law Outline
I. Sources of Agency Power
1. Intro to Admin Law
a. Agencies are anything that is not the courts or Congress.
b. The Executive Branch is in charge of agencies (Article II)
i. There are 15 “cabinet” level agencies
1. Headed by secretaries.
2. These are necessary for the president to be able to run the executive branch
ii. There are 60 “independent” agencies
1. Commissions, as opposed to secretaries, head them.
2. President picks the commissioners
3. President can only fire them for cause
a. This is b/c independent agencies are less political and are not used to achieve the president’s political agenda
c. Congress creates agencies (Article I §8)
d. Agencies have the power of all 3 branches of govt.
e. Agencies are important b/c the subject matter/topic is centralized and people in agencies are “experts” in that field.
f. Problems with agencies:
i. There is little accountability
ii. Congress does not vote on the laws that agencies make. Therefore, the people are not represented in the agency process.
iii. Separation of powers. All 3 powers are centralized within an agency.
1. Formalism v. Functionalism
a. Formalists base their analysis on bright line tests that are based on constitutional language and structure. Formalists pay little attention to the practical advantages and disadvantages of the scheme. (Chadha, Buckley, and Clinton v. NY)
b. Functionalists base their analysis on the practical impact of the disputed statute. Does it serve a useful purpose in govt. or does it appear to be an attempt by one branch to interfere with another? (Schor, Morrison v. Olson)
2. Legislative Power/Delegation (KEY EXAM POINT #1)
a. Early Cases
i. Contingency Rationale – An unconstitutional delegation of legislative power did NOT occur IF:
1. The delegee merely ascertained whether a set of facts occurred, and
2. Those facts triggered legally specific consequences specified in the statute (by Congress)
ii. Fill in the Details – A statute is not unconstitutional if it is specific enough and the delegee is simply filling in details that were left out. (Wayman)
b. New Deal
i. Intelligible Principle – A legislative delegation of authority is permissible as long as Congress provides the delegee with guidelines/boundaries to perform their duties. (Hampton)
ii. NIRA – Granted broad powers to the president, and gave rise to 2 cases where the court struck down certain agency acts as unconstitutional.
1. Panama Refining – “Hot Oil” case. Allowed president to ban the shipment of hot oil (oil that was produced beyond the allowable quota set by the govt.). The court stated that this was unconstitutional b/c there was no intelligible principle to guide the president’s exercise of discretion. The court found the policy statements in NIRA as vague and conflicting.
a. Cordozo dissented. He said that the only discretion the president had was whether or not to ban the shipment of the hot oil, and nothing more.
2. Schechter Poultry – NIRA gave the president the power to adopt “codes of fair competition”. These rules would be binding on entire industries. This was a broader delegation then in Panama. The court found an absence of standards to guide the president.
c. Post-NIRA
i. Yakus – Court upheld a broad delegation of authority that gave the president broad economic powers.
d. Delegation Today
i. Whitman v. American Trucking Association – Congress passed a statute that instructed the EPA to set pollution standards. The statute did not tell the EPA how much pollution was too much. The EPA set a standard and it was challenged. The SC stated that if a statute did violate the delegation doctrine, having the AGENCY adopt a narrowing standard could NOT solve the problem. The limiting principle must be in the statute. However, the court ruled that the word “requisite” meant no higher or lower than necessary to protect the
ing pesticide companies. The agency forced two private companies to arbitrate their case. The arbitrator’s decision was only reviewable in the case of fraud, misconduct, or misrepresentations. Even though this was a private right it was so closely integrated into a public right that agency adjudication was constitutional. Also, adequate judicial review was provided. In order to fall under this category the private right must arise and occur within a regulatory scheme so much that it begins to look like a public right.
4. Schor – Schor was sued within an agency court. He counterclaimed and moved the counterclaim to the agency court. He lost both suits and then claimed that the adjudication of the counterclaim (contract dispute) was unconstitutional. The court views the case as a functionalist. It is more functional for the agency court to hear all claims related to the original. Schor waived his right to an Article III court when he moved his counterclaim to the agency court.
a. Factors that should be considered for the constitutionality of an agency court:
i. The extent to which the agency court exercises jdx and powers normally vested in the Article III court. Does the separation of powers tolerate the relationship?
ii. The origins and importance of the right to be adjudicated. Public v. Private
iii. The concerns that drove Congress to depart from the requirements of an Article III court.
5. Analysis of Constitutionality of an Agency Adjudication (Schor)
