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Administrative Law
Temple University School of Law
Green, Craig

Administrative Law
Professor Craig Green
Fall 2014
      I. Overview
A. Course themes:
1. Procedural requirements agencies must follow in taking various actions
2. Government regulation of private conduct and constitutional due process
3. Relationships among the branches of government
4. How courts review agency action
B. Why have agencies? Public interest v. public choice theory
1. Public interest: administrative agencies are created to serve some kind of “public interest” or promotes some “public value”
a. Based on the reality of public or objective values and ends for human action
b. Legislature = forum for identifying, defining, and acting toward those ends
c. The administrative bureaucracy is the fix needed to allow private industry or workers to stand up for their rights when the market and/or state systems are failing or imperfect
2. Public choice: administrative agencies are the outcome of a struggle among self-serving legislators and the factions, interest groups, and powerful individuals who compete for legislative prizes
a. All substantive values and ends are regarded as strictly private and subjective
b. The legislature is conceived as a market-like arena in which votes instead of money are the medium of exchange
c. Legislative action is self-interested
d. Legislation is bureaucracy and bargains struck
e. Agencies are political compromises: the institutionalization of conflicts between private parties
C. Legislative history:
1. New Deal: Congress creates apolitical agencies to manage industries in a scientific manner
a. Results in explosive common law regulation of businesses
2. APA passed in response to business lobby—seeks procedural regularity
a. Protective statute for the subjects of governmental regulation: big business, employers, etc.
3. Organic statutes
a. Judicial response aimed at protecting the intended beneficiaries of agency regulation: workers, consumers, environmentalists
4. Government entitlements programs
a. Interpreted as property protected by 5A & 14A DPC
D. Current administrative structure:
1. Agencies generally
a. APA definition: “each authority of the Government of the United States, whether or not it is within or subject to review by another agency,” except, e.g., Congress, courts, DC & territories’ governments
                                                                  i. Excludes state governments—state agencies are not subject to the APA
A. State agencies are governed only by state administrative law and the 14A DPC, infra
b. Part of the executive branch
                                                                  i. Subject to the direction & control of the Pres
c. Agencies are government bureaucracy designed to make a statute work
2. Independent regulatory agencies
a. Share certain characteristics that insulate them from control by the president:
                                                                  i. Headed by multi-member groups (rather than a single agency head)
A. Makes the agency less amenable to direction—harder to control several persons rather than just one
                                                                ii. No more than a simple majority may come from one political party
A. Limits whom the Pres can appoint
B. Ensures that at least some Commissioners will be from a different party than the Pres
1. However: even the Commissioners who are not from the same party may desire to be reappointed to their positions when their terms expire so they may be receptive to the Pres’s influence
                                                              iii. Members have fixed, staggered terms
A. Commissioners remain in office when a new Pres is elected
                                                               iv. Can only be removed for cause
A. Compare with most executive officials (serve at the pleasure of the Pres)
3. The rise of administrative bodies and the administrative state—the headless fourth branch of our government?
    II. What Agencies Do, and How They Do It
A. What agencies do
1. Entities that actually execute the laws that Congress passes:
a. Regulate private conduct
                                                                  i. E.g., EPA regulate industry to control pollution; OSHA regulates ER workplaces to ensure they are safe for EEs
b. Disburse entitlements
                                                                  i. E.g., SSA, HHS (Medicare/Medicaid)
c. Manage federal property
                                                                  i. E.g. Department of the Interior (manages national parks)
2. Wilson’s dichotomy: politics v. administration (p. 4)
a. “In a pioneering essay, Woodrow Wilson set the agenda for a generation by proclaiming the separation of ‘politics’ and ‘administration.’” (p.4)
                                                                  i. Agencies should not be involved in politics: this should be left to private parties prosecutors, etc.
                                                                ii. Agencies should only do really boring, technical, ministerial stuff…does this dichotomy survive today?
B. How They Do It: Rulemaking, Adjudication, and Enforcement
1. In general
a. When agencies act, they either issue rules or issue orders after an adjudication
b. Legal restrictions on the procedures that administrative agencies may use in formulating policy derive from at least 3 sources: 5A & 14A DPC, the APA, and the various organic statutes
2. Overarching Constitutional Concerns: Due Process
a. The federal government and federal agencies are subject to the 5A DPC; states are subject to the 14A DPC
b. Rule: Due process is required when a proceeding is functionally an adjudication; conversely, the concept of due process simply does not apply to general lawmaking. (335-36)
State board assessed costs to taxpayers for paving a road based o

upported by “reliable, probative, and substantial evidence” on the record in the case
§ 555(e)
“The dark matter” of the APA
Not much on this in the statute
c. Jawboning: agency action in the absence of adjudication or rulemaking
                                                                  i. How much pressure to influence programming may the government put on the networks without violating the Constitution (1A) and the APA?
                                                                ii. Held: The line between permissible regulatory activity and impermissible “raised eyebrow” harassment of vulnerable licenses is exceedingly vague; therefore, it is important that the judicial attempts to control these techniques must be sensitive to the particular regulatory context in which it occurs, the interests affected by it, and the potential for abuse.  Writers Guild of America v. American Broadcasting Cos. (9th Cir., p. 797)
A. In situation where FCC Chairman attempted to influence networks to adopt a system of self-regulation to reduce the amount of sex and violence in television programming, the following was permissible activity:
1. Speeches before broadcasters’ organizations;
2. Personal lobbying w/ representatives of the 3 major television networks (including meetings with the networks’ Pres’s & VPs); and
3. Meetings between FCC staff members and programming officials at the networks
                                                              iii. Other examples of jawboning:
A. “Don’t play list” (795): D.C. Cir. finds that it is acceptable for FCC to release a Notice and Opinion expressing concern over broadcasting songs with “drug oriented lyrics” and subsequently releasing a list of 22 songs it considers to be drug oriented (797-98)
B. Televised violence: AG Janet Reno expresses concern; declares that self-regulation is preferable and if steps are not taken to regulate violence voluntarily, govt will have to act
                                                               iv. This sets a lower standard than the Pertschuk “kidvid” case (Ass’n of Nat’l Advertisers) and the Cinderella bias in adjudication case—there is a lower standard for agency officials when they are not officially setting any agency policy through rulemaking or adjudication
                                                                 v. Rulemaking v. informal action