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Administrative Law
Temple University School of Law
Green, Craig

ADMINISTRATIVE LAW
ADMINISTRATIVE PROCEDURE
introduction
w What is Administrative Law?
w The laws controlling Agencies & what the Gov’t can do in order to give a statute its desired effects
w Administrative State à connotes the peculiar form in which governmental growth has occurred
w US Gov’t employs roughly 1 of every 6 American workers
w Administrative law challenges 3 assumptions:
w Is Congress the one who makes the law?
w Is the Court the one who interprets the law?
w Is the Executive branch the one who executes the law?
w Types of Questions To Ask About Each Agency
w Policy Qs – what is it trying to do?
w Structural Qs
w Political Qs – what deals/compromises are made b/w diff interest groups
w Statutory Qs – most important
w STATUTES à Every Agency is the result of some Statute

w HISTORY OF ADMINISTRATIVE LAW
w 1789: 1st Admin officer à Also, State, War, Treas., & Post Office Depts. & AG’s Office created under Washington
w Administrative branch grew slowly before Civil War
w 1887: ICC created via the Interstate Commerce Act of 1887.
w Progressive Movement & Woodrow Wilson
w New Deal greatly raised the bar for the welfare state.
w 1946: APA passed
w 60s and 70s: era of social regulation.
w 80s and 90s: deregulation of airlines, trucking, railroads.

w ICC – Interstate Commerce Commission
w Regulated railroads
w RRs responsible for turning country into a nation
w RRs very dangerous
w First modern Administrative agency à bigger & more independent than predecessors

Administrative Procedures Act of 1946 (APA) – Constitution of Fed Admin Law – pg. 896-911
w Additions and/or Amendments to the APA since 1946 (pg. 5-6):
Freedom of Information Act of 1967 w National Environmental Policy Act of 1969 w Federal Advisory Committee Act of 1972 w Government in the Sunshine Act of 1976 w Regulatory Flexibility Act of 1980 w Administrative Dispute Resolution Act of 1990 w Regulatory Negotiation Act of 1990 w Unfunded Mandate Reform Act of 1995 w Congressional Review Act of 1996
Public Interest vs. Public Choice
(2 Theories Of Administrative Agency Origin)

PUBLIC INTEREST à Administrative Agencies formed to further the public interest (GOOD)
w Four PI Rationales:
1) Natural Monopoly à recognizes that, in some industries (e.g., cable, phone, electric), monopolies are the most efficient way of operation; seeks to prevent the monopolizer from exploiting people
2) Public Goods à recognizes that most people would not voluntarily fund certain industries that provide a public good (e.g., NPR, PBS, national defense, parks, police)
3) External Effects à Reverse of the public goods argument; some industries will overproduce “bads” (e.g., pollution) along w/ “goods” (e.g., energy); lies at the foundation of our entire legal system
4) Asymmetric Information à recognizes that acquiring & evaluating information on a “good” is too costly for most consumers; seeks to prohibit outright certain unfair or unethical business practices

PUBLIC CHOICE à How individual preferences are aggregated and expressed through public decision making processes; not concerned w/ social welfare, but democracy (BAD)
w Differing Viewpoints on Rationales
1) Unnatural Monopolies à granted by the state to a dominant firm in a formative industry seeking to perpetuate its position
2) Private Goods à masquerading as “Public Goods” (e.g., PBS/NPR is just highbrow entertainment for an elite few, not a propogation of “culture”)
3) External Effects à self-serving; for those who weren’t granted a monopoly by the state, they use support regulations that will keep out the competition
4) Asymmetric Information à not a justification for regulation, but a source of political advantage enjoyed by particular groups.

w PI fails to 1) establish concrete definition of what “public interest” actually is; 2) formulate any coherent assumptions a/b the motivations of legislators & lobbyists; & 3) explain the highly protectionist & anticompetitive behavior of most “economic” regulatory agencies
w PC is much more sophisticated in this respect

w PC fails to explain the reversal of these agencies’ behavior in recent decades
The Occupational Safety and Health Act (OSHA): A Case Study
w Intended to provide uniform labor standards across the country
w No one opposes Workplace Safety laws; the dispute arises out of who/what should make & enforce them.

w Dems and Organized Labor wanted power to vest solely in the Dept of Labor à argue that DOL exists to protect the interests of workers
w Repubs and Business wanted power to be vested in an Independent Panel(s) à argue sep of powers will assure fairness & DP for both emplrs & emplees; high-level att’n; DOL couldn’t do it very well
w COMPROMISE
w Gave Rulemaking & Inspection duties to DOL à shifted Adjudication duties to an Independent body

w Sec of Labor established OSHA (OSH Administration)
w What makes OSHA qualify as administrative law? à gives government enforcement powers
w What protected workers before OSHA? à State statutes; Workers comp; State factories laws; & State tort law
w So why OSHA? à Uniformity & Some of the old protections weren’t as effective
w Who first supported the formation of OSHA? à Dept of Labor

w Two Competing Views Applied To OSHA:
Public Interest: you see a government failure and a State failure to adequately protect workers
Public Choice: see States trying to protect themselves from businesses leaving for a less regulated state (“race to the bottom”); see Businesses trying to protect themselves from unpredictability
OSHA – The Statute
[SEE STATUTE & NOTES – SEPARATE] How A Standard Becomes A Standard
Sec. of Labor à appoint advis comm. (optional) à propose standard à pub in fed reg à open to public comment à public hearing (if objected to) à Issue, modify, or don’t adopt standard
w see §6; see also §7
w §5 says how employers and employees must interact w/ standards
w Difference b/w OSHNAC and OSHRC
w OSHNAC is appointed by SOL
w Hearing Examiners (§12(e), (j), (k))à do a lot of the legwork for the OSHRC
w §11 – Jud Rev à a party can Appeal a ruling of the OSHRC to Fed Dist Ct
Policy formation
w Woodrow Wilson à Politics and Administration must remain separate
w Herbert Simon à debunked WW, saying that politics and administration can never be separate
w Administration is too close to political world to not be affected
w Pragmatically, it is virtually Impossible for an agency to not set policy, which is political in nature

POLICY MAKING INSTRUMENTS
w Rulemaking à like “little statutes”
w Adjudication à like “little line of judicial precedent”

STATUTORY CONSTRAINTS ON CHOICE OF POLICYMAKING MODELS
w APA à primary statutory guidance
w Adjudicative Policy (APA §554)
w Rulemaking Policy (§§ 553, 556, 557)
w APA provides little, if any, guidance on the choice b/w Adjudication or Rulemaking

DUE PROCESS CONSTRAINTS ON CHOICE OF POLICYMAKING MODELS
w 5th & 14th Amendments
w In reality, plays little role in broad policym

INFORMAL ADJUDICATION à “Dark Matter of Ad Law” – not really defined – see §555(e)

FORMAL ADJUDICATION à §554 –

Choosing adjudication over rulemaking
Excelsior Underwear, Inc. (NLRB 1966) pg. 352
w AN NLRB hearing decision.
w ISSUE: whether employer’s refusal to provide union w/ names & addresses of employees should require the election to be set aside.

w The decision:
w Looks like a RULE, indicating that in the future, w/in 7 days after Regional Director has approved a consent-election agrmt, or after RD has directed an election, employer must file w/ RD an election eligibility list, w/ names & addresses of all eligible voters. RD shall then make info available for all parties.
w Does NOT enforce ruling in this case, makes precedent for future cases
w Why? So as not to invalidate a ton of recently held elections possibly?

uMOST IMPORTANT: Adjudicative Order is PROSPECTIVE rather than retrospective.
w sort of flies in face of National Petrol’s argument that only rulemaking can be Prospective
NLRB v. Wyman-Gordon Co. (US 1969) pg. 355
w D refusing to comply w/ Excelsior “rule”
w Dist Ct granted subpoena requested by NLRB à BUT, First Circuit reversed, b/c Excelsior “rule” had not been promulgated w/ APA requirements for rulemaking. SCOTUS now examines.
wNLRB wants Court to declare that it has the power to promulgate new rules in adjudicatory proceedings, w/o complying w/ the R/M requirements of APA
w There is no majority opinion here.

FORTAS (Plurality)
w Excelsior “rule” cannot stand. NLRB can’t make “Rules” in a adjudicatory proceeding.
w BUT, NLRB still has authority to order W-G to produce the list.
w The authority of the Board to do this is without question.
w Is there a time when an agency MUST Rulemake? Not according to Fortas; b/c as long as they adjudicate properly, the court will enforce the proceeding regardless.
BLACK: (Concurrence)
w The court is bound by Excelsior, it is good law because:
w Most agencies have two functions:
1. the power to make rules having the effects of laws
2. the power to hear and adjudicate particular controversies.
w These lines are blurred à If Agency decision reached under Adjud power becomes precedent, it guides future conduct in the same way as if it were a new Rule, promulgated under rulemaking power.
w As long as the requirements for one or the other are met, then its OK.
w Is there a time when an agency MUST adjudicate? No, concept of adjudication is broad, and just b/c you come out w/ something that “feels” more like a rule, it doesn’t matter.
DOUGLAS (Dissent)
w thinks Excelsior is actually illegal – can’t have your cake and eat it too – need to go through formal proceedings