Spring Semester 2015
● ADMINISTRATIVE AGENCIES & ADMINISTRATIVE LAW
○ Lessons Learned
■ Federal Cts expect an agency & those who act for it to:
● Carefully follow its own regulations.
● Be scrupulously fair.
● Act unemotionally & w/ good judgment.
● Base judgments on fact & objective analysis—not visceral reaction.
● Be able & prepared to articulate both facts & reasoning.
○ The Supreme Ct Guards
■ 1st Amendment Freedom
■ The Political Process: Separation of Powers (most important in this class)
■ Protection of racial, ethnic & religious minorities.
○ PURPOSE of Administrative Law:
■ To keep administrative powers w/in their legal bounds.
■ To protect individuals a/g abuse of those powers.
● Ensure that individuals are protected a/g abuse.
● Make sure the govt isn’t screwing over its citizens.
● Make sure the train “stays” on track (railroad tracks).
○ 1 track is the system.
○ 1 track is to protect individuals from abuse of those powers.
○ What is Administrative Law?
■ The branch of law that controls the administrative operations of govt.
■ Controls how you make decisions & what you do.
■ Focus is on process—the administrative system itself.
■ Nature of an Administrative Agency
● Power to determine either by rule or by decision private rts & obligations.
○ Rule: Something that is done using legislative power.
○ Decision: Something that uses judicial power.
■ An agency has both at the same time!
■ COMPONENTS of Administrative Law:
(System—Application of System—Review of System)
○ The Powers Vested in Administrative Agencies
■ What sort of powers does the Administration exercise?
■ Delegation of powers to administrative agencies.
● Application of System
○ The Reqt’s Imposed By Law Upon the Exercise of Those Powers
■ What are the limits of those powers?
■ The manner in which administrative powers must be exercised
● (Due process, constitution is the floor)
● Review of the System
○ Remedies A/g Unlawful Administrative Action
■ What are the ways in which the Administration is kept w/in those limits?
■ The judicial review of administrative action
○ Agency acts as a Ct?
○ Cts expect agencies to follow their own regs; if not, Cts won’t look at the problem.
■ Act w/ good judgment & w/o emotion.
■ Articulate the reasoning.
○ Administrative law sets forth the pwrs that may be exercised by administrative agencies, lays down the principles governing the exercise of those pwrs & provides legal remedies to those aggrieved by administrative action.
○ Agencies have ZERO inherent power.
○ Agencies have power given to it by the Legislature.
■ Agencies are creatures of the legislature.
■ Agencies function only insofar as a legislature has given them the authority to do so.
● The legislature must enact a statute creating the agency.
○ This statute, the enabling act, is the fundamental source of an agency’s power.
● Legislature creates agencies & sets limits on their authority.
○ ADMINISTRATIVE LADDER (Measuring an Agency’s Actions)
[Have to climb up & down this ladder when asking, what is the problem?] ■ The Constitution
● Does it pass constitutional muster?
● Is it constitutionally permissible?
■ Specific statutes governing the agency’s conduct, typically authorizing its substantive work.
● Enabling Act
○ Where agencies get their authority.
○ No inherent authority.
○ When you deal w/ administrative agencies, there has to be actual authority – it has to be explicit & expressed.
■ Agency’s own rules & regulations
● How to appeal, where you file information.
● Rules or regs that the agency promulgated according to that rule.
■ Standards of proper procedure, for the most part contained in statutes, particularly in the APA (Administrative Procedure Act).
● Was due process violated? In other words, were notice & an opportunity to be heard given?
○ Due Process → notice & opportunity to be heard.
○ Have to have a hearing when veracity is at issue.
● APA – Administrative Procedure Act: Governing procedural statute at the federal level that is ancient & out-dated (most states have).
■ Certain Judge-made law applying, e.g., principles of administrative “fairness” (e.g., consistency), or prerequisites to judicial review (e.g., giving reasons).
○ Gilmore v. Lujan
■ Facts: Gilmore appeals a rejection of his oil & gas lease offer by the Bureau of Land Mgmt. BLM refused the offer (give Gilmore the deal) b/c the lease did not contain a personal handwritten signature & was not sent back w/in 30 days. Gilmore had faxed in a copy on the due date – which the agency had told him was acceptable, and the official signed copy got there one day late.
■ Holding: This act specifically requires an original signature to be sent in – the guy was denied b/c he sent in a copy of the signature. The regulation gave fair notice of the due date – and he missed it….
■ Cts cannot punish an agency (overturn its decision) b/c the agency followed its own rules.
● Should have argued for substantial compliance & asked for an exception.
■ Agencies have broad power → “the hands of the BLM (agency here) are more iron than velvet
■ Meanwhile, courts have narrow scope of review of agency’s decisions → when agency decisions are appealed, the appeals ct has narrow power to overturn or disa
a ceiling → but the ct chose to decide the other way because :
○ The FDA generally had a longstanding position that state laws complimented their own regs
○ also – a preamble is not actual law.
○ it also seemed like Congress was leaning toward non-preemption
● SO → after looking at Congress’s intention and giving “some weight” to the FDA’s view on it – and looking at what FDA had done in past → there was no proof that the state laws frustrated the purpose of FDA labeling regs- so no preemption – regardless of what the FDA thinks about it…
○ COMPONENTS OF AN AGENCY
■ Legislative: Rule-Making
● Adjudicative: Orders
■ Authority: Enabling Act
● Always the authority comes from the Enabling Act!
○ 2 TYPES OF AGENCIES:
■ Regulatory Agencies
● Licensing power.
● Rate-making power.
● Power over business practices.
■ Non-Regulatory Agencies
● Employee benefits.
● Scheme of social insurance.
○ Old age, survivor’s insurance, unemployment insurance.
● Welfare, veterans.
○ HISTORIC STAGES
● Few taxes, customs duties & land grants.
○ Congress set up benefits for wounded veterans.
■ The Traditional Model
● Control of monopolies & rates (1887-90).
○ Interstate Commerce Commission – set fair rates so parts of the U.S. could be treated equally; looked at what they could do w/ monopolies.
● Regulate product quality (1906-15).
○ Slaughterhouses, water, cars, etc. that are in our modern life.
■ The New Deal
● Socioeconomic areas (1930-40) Labor, gas, public utilities.
○ FDR revolutionized the way we do things.
■ Post World War II
● The Administrative Procedure Act.
■ Response to “Agency Failure” (1965-85)
● Make America cleaner, healthier, safer, fairer.
■ Deregulation (1978-93)
● Reagan Revolution
○ Cost-benefit analysis, International competition.
● Consolidation & Coordination
○ Solicitor General—most powerful person for 2 reasons:
■ He determines which federal cases can be appealed.
■ He determines when things come together, what the govt’s position is going to be & “he is the 10th justice on the S.Ct.”