Administrative Law
Edley
Fall 2014
Introduction
The New Deal Shift – FDA, FTC
APA: made in 1946- meant to reign in the crazy growth of the admin. state & protect subjects of gov. regulation
Second burst – Public interest era of 1970s. “Rights Revolution”- focus on protecting intended beneficiaries of new regulation
APA Agency definition: each authority of the Gov of the US, whether or not it’s within or subject to review by another agency
NOT an agency: Congress, the courts, territories and DC, President (Franklin v. Mass, Dalton v. Spector)
Legislative branch’s agency: GAO (can investigate agency action w/o any req. from Congress and can issue recommendations to agency and Congress)
Judicial branch’s agency: admin. office of US, puts out guidelines that look like legislative rules
Exec branch’s agencies:
1) White House/Exec Office of President
2) Cabinet Departments
3) Exec. Agencies
-free-standing executive agencies (e.g. EPA)àdon’t sit within a cabinet department, but are executive. serve at pleasure of Pres.
-executive agencies within departments (e.g. CMS)àled by 1 person, serve at pleasure
4) independent regulatory agency (Commissions/Boards)àconsidered to be outside the exec. Branch
-e.g. SEC, FCC, FTC, NLRB, Fed. Reserve
-somewhat insulated from Presidential control (hence ‘independent’) b/c harder to control several people rather than just one. Pres. Doesn’t appoint and remove these people at will
-headed by multimember groups rather than single agency head
-no more than simple majority can come from one political party (e.g. 3/5)àlimits who Pres. Can appoint and ensures that at least some Commissioners can be from different party
-fixed/staggered terms so they don’t expire at same time
-can only be removed FOR CAUSE, unlike most exec. Officials who serve at pleasure of Pres.
-for cause: malfeasance in office or neglect of duty
-one exception: Fed. Energy Reg. Comm. is independent reg. agency but located within DOE, but not subject to direction of Sec. of Energy
5. Quasi-agencies (e.g. USPS)
Goals of the administrative state:
· Efficiency – solve market failures (market power; information asymmetries; collective action problems)
· Fairness – redistributing resources (certain people can’t do with their property what they want to do with it) (SS) (reasons separate from market failure for intervention that involve redistributing resources from one group to another)
· Democracy – participation; accountability; legitimacy
o Decisions are happening away from Congress, without voting, and away from representation
Benefits of agency work:
· Issue of limited legislative resources – why give Feinstein the duty of determining the placement of bathrooms?
· More political insulation from controversial decisions
· Better technical knowledge
· Gridlock in Congress
Drawbacks:
· These are unelected bureaucrats
o Chevron – Supreme Court noted that most people did not vote in the last election because of one agency’s operation
· Bureaucracies exercising huge amounts of power
Why would a Congressperson vote for a bill to give agencies more power?
· Congress may get it wrong and get it blamed for something
· There may be a constituency to be pleased
· Gives the Congressperson time to work on other stuff
Why would industry be in favor or opposed?
· It would be costly
· Maybe it’s easier to influence bureaucrats rather than Congresspersons
· Some industries may want regulation and may be fighting each other
· Why might one company want more regulation – for example in privacy?
o Microsoft lobbies strongly for more regulation; others fight more regulation.
§ Microsoft likes privacy in general – its business model rests on the fact that the user feels comfortable on the user giving it information
§ Maybe other companies don’t want as much regulation because they would have to make adjustments to their products to make them more private
ASK: 1) why does government institution need to step in? 2) what gov. institution should step in? Agency, Congress or judicial intervention through CL?
POLICY Critiques of Administrative State
PROBLEMS
· Agencies have too much discretion
o Political legitimacyà agencies aren’t sufficiently accountable or legitimate
o Constitutional problemsà agencies exercise authority in ways that undermine checks and balances of our constitutional framework
· Agencies produce poor regulatory outcomes
o Economic problems: effects of regulation (also mis-measured, another problem) are not well correlated with the stated goals of regulation
§ Current system is extraordinarily inefficient
o Political problems: outcomes reflect the biases of the decision makers
SOLUTIONS
· Increase public role
o Give presidents more control over IRCs
o Increase strength of other overseers
· Deregulation
o Use market mechanisms
I. The Place of Agencies in American Government.
es desirable, you don’t want the legislation to be too efficient; this is tyranny.
Methodological point for and against a robust version of non-delegation:
· Argument between formalism and functionalism
o Formalist view – certain powers are inherently legislative, others executive
o Functionalist view –No one should have too much power, so let’s make sure that as things are happening out there, we don’t’ think anyone has too much power.
§ Anything about government getting stuff done (“efficient government”, “good government”) is functionalist
§ Having courts do stuff and create policy is bad; they lack expertise and knowhow
§ Congress was designed to create a ‘workable’ government
Both Panama Refining and ALA Schechter are politically motivated.
Panama Refining Co. v. Ryan (1935) (p. 44)- found a section of NIRA unconstitutional because doesn’t say WHEN president was to exercise authorized power
· National Industrial Recovery Act – empowers president to prohibit transportation of “hot oil” (oil in excess of certain quotas); Roosevelt uses this power; gets sued
o Act has no articulation of a goal; little limitation on president’s power
o Law contains general policy goals but not information on limitation on presidential power
o There is a triggering event, however; it must be in excess of state limits
o There is something implied, though; the context of this act is to make sure the economy is running well, post-Depression
· Issue: is the scope of President’s discretion greater under this statute or Hampton case?
· Holding: Congress is manifestly not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested
o However, the President can only do one thing – stop things.
§ The President can only prevent the shipment of hot oil.
o Congress could have placed better restraints:
§ 1. Constraints on the factors that can be considered
§ 2. Scope of decisional authority (“Is this something I’m really worried about? Hot oil?”)