Administration, Goals, Powers, and Constitutionality
1. Introduction
a. Definition:
i. Any govt agency charged w/administering a govt function can be an agency, provided it’s not the legislature, court of law or the chief executive
b. Focus on common principles that govern admin behavior across the spectrum; look at categories of issues and then principles that govern that type of issue across agencies
c. Separation of Powers Concerns: Agency as the headless 4th branch
i. How far does agency power go?
ii. What gave cg the right to create agency power under the APA?
iii. Functionalism v. formalism in evaluating agency behavior
1. Functionalism—okay if is the more efficient way to run govt.
2. Formalism—Need to strongly protect three branches of govt as laid out in cn.
d. Admin Law concerns self with:
i. Transfer of govt power to agencies
ii. Agency use of power
iii. Court review of use of power
e. To understand agencies, need to understand:
i. Allocative mechanism of govt power
ii. Role of administrative agencies
iii. Role of courts in admin process
f. Why regulate?
i. Activist govt—govt interference needed to help the weak and check the strong
ii. Markets better equipped to allocate resources where people, not govts, want them.
2. Responsibilities of the Administrative State
a. Deshaney v. Winnebago County Dept. of Social Services
i. Custody of boy was given to father after divorce, child not removed from custody after abuse allegations. Bringing action alleging deprivation of substantive due process under 14th A by failing to protect, when they knew or should have known of abuse.
ii. Child’s rights were not violated under the due process clause
1. Clause is a limit on state action, not a protection against private action; No affirmative duty.
iii. State did not have a duty from a “special relationship” formed by investigating complaints
1. Other cases—requiring medical care for prisoners and keeping mental patients safe—only mean that state has to care for people once state takes into custody
2. State did not place child in any worse position than he would have been had the state not acted at all.
iv. Dissent, Brennan
1. State relieved ordinary citizens from duty of care b/c they thought state was taking care of child and thereby assumed duty.
2. Formalist distinction—state has duty when has taken action
b. ICC—first federal agency, created in response to problems w/RRs that couldn’t be handled by state regulation b/c RR cross state lines
i. Trying to regulate market conduct. Increased w/industrial revolution
ii. Recent trend—push to industry deregulation
iii. APA passed after New Deal, gave procedures for agencies to take as they exercise quasi-judicial and quasi-legislative functions.
iv. Regulatory process as one of conflict and bargaining, rather than matching of means and ends.
c. Reasons to regulate: Balancing of interests—free market vs. government
i. Fixing market failure? Or, reducing market efficiency?
ii. Leveling the playing field through required disclosure of info
iii. Coase theorem—market participants will negotiate their way to efficient use of resources.
1. i.e. pollution market purchases—willingness to pay changes if factory has right to pollute or residents have right to clean air; most efficient if just focus on best result.
d. Final Report of AG’s Committee on Administrative Procedure (1941)
i. Greater uniformity and impersonality in agencies compared to executive.
ii. Cg could give power to courts, but they are reluctant to perform rule-making b/c that’s for a whole class of people, rather than deciding individual rights
iii. Able to enact preventative legislation—can be more flexible in making sure unwanted thing doesn’t happen and act b/f the fact
iv. Allows cg to focus on broad policy-making
v. Courts aren’t as uniform in their application of the laws
vi. Continuity of attention to issues
vii. Can better deal with volume of business
3. Incorporating Agencies into the Constitutional Structure
a. Difficult to fit agencies into the 3-branch system of government, as they exercise legislative, judicial and executive functions.
b. Changing views about proper delegation of authority
i. Tension in caselaw b/t formalism and funcationalism
ii. Power delegated to agencies from congress.
1. But, people, delegate power to legislature, how can they delegate further?
iii. Initially, looked at if an “intelligible principle” was included
1. Allowed for narrow delegation of power
iv. Have moved away, now have delegations w/broad exercise of power
1. But, non-delegation doctrine still at the state level
c. 3 reasons for intelligible principle standard:
i. Requires cg to clearly call out principle in delegating
ii. Guarantees accountability
iii. Provides for judicial review
d. Power of agencies defined by:
i. Statutory law (both enabling legislation and APA)
ii. Court interpretation (non-delegation doctrine and procedural due process)
e. Review history of public/private rights and functionalism/formalism distinction leading up to CFTC v. Schor (No. Pipeline, Union Carbide, and Grandfinanciera) in other outline.
f. Agencies as Courts: CFTC v. Schor
i. Commodities Exchange Act allowed the CFTC to order reparations against brokers who violate act. Schor sued one of the brokers, they counterclaimed and CFTC upheld counterclaim. Schor sued, saying CFTC hearing counterclaim was beyond powers of agency, as they aren’t Article III courts.
ii. Functionalist analysis—look at substance rather than formal categories in determining.
iii. Role of Art. III courts is to protect liberties by having impartial judges. Here, Schor waived that protection by bringing initial claim w/CFTC (could have brought in district court).
iv. However, can’t waive impermissible delegations of power, so also need to look at if delegation intrudes on art. III courts power. Finds it does not b/c:
1. Deal only w/particularized area of law
2. Orders only enforceable by district court
3. Legal rulings subject to de novo review by courts
4. Does not exercise all powers of district courts, i.e. habeas.
value judgments and policy assessments, should be done by elected body. Only cg has power to make laws—NO acceptable delegation of leg power.
iii. Later SC decision found that sentencing guidelines must be advisory rather than mandatory
1. Florida court treated the same way—guidelines must be advisory, not mandatory.
h. Whitman v. American Trucking Association
i. Challenge to delegation to EPA, where agency sets and reviews standards for particulate matter and ozone.
ii. Circuit court found no “intelligible principle”, but found okay b/c agency can adopt a restrictive construction.
iii. Scalia wrote for majority.
1. No defective delegation can be cured by agency restraint.
2. But, found cg gave enough standards to determine acceptable levels, cg doesn’t need to provide determinate criteria.
3. Combo of powers distinguishes Whitman from Mistretta for Scalia
6. End of the Legislative Veto
a. INS v. Chada: Scheme where exec recommended for removal, then legislature could veto was uncn b/c violated presentment clause. Doesn’t matter how efficient it is if it is uncn.
i. Dissent: This is a more efficient way of doing things, cg has authority to delegate this way; needed for effective government
ii. Very formalist decision
iii. Can also be explained that were more “private” rights, i.e. of just one individual rather than review in rulemaking case.
b. NASA contested legislative veto, cg removed and then underfunded NASA and required to come back for supplemental appropriations. NASA agreed to abide by funding ceilings and come back if were going to exceed. 2 impacts:
i. Committee exercising veto over NASA actions
ii. Shift in how cg exercises control
7. Executive Control: Appointment and Removal
a. Executive can control agencies by appointing or removing agency heads.
b. 2 prior cases:
i. Meyers—Rejected legislation where P can only remove postmaster after advice and consent of Senate; interferes w/ability of P to appoint and remove
ii. Humphreys—Found Truman’s attempted removal of independent commission invalid b/c cg provided could only be removed for good cause (term was 6 years). Impeded P authority through good cause requirement.
1. Duties neither political nor executive, but predominately quasi-judicial and quasi-legislative
c. Bowsher: Cg can’t retain for itself power to remove executive officials by means other than impeachment.
d. Morrison v. Olson
i. Special prosecutor legislation.
ii. USSC finds the IC was an inferior officer b/c
1. (1) Subject to removal by the AG;
2. (2) Limited duties – can’t create policy and must conform to the policy of the departments;
