Administrative Law Outline

Schiller Administrative Law Fall 2014

Table of contents for this outline on last page (p.50)

When considering whether there constitutional procedural protection considerations, specifically whether a hearing is required, include:

· The number of people affected

o Large numbers of people are not as likely to get a hearing since the political process allows them a remedy

o Small groups may be isolated and unable to initiate political change. [The seven people in Londoner cannot do this. Constitutionally more procdure is required for a small number of people.]

· The efficiency of the hearing

o It is impractical to give notice and a hearing to every effected party when a large number of people are affected (e.g., in Bi-Metallic, all property owners in Denver were affected by the tax.)

· The fairness at stake

· The legitimateness of the claim

o Has government inaccuracy been shown?

· The dignity at stake

· Policy driven

o The more the regulation is policy driven, the less likely they are going to be required to provide a hearing. The government has more discretion is policy making than fact driven regulation. Even if it affects one person, no due process required (Posner).

· Fact driven

o The more fact driven the regulation, the more likely a hearing is required.

Intelligible Principle (must be provided to guide agency’s action.) The advantages of Intelligible Principle Standard:

· Requires Congress to make important policy decisions (Congress makes the tough choices; should think about the cost the regulation will have on businesses. And, conversely, the danger to workers that a lack regulation will allow)

· Limits agency discretion (Congress cant just say “do what you think is right”. We are worried about agencies regulating properly; they’ll do whatever they what)

· Allows for meaningful judicial review. (Without the intelligible principle, a court could not measure what congress intended against what an agency did.

Challenging the Agency’s Adjudication

Traditional Test to Determine a Right to an Article III court:

Crowell V. Benson

· Private Rights –Common Law cases, contracts, property, tort.

o If case involves a private right, litigants have const. right to be in an Art. III ct.

· Public Rights – Government created rights.

o If case involves a public right, litigants have no right to be in an Art. III ct. and congress can delegate power however it wants

§ e.g., right to receive an entitlement (such as food stamps, social security, welfare); right to organize a union. The government created the right, they can decide where you go to court. No right to Art. III court – up to the government. (I.e. Almost all things can be adjudicated by agencies. )

§ Even if you apply this test, govt. can convert an otherwise private right into a public right by statute – e.g., in Schor,

Challenging the Agency’s Adjudication

Right to an Article III court. Consider this anytime an agency is adjudicating. Note: balance will usually work out in favor of delegation.

Schor – Private rights heard by an agency. Congress may authorize agencies to adjudicate claims that otherwise fall within the jurisdiction of Article III courts. Schor waived his rights when he allowed the agency to hear the case.

· Essential attributes of judicial power preserved?

o Is there judicial reviewability of the agency’s adjudication?

§ If yes, then the adjudication wa likely constitutional

§ If no review or less stringent review, the essential attributes may not have been preserved.

· e.g., Schor – statute provides for option of judicial review in Art. III ct. This weighs in favor of allowing delegation.

o How much control does Art. III have?

§ In Northern Pipeline, the Art. III court was supposed to give ultra deference. If they were given more power to review, it would have made it constitutional

o Do the parties have the option to go to court? Did they waive this right?

o Can you choose to go to Art III court? And did you choose not to?

· How broad is the scope of judicial power of adjudicator? How much judicial power is taken away?

o The narrower the scope of power the adjudicator has, the more likely it is constitutional.

§ e.g., Schor – Commodity Futures Trading Cmmn. has authority over violations of the Commodity Exchange Act and CL counterclaims. This scope is narrow. This weighs in favor of allowing delegation.

§ e.g. Northern pipeline. Allowing Bankruptcy Courts to hear all bankruptcy statue claim was too broad

· Origin and impact of right lost?

o Private right? Public Right?

§ Private rights weigh heavily here

§ Especially if a jury trial was an option. In Schor, there was not right to jury trial, only equitable relief.

All balanced against

· Reasons Congress chose to depart from an Art III court.

o Make more efficient? Inexpensive?

§ Efficiency alone will not outweigh the above factors. Northern Pipeline.

o Expertise

§ Has the agency handled several of these cases? Much more than an Art. III court? Doing so leans toward allowing the agency to adjudicate.

Was The Delegation To The Agency Constitutional?

Two very different tests to determine whether the delegation is constitutional

(Use both)

Functional Test (Pragmatic) Favor this test (Balancing Test) – Schor

o Look at what congress is doing (the utility of the action), does it give too much power to another branch?

o Case by case common sense. Does it undermine one branch too much (encroaches)? Too much power given to one branch?

o Slippery slope problem; taking away judicial power piecemeal.

Formalist – Public Right/Private Right (Bright line test)

o The beauty of this test is its definitive clarity.

o Doesn’t seem to protect civil liberties:

§ When the govt is challenging a right (public right), don’t you want an impartial (Art III) judge?

Political Control Over the Executive State

Congress may not have executive power. No legislative Veto. Congress must pass a law to overrul