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Administrative Law
University of Connecticut School of Law
Lindseth, Peter L.



I. The Agency

A. Origin and Structure of Agencies

APA defines an agency as each authority of the Government of the US, whether or not is within or subject to review by another agency, but not including a. Congress b. The Federal Courts. The President is not an agency of the U.S.

B. Basic Agency Functions: Rulemaking and Adjudication

Due Process is only triggered in adjudication

Londoner: adjudication affects a relatively small number of people à due process

Bi-Metallic: rulemaking – “all are equally concerned”

Congress has additionally granted procedural rights for rulemaking and adjudication

C. Theories of Agency Behavior and Forms of Federal Agency

Principal/Agent Delegation –

The principal of all agencies is Congress, who delegates power under the Necessary and Proper Clause of the Constitution to create agencies.

Agency Cost Problem –

The costs associated with agency oversight (oversight cost) and with agencies acting in the own interests, rather than in the interests of their principal, Congress.

Executive Agencies vs. Independent Agencies –

Executive Agencies: agencies are headed by a single person removable by the president at will

Independent Agencies: others are headed by multi-member commissions in which the members can only be removed for good cause


II. CONSTITUTIONAL CONSTRAINTS, Part 1: Procedural Due Process

A. Which Interests Trigger Procedural Due Process Rights?

Roth: Entitlement Theory: interests that a person as already acquired in specific benefits. Applicants get no due process protection, only those already receiving the benefit having a legitimate claim of entitlement to it. – reliance

Property Interest:

More than an abstract need/desire

More than a unilateral expectation

Legitimate claim of entitlement includes cases where it was statutory, implied, and non-discretionary basis for granting benefit

Liberty Interest:

Expanded to include reputational interests, stigma

Gainful employment

B. If Triggered, What Process is then “Due?”

Matthews v. Eldridge – 3 factor test

1. nature of the private interest at stake

2. the risk of erroneous deprivation of that interest/value of alt procedures

3. the government interest

In Matthews the discontinuation of disability benefits was allowed because medical records suggested that he was not disabled. Second part of the test is usually most important



A. Competing Concepts of Separated Powers: Formalism v. Functionalism

Madison espoused a formalist view: that the Constitution is designed to separate powers in order that each branch would be discouraged from over exercise of power.

Problem: Formalism, while faithful to the constitutional text, is incomplete—or inadequate—because it fails to bridge the gap between modern administrative government and the formalist paradigm.

The modern administrative state, however, as James Landis explains, is a functionalist fusion of the three branches of government.

Functionalism (as fully explained by Peter Straus) is the theory that rationalizes the modern system. It says that we tolerate a fusion of power at the lower levels of government so long as the three branches maintain their distinct constitutional powers at the summit. (ideas of core functions and aggrandizement)

Problem: functionalism poses the greater threat of the constitutional structures designed to protect individual liberty, check the exercise of power, and assure governmental accountability.

B. Agencies and Article I: (Non)Delegation of Legislative Power

1. The Historical Nondelegation Doctrine

The pre-New Deal cases are formalist in their approach to nondelegation. In Wayman, justice Marshall explained that it a matter was “important” it must be handled by the legislature itself, but that an agency can “fill up the details.” In Field, the Supreme Court explained that the legislature cannot delegate legislative power to the President, though they can create a “conditional statute” wherein a president was authorized to act under certain circumstances in a particular way.

2. The Modern Nondelegation Doctrine

The nondelegation doctrine is:

the principle that the Congress of the United States, being vested with “all legislative powers” by Article One, Section 1 of the United States Constitution, can not delegate that power to anyone else. However, delegation of some authority is exercised as an implied power of Congress, and has been ruled constitutional by the Supreme Court, as long as Congress provides an “intelligible principle” to guide the agency in question.

The nondelegation doctrine had only one good year: 1935. The rest of the

toes (unconstitutional, see Chadah, below)

C. Appropriations (better, but still cumbersome)

D. Legislative History

B. Legislative Vetoes:

The one-house legislative veto was declared unconstitutional in Chadah (1983).

Holding: Formalistic opinion that Congress could not exercise a legislative veto as it was a violation of the principles of bicameralism and the Presentment Clause; in the eyes of the justices, Congress was essentially passing new legislation (that overturned the INS decision) via resolution, without allowing the President to play his constitutionally assigned role in the legislative process.

Rule: Article I of the United States Constitution requires that every Bill be passed by both the Senate and the House of Representatives, and then presented to the President of the United States for approval. If the President disapproves, the Bill may be repassed by 2/3 of the Senate and the House of Representatives.

C. Appropriations (indirect means) budget of agencies goes back to Congress annually, can defund agency, a good way to oversee agencies even without a legislative veto anymore – control policy through this (ex pg 115)

D. Legislative History: Agencies oftentimes look to legislative history in an effort to resolve ambiguities in a statute, as to courts.

4. The Role of the Courts in Resolving Legislative Ambiguity: Benzene.

Industrial Union Dept., AFL-CIO v. American Petroleum Institute (Benzene) (1980):

Facts: The burden is on the agency to show, on the basis of substantial evidence, that it is at least more likely than not that long-term exposure to 10 ppm of benzene presents a significant risk of material health impairment. OSHA did not even attempt to carry its burden of proof. In interpreting his statutory authority, the secretary exceeded his power.

The case turned on the congressional intent in using the word “feasible.” Did this mean technically feasible, economically feasible, or something else?

Benzine is good law when an agency’s interpretation of a statute raises constitutional concerns