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

Lindseth – Administrative Law
Fall 2011
Ø  Introduction
§  Agencies: each authority of the US Gov’t but does not include Congress, courts, D.C., gov’t of US possessions
·         Created by a legislative act—organic statute
·         Governed by the APA (1946)
·         Single-headed agencies (all Cabinet level agencies)
·         Independent Agencies: multi-member headed agencies (considered a safeguard: attempt to be politically neutral)
¨      Their constitutionality has been questioned but is fairly settled now
¨      Pres. cannot remove these heads of multi-member agencies an only be removed “for cause”, gross misconduct
¨      Do rely on President for admin. support, budget etc. a lot of informal Pres. influence
§  Theories of Agency Behavior
·         James Madison: The Federalist (1787): “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” p.27
¨      Admin Law is about the way gov’t. agencies exercise power over us & the way they themselves are controlled: Madison said it best!  Tension between these 2 issues!
·         James Landis: The Administrative Process (1938): “Gov’t today no longer dares rely for its administration upon the casual office-seeker.  Into its service it now seeks to bring men of professional attainment in various fields…”   p. 27
·         James Q. Wilson: The Politics of Regulation (1980): ‘That agencies are risk averse does not mean they are timid. Quite to the contrary: their desire for autonomy, for a stable environment, and for the freedom from blame gives these agencies a strong incentive to make rules and to exercise authority in all aspects of their mission.”  p. 31
§  How are agencies controlled?
·         Congress Passes Statutes: organic statutes which authorize everything an agency does
·         Judicial Review: court has ability to order agencies to act
·         Removal of Agency Head: (usually they step down, doesn’t usually get to this point)
·         Appointments: presidential appointment, Senate must affirm (heads of agencies)
·         Presidential Oversight: (aided by OMB) controls agencies budgets & can cut funding for misbehavior
·         Congressional Oversight
·         Public Participation: IMPORTANT! a lot more rights to be heard/participate in front of an agency
§  Why do we have government?
·         Protect Individual Rights: from the government & from other individuals
·         Protect Public “Goods”: any activity which is useful to society such as national defense, education, highways
·         Prevention of Public “Bads”: negative externalities such as pollution, an impoact that produces a cost on society
§  Constitution
·         Anticipates a “supreme court”, executive departments and administrative institutions but does not actually create these
·         Congress is empowered by the Constitution but needs to have agents/staff to do their bidding, cannot oversee everything, need experts
·         Wrestle with non-delegation doctrine: standard for determining when Congress has crossed the constitutional line between delegating legislative authority & simply allowing executive & judicial actors to carry out their constitutionally prescribed functions
§  Who are the Agencies Agents Of?
·         Presidential Oversight: charged with implementing congressional directives, supervisory capacity
·         Congress: gives power to the agencies
¨      Agencies thus have this dual role to both President & Congress (very nebulous)
¨      Exactly what Madison wanted however, one limiting the other, struggle for control
§  Sources of Admin Law
·         Constitution: contains provisions like “due process” which agencies must follow; must operate under commerce clauses
·         Organic Statutes: create agencies & regulate what they do (first thing to do is ensure organic statute permits the agency action in some way)
·         Administrative Procedure Act: governs procedures whenever organic statute does not trump it, APA provides procedures to agencies for making/enfor

§  After the New Deal
·         Series of cases where the Court approves broad delegations of congressional authority: much broader than Schecter!    p. 63
§  Modern Doctrine
§  Mistretta v. United States (US 1989)   p. 64
·         Mistretta indicted on 3 counts of cocaine sale & moved to have Sentencing Guidelines promulgated by the US Sentencing Commission deemed unconstitutional  
·         Court held that the Commission had been provided adequately specific guidelines from Congress & that Congress had not granted excessive legislative delegation
·         “So long as Congress shall lay down by legislative act an intelligible principle to which the person/body authorized is directed to conform, such legislative action is not a forbidden delegation of legislative power.”
·         Strong signal that non-delegation challenges would not be well received by the modern Court; Also decade between Mistretta & American Trucking Supreme Court combined vote on the merits of non-delegation challenges was 53-0 against the challenges!
·         Scalia Dissenting: “I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than that of making laws.”
¨      Scalia trying to push Court towards a different test: ancillary test: the power to make law at issue here, is not ancillary but quite naked
·         Industrial Union Dept. v. American Petroleum (US 1980)  p. 74    (pre-Mistretta)
¨      Sec. of Labor promulgated a standard  to regulate occupational exposure to benzene (shown to cause cancer at high exposure levels)
¨      OSHA delegates broad authority to the Sec. of Labor to promulgate different standards