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Administrative Law
University of Dayton School of Law
Howarth, Cooley R.

Administrative Law Outline, Prof Howarth, Fall 2011

I) Introduction to the Administrative Process

· Necessary and Proper Clause: Congress has this power from the Constitution to do whatever is necessary and proper to uphold the Constitution.

o State constitutions give their legislatures much more power. They have the power to make any power they want, as long as it relates to the public health, safety, welfare, or morals. (i.e. the Ohio General Assembly can make any law it wants, as long as it can be related to one of those areas.)

o For all intensive purposes, state legislatures can do anything they want as long as they can related it to one of those purposes.

o Legislature designates power to someone who is an expert in a particular area, and they have the power to write rules and legislation that have the force and effect of law. If it is appropriate, they have the power to adjudicate to find whether someone has violated the regulation, and if they have, the agency has the power to impose penalites.

· Administrative Law: is law that governs the decision making power of administrative agencies. Simply put, it controls the conduct of administrative agencies.

o Agencies make rules and regulations that tell our clients what they can and cannot do. Those rules and regulations have the force and effect of law.

II) Source and Scope of Agency Power

Designation of Legislative Power by Congress to a Federal Agency

· The source of all agency power is almost always a grant of legal authority from a legislature to the agency. The power is delegated to the agency in the “organic statute.”

· The Organic Statute has Three Important Functions

o It may create the agency if it did not exist before the statute

1) Create an independent agency, create a new department of an agency. (i.e. in 1969, Congress created the EPA.)

2) When there is already a department or an agency out there that can address the problem, all the organic statute does is give the existing agency additional power.

o Serves as the vehicle to handle a problem that Congress can’t or doesn’t want to handle. When Congress sees a problem, it could pass a new law saying do this/don’t do that. Instead, Congress gives the agency the power to handle the law.

o Measuring Rod for all Agency Authority

1) An agency only has so much power as is actually contained in the organic statute. There is no such thing as inherent administrative authority. There is no common law administrative authority! It’s all statutory.

2) Can’t act ultra vires—outside the scope of your authority.

· Two Problems in Administrative Law

o Source of Power

1) Where does Congress get the power to delegate the judicial/legislative/executive power to agencies (unelected bureaucrats?)

2) Everything about Ad Law violates checks and balances and separations of powers, and it’s supposed to—it’s much more efficient. We just have to see if the government can justify it.

3) Organic Statute provides the power to the agency, but has Congress actually delegated power in a way that is legitimate in terms of Constitutional Law? This is the first problem.

o Scope of Power

1) Organic statute usually provides very broad power. How do we find the scope of power with more particularity and clarity?

· Whitman v. American Trucking Associations

o What kind of power did Congress give the EPA in this case?

1) Promulgate air pollution standards regarding how much particular matter (little particles) can be in the air v. how much ozone can be in the air

2) The trucking industry is concerned it will affect their operations

3) They say that when Congress wrote the statute that gave the EPA the power to promulgate regs, Congress violated the “delegation doctrine,” which puts limits on how Congress can go about delegating power.

4) Congress has the power to delegate legislative authority to an administrative agency:

· Article I, Section 1 says all legislative power is vested in one Congress—but it doesn’t say they can’t delegate it.

· The Necessary and Proper Clause allows Congress to delegate its authority—Congress has all powers that are necessary and proper to carrying out one of its enumerated powers.

o But there is a catch—Congress can only delegate its legislative authority if they include an “intelligible principle” in the organic statute.

o Intelligible Principle: Something in the statute that tells the agency how to use the delegated power.

o So there has to be both a delegation of power AND an intelligible principle explaining how to exercise the power.

· The Delegation Doctrine

o Although the Constitution doesn’t expressly allow delegation of power to an administrative agency, IT CAN BE DONE. (Necessary and Proper Clause)

1) This is true at both federal and state levels

o But the condition to this power is the second part of the delegation doctrine—every delegation has to have an “intelligible principle” (aka ascertainable standard) that tells the agency how to use the delegated power.

o The delegation doctrine works with ALL KINDS of delegations—not only legislative power, but also adjudicative and executive power. The standard is the same in all three cases.

o The intelligible principle has to be in the organic statute.

o Hypo: Congress delegates an agency with the power to maintain air quality to the same level it is today. Is that ok?

1) Probably—that is an ascertainable standard.

o Why is the intelligible principle requirement justifiable by courts and acceptable under the Constitution?

1) Courts think that by requiring Congress to come up with some sort of standard for the agency to use the power, it is requiring the elected members of the general assembly to make the basic, very important decisions about standard, rather than giving all the power away to the agency.

2) Only giving away the power to fill in the details, which is better left to the experts at the agency.

o An unconstitutional delegation of whatever kind would be a delegation in a statute that either:

1) 1) does not contain any ascertainable standard at all OR

2) 2) contains an ascertainable standard or intelligible principle that is so vague that a court cannot tell what power has been given or how the agency is supposed to execute it.

· Statutory Interpretation of Delegation of Authority

o Benzene case is a good example of the Court using narrow construction of the statute that it might otherwise have found unconstitutional.

1) In Benzene, they wrote a regulation authorizing strict standards governing workers’ exposure to toxic materials in any workplace (basically limiting the amount of Benzene that can be found in the atmosphere.)

· Everyone went nuts and asked if OSHA had the ability to set this standard.

· The organic statute said OSHA could regulate workplace environments as long as the regulations were “reasonable and appropriate.”

· Four justices look at an interpretation that finds the statute unconstitutional—but they use the canon of construction which says if there is more than one interpretation for a statute, you favor the one that leans toward upholding the statute (Avoidance Canon)

o Techniques for trying to uphold a statute

1) Look for explicit standards—text

2) Look for implicit standards

3) Import ascertainable standards from other areas of law into the organic statute

4) Forbid agency to act unless and until the agency adopts an interpretation of its own organic statute that clarifies or narrows its power. (Cooley say

rs as a strict doctrine that separates out the three branches of government. A more pragmatic approach, including administrative agencies (who can be experts) makes a lot more sense.

2) So the court says we can create specialized administrative tribunals, but it can’t take away the court’s common law powers—that would be going too far.

· That leaves rights and duties that are created by statute which can be adjudicated in administrative agencies.

· State courts are frequently a little more “testy” when it comes to having an intelligible principle. They want to see more explicit standards.

III) Implementation of Delegated Authority

Distinguishing Rulemaking, Adjuication and Discretionary Decision-Making

· Three Ways to Implement Power

o Legislative Power—Through Rulemaking

o Adjudicative Power—Holding Hearings

o Executive Power—By making Discretionary Decisions

1) The first thing you need to learn about administrative law is that you need to think procedurally, not substantively. Without knowing the procedures, you aren’t even in the game.

o Consider the following examples:

1) The decision that the manufacture and sale of Long Boards (long snowboards that look like surfboards) should be banned since they represent an unreasonable risk of injuries to consumers.

2) The decision than an airline pilot should lose his FAA license to fly a commercial airplane since he is alleged to have taken an alcoholic drink less than 24 hours prior to a flight.

3) The decision on which architectural, construction and landscaping companies should be chosen to complete the construction of Route 75 and 35 through Dayton.

o These are examples agency rulemaking, adjudication, and discretionary decision making, respectively.

· How is an agency law made?

o Fact finding must be done

o Decision maker (legislature or agency rule-maker) will take all the data and analyze it.

o Somebody is going to promulgate a new rule of law

o The rest of us aren’t involved in the legislative process.

· What are the steps in an adjudication?

o A compliant or citation is filed to start the adjudication

o Presentation of evidence (plaintiff)

o Cross examination by the defendant

o Presentation of evidence (defendant)

o Cross examination by the plaintiff

1) All of this is FACT FINDING

o Judge/Jury has to figure out what the law is—do these facts entitle someone to legal relief, or not?

o Judge must apply the law to the facts.

o Put simply, its three steps—fact finding, figuring out what the law is, applying the law to facts and reaching a conclusion.

· Adjudication Defined: An adjudication is a measurement of or an evaluation of facts against a pre-established rule of law. Any decision that fits that generic definition is an adjudication.

o Is a cop giving you a ticket an adjudication?

1) Yes….fact finding ( radar)

2) Law—what is the speed limit?

3) Applying law to fact