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Administrative Law
University of Dayton School of Law
Watson, Blake Andrew

Administrative Law

Professor Blake Watson

Spring 2012

1. Definition: series of laws to control the decision making of an administrative agency

a. APA § 551: an authority of U.S. Gov. even if it’s subject to review by another agency

i. Private

1. insulated from presidential branch (must have cause)

2. board (multi-member) heads; serve terms; party affiliation controlled


ii. Public (Departments)

1. personnel change w/ office (presidential appointment)

2. single agency heads

3. EX: Treasury, Interior, Labor

iii. Not Agencies: government corporations (Amtrack), states

b. benefits: more effective/efficient (one-stop shopping)

i. specialization of rule-making/enforcement

ii. agencies given all three powers: legislative, judicial, executive

c. what they do (defined by statute):

i. regulate private/government conduct (EPA, SEC)

ii. administer entitlements (Social Security, Dept. of Agriculture -> food stamps)

iii. everything else (IRS, INS)

d. typically a battle between efficiency/effectiveness vs. fairness/accountability

2. Responses to Administrative Agencies

a. comply

b. appeal

c. influence agency’s decisions: create rules that give least harm to clients

i. must know procedural mechanisms: look for places to argue your case

3. Sources of Administrative Authority

a. Statutory: grant of authority from a legislature to agency in statue

b. Organic Statute/Enabling Act: statute that gives agency its power

i. creates agency

ii. delegates authority to agency

1. grants legislative, judicial, executive power

2. problems Congress not equipped to handle (requires specificity)

iii. limits authority of agency: must be a grant of authority

1. no inherent or common law powers in admin law

a. all power is statutory

2. ultra vires: agency acts outside statutory authority are void

c. state constitution may create an agencies (minority of the time)

4. Scope/Legitimacy of Administrative Agency Authority

a. Constitutional Provisions:

i. Necessary and Proper Clause: Congress has authority to make all laws necessary and proper for ensuring that powers are effectuated properly

ii. System of Checks and Balances: precludes complete separation of powers

b. (Non)Delegation Doctrine:

i. Congress has authority to delegate power to agencies as long as it gives an intelligible principle to follow in the exercise of that principle

1. prohibits excessive delegation of authority to agencies

ii. intelligible principle (ascertainable standard): limits/describes the scope of agency power; sets standards to follow

1. not required to be exact: just limiting (“in the public interest”)

a. court must simply be able to tell whether agency acted within its designated authority (key is some constraint)

2. applies to delegations of all three powers:

a. Legislative Delegation

b. Judicial Delegation

c. Executive Delegation

iii. separation of powers issue exists with judicial + executive delegation

1. HOWEVER: allowable as long as some ascertainable standard

a. courts allow it for efficiency

iv. rarely invalidates: court will simply narrow the interpretation

1. absent a clear indication from Congress -> court assumes a non-unconstitutional interpretation (Benzene)

2. creative interpretation can be used to broaden/limit authority

v. states can narrow the use of the delegation doctrine: more/less strict

c. Challenges:

i. Delegation Doctrine: Was the power delegated to agency valid?

1. constitutional challenge: Congress acted unconstitutionally by making statute that does not have a ascertainable standard

a. challenging the standard:

i. ascertainable standard too vague/ not good enough (even if agency has chosen a stricter interpretation)

ii. Ultra Vires Doctrine: Was the agency action within its delegated powers?

1. agency challenge: agency action not within the delegated powers

a. challenging action agency took:

i. “you’re not authorized to do that!”

ii. outside ascertainable standard = not following statute

5. Which Procedures must the Agency Use?

a. Determine the Type of Action:

i. Rule Making

ii. Adjudication

iii. Discretionary Decision-Making

b. Sources of Procedures (pg. 17 Supp.):

i. Organic Statute (most are very vague)

ii. Administrative Procedure Act (Federal and State)

iii. Procedural Regulations of the Agency

iv. U.S. Constitution – Due Process of 5th (Fed) and 14th (State)

1. no gov. action can take away liberty/property without due process of law (notice + opportunity to be heard)

c. APA vs. Organic Statute:

i. APA sets default procedures for all Federal Agencies

1. agencies can write their own that comply with APA

ii. APA won’t repeal ADDITIONAL requirements imposed by the organic statute

iii. organic statutes can replace or substitute other procedures for those that are found in the APA BUT ONLY IF the organic statute does so EXPRESSLY

6. Distinguishing Rule-Making, Adjudication, and Disc

thorizes agency to make rules

b. and NOT to the:

i. U.S. Constitution – Due Process of 5th (Fed) and 14th (State)

3. Initiating Rulemaking:

a. Ways Rules Initiated:

i. Top-Down:

1. Legislation: new law requires

2. Political Pressure: Agency; White House; Congress

ii. Bottom-Up:

1. Lobbying: private/public interest groups lobby Congress

iii. Outside Lobbying: begin informally (petition pits you against agency)

1. Informal Petition: go directly to agency member to request rule

a. avoid very top/bottom offices (target person with power)

2. Formal Petition: if informal fails: formally petition to consider rule

a. forces action even if they deny the petition

b. Petitions for Rulemaking:

i. Petition:

1. APA requires agencies provide an interested person with the right to petition for the issuance, amendment, or repeal of a rule

ii. Response:

1. agencies must at least respond to petition in a timely fashion

a. prompt notice given of denial of written application, petition, or request made in connection with any agency proceeding

2. must also give the grounds for denial

c. Failure to Respond to a Petition (Agency Inaction):

i. Action:

1. if agency doesn’t respond -> file for judicial review

a. agency action includes failure to act

b. a person suffering legal wrong because of agency action [or inaction] entitled to judicial review thereof

ii. Remedy (Rare):

1. reviewing court will compel any agency action unlawfully withheld or unreasonably delayed

a. court will oversee compliance

iii. Determination:

1. many factors determine “good faith” delay (TRAC v. FCC)

a. Factors:

i. time taken follows “rule of reason”

1. consider all circumstances

ii. type of concern:

1. delays in public concerns (health or welfare at stake?) vs. economic concerns

iii. nature of the interests harmed due to delay

iv. presence of tasks with higher priorities**

v. length of delay (especially when time frame provided)