Select Page

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

A.              Agency Powers
1.         Rulemaking: agencies make rules and regulations, which have the force and effect of law. In this function, agencies act like legislatures. The real legislatures (fed, state and local) do not have the time or expertise to deal with certain issues ie EPA, so they delegate some of their rulemaking authority to agencies to promulgate the details of the rules needed
2.         Adjudication: agencies act like courts and apply their rules to individual situations. There is a range of formality to these proceedings.
B.               Agency Discretion
1.         Agencies have much discretion, though it is limited and restrained.
2.         There exists a tension between accuracy and fairness v. efficiency
C.              Administrative Procedure Act
1.         Only applicable to federal agencies
2.         Most states have a similar state counterpart.
3.         Constitution sets forth minimum rights; APA grants people more rights in some cases, ie formal rulemaking.
4.         §552 – Freedom of Information Act
5.         §551, 553-557 – Rulemaking and Adjudication procedures
6.         §701, 702, 704 and 706 – Judicial review provisions
7.         See Outline Summary of Selected Relevant Portions – Know for Exam
D.              Agencies and Other Bodies
1.         The head of an “agency” is appointed by the President and serves at his will.
2.         The head of a commission is a group of people appointed by Congress.
3.         The different terms refer to the difference in structure and authority and appointment of officials.
A.              History and Timeline of Government Regulation
1.         Constitution – 1789 – makes no mention of agencies
2.         Steps Towards Increasing Government Intervention and Regulation
a.       Common law – laissez faire approach with some limited oversight and some tort protection for individuals
b.      Policing – ie ICC
c.       Market Corrective – intervene when needed
d.      Nationalization – socialism
e.       US is at 3, Market Corrective
3.         1887 – New Deal: brought increasing government intervention up to the level of market corrective
4.         Post New Deal Deregulation: has almost returned US to just policing with some market corrective
B.               Organic Statute
1.         Statute that creates agency
2.         Empowers agency to deal with a problem and grants rulemaking and adjudication authority
C.              Delegation (From Congress to Agencies)
1.         Constitution does not explicitly authorize creation of agencies
2.         Necessary and Proper Clause provides authority for delegation of power
3.         John Locke argued that legislature can’t transfer rulemaking authority power to someone else, as this right must stay close to the people whose only power is in the ballot. This has been rejected and delegation of power to agencies is universally accepted.
4.         Taft argued that delegation

ing its choice of means for effecting its declared purpose of preventing inflation.” If a court can’t review the agency action to see whether it was ultra vires, no intelligible principle exists and the organic statute is unconstitutional. The intelligible principle may come outside of the organic statute, so long as when viewed in context there are established guidelines upon which agency action can be taken and reviewed.
c.       Fahey v. Mallonee (Sct 947): though statute itself did not contain and explicit standard, established principles and policies already existed and so there was an intelligible principle upon which delegates could act.
11.     Examples of Delegation Struck Down as Unconstitutional
a.       Panama Refining Co. v. Ryan (1935) p. 84: Because the delegation of authority to the Pres provided no standard of when to act and “left the matter to the President without standard or rule, to be dealt with as he pleased.” Because Congress had not established any policy or rule or standard, and violation of the Pres Order was punishable criminally, it was an invalid delegation of authority. 
b.      Schechter Poultry Corp v. US (Sct 1935) p. 86: Authority was delegated with no real limits and no procedural requirements and was therefore struck down.