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

University of Dayton School of Law
Administrative Law
Professor Blake Watson
Fall 2008
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 must be judged under common sense and inherent government necessity – delegation is permitted because it is absolutely necessary. Congress does not have the time or the expertise to perform all the necessary functions, ie EPA.
5.         STANDARD:Congress may delegate its rulemaking authority so long as it establishes an intelligible principle, a standard for the agency to be guided by. So long as the basic decision is made by Congress, agency can be delegated power to refine Congress’ intention.
6.         Courts have upheld Congress’ delegation of power to agencies in all except 3 cases
7.         The argument is no longer can power be delegated, but did Congress delegate too much? As long as there is an intelligible principle, the delegation will be upheld as constitutional. Delegation is concerned with whether or not Congress has created enough structure to make it possible to assess and/or control the legality of the delegate’s conduct.
8.         If a delegation of authority is found to be unconstitutional, any rules created pursuant to such delegation are invalid and unenforceable.
9.         Courts will construct and interpret statutes so as to avoid a delegation problem. 
10.     Examples of Delegation Upheld as Constitutional
a.       Hampton v. U.S. (Sct 1928): Act authorized Pres to set and vary duties according to changing circumstances, and provided when such changing circumstances would exist. Justice Taft, noting the necessity of an expert agency involvement in the updating of duty rates, upheld the delegation because it contained an intelligible principle upon which the Pres could act. 
b.      Yakus v. US (Sct 1944): “Only if the court could say that there is an absence of standards for the guidance of the agency’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declare

on is not. 
B.              Purpose of Ultra Vires Doctrine
1.    This can be used to attack agency action – if the action is ultra vires, it will not stand.
A.              The point of this class is to see how agency action can be attacked if you disagree with the decision.
B.              Points of Attack:
1.         Attack the Organic Statute/Enabling Ordinance: Delegation too broad, no intelligible principle. Argue that the OS/EO is unconstitutional and therefore all agency action based on it is void.
2.         Attack the Agency Action as Ultra Vires: that they went beyond their properly delegated authority
3.         Attack the Decision as Irrational: Agency action must satisfy a minimum threshold of rationality. Though judicial deference is given to agency decisions, ie rational basis test, agency action that is arbitrary and capricious will not stand as a violation of substantive due process and §706 of APA.
4.         Attack the Procedure Used: Claim DP violations in adjudicatory matters or that the APA procedures weren’t followed by federal agencies in rulemaking. 
5.         § 706 of APA lists several basis for attack of agency action:
a.       arbitrary and capricious, abuse of discretion, not in accordance with the law
b.      contrary to constitutional right, power, privilege or immunity – ie delegation
c.       in excess of statutory jurisdiction, authority or limitations – ultra vires
d.      without observance of procedure required by law
e.       unsupported by substantial evidence in cases subject to §§556-557 or otherwise required to be reviewed on the record
f.       unwarranted by the facts to the extent the facts are reviewable de novo buy the trial court
C.              Source of Rights on Which to Base Attacks
1.         Constitution DP Clauses: only in ADJ matters; sets minimum requirements
2.         APA: only in federal agencies
3.         Organic Statute: may grant more rights, but can’t take any DP away
4.         Regulations