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

Administrative Law


a. Definition. Administrative law is the law that governs agencies and the laws that agencies make. Make laws like Congress and resolve disputes like Judiciary.
b. Admin Law derives from 4 sources:
i. Constitution
1. Due Process Clause (5th and 14th Amendment)
2. Procedural Due Process
3. Search and Seizure (4th Amendment)
4. Case and Controversy (ART III Standing)
ii. APA
iii. Organic statute (creates agency/gives agency authority)
iv. Regulations (agency can promulgate regulations that dictate how it proceeds)
c. ***If client is concerned about decision maker’s decision go here***

Study of it:

i. Source and limits of agency power
ii. Constitutional limitations
iii. Procedural requirements placed on agency by 4 sources
b. Judicial Review:
i. Enforces procedural and substantive constraints on agency action
ii. Is judicial review available?
iii. What standard of judicial review governs?
c. Enforcement:
i. Who can enforce it (agencies or private parties)
ii. What tools are used to enforce it
d. Agencies.
i. Definition. An agency “means each authority of the government of the U.S., whether or not it is within or subject to review by another agency, but does not include: Congress, the courts, or the governments. APA § 551.
1. Two Types of Agencies: executive and independent.
a. Executive: part of a department with the head of the department (“Secretary”) sitting in the Cabinet i.e. Justice and Labor
i. Department of Justice head is called AG instead
ii. Appointed by the executive with the advice and consent of the senate and hold their office at the pleasure of the Pres.
b. Independent: freestanding agencies i.e. NLRB, SEC, FTC. Slightly more independent from the Pres’s influence
i. Headed by 5-7 member governing body
ii. Can be removed only for cause; serve for a fixed term of years
ii. What do Agencies Do?
1. Regulate Private Conduct. Agencies address consumer protection, preservation of the environment, individual health and safety…this occurs at both the federal and state level. Justifications for the extensive regulation of private conduct:
a. the private market system is subject to imperfections that the gov’t can remedy/mitigate
b. operation of unregulated markets may produce results or consequences that a majority consider unacceptable
c. address inadequate consumer information
d. insufficient competition to make the market function properly
e. used for spillover costs: when the activity of an individual/company harms other persons or the environment.
2. Administer Entitlement Programs.
a. dispense federal and state funds for specified purposes to the proper recipients i.e. food stamps and Social Security
b. these programs are public goods because their benefits spill over to the entire public, including persons who have not paid for the program.
3. Everything Else. IRS collection of taxes; Customs clears foreign goods; Department of Defense revokes security clearance.
iii. Types of Agency Action.
1. rulemaking
2. adjudication
3. investigations

iv. Agency Structure
1. Separation of Powers.
a. The Supreme Court’s formalistic approach often tends to minimize the amount the powers of the 3 branches overlap.
i. Post-New deal agencies are all unconstitutional under this approach
b. Compare this with functional approach which determines if there is a violation “according to common sense and the inherent necessities of the governmental coordination.” Buckley v. Valeo (1976). Therefore, as long as one branch’s exercise of power does not jeopardize the core function of another branch, it is OK.
c. Agencies are often called the “headless fourth branch”
d. Nondelegation doctrine: prohibits Congress from delegating excessive legislative discretion to the executive branch
2. Delegation of

ble principle to confine its own discretion. (American Trucking Associations v EPA)
f. Sup. Ct. reversed, reaffirming the intelligible principle test and rejecting the idea that an agency can cure a delegation violation with its own limiting construction
iii. Third Phase. Nearly all legislation has been approved as being compliant. Look for an intelligible principle
1. Whitman v. American Trucking (2001). Appellate court found that the provision of the Clean Air Act was an unconstitutional delegation of legislative power. The Court reversed, stating “we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”
c. Functions of the nondelegation doctrine
i. ensures that important choices of social policy are made by Congress
ii. prohibits Congress from delegating excessive legislative discretion to the executive branch
iii. provides the recipient of the delegation with an intelligible principle to guide the discretion
iv. courts will be able to test that exercise of the power against ascertainable standards. AFL-CIO v. American Petroleum (1980), J. Rehnquist
v. Why the intelligible principle is required:
1. important choices have to be made
2. intelligible principle helps guide agencies
3. intelligible principle guides courts
4. delegation is a check on Congress
vi. Where do you find intelligible principle?
1. text-statute, it lists goals and purpose sending a message to law making agency
2. legislative history