Reid— Administrative Law Outline— Summer ‘10
I. Chapter One: Introduction
a. (1-22) Administrative agencies are normally located in the executive branch and charged with day-to-day details of governing. Created and assigned specific tasks by the legislature. Focus on how decisions are made, rather than what the decisions are.
i. Agencies are creatures of the legislature
ii. Agencies function insofar as a legislature has given them authority to function
1. Authority can be:
a. Broad (example: regulate railroads by standard of “public convenience and necessity”) Federal Agencies are usually given broad authority.
b. Narrow (example: specific income levels and criteria for government benefits) State Agencies are often given narrow authority.
iii. Legislature enacts a statute creating the agency, the ENABLING ACT, and it is the fundamental source of an agency’s power.
iv. A General procedural statute controls all or most of the agencies within a jurisdiction.
1. At the federal level it is the Administrative Procedure Act (APA)
2. At the state level it is Model State Administrative Procedure (adopted either in whole or in part.)
v. Agency discretion: Agencies are free to set their own policies and procedures in many ways.
vi. Courts have a relatively limited role in supervising agency conduct.
1. A lawyer must win a case at the agency or likely will not win it at all.
vii. The Nature of Administrative Agencies
1. Resolving Disputes
a. The Agency is charged with the detail of regulation, and
b. The agency is expected to develop expertise in a particular area of regulation.
c. Pure legislative solution: where the legislature resolves the problem on its own without referring the issue to any other branch of government.
2. Legislative Choices Involving Administrative Agencies
a. What is the nature of the specific business or industry to be regulated?
b. In what manner should the regulation be carried out? (i.e. licensing, monitoring, or performing the actual work at issue.)
i. The task to be assigned to the agency (agency’s “mission”)
ii. How the agency itself should be structured, and
iii. The placement of the agency within the existing system of government (i.e. cabinet-level agency, a component of an existing agency or an independent regulatory commission.)
iv. Choices:
1. Prohibit any private sector activity (categorical prohibition)
2. Registration and reporting mechanism
3. Professional licensing process
4. Command and control regulation (??? P.8)
3. The Structure of an Agency
a. On the federal level in a cabinet-level department a Secretary presides over the agency (President controls)
b. There are also free standing agencies (President controls)
c. Independent regulatory commissions (headed by multi-person commission –fixed terms, can only be removed in accordance with the enabling act– and staffed by a bureaucracy.)
viii. Justifications for Regulation
1. Economic Justification
a. To control monopoly power
b. To control excess profits
c. To compensate for externalities
d. To compensate for inadequate information
e. To inhibit excessive competition; and
f. To compensate for unequal bargaining power.
2. Political Justification
a. Political Accountability (insures agencies function in the public interest)
3. Evolution of Regulatory Philosophy
a. Deregulation (primarily of economic regulation)
b. Regulation of food and drug, banking, hazardous waste sites.
ix. The Administrative Process
1. Generally
a. Three basic components to agency decision making:
i. Rulemaking (notice and comment, informal rulemaking)
ii. Requires the agency:
1. To give the general public notification that a rule is being contemplated and the language or a general description of the proposed rule, and
2. To invite any
treaties, statutes, presidential documents and other official material, as well as to advise on other matter of agency functioning.
8. Unofficial Commercial Services
a. Contain a wide range of documents and information from proposed and final rules, to adjudications, to agency gossip.
b. Gilmore v. Lujan 947 F.2d 1409
c. Silkwood v. Kerr-McGee Corp. 769 F.2d 1451
d. Administrative Procedures Act, 5 U.S.C. §§ 551
II. Chapter 3: External Controls—the Executive Branch
a. (51-63)
b. An Excursus on Agency Organization
i. APA defines agency as “Agency mans each authority of the Government… whether or not it is within or subject to review by another agency, but does not include—(A) the Congress, (B) the courts of the United States, (C) the governments of the territories or possession of the United States, (D) the government of the District of Columbia.”
ii. The agency model that Congress ultimately chooses reflects congressional thinking on at least 3 issues:
1. The task or mission that Congress assigns to the agency,
2. The type of accountability Congress wishes to impose on the agency, and
3. The realities of the political process
iii. The Agency’s Mission
iv. Agency Accountability
1. An agency’s accountability is determined by its enabling act and its designation as either an executive branch agency or an independent regulatory commission.
2. Independence is determined by express labeling, or the limitations the statute places on the powers of the President to remove the principal officers of that agency.
a. If limited to negligence or malfeasance in office the agency is probably deemed an independent regulatory commission.
b. President’s total discretionary removal= cabinet-level agency
3. Independent regulatory commissions are headed by multimember commissions
Make up
