Administrative Law Outline, Fall 2012
I. Identify the Agencies
a. Intro
i. Agencies act in three ways: adjudication, Rulemaking, and Investigation.
ii. Agencies make more laws that Congress and adjudicate more claims than the federal judiciary.
iii. The statutory background. Agency Actions must be governed by the following, in order of which rules when there is a conflict.
1. Constitution
a. Because they are federal actors, the constitution binds them – they are state actors, which triggers the Constitution.
2. Statute
a. The organic or enabling statute is the statute that establishes an agency and prescribes it mission.
i. Agency specific statute
b. All agencies are creatures of statute.
c. Give the agencies power to make rules and adjudicate
d. Ultra Vires Claim: Unless an agency is empowered by statute, it cannot do an action.
i. There must be an affirmative grant of power to the agency.
1. If the agency acts beyond its power, then you have an ultra vires claim.
e. Particular agency statutes take precedence over the APA so that, for example, if the agency’s organic statute provides a different procedural model or different standard of judicial review from the APA, the particular statute governs.
f. Where do you find agency specific statutes
i. USC
iv. Classifying Agencies
1. Three Groups
a. Departmental
i. Headed by a Cabinet department — secretaries
b. Non-Department
i. Agencies that do not have a cabinet members
1. No difference between these two agencies – departmental and nondepartmental. The cabinet members can be changed because all of these agencies are considered part of the Executive Branch.
2. Departmental and non-departmental can be removed at the request of the president.
c. Independent
i. Outside of the Executive Branch
ii. Subject to the APA
iii. Share these characteristics:
1. They are multi-members groups, rather than a single agency head
2. No more than a simple majority of these members may come from one political party
3. The members of the group have fixed, staggered terms, so that their terms do not expire at the same time
4. They can only be removed for cause, unlike most executive officials, who serve at the pleasure of the president.
iv. Usually, the parties have control of these branches.
b. Definition of Agency
i. Section 551 of APA:
1. Agency means EACH AUTHORITY of the government of the United States, whether or not it is within or subject to review by another agency, but does not include:
a. The Congress
b. Court of the United States
c. The governments of territories or possession of the United States
d. The government of DC
e. Agencies composed of representatives or the parties or of representatives of organizations of the parties to the disputes determined by them.
f. Courts martial and military commissions
g. Military authority exercised in the filed in time of war or in occupied territory
2. This section covers agencies within agencies.
a. Example:
b. Department of the Interior
i. Within the Department of the Interior, there is the Park Services Department.
ii. Within the Park Services Department, there is the Grand Canyon Department.
1. Even though they are subject to the National Park Service, the Grand Canyon Service is an agency.
II. Identify Agency Actions
a. In the APA, agency action either results in a rule or an order. It must be one of the other.
b. For the purposes of the APA, one can only challenge final actions.
i. Only concerned with the final action – rule , order, license, sanction are all final things.
c. RULEMAKING
i. “Future Effect”
1. 551 Definitions
a. (4) Rule means the whole or a part of an agency statement of general or particular applicability and FUTURE EFFECT designed to implement, interpret, or prescribe law or policy
b. (5) Rule making means agency process for formulating, amending, or repealing a rule.
i. Key Point: Future effect is critical to defining what is a rule.
1. If it affects the people in front of it, then it is not a rule.
ii. Basic Principles
1. When Congress creates an agency, it establishes a legislative mandate for the agency.
a. As part of the mandate, the legislature can empower the agency to make rules.
i. It gives the agency power to fill up the details.
2. Unlike Congress, the agency does not have the power to regulate concerning any subject permitted by
b. Reference to legal authority under which the rule is proposed
c. Terms or substance of the proposed rule or a description of the subjects and issued involved.
4. Except when notice or hearing is required by statute, this subsection does not apply:
a. To interpretive rules, general statements of policy, or rules or agency organization or procedure.
i. These are non-legislative rules. Everything else that an agency does that does not have the force of law.
1. If it is a non-legislative rule, then you do not have to give notice.
b. When the agency for good cause (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
5. Both informal and formal rulemaking start with notice.
6. Determining whether it is formal or informal
a. SWITCHING LANGUAGE: When rules are required by statute to be made on the record after opportunity for an agency hearing, section 556 and 557 and then 553(d).
i. If the switching language applies, then we go to formal proceedings.
1. Need to look at the agency specific statute.
7. (C) After notice, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.
8. After considers of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.
a. Lengthy. If the agency if challenged, this is the first thing that people will look at to see if it makes sense.
9. (D) The required publication or service of substantive rule shall be made not less than 30 days before the effective date — except
a. Relieves a restriction
b. Interpretive rules or policy
i. They do not have to publish the final non-legislative rule, but it cannot adversely affect you.
c. Good cause found
10. Informal rulemaking: 553(c), (d);
11. Formal: 553(b), 556, 557, 553(d).
v. Formal and Informal Rulemaking and Hybrid
1. The APA establishes two procedural models for rulemaking – informal (notice and comment) and formal (on the record).
