ADMIN LAW OUTLINE
I. What Agencies do:
a. Regulate conduct
b. Dispense benefits
i. Social Security, Welfare, etc.
II. Sorting the Agencies
a. Departmental
i. Heads are President’s Cabinet members
1. Appointed by President after Senate confirmation.
b. Non-departmental
i. Heads are appointed by president after Senate confirmation
1. Subject to the direction/control of the President
2. But they are not part of the President’s cabinet
ii. EPA, CIA, Postal Service
c. Independent
i. Independent of Presidential Control
1. FCC, SEC, FTC, etc.
ii. Characteristics that insulate them from Presidential control:
1. Headed by multi-member groups rather than a single agency head;
2. No more than a simple majority of these members may come from one political party;
3. These members have fixed, staggered terms so that their terms do not all expire at the same time;
4. Members can only be removed from the board for “cause”.
III. APA Sections
a. Almost entirely procedural
b. §551 – definitions
i. “Order”
1. Generally looks like orders from the court
2. Includes licensing
ii. “Rule”
1. Forward looking agency decision
iii. “Agency action”
1. Includes agency inaction (if it is final)
iv. “Adjudication”
1. Agency process for the formation of an order. 551(6).
2. Agency can “rule, order, license, sanction relief, or the equivalent or denial thereof, or failure to act.”
c. §552 – public information
i. Requirement that the agency publish “substantive rules of general applicability” in the Federal Register.
1. “Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.”
d. §553 – Rulemaking (informal)
i. Does not apply to:
1. Military or foreign affairs
2. Matters relating to agency management or personnel
ii. (b) Notice of proposed rulemaking shall be publi
roblem
a. Prisoner’s dilemma: everyone must work together or each individual is worse off.
4. The need to correct for “externalities” – or the existence of “transaction costs” that make bargaining difficult
a. Regulation compensates for the fact that the price of the product does not accurately reflect costs that its production imposes on society (i.e. steel production and the resultant pollution).
b. Or, transaction costs of coming together to negotiate are so high that neither side will come to the table to talk about the costs of these externalities.
b. Less secure economic grounds
i. Less conventional economic grounds for regulating
1. The need to control “windfall” profits
The object of regulating windfall profits is to transfer such profits from the undeserving recipient to consumers (taxpayers).
