Administrative Law Outline

ADMINISTRATIVE LAW – FENSTER 2012
 
WHY DO WE NEED AN ADMINISTRATIVE STATE? – What is it intended to accomplish?
–       Solve problems of “market failure,” that is, “when a market left to itself does not allocate resources efficiently.”
–       Instances of when the state intervenes:
o   Curb monopoly power (e.g., antitrust laws, FCC limits on media ownership).
o   Address inadequate or asymmetry information, when one party knows more information than another (e.g., product labeling, OSHA regulations on workplace safety).
o   Solve collective action problems by creating public goods (e.g., fund and manage national defense; protect the environment; provide and maintain public parks; subsidize or provide education).
o   Reduce externalities where price of product doesn’t represent true costs (e.g., regulate environmental harms that are byproducts of production process).
o   Address economic and social inequities (e.g., via a social safety net, education, health regulation).
o   Further nonmarket, collective values (e.g., regulation of broadcast content).
 
AGENCY POWERS – How do agencies do what they do? What powers can they be given?
–       Regulatory authority: promulgate rules (quasi-legislative)
o Informal
o Formal
o Hybrid rulemaking
–       Prosecutorial authority: enforce statute or regulations
–       Adjudicatory authority: settle disputes/ review appeals of enforcement actions (quasi-judicial)
o Formal adjudication (554, 556, 557)
o Informal adjudication
–       Authority to gather and produce information
–       Authority to allocate public resources and distribute subsidies
–       Authority to provide services
 
AGENCY TYPES – What kinds of “agencies” are there?
–       Executive departments (e.g., Commerce Dept, Defense dept)
o    Typically have sub-agencies under their authority
o    Within executive branch; President has extensive appointment and removal power over Departmental Secretary and sub-agency heads.
–       Independent executive agencies (e.g., EPA, Small Business Administration)
o    Equivalent of departments, but with lesser status.
–       Independent regulatory agencies, a/k/a “commissions” (e.g., Federal Communications Commission, Federal Trade Commission, Federal Election Commission)
o    Constitutionally located within executive branch.
o    But more limited executive control than departments and agencies: more limited executive appointment and removal power.
o    Expectation that agency will offer more politically “independent” decisions.
 
THE MATERIALS OF ADMINISTRATIVE LAW – The sources of agencies' legal authority; the objects of this class
–       Constitution and constitutional common law
–       Statutes specifying the organization and programs of agencies
–       Annual appropriations
–       Generic statutes regulating internal procedures; and statutory “common law” arising from judicial interpretation of statutes
–       Presidential executive orders and other directives
–       Agency “law” as it appears in the Federal Register and the Code of Federal Regulations
 
WHEN THINGS GO WRONG AND THE LAWYERS STEP IN: The story behind the statutes and cases we'll read
–       Conflicts between branches of government (e.g., Congress and an executive agency)
–       Time passes, statutes and agencies age, and the political and normative commitments of executive branch, congressional majorities, and the judiciary change (e.g., a “liberal” statute enforced by a “conservative” administration)
–       Statutes are complex, and congressional intent is often self-contradictory (e.g., a statute will simultaneous seek to respond to a regulatory need, remain faithful to the “rule of law,” and maintain administrative “efficiency”)
–       Stakeholders or other interested parties are frustrated: They either won or lost at the legislative, rulemaking, or adjudicatory stage, and seek legal redress.
 
CREW v. OA – Substantial Independent Authority Test
–       Crew made a FOIA request for information from the OA regarding lost emails from the EOP
o   OA claimed it was not covered by FOIA because it is not an “agency” under FOIA
o   Argument for FOIA – best way we have to make sure government agencies are following the law substantively and procedurally
§  Allows public to be informed voters
–       Under plain language of FOIA, OA would be considered an agency
o   Congress would have allowed any person to demand information from the President
o   However, judicial exception to the plain language has created the Substantial Independent Authority Test
–       Ct. refuses to extend FOIA to an EOP unit that lacks substantial independent authority
o   OA provides only operational and administrative support = Not agency = Not subjected to FOIA
 
NON-DELEGATION DOCTRINE
Non-Delegation Doctrine: prohibits excessive delegation of discretionary powers by Congress to federal agencies and the President.
Intelligible Principle Test: delegation is permissible when Congress lays down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform.
 
Panama Refining Co. v Ryan – Intelligible Principle Test
–       President executes executive order that traces a statute granting him power to prohibit the interstate transport and foreign commerce of petroleum
o   Act When? Whenever
o   Who Acts? President
o   What does Actor Do? Enforce State Law
o   Restrictions on Delegation? State laws, general principles, subject matter
–       Non-Delgation Doctrine says that Legislative Branch can’t dish out excessive Legislative power to the Executive branch and agencies
–       Ct says no Intelligible Principle in this case
o   There are limits of delegation which there is no Constitutional authority to transcend
–       Test:
o   Look to see whether Congress declared a policy with respect to that subject
o   Whether Congress set up a standard for the President’s action
o   Whether Congress has required any finding by the President in the exercise of the authority to enact the prohibition
–       Cardozo Dissent – says there is only one commodity that the President can control and that there are standards for when he can act
o   Fenster – this doesn’t seem to be that broad of a delegation
o   Might pass in a modern form
 
Schecter Poultry Corp. v United States – Lack of Intelligilble Principles
–       §3 Authorized President to approve “codes of fair competition”
o   Problem Addressed? “Fair Competition” Dealt with ANY industry – quite broad
o   Act When? President when prompted by private groups
o   Who Acts? Trade groups prompt President with codes of competition
o   What does Actor Do? Pretty much anything
o   Restrictions? Not very much – Congress provides none (p. 31)
–       Congress Loses – probably would never pass because of lack of intelligible principles
 
Minstretta – Rejection of attempt to bring back non-delegation doctrine
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