Administrative Law Outline
I. Agencies and the Structure of Government
A. Introduction, Delegation of Legislative Power
1. Early Principles
a. Madisonian system: separation of powers btw branches of gov’t to avoid abuse of power
b. Dec of Ind: gov’t may exercise power over us b/c it has our consent (through election)ßConstitution
c. original idea of admin agy: to help President carry out Constitutional and statutory duties (exercising discretion of President)
d. New Deal era: Congress’s creation of independent admin agy’s exploded: some of these agy’s later became part of executive admin agy’s
e. Early admin law focused on:
i. legal sources of admin law, executive power
ii. judicial remedies for abuses of power
2. Regulating Agencies:
a. Administrative Procedure Act: Considered the “Constitution” of fed admin law
b. Freedom of Info Act 1967: public disc of agy records/publications of agy rulings
c. Gov’t in the Sunshine Act 1976: meetings of multi-member fed agy’s must be held in public
3. Legitimacy of Agency Powers
a. Cts are troubled by this power, but have not declared it unconst. Instead make sure they adhere to standards of legitimacy; controlling Administrators in the exercise of discretion
b. Courts review by
i. substance: discretion in interpreting enabling legislation
ii. procedure: evidentiary basis for rulings
iii. rationality review: can’t be arbitrary/capricious
4. Non-delegation doctrine: Congress can’t create an agency w/o giving it an intelligible principle to guide agy in exercise of function
a. Presidential functions for control of admin agys: appointment, removal, executive constraints
b. Congressional functions: enacting legislation, oversight hearings, appropriations
B. Modern Delegation of Legislative Power
The Origin and Mandate of Administrative Agencies
1. The Theories on the Origin of Administrative Agencies
Public Choice Model (Libertarian)
Public Interest Model (Economic)
Admin agencies result from a struggle among self-serving legislators/factions, interest groups, powerful competing for legislative prizes. Private, not public int.
Admin agencies result from an underlying social problem/need: response
Legislature: market where votes are $, legislators are self-interested, dickers toward terms, not deliberate toward goals
Legislature: forum to ID objectives/ends for human action, taking action
Majority rule: only to prudently control transaction costs of individualistic exchanges
Majority rule: natural way of taking action as and for a group
Rationale: explaining how our system systematically favors certain interests over others
1. Public utilities: unnatural monopoly granted by state to perpetuate dominance
2. Public goods: genuine ones remain underproduced, & gov’t provides private goods masked as public goods (Public TV)
4 Principle Rationales (market failures)
1. Natural monopoly: 1 producer can satisfy market demand more cheaply; regulation prevents too-high prices and wasteful competition
2. Public goods: market would underproduce important goods/services to those who pay (police) w/o regulation
making sure people pay for public good
3. External effects: prevent overproduction of public “bad” (pollution)
4. Asymmetric information: prohibit unfair/unethical business practices or license those which affect health/safety
imposing requirements for disclosure
(too much $ for public to get/eval info)
Why leg gives enforcement auth to admin body: its amenability to influence
Why leg gives enforcement auth to admin body: efficiency, effectiveness
Criticisms:
-accurate points on admin agy’s at creation, but ignores change/reversal of form
-difficulty explaining rise in anti-industry social regulation
Criticisms:
-doesn’t explain concept of public interest or motivations of legislators/lobbyists
-doesn’t explain highly protectionist, anticompetitive behavior of economic regulatory agy’s during infancy/maturity
2. Creation of enabling statutes: often vague because regulation covers so many industries that it must apply to all, and hard to pass if too specific, and if things go wrong, leg can blame agy’s for misinterpretation
3. Why Administrative Regulation?
a. expertise
b. diminish political aspect, applying neutral scientific standards
c. uniformity in application, instead of reactive approach
d. agency more streamlined/efficient in dispute resolution
B. Legislative Control Over Agencies:
3 Ways Congress Exercises Control over Agy’s
1. Authorization: The Problem of Delegation
a. authorizing/enabling act: statute that provides for the creation of a particular agy or confers upon it a particular set of powers/responsibilities
b. nondelegation doctrine: Congress can’t delegate legislative power (cts must handle broad, vague statutory delegations)
i. 3 Purposes for Nondelegation Doctrine
· Important choices of social policy are made by Congress
· provide delegee an intelligible principle to guide discretion
· reviewing cts can test that exercise against ascertainable standards
ii. Congress gets around this by stating conditions by which the lawmaking can take place: then says it is only fact-finding of the conditions (but it then involves resulting lawmaking)
iii. rarely an agy delegation is struck down b/c of this doctrine, but affects how cts rule on delegation
iv. Implied Constitutional basis for the nondelegation doctrine
· Vesting of all legislative powers in Congress: Art. I, § 1
· Separation of gov’t into 3 branches
v. Why we imply this when it isn’t spelled out
· Elected officials should make laws
· Congressional accountability/check on powers
vi. Some rulemaking authority that should be left to Congress:
· def. of crime, sanction, imposition of taxes
· sometimes these are delegated to agy, but w/ strict rules
vii. Nondelegation doctrine’s shadow effect; ct reads an intelligible principle it into the statute when it wasn’t there, so they could uphold it
c. intelligible principle doctrine: Congress can delegate policymaking authority, so long as the statute furnishes an intelligible principle to guide the delegate’s discretion
i. Schechter: US SC 1935: Can’t allow industries to make their own codes on what is fair: this will promote collusion, they will do what is advantageous to them. This is the last case where the SC invalidated a delegation
ii. Whitman: US SC 2001
· An agy can’t cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute:
· The degree of acceptable agy discretion varies according to the scope of the power congressionally conferred.
d. Delegation and statutory interpretation
i. Modern cts invoke the doctrine as a basis for narrowly interpreting broad statutes.
ii. Sometimes called “remand to the legislature”: once ruling comes, legislature may change construction to either reinforce the ct’s ruling, or to reinforce its original idea
2. Revision: The Legislative Veto a. Congress’s exercise of control over the power they give
b. Art. VIII of Admin Procedure Act
c. legislative veto: mechanism for requiring the approval of Congress, or some entity w/i it, before a proposed admin action can become effective.
d. one-house veto: either house or Congress has the power to block an agy’s proposed action
e. committee veto: leg oversight committee has veto power
f. Separation of Powers problems
i. Argument: this is Congressional exercise of judicial power; Congress is reviewing; deciding whether agy action is proper, as a ct would do
ii. Argument: this is not judicial power; Congress is not limited in the ways the ct is; they can veto w/o grounds
iii. Argument: this is Congressional exercise of executive power; Congress is deciding how agy will exercise delegated authority
g. SC takes 2 approaches to separation of powers issues:
i. functional: as long as we keep the balance everything is fine
ii. formalistic: hard line about Constitutional procedures
h. Chadha, US SC 1983 Congress must abide by its delegation of authority until it is leg altered or revoked: a formalistic decision
i. Contract with America Advancement Act of 1996: mechanism for Congress to oversee/disapprove of all fed agy regulations
· Agys must submit to Congress copies of all rules they adopt
· If it is adopted by both houses, it must go to Pres for veto
j. sunset provision: gives the agy a shelf life; time period where mandates come up for renewal
Congress still has abolished agy’s w/o sunset provisions
3. Appropriations: Line Items and the Line-Item Veto
a. Pork
i. bills aren’t created in a vacuum: “you rub my back, I’ll rub yours”
ii. log rolling: get passage of 2 bills “omnibus bill” when they wouldn’t have been passed individually
b. 3 dimensions of influence via appropriations process:
i. Size of appropriation
· agy can be prevented from changing p
i. Undertaken w/ auth of Congress, express or
implied: strongest
ii. Undertaken w/ neither support nor disapproval from
Congress: zone of twilight; Pres/Congress may
have concurrent authority
iii. Undertaken in opposition to express or implied will
of Congress: weakest
iv. Presidential supervision of agy rulemaking: many Pres have tried to control admin policymaking
v. Regulatory planning:
· Exec Orders gives requirements for agy regulatory action
· Why is this a problem?
o Adding procedures in add’n to the APA
o Asking to do cost/benefit may cause agy’s to consider what there are not supposed to consider
o Politics over expertise
vi. The Pres. as agy: when Pres exercises power directly delegated to him by Congress he is not considered an agy for purposes of application of APA
D. Adjudication: Delegation of Adjudicatory Power to Agencies
1. Judicial model of adjudication: authoritative resolution of factual
and legal disputes, involving application of general policy to a
particular policy or action
2. Agency Authority to Adjudicate
a. Requires sidestep of Art III, which vests in fed cts the
judicial power to decide cases and controversies
b. Ct acknowledged:
i. Congress can delegate to executive officials the
power to adjudicate matters involving public rights
i.e. determination of liab to gov’t for taxes owed, K
dmgs, forfeitures
ii. Congress can’t delegate any matter which is the subject of a suit at the common law, or in equity, or admiralty
c. Public vs. Private right: (Crowell v. Benson)
i. public right: matters arising btw the Gov’t and
persons subject to its authority in connection w/ the
performance of the constitutional functions of the
executive or legislative depts: can be delegated to
legislative cts
ii. private right: liab of one individual to another:
only Const. cts can adjudicate
· Thomas v. Union Carbide Agric. Prods. Co.: if right is created by an Act of Congress for promoting public good/rights, it may be construed as public right even if it is literally a private right
d. Crowell v. Benson: These delegations are OK so long as
i. there is judicial review of questions of law de novo
ii. a review of the sufficiency of evidence to support findings of fact (as this is a finding of law)
iii. judicial review of the fairness of the procedures
e. Schor, US SC, 1986: In reviewing Art III challenges, weigh a number of factors:
i. extent to which the essential attributes of judicial power are reserved to Art III cts
ii. extent to which the non Art III forum exercises the range of jurisd. and powers normally vested only in Art III cts
iii. origins and importance of the right to be adjudicated
iv. concerns that drove Congress to depart from requirements of Art III
(State law character of claim will not auto
