Administrative Law – Fall 2013- Rowell
What is an agency?
I. What is an Agency?
a. An agency is a unit of government created by and authorized by statute.
b. Some agencies are created by President- can only have power the executive gives them.
c. Has many functions and subjects
II. How can we evaluate agencies?
i. Agencies have institutional competence through specialized knowledge, experts, trained staff
b. Procedural fairness and substantive rationality
i. Constrained by DP clause and subject to procedural requirements imposed by statute.
ii. Administrative Procedure Act creates procedural safeguards dividing agency actions: formal vs. informal
c. Interest Representation
i. Agencies act through processes that are open to different interests
i. Can issue efficient regulations: weigh expected costs and benefits
i. Agencies, compared to Congress, have capacity to respond quickly to changing circumstances.
III. What are the two types of agencies?
a. Executive Agencies
b. Independent Agencies
a. Myers v. United States
i. Facts: Postmaster in Portland, Myers, was fired by President without President first seeking Senate approval as mandated by statute.
ii. Held: Congress can’t tell President not to fire Myers because postmasters are essentially part of the executive branch. Bringing mail= purely executive function. To require President to file charges and submit them for Senate consideration destroys the unity and coordination of executive administration needed for effective action.
b. Humphrey’s Executor v. United States
i. Facts: FDR fires Humphrey, head of FTC. Question of whether President can fire Humphrey for political reasons?
ii. Analysis: Congressional intent of act is to limit the executive power of removal to the enumerated clauses, none of which exist here.
iii. Test: If agency performs legislative or judicial functions, Congress can create the agency independent of the President’s control.
iv. Held: Humphrey’s dismissal on policy grounds was unjustified because President doesn’t have unlimited power of removal. For cause removal provision=constitutional.
c. Comparing Myers and Humphrey’s Executor
i. Executive Function: Postmaster has more of an executive function than FTC chairman. President should have managing power over executive functions.
ii. Balance of Powers: In Myers, Congress was giving itself power it was taking away from the President by telling president he had to get consent from Congress. In Humphrey’s Executor, Congress was not trying to take power itself so it didn’t interfere with BoP.
Are agencies Constitutional?
I. Where are agencies in the Constitution?
a. Agency powers and constraints are almost exclusively extraconstitutional. With a few exceptions…
i. Art. II, cl. 1
1. Executive power clause- refers to principal officers in Executive departments
ii. Art. II cl. 2
1. President shall nominate and shall appoint… all other officers of the US… Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, in the courts of law, or in the heads of departments.
II. The Constitutionality of Independent Agencies – Cases
a. Morrison v. Olson
i. Facts: EPA, an executive agency, was subpoenaed by congress. President ordered EPA administrator not to hand over documents. Morrison was appointed as independent counsel to investigate Olson, assistant AG to the Office of Legal Counsel.
ii. Analogized t
how they organize internally.
b. Agency officials generally think having a tripartite division -> more fair and defensible results
V. Who shapes policy in an agency?
a. Are all principal officers appointed by the President? Yes.
b. Are all principal officers political appointees? Yes.
c. Are all political appointees principal officers? No. Political appointees can be inferior officers, just appointed by President. Different removal procedures (inferior officers can only be removed for cause).
VI. Disagreements between Political Appointees and Administration
a. President will likely win. If agency official still disagrees, can resign or President can tell AG to fire person. (Whitman example- signaled loyalty through resignation)
b. Tendency for them to tailor recommendations to fit what they believe are the policy goals of the political executive.
VII. Fired US Attorneys: Dec. 7, 2006
a. Bush directed AG to fire 8 US attorneys (political appointees)- Firings seemed arbitrary and capricious. Arguably because new clause in Patriot Act permitted President to appoint interim US attorneys without Senate confirmation.
Common Law and Regulation
What is the relationship between regulation and common law?
I. Limitations on Common Law Adjudication – CASES
a. Winterbottom v. Wright
i. Facts: Wright contracted with postmaster to provide mail coaches, who then contracted with Atkinson. Winterbottom, a coachman for Atkinson, was injured in a carriage collapse.
ii. Held: Wright had no liability. Confined the operation of contracts to parties who entered them- Contractual privity (CL rule). Problem: Manufacturer would always be protected from suit so no incentive to produce safer cars.