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Administrative Law
University of Illinois School of Law
Rowell, Kristen Arden

Administrative Law Rowell Fall 2016

Week 1:

Day 1: What is administrative law?


What is an agency?

Answer: a unit of government, statutorily created and authorized (get their power from a statute by the legislature), presidentially created (somewhat), We have two types of agencies- executive and independent.
Agencies have two functions (can be hard to separate):

1. Rulemaking- similar to legislature passing a law- called a rule
2. Adjudication- similar to a court deciding a case- called an order

Statutory Definition: APA 5 USC 551- “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) the courts (C) the governments of the territories or possessions of the United States (D) the government of the District of Columbia or except as to the requirements of section 552 of this title (E) agencies composed of representatives of the parties or representatives of organizations of the parties to the disputes determined by them (F) court martial and military commissions (G) Military authority exercised in the field in time of war or in occupied territory or (H) functions conferred by (various provisions of the U.S. code)

First half
Franklin v. Mass- the president is not an agency

Types of Agencies- (1) Executive Branch- historically the most important agencies were “departments” heads of which were in President’s Cabinet- those agencies are part of the executive branch- subject to control and direction of the President and (2) Independent regulatory agencies are outside the Executive branch, tend to have a multi-member commission rather than just one
Citizens for Responsibility and Ethics in Washington v Office of Administration

Pg 7

Constitution contemplated the existence of agencies but didn’t give any vision of what they might do or how they might do it
Who has power over agencies:

Agency power begins with Congress- Congress enacts legislation that assigns an agency the responsibility and thus the authority and a fair amount of discretion to administer a statute by enforcing its requirements and/or pursuing its goals
President can remove many of the agency officials and less formal mechanisms to influence
Courts- judicial review over the substance, procedure and process of agency action

History of Admin Law pg 15
Administrative Procedures Act

Day 2: How can it be Constitutional for Congress to direct agencies to take over lawmaking authority?

23-45; 55-66

How can it be Constitutional?

The Constitution does not address agencies, Article II Sec 2 addresses the President requiring heads of each executive departments, or Art II Sec 2, clause 2 Congress can vest the appointment of such inferior officers
The constitutionality behind delegating rulemaking comes from Congress has power to enact and President has power to execute, plus they have always allowed it.

BUT the non-delegation doctrine says that Congress cannot delegate its legislative powers to administrative agencies, Congress must provide intelligible principles on which agencies an base their regulations

A. What they do:

Agencies are the entities that execute the laws that Congress passes
When an agency acts to affect the legal rights of persons they must be

rinciple upon which the President should act – only to be upheld if the principles were found elsewhere in the Act.
The Court did not believe that §1 of the NIRA provided any sort of standard by which the President could operate, noting the section was just a general outline of policy.

ALA Schechter Poultry Corp. v. United States

Congress didn’t define the term, President is allowed to act because it embraces a broad range of objectives.
Pg 30
Under the National Industrial Recovery Act §3, President approved the Live Poultry Code Industries and trade associations were invited to develop fair codes of competition, including wage and requirement, which are then set by the President.
Since the act does not define fair competition, the President effectively has unlimited discretion to make determinations about the Live Poultry Code and other codes. The President’s authority is untethered from any statutory language. §1 only embraced broad range of objectives pointing to rehabilitation of industry, but did not confine Presidential action. The term “fair competition” also did not limit the President because Congress did not provide a definition or legal meaning for it.
The Court is also troubled by the statute’s giving governmental decision-making powers to private entities, although it did not dwell on this defect in the opinion.