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Administrative Law
University of Kansas School of Law
Glicksman, Robert L.

Administrative law outline

I. Administrative law practice
A. What is administrative law and why should we study it?
1. What is an agency?
a. Scope of term
i. § 551. Agency means each authority of the U.S. government but does not include—
• Congress
• Federal courts
• Governments of territories or possessions of United States
• Government of D.C.
• Agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them
• Courts martial and military commissions
• Military authority exercise in field in time of war or in occupied territory
• Functions conferred by federal statutes
ii. President is not an agency. Franklin v. Massachusetts.
iii. Agency is any part of government other than Congress, President or Judiciary created by legislature to execute statutes
b. Two types of agencies
i. Executive agencies (FDA, IRS, FBI)
• Subject to greater degree of presidential control
• Established as department or part of department
• Usually headed by a single person
• Head is removable at will of president
ii. Independent agencies (e.g., NLRB, SEC, FTC)
• Subject to lesser degree of independent control
• Free standing
• Headed by board or commission comprised of representatives from both parties
• Board members/commissioners serve for fixed term and are only removable for cause
2. What do agencies do?
a. Regulate private conduct
b. Administer entitlements programs
c. Execute laws
d. Everything else (e.g., deportation, passports)

3. Why do we need agencies?

Justification

Defect

Harm

Agency

Inadequate information

Purchase wrong/ dangerous product

Loss of money, physical harm

FDA, FTC

Noncompetitive conditions

Monopoly

Price increases, quantity decreases

Utility regulations

Excessive competition

Unsafe conditions, inadequate supply

Transportation, agriculture

Unequal bargaining power

Low wages, poor working conditions

National Labor Relations Board

Spillover costs

Pollution, unsafe conditions

Safety, health

EPA, OSHA

Public goods

Free riders

Under production

Police, education, welfare

a. Often, the market does not work the way it should; agencies ensure efficient allocation of resources
b. Noneconomic justifications
i. Pursue values inconsistent with efficient allocation
ii. Equity and fairness (e.g., organ transplants)
iii. Redistribute wealth
iv. Altruism
4. Types of agency action
a. Rulemaking
i. Equivalent of legislative power; agencies promulgate general standards that control future conduct by regulated entities
ii. Power given to agency because legislature is neither equipped or inclined to make decisions
iii. Compare to legislation
• Agencies may issue rules only to extent authorized by their organic act
• Agencies must issue rules in accordance with procedures spelled out by legislature (whether in organic act or Administrative Procedure Act)
• Agency rules are subject to judicial review for compliance with substantive standards and procedural requirements in organic statute
b. Adjudication
i. Equivalent of judicial power; agencies apply law to facts and hand down a binding result
ii. Compare to power of Art. III courts
• Agencies have limited jurisdiction; scope of power limited to area established by organic act
• Agency results subject to judicial review
c. Investigations
i. Equivalent of executive power
ii Agencies have power to subpoena/compel testimony, can usually require regulated entities to generate information, can inspect facilities
iii. May be authorized to prosecute by bringing administrative proceedings in court (e.g., NLRB can declare unfair labor practices)
d. Separation of powers issues
i. Agency officials are not elected
ii. Agency law judges don’t always have to satisfy Art. III
iii. May be free of presidential control
iv. Agencies often perform multiple governmental functions
B. A walk through the APA
1. Background
a. APA adopted in 1946 as a compromise between opponents and proponents of regulation.
b

agency action must be final. § 704.
– Parties may need to exhaust all internal appeals procedures
– There may also be questions of ripeness
iii. Parties must have standing
­­- Constitutional requirement of case/controversy
– APA requires that person suffer a legal wrong or be adversely affected or aggrieved. § 702.
b. What is its scope?
i. According to § 706, there are three levels of review
– De novo (court must agree with agency to uphold decision)
– Substantial evidence
– Arbitrary and capricious (highly deferential)
ii. Deciding which standard applies
– Look to organic act
– Typically, court decides based on its interpretation of statute
II. Rulemaking
A. Rulemaking initiation
1. Starting the process
a. Sources of proposed regulations
i. Legislation requiring certain regulations
ii. Staff recommendation upon identification of problem
iii. Political pressure
iv. Public pressure
– Lobbyists
– Rulemaking petitions
b. An agency is rarely required to amend its own regulations.
i. Exception when it has violated its statutory mandate
ii. Exception when ordered to amend by court
c. Agencies are often required to prioritize rulemaking plans
i. Advantages to prioritizing
– Addresses resources shortages
– Provides rational means of selecting what agency will act on and what it will defer
ii. Disadvantages to prioritizing
– Leads to loss of flexibility
– Priorities can be difficult to set
2. Lobbying
a. Bottom-up approach
i. Start with staff members (see chart p. 53)
ii. Convince agency that client’s interests coincide with agency’s interests
iii. Skills to have
– Understand agency’s problem
– Have firm grip on legislative process
– Be able to deal with political environment the agency finds itself in
– Understand basic policy analysis tools
b. Top-down approach
i. Why pressure from politicians works
– Congress appropriates money for agency
– Congress holds oversight hearings
– Congress can reduce power of agency
ii. Who to approach
– Various committees that supervise agency
– Appropriations committee