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Administrative Law
University of Kentucky School of Law
Bray, Zachary A.

Administrative Law
Professor Zach Bray
Fall 2015
Introduction to Administrative Law Materials
a.        What is an agency?
                                                               i.      An agency is “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
1.        (A) the Congress;
2.        (B) the courts of the United States;
3.        (C) the governments of the territories or possessions of the United States;
4.        (D) the government of the District of Columbia . . . .” 5 U.S.C. §§ 701(b)(1), 551.
                                                              ii.      Franklin v. Massachusetts.
b.       We also discussed various types of agencies, discussing the differences between single-headed and multi-member agencies, executive and multi-member agencies, and the correspondence between these categories. 
c.        Statutory Interpretation
                                                               i.      the plain language of the statute,
                                                              ii.      inferences drawn from the statute’s structure,
                                                            iii.      the legislative history of the statute,
                                                            iv.      the practical consequences an interpretation may have,
                                                              v.      and various canons of statutory construction – of which you now have a handy partial list! 
2.        CONSISTENT MEANING.  Unless the drafters tell you otherwise, a word or phrase is presumed to have the same meaning throughout the document.
3.        NO SUPERFLOUS PROVISIONS.  If possible no interpretation of a statute should be adopted that renders a part of it superfluous.  Every word should be given effect; no word should just be decoration
5.        CLEAR STATEMENT RULE.  A fed statute should not be read to eliminate something like state sovereign immunity, nor should it be read to preempt state law in an area of traditional state action, unless the statute’s drafters are very clear that they mean to do this.
7.        7.             A WORD IS KNOWN BY COMPANY IT KEEPS.  Noscitur A Sociis.  A word is     known by the company it keeps. 
8.        8.             OF THE SAME KIND.  Ejusdum generis.  Of the same kind.  A general         residual category following a list of other items refers to items of the           same sort. 
9.        9.             SO THAT IT MAY SURVIVE RATHER THAN PERISH.  Ut magis valeat quam        pereat. An ambiguous provisions should be interpreted in a way that makes    it valid rather than invalid
Agencies and their role with the rest of the Government
d.       Constitutional Underpinnings
e.        Conforming Agency Practice to Article III
                           i.      How much can agencies look like Courts?
                          ii.      Public vs Private Rights
                                                            iii.      In Crowell v. Benson,
1.        Public rights, or matters arising “between the Government and persons subject to its authority in connection with the performance of” the government’s executive or legislative functions, and
a.        Act of Congress, agency etc: government gives the right
2.        Private rights, or matters arising out of “the liability of one individual to another under the law as defined.”
a.        Ex: right between two people, Tort, K 
3.        Notice: this case also represents the proposition that a non-article III court subject to review by an article III court may be enough to validate the non-article III court
                        iv.      Historic Departures
                                                              v.      In Crowell,
1.        Territorial tribunals
2.        Military courts-martial
3.        Suits against the United States
                        vi.      In Northern Pipeline Const. Co. v. Marathon Pipe Line Co.
a.        BR case, asking whether BR judge can act like a distruict Court judge
2.        First, adopted Crowell’s conclusion that private right suits may not be adjudicated by agencies;
3.        Second, recognized that public right suits might include litigation between private individuals based on statutory claims created by Congress;
4.        And third, reiterated that Congressionally-created “adjuncts” for adjudication, like bankruptcy courts or administrative agencies, must be limited so that “the essential attributes” of judicial power are retained in Article III courts.
                                                           vii.      Brennan’s opinion in Marathon is highly formalistic.
                     viii.      Schor Test
f.          Extreme functionalism of Justice O’Connor’s approach in CFTC v. Schor. 
g.        Test from Schor  (Copied from In-Class Slide # 9)
                                                               i.      Consider the extent to which essential attributes of Article III Courts are (or should be) reserved to them;
                                                              ii.      Consider the origins and importance of the rights being adjudicated;
                                                            iii.      Consider the Congressional concerns that motivated deviations from the traditional structure.
h.       One way to think about how to use the Schor test—especially the first prong—is to think about the horizontal and vertical extent of the agency’s Article III power.
1.        How many issues it is considering and how hard it is to review
2.        How broad is the agency’s jurisdiction?  And how far up – how unsupervised – is the agency’s court-like power? 
i.         Second prong of the test highly elevated by Stern
                                                               i.      In Stern v. Marshall
1.        The Court’s holding in Stern does not overrule Schor, but it limits it by putting a significant emphasis back on the public right / private right suit distinction and the second prong of Schor
2.        The narrow issue in Stern was whether a bankruptcy court could hear the tortious interference with gift claim associated with the bankruptcy claims at issue before that court. 
3.        Writing for the Court, Chief Justice Roberts concluded that the tortious interference with gift claims at issue were private right claims, which could only be properly adjudicated by an Article III Court. 
a.        Seems to think of art III judges as angels
4.        Congress, according to the Court here, “has nothing to do” with the counterclaims at issue in Stern. 
2.        Note on 7th amendnet
a.        Grandfinanceria Case:
                                                               i.      Court hold that 7th amendment limits on Agency adjudication are co-extensive with art III limits
                                                              ii.      So, no different analysis
b.       Non-Delegation Doctrine
                           i.      SOP Concerns here
c.        What to know?
1.        Know these cases
2.        Know that the NDD is pretty weak
3.        Mistretta
a.        “So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power
b.       Facts
                                                               i.      Sentencing guidelines
1.        Congress gave policies and directives as to how to set them
c.        Statute in Mistretta gave policies and directives, so it was more than an intelligible principle
4.        Whitman
a.        Statute: gave EPA power to determine air qualify standards
b.       Intelligible principle: protect public health
                                                               i.      Obviously super vague and loose, but enough
5.        Amtrak
a.        Is A

                                            i.      With respect to the appointments issues in Morrison, the Court provided a four-factor test, to help determine whether someone is a principal or an inferior officer:
                                                              ii.      Is the person subject to removal by the President or some other executive branch official?
                                                            iii.      What is the scope of her duties?  Does it involve formulating policy?
                                                            iv.      Are the officer’s duties limited in jurisdiction?
                                                              v.      Are the officer’s duties limited in tenure? 
g.        In Edmond v. U.S., we saw how this Morrison test has been effectively overruled – or, at least, how one prong of the test has been elevated over all others.
                                                               i.      In Edmond, the test is much simpler: if you don’t report directly to the President, and your work is directed and supervised by someone else, then you are an inferior officer.  “Whether one is an ‘inferior’ officer depends on whether [one] has a superior.”
h.       With respect to the removal issues in Morrison, the Court concluded that the good cause / permanent disability / substantial impairment restrictions on the independent counsel’s removal by the President were constitutionally permissible, although the independent counsel was a classically executive officer (with no quasi-legislative or –judicial function).  Why?
                                                               i.      Because, according to the Morrison majority, the restrictions on the President’s ability to remove the independent counsel don’t impede the President’s ability to perform her constitutional duties to take care that the laws are faithfully executed. 
i.         In Free Enterprise Fund v. Public Company Accounting Oversight Board, we saw the Court return to the reasoning about removal issues articulated by Chief Justice and President Taft in Myers.
                                                               i.      While it may be too early to appreciate the full impact of Free Enterprise Fund, it is clear that the dual insulation from removal provided for the Public Company Accounting Oversight Board is an unconstitutional limitation on the President’s removal authority. 
                                                              ii.      Put another way, for officers exercising significant governmental authority, it is unconstitutional for the President to face two (or more) levels of for-cause removal restrictions.
7.        Overview of Removal
a.        Principal officers who perform purely executive functions:
                                                               i.      Myers: President must have more-or-less unfettered ability to remove. 
                                                              ii.      Humphrey’s Executor: The arm-eye test.
b.       Principal officers who also perform quasi-legislative/quasi-judicial functions:
                                                               i.      Humphrey’s Executor, for-cause restriction on removal is okay, at least for independent agencies.