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Administrative Law
University of Kentucky School of Law
Kightlinger, Mark F.

bAdministrative Law Outline

I. Introduction

A. Overview of the Work and Place of Administrative Agencies in Our System of Government
(1) ICC v. Cincinnati (1897) – Congress must expressly delegate legislative authority
a. Facts: ICC sets rates in RR industry. The authority of ICC to set rates in RR industry is challenged. CT determines the difference between legislative act and judicial act. Then, uses this case to determine whether setting rates in RR industry is a legislative or judicial act.
b. Issue: Can ICC set rates without explicit legislative authority?
c. Legislative vs. Judicial Power
i. Legislative power:
1. Act – prescribe rates which shall be charged in the future.
2. Relates to prospective conduct.
3. Legislative role is to determine the standard going forward.
ii. Judicial power:
1. Act – inquire whether rates which have been charged and collected are reasonable.
2. Look backward – retrospective approach.
d. CT will not allow prospective approach to rulemaking by ICC, b/c Congress did not give the ICC express authority to set rates. The Agency’s power to set rates is a legislative act and Congress must expressly delegate the authority to the Agency.
e. Regulated entities want agencies to have retrospective [judicial] action rather than prospective b/c administrative agency has to bring a case every time there is a dispute on rates. Meanwhile, the regulated entity charges excessive fees while the case goes through the court system.
(2) Pennsylvania v. WV (1923) – The Case for Administrative Expert Adjudication
a. Facts: WV statute that restricted ability of pipeline companies to sell natural gas produced in the state to consumers out of state was invalidated. Justice Brandeis wrote a dissenting opinion.
b. Brandeis says no – the CT is not equipped to determine equitable distribution in this case. It would require courts to:
i. Determine potential and actual supply [geology] ii. Determine actual and potential demand [market economics] iii. Provide continuous supervision and control
iv. Review and perhaps control business judgment of those managing natural gas companies
c. Brandeis suggests that experts should adjudicate these cases.
d. Brandeis is really implying that admin agencies should handle these cases – a bunch of experts in an admin agency.
e. Criticism: Would legislators be equipped to regulate in these complex fields? Should Brandeis argument apply to

would have explicitly authorized such regulation, but failed.
ii. FCC has not deemed CATV systems common carriers or broadcasters, which places them outside regulatory powers of Act.
c. Held: Regulation was implied in this case, unlike above.
i. Cong expected FCC to serve as the “single Govt agency” w/ “unified jurisdiction” and “regulatory power over all forms of electrical communication.” So, Cong granted FCC broad authority for the purpose of providing a flexible regulatory framework to regulate a new and dynamic field.
ii. In the absence of compelling evidence that such was Congress’ intention, CT cannot prohibit admin action imperative for the achievement of an agency’s ultimate purposes.
(5) FDA v. Brown & Williamson Tobacco Corp (2000)– No implied delegation of regulatory authority
Facts: Agency had said for 90 years that it didn’t regulate tobacco. Congress had enacted dozens of laws relating to tobacco that did not give FDA power to regulate tobacco.