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Administrative Law
University of Michigan School of Law
Mendelson, Nina A.


Substantial Amount of Government Authority à Fourth branch of Government

Agent which gets authority from some Principal (through some legal action).
Legislatures à Age of Statutes à Admin. Agencies asked to carry out statutes.

60s-70s: explosion of agency creation and delegation à Age of Agencies.

Large breadth of Government Authority

Executive Functions: execute & implement the laws.
Lawmaking Functions: quasi-legislative gap-filling.
Judicial Functions: adjudication of disputes.

Large Number of General Principles and Rules

General principles create framework under which agencies operate.

Define relationships between AA and other branches of government.
Define reasonable conduct and standards for AA.
Define constraints on AA action.

Chevron U.S.A. Inc. (1984)
AA generally entitled to deference in interpretation of statutes they administer but reviewing court and agency must give effect to unambiguously expressed Congressional intent.

FDA v. Brown & Williamson (2000).
FDA asserted jurisdiction over tobacco products under FDCA (Congressional statute granting regulatory authority over drugs and medical devices). FDA had previously disavowed such jurisdiction and Congress had legislated regulations over tobacco industry.
Court held that FDA did not have jurisdiction because FDCA would require ban on tobacco, which would contradict intent of Congress for industry to survive, and also that statutory history of Congress expressed intent to ratify previous disavowal of jurisdiction.
Dissent argued that FDCA would not require ban, and so regulation by FDA would not contradict Congressional intent, and that legislation was “critically ambiguous” as to Congressional intent on FDA jurisdiction over tobacco.

Court argues that such a significant decision could not have been delegated to an AA; dissent counters that democratic accountability of FDA counters any danger from this.

All the other arguments are a cover for this ‘importance argument’ because it is inherently a public policy decision by the Court.

Court looking for meaningful criterion with which to evaluate lawfulness of AA conduct.

Principal-agent relationship concern.
Congressional intent concern (enacting or current?).
Presidential preference concern.
Deference to AA under Chevron Doctrine (if so, how much?).
Concern with change in position by FDA.


Separation of Powers: definition and implementation of standards by one institution results in too much control over individuals by that institution.
AA Exercise of Legislative Authority

Some amount of AA discretion inherent in implementation of statute (gap-filling).
More extensive exercise when accomplished by issuing rules of broad application.
Balance favors delegation à Court has permitted delegation to a certain extent and rarely struck down instances of it.

Key Question: Is there an “intelligible principle” to guide the AA?

National Industrial Recovery Act (1933)
Legislation with objective to have industry representatives develop codes of “fair competition” meant to stabilize wages and prices. These codes would then be subject to the approval of the President, who had the option of imposing conditions and exceptions to the codes.

Panama Refining Co. v. Ryan (1935)
Court held that an Executive Order promulgated under the NIRA’s Petroleum Code was unconstitutional because it did not provide a standard governing President’s authority.

Schechter Poultry Corp. v. United States (1935)
P argued Live Poultry Code of the NIRA was unconstitutional delegation of legislative power.
Court held that NIRA was unconstitutional because it proscribed no standards or procedure by which the industry codes were to be developed, and left too much discretion to the President in approving and enacting the industry laws.
Court troubled by vague standard of “fair competition”, lack of administrative procedure to develop the codes, and the delegation of legislative power to private industry.

Accountability: AA must be accountable to rule of law.

Greater concern when statute has great breadth and impact.
Private groups not democratically accountable.

Congressional Role: Congress should be the one to make important legislative decisions.

Too much legislative-executive power in the same branch results if legislative power delegated without clear standards.

Amalgamated Meat Cutters v. Connally (1971)
P challenged Economic Stabilization Act (giving Executive branch the power to impose an initial price freeze and also make any necessary adjustments) on grounds of excessive delegation. Executive branch had created Cost of Living Council and delegated this power to it. Adjustment component at issue because most discretionary aspect of delegation.
Court held that a delegation is not forbidden if Congress lays down an “intelligible principle” by which the AA must conform and upheld the delegation on the basis of its time limitation and self-limiting standards.
Court engages in aggressive statutory construction to construe “may provide for the making of such adjustments as may be necessary to prevent gross inequalities” standard as imposing a duty on the Executive in its administration of the statute. As a result, the statute is found to have an “intelligible principle” which guides the AA and also allows for judicial review of its conduct.

Accountability: provided by “intelligible principle” as derived by the Court.
Congressional Role: problematic that Court construction of legislation defines statute

ards, with exception of “high degree of worker protection” standard, finding that it satisfies non-delegation doctrine.
Court does not rule on OSHA rejection of cost-benefit analysis because not at issue in case.

American Trucking Associations, Inc. v. U.S. EPA (DC Cir. 1999)
Clean Air Act requires EPA to promulgate and revise air quality standards “requisite to protect public health” with an “adequate margin of safety,” using latest scientific standards. EPA revised its standards in 1997, lowering levels for ozone and particulate matter. Petitions ensued.
Remanded. Court held that EPA latitude was too great under its construction of standards required by the state but that a constitutional interpretation was available.
The fact that these are non-threshold pollutants (harmful at any level) means that policy choices must be made by EPA with regard to standards. These choices are criticized for requiring too much expense and for being based on conflicting science.

Statute allows for very broad exercise of power by AA with not determinate criteria.

DC Circuit frustrated with critical social policy being left to wide discretion of AA and so intervenes by using ND doctrine to require determinate criteria.

Remands to AA for determinate criteria because cannot force Congress.

BUT, Supreme Court had previously only required “intelligible principle” providing guidance, not determinate criteria à “DC Circuit Detour”

Goes against ND concerns of Congressional role and separation of powers; consistent with ND goals of agency restraint and accountability.
Tatel dissent: delegation narrow, principled, and satisfies ND consistent with previous ND decisions.
Silberman dissent: ND satisfied by statute BUT, if were not, Chevron deference to AA trumped by ND and remedy required from Congress

Remand to AA defeats purpose of ND and allows too great a policy role for judiciary.

Whitman v. American Trucking Associations, Inc. (2001)
Supreme Court granted petitions for certiorari regarding final air quality rules issued by EPA under authorization from Clean Air Act.
Court found that cost considerations could not be used by the EPA according to the statute and held that, although a limiting construction by the AA could not be used to cure a non-