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Administrative Law
University of Mississippi School of Law
Case, David W.

Administrative Law

Professor Case

Spring 2013

Chapter 1: Administrative Law Practice

What Is Administrative Law and Why Should We Study It?

p. 5-21

Video: The Regulators

· Bureaucratic monster of unnecessary rules vs. necessary to make government run smoothly and without abuse

· Finding a key legislator who would help point out the abuse (clean air in national parks)

· Regulators = enforce the will of the legislatures

· But must balance government vs. free enterprise

· Spectrum of interpretations of laws enacted by legislatures

· To modify legislation: form relationships with other members of Congress and agencies

o But each representative brings its own marching orders from its agency

· 500 pages of regulation to explain 5 pages of law

· Compromise: protecting parks, concessions for power plants (states get final say on integral vista)

· Final regulation did not solve problems that originally brought about the discussion

· Lawsuits begin after regulation is passed by agency (arbitrary and capricious)

A Walk Through the APA

p. 22-30

· Institutional differential variation: oversight and overlap of multiple agencies

· Point of regulation is to reduce risk…have to balance with economic incentives


1. Rulemaking: an agency’s “quasi-legislative” role – creating law to govern future conduct

o Quasi-legislative: we say this for constitutional reasons but this is fiction…they create substantive rules

2. Adjudication: an agency’s “quasi-judicial” role – applying existing rules to make decisions regarding past conduct

3. Judicial Review: how may review of rulemaking and adjudicatory action be obtained?


· 5 U.S.C. § 551(5) – “rule making” means agency process for formulating, amending, or repealing a rule

· 5 U.S.C. § 551(4) – “rule” means the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of the agency….

o Law will apply broadly and will apply in the future

o Definition recognizes the difference between process and substance

Three types of rulemaking: informal, formal, and hybrid


· 5 U.S.C. § 551(7) – “adjudication” means agency process for the formulation of an order

· 5 U.S.C. § 551(6) – “order” means the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing

o Everything that is not rulemaking is an order

Informal Rulemaking

Most rules are made this way!

Three-Step Process in 5 U.S.C. § 553:

1. Notice

a. 5 U.S.C. § 553(b) – General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law

[Review 5 U.S.C. § 553(b)(1)-(3) for requirements regarding the content of the notice requirement]

b. Two Exceptions to Notice Requirement:

i. 5 U.S.C. § 553(b)(3) – Unless notice or hearing is required by statute, this subsection does not apply…

1. to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

2. when the agency for good cause finds … that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest

2. Comment –

a. 5 U.S.C. § 553(c) – After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.

b. Written public comments

c. Not required to present live comments (like hearings from video)

3. Publication –

a. 5 U.S.C. § 553(d) – The required publication or service of a substantive rule shall be made not less than 30 days before its effective date

b. 5 U.S.C. § 553(c) – After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose

c. [Both the final rule and statement of basis and purpose appear in the Federal Register]

Formal Rulemaking

· 5 U.S.C. § 553(c) – When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

· Agency must require formal rulemaking. The italicized language must be in the statute (or close to it).

· [For formal rulemaking, the detailed requirements of §§ 556 and 557 replace the comment and publication portions of the informal rulemaking process in § 553]

Hybrid Rulemaking

· Congress can, and often does, impose specific rulemaking procedures within specific statutory schemes

· These rulemaking procedures may be more detailed than the informal rulemaking procedures of § 553 but less detailed than the formal rulemaking procedures of §§ 556 and 557

· Often a mix between formal and informal rulemaking

· Congress will dictate this in the statutes…always must check the statute to see if they proscribed a different process than what the APA defaults to

Formal Adjudication

· 5 U.S.C. § 554(a) – This section applies … in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing….


· [Review 5 U.S.C. §§ 554(b)-(e), 556 and 557 for specific procedures that govern formal adjudication]

Informal Adjudication

· If formal adjudication under § 554(a) – “adjudication required by statute to be determined on the record after opportunity for agency hearing” – is not required, informal adjudication (not governed by the APA) may nonetheless be necessary if:

a. Statute authorizing agency action requires use of some hearing procedures, or

b. Constitutional principles of due process obligate the agency to follow some type of hearing process (notice and opportunity to be heard–this is more often the case for informal adjudication)

Judicial Review

· 5 U.S.C. § 701 – [Judicial review] chapter [of APA] applies … except to the extent that–

o (1) Statutes preclude judicial review; or

o (2) Agency action is committed to agency discretion by law

§ Is not reviewable

· 5 U.S.C. § 702 – A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

o This provision can provide constitutional “standing” (i.e., a legal right to review) if another statute does not provide such a right to review of agency action.

1. Scope of Review

5 U.S.C. § 706 – The reviewing court shall –

o (1) Compel agency action unlawfully withheld or unreasonably delayed; and

o (2) Hold unlawful and set aside agency action, findings, and conclusions found to be—

§ (A) Arb

at must be decided by examining the language of the enabling statute itself

Clean Air Act statute in question: CAA § 109(b)(1)

· EPA must establish “ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of § 108] and allowing an adequate margin of safety, are requisite to protect the public health.”

o Requisite: sufficient but not more than necessary

o Looked at precedent to see if it fits in an intelligible principle

· Court doesn’t feel like it is in a better position than Congress to second guess them (only two times has the non-delegation problem been found unconstitutional)

· Scalia’s response to DC Circuit’s concern about amount of discretion: cannot put exercise of judgment in a tightly controlled box. EPA should have some requisite discretion because there are some uncertainties about these tradeoffs.

· Note 1: Scalia vs. Stevens’ Concurrence

o Scalia (strict constructionist): only Congress has legislative power; delegation to EPA is not legislative authority; if we have an intelligible principle, they are just carrying out the law

o Stevens: lets call it what it is: legislative authority. But its not an unconstitutional delegation of legislative authority because it has an intelligible principle.

OSHA case

· Enabling language in OSH Act

· OSHA § 3(8): “The term ‘occupational safety and health standard’ means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”

Benzene case:

· Industrial Union Dept. v. American Petroleum Institute (U.S. 1980) – a plurality of the Supreme Court interpreted § 3(8) of the Occupational Safety and Health Act to require OSHA to find, as a threshold requirement to regulating under § 3(8), that a toxic substance poses a “significant health risk in the workplace.”

o Rehnquist said that the statute was unconstitutional delegation of legislative authority because it gave no guidance to OSHA on where to draw the line

o Threshold finding that it poses a significant health risk in workplace…

o Interpreting statute for OSHA

· Significant risk, avoiding is feasible, then we can step in

o OSHA means feasible, i.e. when its possible

· Court: come up with a narrower interpretation–cost-benefit analysis (economic feasibility) but remands to agency for them to cure (OSHA declined opp to interpret statute to require cost-benefit analysis)

o OSHA instead interprets the statute to mean safety standards that impose a high degree of worker protection (Court upholds this)

Reconciling Whitman and OSHA?

· It looks like Whitman would say OSHA is not okay…also calls into question Benzene

· Cannot give an interpretation of the statute to limit the discretion of the agency