Administrative Law Outline

Administrative Law
Hall – Spring 2006
 
Introduction
Federal Executive Branch
-cabinet agencies
            -whitehouse.gov
            -15 cabinet level depts.
            -4 others that are afforded cabinet level status : OMB, EPA, USTR, ODCP
-very wide range of issues
-state level of agencies are even more widespread, higher number, more overlapping
 
By the numbers
-gov. employment and payroll in 2002
            -federal 2.9 million civilian employees (1% of population, 5% of total labor force)
            -state 18 million civilian employees (around 25% of labor force)
-employment and payroll by function in 2002
            -judicial and legal-56,000 fed/418,000 state and local
            -social insurance programs-65,000 fed/94,000 state and local
            -public welfare-9,000 fed/529,000 state and local
 
So what is administrative law?
-law governing the creation, operation, and judicial review of the government
 Bureaucracy
 
Categories of administrative law
-specific admin law
            -agency’s enabling act-statute that created the agency, enables it to operate
            -statutes the agency administers-ones the agency is in charge of
            -court decisions interpreting these statutes
            -law and policy motivating particular substantive area
 
Our focus (different form above)
-general admin law
            -constitution-limits on organization and powers of agencies
            -Administrative Procedures Act-APA
            -statutes, regulations, and executive orders affecting all agencies
            -court decisions interpreting the APA and/or constitution
 
What do agencies do?
-regulate
            -issue regulations, same effect as statutes but inferior to statutes
            -ex: EPA, OSHA, SEC, IRS
-enforce
            -power to enforce the law
            -ex: homeland security, IRS
-issue licenses and permits
            -ex: NRC
-distribute benefits
            -ex: SSA, VA, Homeland Security (visas, legal aliens), State
-set rates
            -not as often now, applies mostly right after great depression
            -set rates for railroads, airlines
            -today, commonly-state insurance regulators
-manage property
            -BLM, Park Service
-execute programs
            -some agencies do not fall into the other above categories so they are more part of               this one
            -ex: NASA, IRS
 
The 3 key areas of admin law
-structure of admin agencies
            -how are they built, what powers may they be given, how are they controlled,                      where are they located (which branch?)
-function of admin agencies
            -adjudication of cases
            -promulgation of regulations
-challenges to admin action
            -access, timing, scope, and standards
 
Independent Agencies
Question
-in the federal system, how many branches of gov do we have? 3
-could congress create agencies outside one of these 3 branches?
            -what does that mean? Independent agencies
            -may need to be politically independent from the executive
                        -if you want an agency to judge the executive, you need something                                       separate to give the best judgement
            -may need to be separate from the judiciary-already have judges in judiciary                         making decisions, may want more of a public policy determination
            -may need to be separate from congress/legislative too?
                        -want to be free from politics, accountability
                        -want best decision independent from worry about what constituents want
                        -question of what constituents want vs. what congressman knows is best
 
Independent agencies (some examples are below)
-federal communications commission
-securities and exchange commission
-federal trade commission
-national labor relations board
-nuclear regulatory commission
-federal reserve board
-federal energy regulatory board
-consumer products safety commission
-federal election commission
 
4 characteristics typical of an independent agency
-headed by multi-member group (as a short-cut, can look at if titled commission or board)
-members have staggered terms
-mix of political affiliations required-limit on simple majority of one party
            -pres must look at affiliations of appointees
-members are removable for cause only
            -as opposed to just at the whim of the pres
 
Why does it matter?
-even after the pres appoints one person, there are still the other members who have been
 appointed by someone else who may not have the same political beliefs
-pres has less power than with other agencies/aspects of gov
-less presidential control over an independent agency than over an executive branch
 agency
-also-if a person changes after appointed-pres cannot remove except for cause
 
Criticism
-headless fourth branch of gov
-may not actually be this serious-not very argued
 
-nevertheless-often when we say “executive branch” we use that term to include the so-
 called independent agencies
 
The big question
-when is an independent agency unconstit?
            -what powers may congress give to an indep agency without interfering with the                president’s authority
 
Ultimate questions
-Should we have another admin agency?
            -more of a public policy question actually
-is the agency constit?
            -what powers has the agency been given? And can congress grant these powers?
            -in bird flu ex.: nothing controversial to allow executive to inoculate/regulate bc it  is typically the executive’s job to execute laws, legislative’s job is to make law
                        -potentially problematic to allow to promulgate regulations and conduct                               hearings
 
What are the big issues?
-delegation of legislative power or quasi-legislative power
-delegation of judicial power or quasi-judicial power
-sep or powers is the big deal
 
What are the big concerns?
-principles
            -sep of powers-violation of the founders’ ideals
            -limited gov
-effects
            -executive branch has seen aggrandizement-has become overgrown
            -executive branch is taking over some of congress’s power through encroachment
            -congress is violating the constit by not doing its delegated job-abdication
 
Legislative power
-look at if given power is affecting rights of private citizens, argue it is/is not
-the power to enact binding rules that create duties, obligations, and liabilities, or confer
 benefits
-most commonly-the power to promulgate regulations
 
Constitutionality
-the constit states that the legislature has “all legis power”=vestiture clause
            -argued by textualist and formalist that this makes agencies impermissible
            -delegation of legislative power is impermissible
            -preference for bright-line rules
 
The pragmatists response
-do we really have separate powers?
            -consequence of checks and balances
-necessary and proper clause
-constit is supposed to be functional document-Functionalism
-constit allows for a workable gov-Loving
 
But what about abdication?
-why would congress delegate?
           
-abdication-cynical interpretation
            -avoid political ramifications, no-win situation
            -avoid accountability
-delegation-charitable interpretation
            -efficiency
            -expertise/specialization
            -laziness
            -does not do away with accountability, executive is an accountable/political                         decision maker and so people have not been cut out of the equation
 
The non-delegation doctrine
-aka the Delegation Doctrine
-most things pass, less of a test and more of a justification
-congress may confer regulation making authority on an agency so long as the enabling
 act contains an “intelligible principle” to guide the agency’s decision-making                   
            -JW Hampton
-intelligible principle
            -serves to guide, limit, restrict, cabined, demarcated the agency’s power
            -courts are very generous
            -does not have to be very precise
            -ex: public convenience and necessity, unfair methods of trade/competition,                         protect health to the extent feasible, adequate margin of safety
           
Limitations
-scope of delegation
-sometimes court may require a more precise statement of intelligible principle
            -if agency gets delegated lots of power
            -SCt has regularly said that power to regulate national economy demands a more                precise principle (arguably only dicta)
            -court does not/has not normally actually shoot down delegation bc of this
-delegation to private parties is impermissible
            -no accountability
            -Schecter (sick chicken case)
            -Metropolitan WA Airports Authority
-delegation of power to create criminal liability permissible-with limits      
            -aka enforcement authority
            -Panama-no
            -but Touby –placing drug on list of controlled substances-maybe
-delegation to judicial branch permissible-with limits
            -Mistretta
-delegation of authority to limit fundamental rights impermissible
            -Kent-authority to limit right to travel by restricting passports
            -if Congress think that an interest is so important that a fundamental right should                be limited, congress should do it itself not give authority to another entity
-delegation of core powers impermissible
            -aka non-delegable functions
            -maybe raising revenues (tax measures)-National Cable Television Assoc.
                        -look at if fee vs tax-can argue either side
 
Wiggle Room
-potential ways to save an overly broad delegation
            -interpretation by the court-Benzene seemed to say permissible
            -reference to practice and custom-Fahey
            -agency regulation limiting discretion-Yakus
            -ALL above eliminated by Whitman
                        -congress can not be saved by anyone but itself
 
Full statement of test
-exercise of quasi-legislative power is valid if:
            -authority is delegated by statute (ex: enabling act, organizing act)
                        -agency has limited/enumerated powers
                        -otherwise it is an ultra vires act
            -the delegation contains an intelligible principle
            -and delegation does not include
                        -involve core legislative power
                        -affect a fundamental right
                        -entail delegation to private party
 
Judicial Power
Judicial Power
-the power to adjudicate disputes involving individuals or small groups based upon
 specific facts
-the power to conduct “due process proceedings”
            -as opposed to legislative process which does not include right to due process
 
What are the concerns?
-protect independent judiciary
            -sep. of powers, limited gov.
-safeguard individual litigants
            -guarantee right to a “real” court
 
Why are Art III courts preferred?
-life tenure
-no diminishment in salary
-insulation from majoritarian/political pressure
-neutral decision-making
            -more neutral than administrative courts?
            -more courageous
-they can make unpopular decisions without worry/fear, as long as based on the law
-rules of procedure and evidence
-constitutional protections
-only federal courts can declare agency enabling acts unconstit
-power of judicial review
 
Alternatives to Article III Courts?
-Article I Courts-have been given judicial review, not administrative courts
            -Tax Court
            -Court of Appeals for the Armed Forces
            -Federal Circuit (reviews IP claims)
            -Federal Court of Claims
-Administrative Adjudication-part of the executive branch
            -before an Administrative Law Judge (ALJ)
           
The Tests to determine if delegation of judicial power is acceptable
-Adjunct
-Public Rights
-Pragmatic
 
Adjunct Test/Theory
-administrative adjudication followed by judicial review parallels use of special masters
 or magistrates
-problem-administrative courts have power than magistrates, etc. because Art. III courts
 give more deference to administrative court decisions
-no longer used as an explanation
 
Public Rights Theory
-disputes between individual and gov.
-waiver of sovereign immunity
-historically decided by executive/legislative branch
-why did they collapse?
            -there were many cases in which the case involved not only the people involved                   but the outcome of the claim also affected other people’s rights/private rights
            -in administrative court disputes, many public disputes were implicating private                   rights
-no longer used
 
Pragmatic Approach-Schor
-public regulatory schemes often incorporate private rights
-current four factor test
            -CFTC v. Schor  
 
Four factors of Pragmatic-Schor Approach
extent to which the essential attributes of judicial power are reserved to Art. III courts
                  -presence of judicial review, administrative court decision is not absolute
                  -are the Art. III courts still getting to do their normal functions
                  -more about encroachment
2.   extent to which the non-Art. III forum exercises powers normally vested only in    Art. III courts
                  -ex: jury trials typically only occur in Art. III, so if congress is giving an                                agency power to conduct jury trial, the delegation may be unconst.
                  -constitutional interpretation-normally reserved for Art. III
                  -is agency getting to do something it shouldn’t
                  -more about aggrandizement
3.   origins and importance of the right being adjudicated
                        -if you want something that is:
                                    -new and typically given by an agency- prob ok to delegate
                                    -new and regulatory-prob ok to delegate to agency
                                    -traditional and common law-prob ok to delegate to agency
                                    -constitutional-possibly not ok to delegate, depends
      4.   concerns that drove congress to depart from the requirements of Art. III
                        -weird factor bc this factor will always help the gov., be won by congress
                        -look at:
                                    -logic for the delegation
                                    -efficiency
                                    -connection to regulatory/administrative scheme
                                    -role of expertise
                        -least important factor, will most likely not be dispositive
 
Limitations
-adjudication without a jury trial?
            -acceptable unless violative of the 7th amendment
                        -right to jury trial at common law in 1789
-adjudication by private parties?
            -compulsory private arbitration is allowed
            -Thomas v. Union Carbide
-adjudication of criminal liability?
            -criminal defs routinely plead guilty through plea bargains even in Art. III courts
            -so if def. waives or consents to no jury, is it possible to judge by administrative                  court? Possible to argue
            -civil sanction vs. criminal punishment
                        -ex: sex of