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Administrative Law
University of Mississippi School of Law
Hall, Matthew R.

Administrative Law
Hall – Spring 2006
Federal Executive Branch
-cabinet agencies
            -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
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?
            -issue regulations, same effect as statutes but inferior to statutes
            -ex: EPA, OSHA, SEC, IRS
            -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
-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
-also-if a person changes after appointed-pres cannot remove except for cause
-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?
            -sep of powers-violation of the founders’ ideals
            -limited gov
            -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
-most commonly-the power to promulgate regulations
-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
            -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
-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
            -but Touby –placing drug on list of controlled substances-maybe
-delegation to judicial branch permissible-with limits
-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
-Public Rights
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
                                    -connection to regulatory/administrative scheme
                                    -role of expertise
                        -least important factor, will most likely not be dispositive
-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

-or if minimum constitutional procedure due process mandates a trial-like process
Alternatives to formal hearing
-intermediate hearing
-informal adjudication
*adjudications are important for 2 reasons:
            -there is a result-somebody wins and somebody loses
            -adjudications in the administrative world parallel the common law process,                        create precedent
Adjudications parallel common law
-some adjudications merely resolve a matter and result in an order
-other adjudications resolve a matter, result in an order, and establish a new rule for
 future decisions
            -create a precedent
            -analogous to common law
Standard Hearing Procedures-Prehearing
-notice-sec 554(b), should contain:
            -time place and nature
            -legal authority, jd
            -matters of fact and law asserted
-conferences: negotiated settlement/adr/narrow the issues down     
            -sec 554 (c), 556(c)(6)
            -by government-sec 555(c)
                        -inspections, reports, investigations-as authorized
            -for party-sec 555(d)
                        -agency subpoena available
                        -can get some info through Freedom of Info Act, public records
            -depositions-sec 556(c)(4)      
Standard Hearing procedures-the Judge
            -hearing officer, presiding officer, judge, etc.
            -rules on procedural matters and decides the controversy
-requirements-sec 556(b)
            -the agency, member of body, ALJ, employee designated by statute
-no ex parte contacts (judge must not be influenced by any party), separation of function
 (not involved in any other function than judging)-sec 554(d)
-neutrality-sec 556(b)
            -impartial decision
-right to obtain counsel-sec 555(b)
            -esp if full scale hearing
            -you are not guaranteed counsel, you can obtain and pay yourself
            -if permitted by agency, other representative
-appearance-sec 555(b)
            -in person, by counsel, or with counsel
-participation by non-parties
            -allowed “so far as the orderly conduct of public business permits”-sec 555(b)
            -can write briefs, etc.
Conduct of Hearing
-powers of hearing officer:
            -oaths                          -subpoena
            -rule on evidence         -depositions
            -regulate hearing         -pre-hearing/settlement conference
                                                -rule on procedural requests
            -burden of proof on proponent
            -any evidence permitted-oral and documentary
                        -even hearsay, etc. as long as its relevant
                        -no jury, so this is more lenient
            -evidence excluded if irrelevant, immaterial, repetitive
            -consideration of whole record
            -decision supported by record
            -impermissible ex parte contacts valid basis for decision
            -right to present evidence, rebuttal evidence, discretion
-discretion of ALJ
The Record
-record-sec 556(e)
            -transcripts and exhibits=record
            -opportunity to respond to matters outside the record if important to decision
-administrative notice
Basis for decision
-admissible evidence
            -FRE no applicable-but many agencies have adopted evidence rules
            -exclusionary rule not applicable
            -all competent evidence admissible
                        -but maybe not things like polygraphs, mind readers, psychics
            -hearsay admissible
                        -Richardson v. Perales
                        -search for the truth-want the agency to have as much info as possible
                        -no need for jury safeguards, not as much worry about swaying someone                             with emotional, hearsay, etc. evidence
-residuum rule
            -consideration of evidence
            -vs basis of decision
            -not used by all courts
-use of pre-established rules-kindof like a presumption
            -these have been challenged but have been upheld
                        -United States v. Storer Broadcasting
-grid for social security-computer program to decide cases
            -challenged but upheld-Heckler v. Campbell
            -after opportunity for proposed findings of fact and conclusions of law-sec 557
            -speedy resolution-w/due regard for convenience/necessity and within a                               reasonable time agency shall proceed to conclude matter-555(b)
            -compel agency action unlawfully withheld or unreasonably delayed-706(1)
            -promptness of denial-555(e)
            -must include decision on each issue-fact, law, discretion
                        -needs to include some decision on each thing to allow for appeal
                        -needs to include the reasoning, not just have one line about issue decision
                        -must include reason and basis
-informal decision-making
            -need not include formal findings and conclusions but must still include reasoning
Decision Process
-recommended decision-557(b)
            -followed by agency decision
-initial decision-557(b)
            -initial decision by hearing officer
            -consideration of parties’ arguments-557(c)
            -becomes final unless appeal
                        -internal appeal, agency review
-agency review-557(b)
            -objections and argument-557(c)
            -special weight to ALJ credibility
                        -Universal Camera
                        -no APA requirement of deference to decision but the agency may set this                                       up except for issues of administrative law judge’s decisions on                                                   credibility-other than this-can have de novo review
                        -the agency review team does not hear the witnesses so deference is                                      needed to credibility issues