Admin Law
Informal Rulemaking: The agency must publish notice of rulemaking in the Federal Register. This allows people to send in comments to the General Council’s office or for a lawyer to send a brief to the GC. The GC reads the comments and creates a rule based on all of the input. The rule is then published in the Federal Register. It takes about 30 days to implement.
Formal Rulemaking: A legislative hearing is held on a rule after a notice is published in the Federal Register. People submit an application to testify at the hearing. It’s not an adversarial trial, but a legislative hearing. You present a brief or statement, offer comments, and get asked questions. The rule is then published in the Federal Register.
1. collateral attacks (altra viris) arguments – agencies don’t the power
2. collateral attacks – procedural error (no notice, no hearing, no rebuttal, etc). – agencies got the
procedure wrong
3. substantive challenge to the outcome of the decision – they have the power, the procedure was okay,
but the result was wrong – the record does not bear out the agency’s conclusion.
SEPARATION OF POWERS & DISTRIBUTION OF ADMIN POWERS
EXECUTIVE CONTROL OF ADMIN AGENCIES
Appointment of Executive Officials
The Appointments Clause provides that the pres, w/ the advice and consent of the Senate, appoints officers of the US, and Congress may specify that inferior officers are appointed by the pres alone, by the heads of departments, or by the courts of law.
Principal Officers: High-level officials in the executive branch and heads of independent agencies. Cabinet members and commissioners of independent agencies are principal officers b/c there’s no one in the gov hierarchy between them and the pres.
Inferior Officers: Lower-level executive officers who are under the supervision of other executive officials beneath the pres.
Morrison v. Olson: Court looks at scope and duration of the officer’s position and the removal power of whomever to remove the officer to determine if the officer is a principal officer or inferior officer.
Edmond v. US: Court moved away from Morrison factors and looked exclusively at whether the officer in question is supervised by someone to determine if he’s a principal or inferior officer. If he is supervised by someone, he’s an inferior officer. If not, he’s a principal officer.
Removal of Executive Officials
The pres has the right to remove executive officials, subject to restrictions Congress may place on the pres’ removal power.
In the absence of statutory restrictions, the pres has the power to remove executive officials at will.
Congress itself may not retain advice and consent power over removal of officials or participate in the removal of officials except through exercise of the impeachment power.
Myers v. US: The Senate may not retain a role in the removal of executive officials. However, dicta indicates that Congress may restrict the removal of inferior officers.
US v. Humphrey’s Executor: Congress may require a finding of cause before an official exercising quasi-legislative or quasi-judicial power may be removed. Humphrey, as a federal trade commissioner, exercised legislative rulemaking and adjudicatory powers that were appropriately shielded from excessive pres influence, while the postmaster in Myers exercised purely executive functions.
Morrison v. Olson: The court held that Congress may restrict the removal of an official exercising purely executive functions. The court rejected both Myers and Humphrey’s Executor. Thus, this case greatly expanded Congress’s power to restrict the pres’ ability to remove executive branch officials.
CONGRESSIONAL CONTROL OF ADMIN AGENCIES
Appointment of Executive Officials
Congress may not participate in the appointment of admin officials.
Buckley v. Valeo: The court ruled that the Federal Election Commission couldn’t engage in executive functions such as rulemaking and prosecutorial enforcement b/c 4 of its 6 members were appointed by members of congress. Only officers of the US may exercise authority under the laws of the US and that such officials must be appointed in accordance w/ the Appointments Clause of the constitution. However, congress and its officials may participate in the appointment of officials who act merely in aid of legislation, such as officers who gather info or do research to help congress decide whether and how to legislate.
Removal of Executive Officials
Congress may not participate in the removal of admin officials, except by impeachment by the House and conviction by the Senate.
Bowsher v. Synar: The court held that the comptroller general couldn’t exercise authority under the laws of the US and thus couldn’t establish potentially binding spending reductions under the Balanced Budget and Emergency Deficit Control Act of 1985. The court held that this would violate the separation of powers b/c congress would be interfering in the execution of the laws through the power to participate in the removal of officers of the US.
Congress may restrict removal of admin officials to “good cause.”
Independent Regulatory Agency –
refers to its independence from Presidential control – relative, not absolute
these are controlled by several people (makes it harder for President to control)
Presidential control and influence over most executive officers is due to Presidential appointment
à Presidents may remove commissioners of an independent regulatory agency only for “cause”
ex. malfeasance or neglect of duty.
Commissioners are appointed for a term – so no President can really have a majority
The Legislative Veto
Legislative Veto: Under the legislative veto, congress reserved the power to reject agency action w/ a vote, depending on the particular provision, of both houses of congress, by one house of congress, or by a single congressional committee. Legislative vetoes weren’t presented to the pres for signature or veto.
The S. Ct. has struck down the legislative veto as unconstitutional.
INS v. Chadha: The court struck down the one-house legislative veto as unconstitutional b/c it violated the bicameralism and presentment clauses of the constitution. The court held that bicameralism and presentment apply to all congressional actions that affect the legal rights and duties of persons outside the legislative branch.
Q – white understands that his pragmatic approach gives rise to a risk, and Scalia gives rise to risk in Morrison that an absence of separation invites a certain concentration of power that may be unhealthy. what are the alternative means (if not separation) by which agency misconduct or too broad discretion may be controlled?
for executives:
A – you could sanction the budget of the agency. the executive can appoint cabinet leaders. the executive can remove commissioners “for cause” – but the problem is burden of proof. the executive has the ability to command the state – (instant access to media) à influence agencies – pontificating
impoundment = Nixon tried this, but he failed. the president may not unilaterally curtail federally funded programs. the timing of spending $ is uniquely in the hands of the executive
for judicial branch:
A – most agency decisions including rulemaking and quasi judicial functions are all subject to J.R..
very few agency decisions are pursued in court. but it is dangerous for the agencies, because it is unclear which applicants will be incensed and make it federal case.
for legislatures:
A – can change taxes (like on gas) – tries to influence agencies of state government and actions of individuals – they have an investigative function – ongoing they perform oversight functions. they control the $. they confirm appointments.
Summary: white is pragmatist – but who watches the watchers.
THE NONDELEGATION DOCTRINE
This doctrine prohibits excessive delegation of discretionary powers by congress to fed agencies.
The current understanding is that congress must legislate an intelligible principle to guide the agency in its exercise of discretion.
Mistretta v. US: The pres appointed all 7 members of the Sentencing Commission (although 3 had to be fed judges) and a judge could only be kicked off for neg. Mistretta argued that congress delegated to this agency legislative powers w/out setting forth standards. The court said congress can do this, but they must give intelligible principles to which the person or body authorized to exercise the delegated authority is directed to conform.
Intelligible Principles: Under current law, relatively general statutory purposes or broadly stated instructions to agencies will supply an intelligible principle and thus meet the requirements of the nondelegation doctrine.
• Note Scalia’s dissent – he argues that Congress should not be able to delegate away all the big issues.
à Professor Delogu thinks this line of reasoning has merit – Congress shouldn’t duck away
from big decisions.
• Types of arguments for non delegation – pure separation of powers, equal protection or DP.
all three of these are used in Cope v. Town of Brunswick
ADJUDICATION WITHIN ADMIN AGENCIES
Agency adjudication raises a separation of powers problem. B/c Article III vests the judicial power in the Article III courts, it’s been argued that admin agencies usurp that power when they adjudicate cases. However, the S. Ct. has approved a great deal of agency adjudication.
7th Amendment: “In any case arising out of the common law where the amount in controversy is greater than $20, a person has a right to a trial by jury.”
Public Ri
eral and state levels. does not require that a hearing
needs to be held on some Jdx. Has increasingly used multiple hearings as a way of airing the
rule. there is no opportunity to cross examine – this is a quasi judicial proceeding.
• a type of agency common law. particularly federal agencies prefer this type of rule making.
Under the Federal APA – a rule is the end result of exercise of a legislative or rulemaking function, an order of a judicial or adjudicatory function – it can be both, but not very often.
AGENCIES MUST FOLLOW THEIR OWN RULES
A reg has the impact of a statute passed by congress. An agency can’t deviate from its rules in order to achieve what it deems to be justice in the individual case. Agencies are required to follow their own rules, whether those rules have been adopted in a rulemaking proceeding or announced in the course of agency adjudication.
Reuters Ltd. v. FCC
Rules Promulgated Formally May Be Changed in a Subsequent Rulemaking: If an agency adopts a rule in a rulemaking or adjudication, the agency may change that rule in a subsequent proceeding.
Rules Formally Adopted May Not Be Informally Abrogated: An agency may not informally adopt a policy that contradicts the terms of a formally adopted rule.
Retroactive Changes Are Disfavored: Retroactive changes in agency rules are disfavored, especially when the change has material retroactive effects on the regulated party
The President may issue executive orders, but it can’t countermand the legislation. If leg is silent, the President may make executive orders.
CBA
CBA, under which a policy is evaluated for whether its benefits are greater than its costs, is a powerful tool for evaluating a proposed policy.
Presidential Directives to Apply CBA: Presidents, by executive order, have required agencies to conduct cost-benefit analyses of their major regs. The executive orders have given the OMB the authority to review the CBA and reject if it it’s not adequate.
Reasons Favoring CBA: Agency decisionmaking might improve under CBA. The analysis would force agencies to consider the consequences of their policies in a concrete, rigorous, and material way. It would provide a clear basis for comparison w/ other potential policies. It would also limit the potential for arbitrary agency action by specifying, in advance, a set of relevant considerations. Finally, the analysis might reveal that when all of the costs and benefits are taken into account, the purported beneficiaries of the reg actually stand to lose.
ESTOPPEL
Agencies aren’t normally estopped by the conduct or statements of agency officials. The court has failed to say that there will never be estoppel against the gov, but it’s never given a time when estoppel would work.
Erroneous Advice Doesn’t Estop an Agency: Erroneous advice given by an agency official doesn’t estop an agency from relying upon the program’s actual requirements and denying claims based upon the erroneous advice.
The Rule Against Estoppel is Strongest When Fed Gov Funds are Involved: It’s strongest here b/c of the constitutional principle that funds should be spent only as specified by congress acting under the Appropriations Clause. Principles of estoppel can’t override the limitations placed by congress on the expenditure of gov funds.
Affirmative Misconduct: Doctrine that if an officer makes an affirmative misconduct (i.e.: fails to tell someone something or give the wrong info), then the injured party can be reimbursed. Court has never addressed issue of whether affirmative misconduct can be a claim for the injured party.
• States are usually more realistic in applying estoppel – they are used to dealing with planning boards
AGENCY CHOICE OF POLICYMAKING MODE
CONSTITUTIONAL CONSTRAINTS ON CHOICE OF POLICYMAKING MODE
The choice between rulemaking and adjudication is influenced heavily by constitution
