ADMINISTRATIVE LAW
REUBEN
WINTER 2002
I. INTRO TO ADMINISTRATIVE LAW: Overview Of Agency Structure & Functions
A. Sources of Administrative Law
1. Constitutional Law
a) separation of powers issues
b) procedural due process issues
2. Administrative Procedure Act
a) prescribes agency procedures
b) establishes a framework for judicial review
3. Organic/Enabling Statute
–establish each agency and define what their mission
–may also define agency procedures (narrower than APA)
4. Other statutes
–ex.: Nat. Environmental Policy Act of 1969—all agencies of the federal government shall include an environment impact statement
5. Federal Common law
–used before APA enacted. Sometimes judges refer back to it,
when interpreting other laws
6. Rules Imposed by the Agency itself (aka regulations)
B. Definition of Agency
What is an Agency?
–any federal government entity that is not Congress, the federal courts, a
territorial government or certain military entities
–each agency is concerned with specific problems within its scope of authority as specified by enabling legislation
Independent v. Executive Agencies
a) Independent—officers can be removed “for cause”
b) Executive—officers can be removed at will of president
3. Why have Agencies?
Pros Cons
1) Tradition Agency Capture?
2) Efficiency Bureaucracy/Expense
3) Expertise No Accountability
C. What do Agencies Do? Rulemaking v. Adjudication
–all powers are exercised in one of two ways: rulemaking or adjudication
1. How to Tell Which is Which
a) Dickinson/Fuchs THE DOMINANT VIEW
i) The features of agency actions that are most relevant to determining whether it is rulemaking or adjudication are:
(1) Prospectivity—the more forward-looking something is, the more likely it is rulemaking
(2) Generality—the more general something is, and universally applicable, the more likely it is rulemaking
Generality, or lack thereof, is the most important.
ii) Have 5 propositions about this distinction. See notes 8/22
b) APA Distinctions Between the Two
i) “Rule”—any agency statement of general or particular applicability and future effect . . . including rate making (5 USC § 551(4)). Any forward looking action is a rul
ate agencies.
Industry Capture View (Bernstein & Noll)
–Agencies ultimately engage in narrow, industry-serving behavior that serves
powerful economic interests at the expense of the public.
–Want: Either keep agencies, but increase legal controls, or dismantle
agencies/reduce their control in government decision-making
Post-Capture View (Wilson)
–No single unitary theory explains all agency behavior. Depends upon context
and agency-specific issues.
II. THE CONSTITUTIONAL FOUNDATIONS: Constitutional Issues
A. Separation of Powers
1. Respective Powers
a) Legislative—make laws; raise revenue/power of the purse
b) Executive—responsible for operation of country (interaction w/ people from other countries; executing the law, i.e. military)
c) Judicial—resolve disputes between individuals/entities and gov’t/entities
2. 2 Poles in Constitutional Interpretation
