Administrative Law Outline
I. Development of the Administrative State
A. Populist Era (1870’s – 1880’s)
1. Post Civil War, the transcontinental railroad spurred a national economy. The RR made it possible to produce goods in one place and sell them elsewhere. By the time the RR’s were operating, their investors wanted to get paid back for their investment. Local monopolies developed at the state level, and huge rates froze out small businesses from the national economy.
2. Every state developed a state RR commission to counter the monopolistic effects of one-RR towns. Each state RR commission regulated how the RR’s would work.
3. The national RR’s went screaming to Congress for help. In 1889, Congress enacted the Interstate Commerce Commission, structured to police the marketplace. The Commission didn’t set rates, it just regulated the marketplace.
4. Perhaps ironically, then, it was large companies that engineered the federal administration movement, lobbying for a one-stop shopping agency as opposed to 50 difference RR commissions with different policies.
B. The Progressive Era (1880’s – 1915)
1. Large monopolies were the norm. Progressives pushed for government regulation. The Sherman Act was passed in 1890 to break up the trusts. President Taft used the Act extensively to regulate unfair trade practices.
2. Congress established the Food and Drug Administration (FDA) in 1906, a year after the Jungle was published. Also in 1906, the ICC was given the power to set rates.
3. In 1914, Congress established the Federal Trade Commission (FTC), with the authority to police the marketplace and look into anti-competitive acts. The FTC could go to court and issue administrative orders against non-complying corporate entities. The agency was also given the power to give advanced approval to various mergers and acquisitions.
C. WWI and the Roaring Twenties (1915 – 1929)
1. President Wilson nationalized the RR’s and approved a War Industries Administration to assist the war effort.
2. The Food Administration was established and run by Herbert Hoover, who that private industry groups and the government should work together (public-private partnerships) to best serve the public’s interests. The modern administrative state is a descendant of this model.
D. The Great Depression and the New Deal (1929 – 1960)
1. President Roosevelt created the Securities Exchange Commission (SEC) and the National Labor Relations Board (NLRB) to help police the marketplace.
2. FDR also created the Civil Aviation Board (later, the FAA) and the Federal Radio Commission (later, the FCC) to protect and nurture the new air travel and telecommunications industries.
3. The Tennessee Valley Authority (TVA), a public-private partnership, was created to spur development in the rural South utilizing cheap electricity.
4. Demand-side economic intervention and national economic planning were implemented vis a vis the CCC, the Works Progress Administration (WPA), and the Social Security Administration (SSA).
E. The Great Society (1960 – 1970)
1. The federal government implemented redistributive justice policies, including Medicare, Medicaid, and housing subsidies.
F. The Public Interest Era (1970 – present)
1. The federal government intervened to address the negative externalities of a rapidly developing industrial state. Environmental, consumer, and automobile regulations were adopted. Huge bureaucracies were created.
G. The “Wynton Marsalis” Era (1980 – present)
1. An era of significant improvisation and experimentation.
2. National politi
ard, and the 5th Cir. struck it down on the grounds that § 3(8) and § 6(b)(5) required a cost-benefit analysis before a rule could be implemented.
(2) HOLDING: Section 3(8) requires the Secretary of OSHA to determine what is reasonably necessary and appropriate to remedy a significant risk of material health impairment. Because the Secretary failed to make a threshold finding that a risk existed at 10 ppm and that a lower standard would significantly lower the risk, the 1 ppm standard was struck down. The plurality stops short of requiring a cost-benefit analysis; rather, the opinion suggests the agency must demonstrate that the money spent would have some life-saving benefit.
(3) DISSENT: “Feasible” means “technologically and economically achievable.” Since no industry group submitted comments suggesting the standard wasn’t technologically and economically achievable, the standard should not be struck down. The dissenters would have adopted a mere “reasonable relation” standard. If the Court had accepted this argument, the statute would have made a sweeping delegation of legislative power.
(4) CONCURRENCE 1: Powell agrees with the 5th Cir.’s holding on cost-benefit analysis. He’s all alone on this — the plurality never reaches the question, the dissenters ignore it, and Rehnquist ignores it. As an aside, the Cotton Dust case held 8-1 that the Act does not require a cost-benefit analysis prior to standard adoption.
