Administrative Law – Luff – Fall 2014
I. Introduction
A. Overview of Administrative Law Analysis (see also flowchart)
i. Six Steps:
1. The Source of Agency Power
a. You should identify the source of agency power (usually the agency’s enabling act, which delegates power to the agency and describes the agency’s jurisdiction) and understand the terms of the agency’s power including any apparent or implicit limits on that power. Also, you need to be aware of the substantive terms of the agency’s use of its delegated power – under what circumstances is the agency authorized or required to act?
2. Constitutional Limits on Agency Power
a. You should be aware of potential constitutional limitations on agency power. The Constitution may limit the agency’s power, either through specific provisions or through doctrines derived from the principle of separation of powers.
3. The Procedural Requirements on the Agency
a. It is important to identify the procedural requirements placed on the agency. This is the heart of administrative law. Procedural requirements arise from the Constitution, the APA, administrative common law, the agency’s particular statute, other statutes that place obligations on administrative agencies, and the agency’s own procedural rules.
4. When is Judicial Review Available?
a. The availability of judicial review is determined by application of the APA and the agency’s particular statute, and it is important to be aware of when review is available and what actions are reviewable. Constitutional doctrines such as standing and ripeness, as well as administrative common law, can also influence the availability of judicial review.
5. What is the Scope of Judicial Review?
a. The APA and the agency’s particular statute determine the scope of judicial review – the standard of review the court applies. The scope of judicial review determines how deferential the reviewing court will be to the agency’s decision.
6. What enforcement mechanisms are available for the agency and for private parties?
a. Agency enforcement power may be limited by a particular statute, the APA, and the Constitution. Private parties may attempt to force agencies to bring enforcement actions or they may attempt to enforce regulatory norms themselves, without agency involvement.
ii. Four big topics:
1. How administrative agencies adjudicate individual disputes.
a. Legislative regulation focused more on agencies as lawmakers.
b. Agency as court/adjudicator
2. Judicial review of agency legal interpretations
a. Resist Chevron and explore a bunch of questions that come in that area.
3. Aspects of the agency decision making process
a. Public/outside participation that goes beyond standard form hearing and submit public comments
b. How agencies rely on outside parties for advice and even implementation
c. Transparency
4. Availability of judicial review of agency action
a. Complex rules about who is allowed to bring lawsuits challenging agency actions, when they can do so.
B. Regulation
i. Problems Thought to Call for Administrative Regulation
1. Market Failures, Economically Defined
a. The need to correct for “externalities” or “transaction costs”
b. Collective action problems
c. The need to compensate for inadequate information
d. The need to control monopoly power
2. Less Secure Economic Grounds
a. The need to control “windfall” profits
b. The need to eliminate “excessive” competition
c. The need to alleviate scarcity
d. Agency problems
3. Noneconomic Justifications
a. Redistribution
b. Nonmarket or collective values
c. Disadvantage and caste
d. Planning
e. Paternalism
4. Luff/Class (justifications for regulation)
a. Maintaining order
b. Competition
c. Collective good
d. Externalities
e. Information
f. Re-distribution of wealth (Medicaid, Medicare, social security)
g. Economic efficiency (not common in the US, use market forces)
h. Not mutually exclusive categories.
i. All share that they are in the public interest.
ii. Regulatory Tools
1. Price controls
2. Screening of licensing
3. Standards
4. Fees, taxes, grants and subsidies
5. Provision of information
6. Cooperation, moral suasion, guidelines, technical assistance, statements of best practices, Awards, and the Like
C. The Historical Development of Administrative Government and Law
i. Pre 1875 get laissez-faire system.
ii. 1875-1930 golden age of laissez-fair government
iii. “Traditional Model” of Administrative Law
1. The legislature must authorize administrative sanctions on private persons through rules or standards that limit agency discretion.
2. The procedures used by the agency must tend to ensure agency compliance with legislative directives.
3. Judicial review must be available to ensure that agencies use accurate and impartial decision making procedures and comply with legislative directives.
4. Agency processes must facilitate the exercise of judicial review.
iv. 1932-1945 SEC, NLRB
v. 1945-1961 APA; tons of agencies created as part of new deal
vi. 1962-1979 regulation revolution; deregulation
vii. 1980-present: presidential administration and cost-benefit state
D. What Is an Agency and What Does It Do?
i. What is an Agency?
1. Organization created by government.
2. 3 branches of government (judiciary: adjudication, executive agencies, legislative-rulemaking)
3. Problem is agencies have quasi-legislative and quasi-rulemaking functions. (Agencies rule-make)
4. Organic Act/Statute: legislative statute that creates the agency, may have some grant of power VERSUS
5. Enabling Act: grant of more power to pre-existing agency
6. Once the agency has power, then get rulemaking and then implementation or interpretation of some statute. Finally, individuals get individual adjudications. Individual applications of implementation or interpretation.
7. Agencies do many things, including:
a. Distribution of benefits
b. Granting of licenses and permits
c. Policymaking
d. Policymaking methods
ii. Why Agencies?
1. Expertise
2. Efficiency in time and cost
3. Congress wants to put its own spin on a topic.
4. Don’t want to dilute prestige
l rules formulated by a politically responsible group of officials.
iv. Steel Seizure Case
1. President cannot execute on his own, there has to be some grant of power from Congress that is then executed by the President.
2. Always look for a grant of power and what the extent of that grant of power is.
v. Two forms of analysis:
1. Courts tend to strictly enforce the Constitution’s specific procedural provisions and reject efforts to create modified or different versions of the procedures spelled out in the document.
2. When no particular provision applies, the analysis is often pragmatic rather than conceptual, asking whether the system is functioning properly rather than whether a power, by definition, belongs to a particular branch.
B. The Agency’s Power to Legislative
i. The Non-delegation Doctrine
1. Prohibits excessive delegation of discretionary powers by the Congress to federal agencies and the President.
2. Congress cannot delegate their own powers.
a. Congress cannot transfer its legislative powers to any other institution.
b. Congress cannot delegate if the statute amounts to or effects a delegation of legislative power if the scope of the grant is too broad or if it vests too much discretion in the executive. (Either too much or too broad.)
c. Rather than delegating legislative power, Congress has to exercise it, by enacting a relevant statute. Any exercise of legislative power is enough, do not care about scope.
d. Legislative power is simply making rules/law.
3. Article I, “all legislative powers herein granted shall be vested in a Congress of the United States.” Implicit in the vesting clause is the separation of powers notion that no other federal entity may exercise legislative power.
4. Nondelegation Goals
a. Accountability
b. Deliberation
c. Judicial review
5. The rule against the delegation of legislative power to the executive branch.
a. Early cases stated that the Constitution absolutely prohibited the delegation of legislative authority from Congress to the executive branch. However, this did not mean that Congress could not assign discretionary authority to the executive branch, but only that any delegated authority had to be executive in nature and not legislative.
b. In several early cases, the Court upheld delegations on the ground that Congress had made the legislative decisions and the executive branch was merely filling in details or acting under Congress’s instructions when certain facts or conditions were found to exist. Under this analysis, the discretion exercised by executive officials was not legislative but rather was discretion inherent in the execution of the laws.
