Mortazavi – Fall 2016 – Administrative Law Outline
Introduction to Studying Administrative Law
What Is Administrative Law?
Administrative law- branch of law that regulates the exercise of authority by executive officials including officials of independent agencies
Sources of Administrative Law
Constitution
Limits type of power
Limits methods of exercising power
Main constraints – separation of powers and due process
APA
Prescribes required procedures
Framework for judicial review
Organic statutes
Establishes agency
Prescribes mission
Common law
Pre-APA rulings on government power
Used to help interpret APA
General statutes
Applies to all agencies
Example: NEPA
Agency rules
Presidential directives
The study of administrative law focuses on the following issues:
Source of agency power
Organic statute
Understand terms, apparent and implicit limits
Substantive terms – When authorized or required to act?
Constitutional limits
Specific provisions
Separation of powers or due process
Procedural requirements
Judicial review
Determined by APA and organic statute
When review is available and what actions are reviewable
Standing and ripeness
Scope of judicial review
Determined by APA and organic statute
Level of deference
Role and Function of Administrative Agencies
Independent agencies
Not within any department
Not under supervision of the President or a cabinet officer
Headed by several commissioners who serve for a term of years and not subordinate to any other executive branch official
Functions
Distribution of benefits
Welfare, disability, old-age, medical care, loan guarantees
Often adjudicate disputes that arise in these areas
Granting of licenses and permits
Rule on requests
Enforce standards applicable to license holders and others
Policymaking
Make important policy decisions
Congress often instructs agency in broad terms and leaves important matters to agency discretion
Often creates requirements for obtaining various benefits, licenses, and permits administered by federal law
Policymaking methods
Legislative rulemaking
Adjudication
Informal procedures/informal adjudication
Public Interest and Public Choice Explanations of Regulation and the Structure of Administrative Agencies
Public interest theory of regulation
Explains administrative law based on traditional notions of the policy aims of regulation
Regulation is desirable when there are the following market failures:
Externalities – internalizing externalities
Creating and controlling monopolies
Create monopolies when it is thought that competition would result in inadequate or inefficient service to public
Regulation controls monopolies
Public goods
Producer can’t force user to pay
Example: national defense, scenic parkland
Asymmetry of information – Inequalities in formation might require public disclosure regulation
Agency structure
Agencies designed to make policy in an area requiring scientific expertise need to maximize the input of experts
Agencies designed to award benefits or adjudicate disputes should be designed with process values/efficiency in mind
Public choice theory of regulation
Explains regulation as a product of the policy process in which parties with political power enlist government coercion to achieve goals that they couldn’t achieve in a free market
Predicts narrow cohesive interests with much to gain or lose will have a significant advantage over the general public in the political process
Often strongest impetus for regulation come from regulated parties desiring to consolidate market advantages
Separation of Powers and Distribution of Administrative Power
Separation of Powers Basics
Courts tend to strictly enforce the Constitution’s specific procedural provisions and reject efforts to create modified or different versions of procedures spelled out in the document
When no particular provision applies, the analysis is often pragmatically asking whether the system is functioning properly rather than whether a power, by definition, belongs to a particular branch
The Nondelegation Doctrine
Chadha, Congress’s only means of nullifying agency action is through legislation that passes both house and is presented to the President
Congressional Review Act – major rules can’t become effective until 60 days after Congress has been notified of the rule, to allow it time to pass a resolution of rejection which is then presented to the President for his signature
Congressional involvement in appointment and removal of executive officials
Congress may not appoint administrative officials, but Senate can confirm such appointments
Congress can appoint officials who act in aid of legislation, but those officials must not engage in rulemaking and enforcement
Officer of the United States is any appointee exercising significant authority pursuant to the laws of the United States
Only officers of the United States may exercise authority under the laws of the United States, i.e., prosecutorial or rulemaking authority
Officers of the United States must be appointed in accordance with the Appointments Clause of the Constitution
Congress’s power over the budget and Senate’s constitutional advice and consent power can effectively force the President to appoint persons favored by key members of Congress
Officers of the United States may not be subject to removal by congressional action, except by impeachment by the House and conviction by the Senate
Congress may place statutory restrictions, such as “good cause,” on the removal of administrative officials
Congress may delegate removal power to an official under presidential control
Members of Congress can’t hold executive appointments during their terms in Congress
Executive Control of Administrative Agencies
