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Administrative Law
University of Pennsylvania School of Law
Zaring, David T.


David Zaring

Fall 2013



· Administrative law is the law governing the forms, functions and activities of government agencies.

· The most important definition of an agency –although not the only one- is contained in the Administration Procedure Act (APA). – 1946.

· APA § 551(1): Agency means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but doesn’t include:

§ The Congress

§ The Courts of the United States

§ The governments of the territories or possessions of the U.S.

§ The government of District Columbia

§ Agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them.

§ Courts martial and military commissions.

§ Military authority exercised in the field in time of war or in occupied territory.

· Is the President an agency? No. Supreme Court: One should not presume that the President is an agency, and therefore subject to these kinds of judicial control, without a clear statement of Congress that it intends such a result. Franklin v. Massachusetts. Separation of powers, authority of the United States, President is not an agency under the Act.

· Authority: Enough distinctive identity and decision-making responsibility. Depends ultimately on its powers, its responsibilities and its formal structure. (Even a single person could be an agency).


· The basic institutions of the United States are created by the Constitution.

· Congress is given power to make all laws which shall be necessary and proper for carrying into Execution the powers vested by the Constitution in Congress… which includes the power to create positions in government.

· All units of government are created by congressional statute or by presidential allocation of resources placed at his or her disposal by congressional statute.

· Behind every agency lies a legislative act, called an organic act, which creates, empowers, defines and limits that agency.



· The Constitution places some limits on the extent to which Congress can entrust authority to other actors. How far those limits extend?

· Non-delegation doctrine: The standards for determining when Congress has crossed the constitutional line between delegating legislative authority and simply allowing executive and judicial actors to carry out their constitutionally prescribed functions.

· Panama Refining Co. v. Ryan (1935). Supreme Court: Statute gives President an unlimited authority to determine the policy and lay down the prohibition, or to not to lay it down, as he may see fit. Also, disobedience to his order is made a crime punishable by fine and imprisonment. This is an unconstitutional delegation of powers.

§ The general outline of policy contained nothing as to the circumstances or conditions in which transportation of petroleum should be prohibited.

§ Best of motive doesn’t substitute constitutional authority.

· Shechter Poultry Corp. v. United States (1935). What is meant by fair competition? Is it defined in the law or is a convenient designation for whatever sets of laws the President may propose or prescribe?

§ Congress cannot delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficial.

§ Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever law he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.

· Mistretta v. United States. Modern Doctrine. Statutes specified penalties for crimes but gave the judge wide discretion to decide whether the offender should be incarcerated, for how long, etc.

§ Separation of powers do not prevent Congress from seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government coordination.

§ ***So long as Congress shall lay down by legislative act an intelligible principle to which the person or authorized body is directed to conform, such legislative action is not a forbidden delegation of legislative power.***

§ Intelligible principle doctrine is “driven by practical understanding that in our increasingly complex society, replete w/ ever changing and more technical problems, Congress simply can’t do its job absent an ability to delegate power under broad general directives.”

§ ***Constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. *** American Power & Light Co. v. SEC.

§ “Only if we could say that there is an absence of standards for the guidance of the administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would de be justified in overriding its choice of means for effecting its declared purpose.”

· Guidelines like “fair and equitable” and “in the public interest” satisfy the modern intelligible principle doctrine.

· Whitman v. American Trucking Ass’ns: Congress authorized EPA to promulgate regulations establishing air quality standards at a level “requisite to protect the public health” with an “adequate margin of safety”.

§ Court held that provision was well within outer limits of non-delegation

§ Court said degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred

§ Words like imminent, necessary, and hazardous alone are enough of an intelligible principle.

§ Court also noted that agency cannot correct an unconstitutional delegation of discretion; the statute is OK or it isn’t, practice of agency doesn’t matter.

§ This decision reaffirms that the Court will seldom invalidate a statute delgating quasi-legislative power to a federal agency.


· Statutory Overrides: Take the form of statutes and thus must clear the constitutional requirements for legislation: passage in both houses of Congress and presentment to the President.

· Congress can control agency discretion overriding state agency decisions. In extreme cases Congress can amend the organic statute to eliminate altogether the agency discretion or the agency itself. Less dramatically, Congress can overrule, on a case-by-case basis, specific exercises of that authority.

· Legislative Vetoes: Allows Congress to reserve to itself, or to some component of itself, the power to override agency decisions without going through the whole legislative process. Popular until 1983 until eliminated by Supreme Court.

· Immigration & Naturalization Service v. Chadha. Deportation of Chadha, Attorney General suspended the deportation procedure, but the House vetoed this decision and ordered his immediate deportation.

§ The Supreme Court concluded that the fact that a given law or procedure is efficient, convenient and useful in facilitating functions of government, standing alone, will not save it if is contrary to the Constitution.

§ Separation of powers and legislative powers concerns. Deportation required action in conformity with the express procedures of the Constitution’s prescription for legislative action: passage


§ Although they do not always render final decisions, they perform more than ministerial tasks. (Take testimony, conduct trials, admit evidence, enforce compliance with discovery orders.)

§ ALJ’s are not Officers of the United States. Hired by agencies.

· Landry v. FDIC (2000) USCA DC. Not a definitive understanding of Officer.

§ ALJ’s can file a “recommended decision, recommended findings of fact, recommended conclusions of law, and a proposed order.”

§ ALJ’s cannot render the decision of the FDIC, which issues the final decision.

§ *** The power to issue a final decision is critical, since the ALJ had no power it was not an inferior Officer.***

· Tucker v Commissioner of Internal Revenue (2012) DC Circuit. Distinction between Officers and employees. (1) Significance of the matters resolved by the officials, (2) the discretion they exercise in reaching their decisions, (3) the finality of those decisions.

Who appoints inferior officers?

· Freytag v. Commissioner of Internal Revenue.

§ President, Deparments and Courts of Law.

§ Tax Court is not a head of a Department but a Court of Law. (Includes not only Art. III courts. Scalia dissents.)

§ Head of Departments does not embrace inferior commissioners and bureau officers. Expressly created and given name by Congress.

· Free Enterprise Fund concluded that the Securities and Exchange Commission is a Department.

§ Free standing component of the Executive Branch, not subordinate to or contained within any other such component, it constitutes a Department. Or is it because it has sufficient power and distinctive identity?

§ Multimember body may also be Head of a Department it governs.

· Weiss v. United States (1994) USC. Military judges appointed in conformance with the Appointments Clause to their positions as commissioned military officers, do not need a separate appointment under the Appointments Clause to their positions to carry out the duties of military judges.

§ There is no suspicion that Congress was trying to both create an office and also select a particular individual to fill the office.

§ Germaneness analysis must be conducted, whenever is necessary to assure that the conferring of new duties does not violate the appointments clause. Violation of the appointment clause occurs not only when Congress may be aggrandizing itself (by appropriating the appointment power over the officer exercising the new duties), but also when Congress, without aggrandizing itself, effectively loges appointment power in any parson other than those whom the Constitution specifies.

§ Germaneness is relevant whenever Congress gives the power to confer new duties to anyone other than the few potential recipients of the appointments power (President, Courts of Law, Heads of Departments).

3. Employees

· No restrictions for employees

· ALJs of agencies are considered employees (Landry v. FDIC), unless they have final decision-making power, in which case they can be considered inferior officers