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Administrative Law
University of South Carolina School of Law
Boyd, Marie C.

Administrative Law
Spring 2014
I.              Introduction
A.    Administrative Agencies in Our System of Government
1.    Cabinet-Level Departments in the Executive Branch→ Department of Agriculture, Department of Commerce, Department of Defense, Department of Education, Department of Energy, Department of Health and Human Services, Department of Housing and Urban Development, Department of the Interior, Department of Justice, Department of Labor, Department of State, Department of Transportation, Department of the Treasury, Department of Veterans Affairs, and Department of Homeland Security
a.    Heads of the Departments are Secretaries—except the head of DOJ is the Attorney General—who are appointed by the President with the advice and consent of the Senate and may be removed at the President’s will
b.    Heads of the agencies within these Departments are also appointed with the advice and consent of the Senate
c.    Independent regulatory agencies are less under the control of the President (e.g., SEC and NLRB)→ they tend to be headed by bipartisan, multi-member groups instead of one Secretary; the members have staggered terms and may only be removed for-cause
2.    ICC v. Cincinnati, New Orleans & Texas Pacific Ry. Co. (1897)
a.    ICC was created by the Interstate Commerce Act to oversee the railroad industry in response to abuses in the rates charged for railroad transportation during that time
b.    Congress’s options:
                                                              i.        Create an agency (ICC) to regulate the rates
                                                             ii.        Deregulate (open the market through incentives)
                                                            iii.        Congress directly regulating the rates
                                                           iv.        Case-by-case regulation by the courts
c.    Issue: whether Congress vested in the ICC the power and duty to fix rates
d.    Court said that the power given to the ICC was the power to execute and enforce, not to legislate; the power given was partly judicial, partly executive and administrative, but not legislative (court was concerned about the separation of powers because someone other than Congress—the ICC—was making law)
e.    SCOTUS concluded that Congress did not confer upon the ICC the legislative power of prescribing rates, either maximum or minimum or absolute—court took a very narrow view here and said if Congress was going to give such power, it needed to be given in an express, specific, and clear manner in the statute
3.    Pennsylvania v. West Virginia (1923)
a.    SCOTUS decided that West Virginia shouldn’t be allowed to restrict natural gas pipelines from distributing gas obtained in-state to out of state
b.    Brandeis Dissent→ said the court was institutionally incompetent to decide this case; these decisions require the informed judgment of experts because a lot of information must be obtained
                                                      i.        “To make equitable distribution would be a task of such complexity and difficulty that even an interstate public service commission with broad powers, perfected administrative machinery, ample resources, practical experience, and no other duties, might fail to perform satisfactorily.”
4.    American Elec. Power Co. v. Connecticut (2011)
a.    Court held that the Clean Air Act had preempted the federal common law of nuisance regarding the effects of emissions of greenhouse gases
b.    Congress designated an expert agency (EPA) as best suited to serve as primary regulator of greenhouse gas emissions and the expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions
c.    Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order – judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the states where the Δs are located; rather, judges are confined by a record comprising the evidence the parties present
d.    Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court
5.    NBC v. United States (1943)
a.    There is a fixed, natural limitation upon the number of stations that can operate without interfering with one another; regulation of radio was therefore as vital to its development as traffic control was to the development of the automobile
b.    The Communications Act of 1934 established that the FCC’s powers were not limited to the engineering and technical aspects of regulation of radio communication, but the FCC was not left at large in performing its duty; the touchstone provided by Congress was the “public interest, convenience, or necessity” in § 303, a criterion which is as concrete as the complicated factors for judgment in such a field of delegated authority permit
                                                      i.        An important element of public interest and convenience affecting the issue of a license is the ability of the licensee to render the best practicable service to the community reached by his broadcasts; the FCC’s licensing function cannot be discharged, therefore, merely by finding that there are no technological objections to the granting of a license
c.    § 303(g) provides that the FCC shall “generally encourage the larger and more effective use of radio in the public interest”; § 303(i) gives the FCC specific “authority to make special regulations applicable to radio stations engaged in chain broadcasting”; § 303(r) empowers it to adopt “such rules and regs and prescribe such restrictions and conditions not inconsistent with law, as may be necessary to carry out the provisions of this Act”
d.    While Congress did not give the FCC unfettered discretion to regulate all phases of the radio industry, it did not frustrate the purposes for which the Communications Act of 1934 was brought into being by attempting an itemized catalogue of the specific manifestations of the general problems for the solution of which it was establishing a regulatory agency
e.    Congress defined broad areas for regulation and established standards for judgment adequately related in their application to the problems to be solved; therefore, the Act authorized the FCC to promulgate regulations designed to correct the abuses disclosed by its investigation of chain broadcasting
f.     Court was more deferential here because it wasn’t afraid to give agencies the power in light of the increasing federal bureaucracy under FDR, and court seemed to be in favor of much broader delegations of power from Congress to these agencies
6.    Before creating a new government agency, one question usually worth considering is whether administrative regulations, as opposed to reliance on market forces, would provide the best means of approaching a social problem
7.    United St

o pave the street was valid, but there was a problem as to how the procedure was administered – should have held a hearing, and the failure to do so was a violation of the individual property owners’ rights under the DPC of 14A
b.    Where the legislature of a state, instead of fixing the tax itself, commits to some subordinate body the duty of determining whether, in what amount, and upon whom it shall be levied, and of making its assessment and apportionment, due process requires that at some stage of the proceeding before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, either personal, by publication, or by a law fixing the time and place of the hearing
c.    Court said the plaintiffs needed an opportunity to be heard in person before the assessment was made and also suggested that written filings are not enough—something more is required here, even though this was a proceeding for taxation
d.    Even here, a hearing in its very essence demands that he who is entitled to it shall have the right to support his allegations by argument however brief, and, if need be, by proof, however informal
e.    This case may have come out differently if the legislature had been the one making the decision, however, the city council, acting as a board of equalization, was the one who denied the right to a hearing – political delegation doctrine
2.    Political Delegation Doctrine
a.    Who is levying the tax?
                                                      i.        Notice must be given and must give a meaningful opportunity to be heard
b.    How many people are being affected?
                                                      i.        This set of facts triggers the highest DPC protection because since it only affects a small number of people, there is much more danger of it being arbitrary
c.    What are the burdens of imposing a due process requirement on the gov’t?
                                                      i.        It’s not hard to give notice or allow them to be heard here; however, this involved a small number of people (it must be feasible to afford the opportunity to be heard)
d.    Fact specific? Adjudicative facts vs. Legislative facts
                                                      i.        Is it the type of situation where the gov’t must ask about the individual’s position in order to determine if it’s proper
                                                     ii.        Do they need to know facts about specific groups of people (adjudicative) or are they asking larger political and social questions (legislative)? Assessment on an entire city is legislative, but in this case, it was so small that it was adjudicative
                                                    iii.        Adjudicative facts require notice and an opportunity to be heard