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Administrative Law
University of South Carolina School of Law
Holley-Walker, Danielle R.

Administrative Law
Prof. Holley-Walker
Fall 2009

APA §§ are in the Appendix starting on page 705

1. Introduction: What is Administrative Law? The History of Administrative Agencies and the Supreme Court
a. Administrative Agencies and Our System of Government
i. What defines a Department? President’s cabinet secretaries are the heads of them and are therefore political appointees which serve at the pleasure of the president. They are a part of the executive branch.
ii. There are also many independent agencies. What makes them independent? These agencies have a group of commissioners versus having one head. The parties split the commissioner positions and they have terms so can’t be fired by president.
iii. ICC v. Cincinnati New Orleans and Texas Pacific Railways:
1. The ICC came into being from the Interstate Commerce Act (note that all acts creating agencies are called governing or enabling statutes). This case concerned rate setting with the railways.
2. Congress created the ICC to correct and control abuses. They regulated the rates in order to do so. However, the issue is whether the commission was vested with the power and duty to fix rates.
3. What would be the alternative to having an agency regulate rates? Congress would have to do it themselves. Someone still has to enforce the regulation though.
4. What are other options for Congress instead of Congress doing the work? The government could do nothing and let the market regulate itself. This second option of doing nothing is often argued about. It can be detrimental to the country. Doing nothing is very cheap.
5. They decided to create an agency here. What are the benefits of delegating the work? You have experts and you also retain oversight and can rewrite the statute and guidelines. It may be good for the industry itself because there is one place everyone can go.
6. What role does the judiciary have once an agency is created? The Supreme Court determines if the agency is acting within the authority granted to it. They read it very literally and limited. Since the legislation did not expressly grant authority to set rates, the Court held they did not have the authority to set rates. Power needs to be given in an express, specific, and clear manner. The reason for this is because at that time, regulation was unheard of. So they read it very narrowly.
iv. Pennsylvania v. West Virginia
1. The dissent is the key from this case. They did not allow WV to restrict sales outside the state. The question is whether they should have power to do so.
2. Brandeis Dissent is important because of the issue of expertise and who is most competent to regulate. The Court is not competent to make this type of decision because of the necessity of obtaining a lot of information. They would need experts etc.
3. The point of this case is that deciding one case doesn’t help in overall regulation because it can’t control everyone.
v. NBC v. United States
1. NBC challenged the FCC’s power to regulate in the licensing of broadcast stations.
2. The industry is radio. The FCC was given broad authority to to deal with the larger and more effective use of radio in the public interest. The three criteria given to the FCC in licensing were public interest, convenience, or necessity. They wanted to control radio because there wasn’t enough room for everyone so they passed the Communications Act of 1934. Why was it so broad? Legislation doesn’t know what needs to be done so they let the agency have broad power in order to fix the problem.
3. There is no telling how this stuff will evolve so they leave it broad.
4. NBC claims that they are going outside their authority given in the statute. However, the court says that the FCC does have the authority. They were given much more broad authority than merely technical and engineering impediments.
5. What will the court be looking for in whether the agency has the power to act? They will be looking for some sort of explicit restriction most likely.
6. The importance of this case is that there has become a change among the Supreme Court in how it treats agencies. Now they look for express restrictions as opposed to express authority.
7. Why have they changed so much? They have New Deal justices on there now. There also have been agencies around for awhile now and so they are more accepted.
vi. US v. SW Cable Company
1. This case is supposed to represent the high water mark of the Supreme Court’s tolerance for and deference to administrative agencies.
2. In this case, the cable company is alleging that the FCC lacked authority to regulated CATV.
3. The FCC says that because the statute says it has “regulatory power over all forms of electrical communication: whether by telephone, telegraph, cable, or radio.” The cable company says it is different because it isn’t distributed over airwaves, it is distributed over wire.
4. The cable company says that they had previously sought and failed to get such legislation. The court says they merely wanted clarification.
5. Second, the cable company says that that section does not independently give authority but merely says there might be another section conferring such authority. The court does not buy this argument.
6. The court also won’t look at the act so restrictively because Congress could not have contemplated cable tv at the time.
7. Finally, the court says Congress it should be construed broadly because of the need for regulation and there is no limiting language so they have no reason to limit it.
8. Criticism of this case is that we should leav

of persons involved. It must be feasible.
c. Fact Specific? This is the distinction between adjudicative facts versus legislative facts.
i. Is it the type of situation where the government must ask about the individuals position in order to determine if it is proper.
ii. Do they need to know facts about specific group of people (adjudicative) or are they asking larger, political and social questions (these are legislative). Assessment on entire city is legislative but in this case it is small so it is adjudicative.
iii. This is why adjudicative facts need notice and opportunity to be heard

iv. Bi-Metallic Investment Co. v. State Board of Equalization
1. The State Board of Equalization and the Colorado Tax Commission increase the value of all property. This increases the taxes on property. This is a suit to enjoin it.
2. The plaintiff makes a due process argument that no opportunity to be heard. Same argument as in Londoner.
3. The court rules that they have no right to be heard because it is impracticable since there are so many people. They don’t need individual hearings because this affects everyone.
4. Also, the political process is the main route to make their complaint to the State.
5. One other key question is how are we going to delegate power from the state legislature, especially when it comes to taxes. Are they considered the same as the state legislature. The court implies that the state agencies are the same as the legislature itself.
v. The distinction between Londoner and Bi-Metallic
1. When the government makes an individualized decision, you get due process protection.
2. On the other side, like in Bi-Metallic, we have the general statute which applies equally to all. If it is a general statute, you have NO due process protection.
3. The hard part comes in where the decision is somewhere in between the two.
vi. Is something adjudication or rulemaking?
1. The major question is what are the rights of the people whom the government is acting against? If you have due process protection then it is an adjudication.
2. Three main questions to distinguish:
a. What government body is acting?
b. How many people are affected?
c. Get her to clarify this third one.