Prof Garry – Administrative Law Outline
Fall, 2009
Chapter 1: An Introduction
AGENCIES: THEIR ORIGINS, FORMS, AND FUNCTIONS
The administrative state that we know grew out of the government, specifically the executive branch, being forced to actually do something – during the New Deal (great depression), there was a lot of movement.
The Supreme Court initially felt as if administrative agencies were a violation of separation of powers – they felt the executive was taking too much power
Administrative Procedure Act: agency means each authority of the Government of the U.S., whether or not it is within or subject to review by another agency, but does not include:
A. The Congress;
B. the courts of the U.S.;
C. the governments of the territories or possessions of the U.S.;
D. the govt of the Dist of Columbia; or, except as to the requirements of section 552 of this title –
E. agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;
F. courts martial and military commissions;
G. military authority exercised in the field in time of war or in occupied territory
5 USC sec. 551(1) (2000).
Summary: any “authority” of the U.S. govt except Congress, the federal courts, territorial governments, and certain military entities.
Administrative agencies are not in the Constitution, so courts have to figure out how they fit into the three branches. May treat them as executive, may be legislative under a statutory approach with power granted from Congress.
Makes many of the issues seem to be first impression issues
The judiciary is sometimes the better way to get at administrative agencies than Congress.
ISSUES
Separation of Powers problems are created within agencies: i.e. – The FCC does all 3 functions (entity vs. functional perspective) execute/interpret/legislate. FCC sets rules; enforces the law by imposing fines; and judicial function is to adjudicate licensure. It performs all 3 functions but still has separation. This conflicts when any of 3 branches gets involved with agency – does court get involved in policy by overturning rules?
Federalism: agents of fed govt, by relying on them we shift power to federal govt.
History: Administrative agency really started during New Deal – massive fed govt involvement in economy. Created big federal agencies to regulate economy – the court was the only check on power because Congress passed the buck.
i. Post-WWII: No constitutional barriers to administrative growth, but still constitutional problems
ii. Mid-1940s: huge increase in agencies
iii. Administrative Procedure Act: few vital concepts treated by the court.
iv. Late 1960s-early 1970s: shift away from approval of agencies to influence of political liberals who saw them as problems – not as enlightened/pure, maybe more corrupt than legislative bodies. Law turned against agencies – open them up to public rather than large corporations.
We always have conflict between allowing the agency to be expert and efficient versus incorporating or expressing some sort of democratic will which will bog down the agency process
How democratic are agencies when accountable to President who’s elected?
Not as much as congress, but nonetheless there is a notion that these agencies do have a democratic identity.
Major Issues: – Agency Separation of powers
– How do we want agencies to work; expert/efficient or more democratic will
– Formalism versus functionalist to deciding issues involving agency power and activities
39-47, 51-57 reading assignment
Functionalism versus Formalism
Adjudicative vs. Legislative
Londoner v. City and County of Denver
Issue was whether landowners, on whom the city/county assessed property tax based on improvements made by the city/county, were denied due process when they were not given an opportunity to be heard prior to the assessment.
· Holding: The court held that the landowners were entitled to a hearing affording them an opportunity to be heard and present evidence – due process required it. In connection with a tax assessment, landowners are entitled to due process, i.e., a hearing.
· This is a subordinate body receiving power from higher body. In federal law Congress is the delegating body to a subservient body: FCC imposing fee as a result of being empowered by Congress.
· This is ADJUDICATORY because it is mostly retroactive directly toward people on this particular street – a small, concrete set of individuals.
Bi-Metallic Investment Co. v. State Board of Equalization of Colorado
Tax increase was to be assessed on all property owners in Denver and landowner claimed he deserved the opportunity to be heard/due process. The issue was whether all individuals have a constitutional right to be heard before a matter can be decided in which all are equally concerned.
Holding: not all individuals have a constitutional right to a hearing before a matter can be decided in which all are equally concerned. Where a rule of conduct applies to “more than a few” people it is impracticable that every one should have a direct voice in the adoption. There must be a limit to individual argument in such matters if government is to go on.
The lesson from this case is that when engaging in legislative proceedings there are no due process requirements, but in an adjudicative proceeding they must follow the process.
The difference between these two holdings is that there is no right to a hearing in Bi-Metallic and there is a right in Londoner. There distinction is not that there is a choice of tax in one and not the other, nor is it that the forums are different. The REAL distinction is that Bi-Metallic involves a rulemaking process while Londoner involves a more adjudicative decision.
Process vs. Function: How do we decide when an adjudicative body has to follow due process? When are agencies held to the due process requirements? Agency stepping into shoes of Congress isn’t subject to due process or other requirements, but if stepping into shoes of courts (adjudicating) then they do have to follow the process!!
How do we know which is adjudicative and which is legislative/rulemaking?
tution in transferring legislative functions – whether in authorizing codes to be promulgated under the NIRA Congress has itself established the standards of legal obligation, or by failing to enact the standards it attempted to transfer that function to others. Was Congress’s use of “fair competition” in the Act instructive enough or too vague allowing too much flexibility to the formulator of the code and the President?
Holding: the delegation of legislative power to industrial associations is unknown to our law and utterly inconsistent with the constitutional prerogatives/duties of Congress. The President’s legislative power also finds no support in precedent.
The claim was that the codes violated the Nondelegation doctrine because the NIRA allowed the President to put the code on any business he wanted. What did these codes do that was so bad? It gave power to regulate both wages and hour of an entire industry = BIG POWER.
More direction in this section than in Panama? Did Congress include an intelligible principle? “Fair Competition” – the unfair competition practices (goal to reduce them) was NOT found to be a sufficient intelligible principle, not directive enough.
No IP here, but what do we have to have for there to be an IP? Or what didn’t the Act contain that there needed to be?
Defines IP as: must lay out what the President cannot do, must have sufficient limits on the President and then the Court will presume an IP.
Agencies have to get power from Congress and there is a process that the transfer of power must follow….
AFTER THE NEW DEAL
The Modern Doctrine
Mistretta v. U.S.
Sentencing guidelines were at issue. Congress delegated authority to the Sentencing Commission and 3 federal judges were on the Commission to do something delegated by Congress – to make a set of sentencing guidelines. The Court held this was not a violation of the Nondelegation doctrine. Separation of powers and Nondelegation do not prevent Congress from obtaining the assistance of its coordinate branches AS LONG AS Congress lays down an IP to which the Commission is directed to conform. Congress must clearly delineate the general policy, the public agency that is to apply it, and the boundaries of the delegated authority. Congress’s delegation of authority here is sufficiently specific to meet constitutional requirements. They charged the Comm’n with 3 goals and 4 purposes. Congress also prescribed the guidelines system, seven factors, etc. The Court thought the Act set forth more than an IP, that it had specific directives, etc.
