I. Framework for Addressing Administrative Law Problems
A. Is this a federal or state agency?
B. Examining the constitutionality of the agency itself
1. Particularly focus on the enabling law giving the agency its power
2. Is there an excessive delegation of legislative authority?
3. Inappropriate infringement on separation of powers?
C. What is the form of agency action?
1. Adjudication or rulemaking? (Order or rule?)
2. Look to whether it is adjudicative or legislative fact finding
3. Does the action affect more than one person?
D. If the action is adjudication:
1. Does the APA require certain procedure?
2. Does the statute require a hearing on the record?
a. If yes, look to APA §§ 554, 556, 557
b. If no, Wong Sung due process considerations
i. Does due process either kick the case back into the APA or require some kind of additional procedures?
ii. If due process kicks in, is there a liberty or property interest?
-If no, due process does not apply and no additional procedures apply beyond those in the enabling statute
-If yes, apply Matthews v. Elridge balancing test
E. If the action is rulemaking:
1. Generally, due process is not an issue
2. Does the enabling statute require the rule be made after a hearing on the record?
a. If yes, apply APA §§ 553, 556, 557
b. If no, look only to APA § 553 unless it is hybrid rulemaking
II. Administrative Agencies and the Constitutional Order
A. The basic principles of “our democratic system”
1. Separation of powers
2. Checks and balances
3. Electoral accountability
4. Rule of law
5. Constraint on official discretion
6. Self government
7. Transparency
B. Creation of administrative agencies
1. Controlled by all three branches
a. Legislature enables the agency
b. Executive can appoint and remove heads of the agency
c. Judicial review of agency decisions
2. Powers given to the agencies come from all three branches
a. Write rules and regulations
b. Enforcement tools
c. Adjudication
3. Potential issues with administrative agencies
a. Combination of functions
b. Lack of transparency
c. Principal/agent problems
d. Discretionary authority
4. Advantages of having administrative agencies
a. Administrative procedure may implement law more easily
b. Staff is at the disposal of the victim
c. Expertise of agency personnel
d. Possibility of conciliatory outcomes
e. No jury and a lower standard of proof
f. Rulemaking can fill in the gaps left by the legislature
C. Administrative agencies and delegation of legislative authority
1. Three approaches
a. Managerial approach
i. Normatively, agencies are legitimate because they are staffed by technocrats
ii. Confident in the skill of technocrats and not worried about discretion
iii. Also called “scientific management” or “transmission belt” theory
iv. Not currently seen as a correct theory
b. Political approach
i. Actors in agencies have their own diverse policy agendas, but that is not any different than other interest groups and may not be so bad
ii. Recognition of pluralism
iii. Issues with capture theory and the revolving door problem
iv. Discretion is slightly fettered, so there may be some loss in expertise and efficiency
c. Legal approach
i. Combination of the managerial and political approaches
ii. Developments in
pose additional limits on removal
ii. “Quasi-legislative” and “quasi-judicial” agencies can have limits on presidential power to remove at will
iii. If the nature of the agency is not purely executive, limitations can be placed on presidential power to remove
d. Connection of removal and appointment powers
i. Removal of superior officers (who must be appointed by the president) by executive is unrestricted
ii. Removal of inferior officers (who can be appointed by other means) can limited assuming the executive appointed them
2. Legislative veto
a. Chadha: legislative veto violates the constitutional requirements of bicameralism and presentment
b. Congress cannot retain removal authority over anyone entrusted with executive powers
c. Sentencing commission is valid delegation
d. Despite SCOTUS determining that the legislative veto is unconstitutional, many statutes still include a legislative veto
3. Putting this all together
a. SCOTUS will allow limitations on executive power of removal, but they will not allow Congress to get involved in executive decision-making
b. If Congress is silent on constraints on removal, higher-level executive branch officials can generally be removed by president even without cause
c. Congress can only remove executive officials through impeachment
E. Legislative encroachment on the judicial power
