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Administrative Law
University of Toledo School of Law
Kilbert, Kenneth



What are administrative agencies?

i. Units of gov’t other than courts and legislature
ii. Types of administrative agencies:
1. Executive agencies
a. head is appointed (by president or governor)
b. headed by single person and can be removed at will by person who appointed them
2. Independent agencies
a. Headed by a board or commission
i. Usually cannot be removed w/out good cause
b. They are independent of the appointing body
c. Ex: Fed – FCC, SEC; State – UT

Functions of administrative agencies:

i. Administrative agencies regulate private economic activity to protect the public interest
1. Justifications for administrative agencies:
a. regulate natural monopolies
b. regulate public goods that market will under-produce (b/c it is hard to restrict their use to those that actually pay for them)
i. ex: streets, national defense
c. limit externalities (“public bads”) – hard to get people to absorb the costs of them
i. externalities = external effects of private economic activity
ii. ex: wastewater from a manufacturing plant, air pollution from power plant, etc.
d. regulate asymmetric information
i. public doesn’t have info they need to make the kind of rational economic choices that the market presumes
1. ex: pharmaceuticals, licensing (to ensure minimum quality level to help consumer separate the competent from the incompetent)
ii. public choice theory
1. notion that economic regulation doesn’t really serve public interest; it is about certain self-interested groups who compete for economic benefit in the form of legislative process
a. ex: lawyers – raise the minimum score needed to pass Bar so there are less lawyers to compete w/already established lawyers
e. Allocate scarce goods
i. Ex: radio broadcast frequencies
ii. Administrative agencies exact things from us
1. ex: taxation, conscription (the draft)
iii. Administrative agencies disburse things to us
1. ex: welfare, unemployment compensation, medical insurance, pension, etc.
iv. Administrative agencies directly provide goods and services
1. ex: trash collection, fire dept, police, roads, schools, incarceration

Functions of administrative law:

i. Define authority and structure of agencies to do what they do
ii. Set out procedural formalities
iii. Determine whether agency actions are valid or not

Administrative agencies operate by statute (aka: enabling or organic act of the agency)

i. Sets up task of agency
1. i.e. what it is supposed to do and how it is supposed to do it – scope and manner
ii. Sets up the structure of the agency
1. i.e – headed by single individual or board/commission?
iii. Determines where the agency will be placed w/in the gov’t
iv. Authorizes functions of agency
1. legislative function
a. some agencies are authorized to engage in rulemaking
2. adjudication function
a. application of the enabling act or the rules under it to the parties on a case by case basis
3. informal agency actions
a. ex: making decisions

There can be judicial review of agency decisions
Executive and legislative branch oversee administrative agencies
Sources of law:

i. Relevant parts of US Constitution
ii. Statutes
1. enabling acts
2. Administrative Procedure Act (APA)
a. Applies to all federal agencies unless the APA exempts them or their enabling act specifies other procedures
b. Can be though of like Federal Rules of Administrative Procedure
i. Equivalent to Civ Pro
ii. NOT called that!
iii. Code of Federal Regulations
1. rules of the various agencies
iv. Federal Register
v. Agency decisions


The doctrine raises the issue of whether there is a constitutional limit on the generality in which the statutory mandate can be given
Art. I, sec. 1 of Constitution:

i. Vests legislative power in Congress and authorizes Congress to enact laws that are a necessary and proper means of implementing its powers

Arguments in favor of broad delegation:

i. Speed of response (flexibility) of agency increases
ii. The agency has expertise and should handle everything
iii. Agency stuff is too detailed for Congress
iv. Gets something done (where Congress couldn’t agree on details)

Arguments against broad delegation:

i. It allows un-elected officials to make policy
ii. Agencies could be captured by special interest groups (in ways that are hard to capture Congress)
iii. It allows Congress to scapegoat an agency
iv. A more detailed delegation allows the courts to test whether the agency is staying w/in its bounds

The states are more interested in keeping the non-delegation doctrine than federal gov’t is
At both state and federal level, they find delegation to be acceptable when there is the presence of procedures and exercise of delegation authority in addition to an intelligible principle
The presence of an intelligible principle in a statute = no violation of non-delegation doctrine (Field v. Clark)

i. Theoretically, Congress is still making the decision (they just leave the details up to the agency), so there is technically no delegation.

Case law:

i. Panama Refining
1. President was authorized to exclude petroleum from IC when he though it should be excluded
a. This drove people out of business b/c market for oil was so cheap
2. Supreme Court struck down the delegation
a. Congress declared no policy, established no standard, and laid down no rule (no intelligible principle was present)
ii. Whitman v. American Trucking Ass’ns, Inc (supp – p28)
1. Air quality standard
2. EPA promulgated standard for particulate matter and ozone
a. “if the maintenance is requisite to protect the public health w/an adequate margin of safety”
3. Standard was challenged by American Trucking Assn
a. It would cost them too much money to comply with the standard
4. Delegation doctrine issue:
a. Trucking assn argues that the statute gives away Congress’s legislative authority over air pollution
b. Court says the statute does not offend the non-delegation doctrine b/c there is an intelligible principle
i. The EPA can set standards that are “requisite to protect public health”


APA §553 – Rulemaking

i. (a) This section applies, according to the provisions thereof, except to the extent that there is involved–
(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include–
(1) a statement of the time, place, and nature of public rule making proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply–
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title [5 US

ii. General rule in judicial proceedings – NOT ALLOWED
1. ex parte contacts violate Due Process (no notice or opportunity to be heard on part of opposing party that is left out)
2. Exceptions:
a. Issuance of arrest or search warrants are an ex parte proceeding
b. Temporary restraining order
iii. General rule in legislative proceedings – ALLOWED
1. ok in reference to lobbying and talking; not ok in reference to giving gifts
2. This is what legislators are supposed to do – be responsive and listen to their constituents
3. This is a political process – they are not supposed to be fair and impartial
iv. Formal Adjudication/Rulemaking
1. Ex parte contacts essentially prohibited (but if they happen anyway, have to put them on the docket)
2. APA §557(d)(1)
a. (d) (1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law–
(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding;
(B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding;
(C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding:
(i) all such written communications;
(ii) memoranda stating the substance of all such oral communications; and
(iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph;
(D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and
(E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge.

v. Home Box Office v. FCC
1. Facts:
a. Rule that came out of rulemaking proceeding:
i. Anti-siphoning rule – prohibited cable tv from bidding on sporting events and first run movies