Select Page

Administrative Law
University of Toledo School of Law
Strang, Lee J.

Administrative Law Outline – Strang
Ø Constitutional authority for AAs:
o   Art. I, Sec. 8, cls. 18
§ “make all laws which are necessary and proper …”
Ø Types of AAs
o   Agency = authority of government (can be one person) §551
o   President, Congress, Courts, etc. ≠ agency
o   Executive agencies
§ At-will employment – can be fired by President at any time
o   Independent Regulatory Agencies
Ø Function/view of AAs
1887 (ICC)
1933 (New Deal)
Madisonian – big SOP arguments against AAs
1st modern AA — non-political
Heightened judicial review
Progressive era
Public choice era– agency’s bad –-> agency capture
Public choice
Public choice
Modern muddle
AAs must have some external controls – judicial review
Eastman – AAs are non-political, give a lot of leeway – not necc. Experts, work within limits set by Congress
Landis – look at solution only, AAs staffed by experts, exalted view of AAs
Bernstein/Noel – agency capture
Wollson – some good, some bad – more in public view = less capture
Ø Limits on AAs
o   Legislative
Delegation continuum:
No Delegation
Unlimited Delegation
Conditional Legislation
Pre-New Deal
Post-New Deal
Eg: Cargo, Field cases
“Intelligible Principle”
“intelligible Principle” with Hard Look Doctrine
E.g. JWHampton, Hot Oil, Sick Chicken cases
E.g. Mistretta
§ N
§ Non-delegation doctrine – formalist
·         Now acts as a rule of construction so agencies do not cross line (more functionalist view)
o   See ultra vires doctrine
o   See e.g. Indus. Union
§ Agency interpreted reasonably necc. Or appropriate to mean, any level of benzene was unsafe –
·         Court said, statute first requires agency to determine that current standards are actually unsafe before changing standards – otherwise outside bounds of what power Congress delegated
·         What standard?
o   Constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority
o   Intelligible principle
o   As long as no absence of standard, it is OK
o   NOT ultra vires doctrine (where you look at if agency is acting within the guidelines/power given by Congress
·         To whom?
o   No private parties making policy
o   Appoint officers in legislative/information gathering capacities
o   Officers of US must be appointed by Exec (see below)
§ SOP within agencies by SEPARATION OF FUNCTIONS
·         See e.g. Withrow v. Larkin
o   Single agency entity can perform more than one function as long as it does not produce bias
§ Bias = person’s mind is “irrevocably closed”
·         APA – no one person can investigate and adjudicate dispute §554(d)
·         Amend organic act
·         Legislative vetoes
o   See e.g INS v. Chadha – one-house veto unconstitutional
·         Appropriations – control purse strings
·         Legislative history
·         Oversight/hearings
o   Executive
·         Principal officers – with advice and consent of Senate
o   Not subject to removal other than by President
·         Inferior officers – can be appointed by Pres. , heads of Depts. and Courts of law
o   Subject to removal by higher exec branch authority
o   Empowered to perform only certain, limited duties
o   Powers limited in jurisdiction
o   Limited tenure
o   See e.g Edmond
§ “inferior officers are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate”
·         NOTE: employee v. officer
o   See e.g. Buckley and Frey

per way for individuals to deal with this is through political process – not individual hearings
Notice & Comment (written hearings)
Effectively no procedure due through APA – but procedural due process through 5th and 14th amend.
RULE 553(c)
ORDER 554(a)
556/557 “on the record”
554/556/557 “on the record”
555 & 706
o   “on the record” needs to be verbatim in organic act
§ After a hearing is not good enough, etc.
·         See e.g. Florida railway
o   Probably same requirement as above for “on the record” language
§ NOTE: Supreme Court has never decided whether same language is required for formal adj.
§ See e.g. City of West Chicago – requirements are almost same as in Florida railway
·         In absence of magic words, “congress must clearly indicate its intent to trigger the formal, on-the-record hearing provisions”
·         Agencies must follow their own regulations
o   How they interpret them is given a lot of deference, unless plainly erroneous or inconsistent with regulation (Seminole rock deference)
§ VS. Seacoast – favor presumption of formal adj because adj are more like trials because they look at specific factual situations rather than broad policy-making like rulemaking does
§ VS. Dominion/Chemical waste management – overruled Seacoast to say that agency interpretation of ambiguous statute (i.e. require formal adj or not?) is to be given deference under Chevron.