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

Administrative Law – Outline
 
I.       Introduction
A.    What is an Agency – Any govt authority that is not: Congress, courts of the U.S., (president)
a.       Authority of govt – authority to take some final and binding action, decision-making ability
B.     Const. basis – appointments clause, necessary & proper clause (Art. 1)
C.     Interactions b/t Agency & other branches of govt/entities
a.       Leg -> Agency – creates, regulates (APA), oversees (e.g., funding)
b.      Executive -> Agency – regulation (exec orders), appts. Heads, funding (moving money around)
c.       Regulated Entity -> Judiciary – suits against agency
d.      Judiciary -> Regulated Entity – decisions
e.       Regulated Entity -> Agency, Leg, Executive – lobbying, publicity, information
D.    Law Governing Admin Agencies:
a.       Organic Acts – statutes creating the agencies
-may lay out rules the agency must follow (APA is just a default)
b.      Administrative Procedure Act (APA) (1946)
c.       Constitution – (DP clause of 5th, 14th )
d.      Federal Regulations – the agency’s rules
E.     Formalism vs. Functionalism – a) Constitution, statutory text should govern the outcome of legal Qs; b) the text matters, but we should also consider the consequences, justice, purpose, etc.
a.       Problems of functionalism: no real judicial review; while it may still protect from one branch taking power from another, it doesn’t protect against abdication
b.      Problems of formalism: doesn’t allow for prudent administration. Society is too complex to all sit w/ the Congress
c.       Conundrum: On one hand, we want practicality & the fcns of modrn govt to be performed, & on the other, we want fidelity to Const.
d.      Proposition: Perhaps the Court permits more formalism where the issue at stake isn’t as important
F.      Rules & Decisions/Orders – former like statutes, latter like court opinions.
a.       Rules
                                                                                      i.      General (the more important factor)
1.      affects an undefined class of affected individuals vs. a specific party or parties
2.      More likely a rule if the agency statement affects a large group of ppl
                                                                                    ii.      Prospective –
b.      Orders
                                                                                      i.      Particularity – specific persons, specific case
                                                                                    ii.      Immediate Effect
                                                                                  iii.      5 USC § 551(6) – orders include licensing
(8) “license” includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission.
c.       Finding the Difference:
                                                                                      i.      It’s the effect of an agency statement, not the form, that matters. Yesler.
                                                                                    ii.      Not all agency action can be reduced to these two options
G.    Agency Structure:
a.       Independent – usually multi-mbr heads (often 5 mbr boards), harder for the president to remove
P: we want some agencies to be less politically accountable, more professionally accountable, more scientific
b.      Executive – usually single heads, that person is singly accountable to the president
H.    Shifting attitudes towards admin agencies
a.       Madisonian – firm belief in the separation of powers. Don’t have agencies w/ rulemaking or adjudicative powers. Agencies reflect human nature, so checks are necessary.
-Strict SoP works. Each branch will protect its turf & thereby keep the other branches from aggrandizing themselves
b.      Progressive – rise of the independent agency. Politics is corrupt, let’s get professionals have power
c.       New Deal – robust delegations from Congress, in some ways a continuation from the progressive era.
-Agencies are filled w/ experts, not politicians. Congressional grants of authority are limits, impediments.
-More antagonism towards Congress than in Progressive era.
-effective governance reqs more nimbleness than strict formalism allows.
            -the efficient private sector doesn’t operate is such a compartmentalized manner
d.      Public Choice – disenchantment from administrative agencies. More executive control.
Industry Capture – concern that agencies are misappropriated by groups w/ more power than their representative share.
-removal from the political process removes the check that these agencies keep working for the public.
-Agency personnel are selected from industry, and so are pro-industry
e.       Today – a muddle of attitudes, some truth to all. 
            -Agencies are risk averse. Some will serve industry, some will serve the public interest.                       
I.       Procedural DP (an intro) – state shall not deprive a person of life, liberty or property w/o DP of law //Londoner, Bi-metallic
a.       Applies to orders (adjudication), not rules
                                                                                      i.      P: Govt couldn’t fcn if every action could be Q’ed by all citizens. The political process governs rulemakers
b.      Demands an opportunity for oral hearing, not just written
c.       There has to be a deprivation. Just b/c govt does something doesn’t mean it invokes DP concerns
d.      Prospective v. Immediate Impact; Generalized v. Particularized
 
 
II.    Constitutional Limits on Administrative Authority – “Necessary and Proper” clause is relied on to permit congressional delegations. Is there a limit?
A.    Art 1 – > Nondelegation – we want Congress to make impt policy decisions, but no one expects Congress to do absolutely everything
a.       Conditional legislation – Congress sets a standard, and the President can make a factual determination according to this standard.
b.      Pre New Deal “Intelligible Principle” – Congress may delegate so long as it’s according to an “intelligible principle”
Criticism: “IP” is a tough standard. Each side can argue that delegations fall on their side of the line
JW Hampton – “according to common sense & the inherent necessities of the governmental coordination”
Panama Refining v Ryan – need standard to guide action, whether Congress has req’d any finding by the Pres. before he may act.
                        -actions that create a “good economy” isn’t sufficient guidance
            ALA Schecter Poultry –
            – Congress cannot transfer “the essential leg. fcns w/ which it was vested”
-standards are req’d to guide discretion: a statement of policy that Pres. should act in the “general welfare” = insuff.
-this case may stand today. This legislation gave almost total power over entire economy – just too broad
-today, agencies still have broad power, but it’s only over a small slice of the economy
c. After New Deal “Intelligible Principle” (Today) – not a justiciable issue today, no heightened standard for various types of delegation.
-Ex: Emergency Price Control Admin – regs that are “fair & equitable” = ok //about as broad as it gets
-Functionalism: Practical realities justify even broad delegations
– Intelligible Principle: Congress delineates gen’l policy, the agency to apply it, and the boundaries of the authority Mistretta.
            -see pgs 92-98 for how far things have gone and for a “Spark of Life” – also what kinds of delegations are ok
-today, when something seems to broad, the Court will construe the organic act narrowly. The

le to step into the shoes of an admin officer and do what he can do
2.      Should be able to issue binding instructions on an agency official
3.      Unlimited removal authority over administration officials
 
C.      Art III -> AA adjudication limits.
a.       Standard: the congressional decision to authorize adjudication cannot “impermissibly threaten the integrity of the Judicial Branch”
-look for Congress aggrandizing itself at the cost of the leg. branch
-like the Article II standard
b.      Factors: [none of these is determinative] //Schor, pg 173
1.      The extent to which the “essential attributes of judicial power” are reserved to Article III courts
-parties can still go into court, although there is a limit to how far this argument will go
2.      Conversely, extent to which non Art-III forum exercises powers normally vested in Art III court (aggrandizement)
3.      Public / Private Law – Right created statutorily / CL
4.      The concerns that drove Congress to depart from the reqs of Article III
-dissent – ppl will weigh these factors towards efficiency and expertise, and will degrade Art III
c.       Three traditional exceptions to article III: territorial courts, courts-martial, adjudication of public rights //the old rule
d.      No 7th Amend right to jury for matter adjudicated by an agency. Atlas Roofing.
e.       DP Limits on the extent to which agencies can perform multiple fcns – investigate, adjudicate, make rules. Withrow v. Larkin
1.      No presumed limits. Presumption of fairness
2.      Standard for DP challenge: Must show a high probability of actual bias
Examples:
(a)    ALJ has a pecuniary interest in the outcome
(b)   ALJ has been the target of personal abuse or criticism from the party before him
(c)    Perhaps statements made by the ALJ in public that show he is biased on the facts and law against one of the parties
3.      The APA satisfies DP concerns
(a)    The entity itself can do everything w/o constitutional concern
(b)   Ex: §554(d) –ALJ may not do or supervise the investigator or prosecutor
(c)    Exception: agency heads can do it all
D.    State of things today:
a.       Const. lims don’t really apply, so organic acts contain SoP. Agency rulemakers are diff. from agency adjudicators
 
 
 
 
III.Administrative Procedure Act (APA) – Procedures for Regulating Decision-Making § 553-558
 
 
Rule-M
Adj
Rule-Making              ߧ 551(4) à              Adjudication
Formal
553(c)
554(a)
§ 556; § 557
§ 554, § 556, § 557
Informal
§ 553 (§ 706)
§ 555, § 706
 
An Overview of Some of the APA rules:
A.    Navigating the tree:
a.       Rule-making or adjudication
b.      Formal or informal
c.       Apply the rules.
d.      Look to the organic act, too. APA is just a default set of rules. We should also look to the organic acts and see what it calls for
Ex: APA says no formal hearing is req’d b/c “hearing” doesn’t mean “hearing on the record.” A party could then argue that “hearing” in the organic act means “hearing on the record.” US v. FL East Coast Ry